Compendium of US Copyright Office Practices, II (1984)/100

The constitutional provision. The Constitution of the United States provides, in Article 1, Section 8, that the "Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

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The copyright law. The U.S. copyright law is based upon the above provision of the Constitution, especially as it relates to the "Writings" of "Authors." The current copyright law is the Copyright Act which became fully effective on January 1, 1978, including Title 17 of the United States Code, and amendments thereof. The previous law was the Copyright Act of 1909, as amended.

104

The Copyright Office. The copyright law provides that all administrative functions and duties which it imposes are, except as otherwise specified, the responsibility of the Register of Copyrights as director of the Copyright Office of the Library of Congress and that the Register, together with subordinate officers and employees of the Office, shall be appointed by the Librarian of Congress and shall act under the Librarian's general direction and supervision. See 17 U.S.C. 701(a}. The Copyright Office is a department of the Library of Congress, and the Register of Copyrights is also Assistant Librarian of Congress for Copyright Services. In addition to its principal function, which is the performance of all duties relating to the registration of copyrights, the policies and practices of the Copyright Office are also designed to promote the overall objectives of the Library of Congress. See the Library of Congress Regulations, LCR 215.

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Statutory authority for examination. Section 410(a) of the current law specifies that when, "after examination, the Register determines that ... the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements ... have been met, the Register shall register the claim and issue to the applicant a certificate of registration under the seal of the Copyright Office." Section 410(b) provides that in "any case in which the Register of copyrights determines that ... the material deposited does not constitute copyrightable subject matter or that the claim is invalid for any other reason, the Register shall refuse registration and shall notify the applicant in writing of the reasons for such refusal." Section 205(a) states that any "transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office." These provisions, together with other pertinent sections of the law, constitute the statutory basis for the examining and related practices of the copyright Office.

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Copyright Office Regulations. The Register of Copyrights is authorized by section 702 of the copyright law to establish, subject to the approval of the Librarian of Congress, regulations not inconsistent with law for the administration of the functions and duties made the responsibility of of the Register. The Copyright Office Regulations, including those relating to examination, registration, and recordation, are embodied in Title 37 of the Code of Federal Regulations.

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The establishment, maintenance, and availability of a public record. The foregoing constitute the basis for the establishment and maintenance by the Copyright Office of a reliable and useful public record which includes all registrations of copy right claims and recordations of documents pertaining to copyrights. This record is made available to the public by the Copyright Office through (1) the issuance of certificates of copyright registration which attest that registration has been made and which may constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate, (2) the publication of the Catalogs of Copyright Entries, which provide the basic facts of registration for all registered works, (3) the issuance of certificates certifying that transfers of copyright ownership or other documents pertaining to copyrights have been recorded, (4) the issuance of certified copies of applications, deposit copies, documents, and various other materials submitted to the Copyright Office in connection with registrations and recordations, (5) the maintenance in the Copyright Office of the Copyright Card Catalog, for public use in searching for completed registrations and recorded documents, and (6) the providing of a Copyright Office reference service to furnish, by means of written search reports, the facts of registration and recordation contained in the files of the Office. This system depends, for its reliability and usefulness, primarily upon the examination process.

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The examination process. The examination process, which is the principal means of creating and maintaining a reliable and useful public record, includes the examination of (1) the copies or phonorecords of works submitted for registration, (2) the application for registration, (3) all other material and correspondence submitted with the claim, and (4) copies of any Copyright Office correspondence relating to the registration of the claim.

108.01

Nature of examination. Examination is made to determine (1) whether or not the work for which registration is sought constitutes copyrightable subject matter and (2) whether or not the other legal and formal requirements have been met, including those set forth in the Copyright Office Regulations and in the Compendium of Copyright Office Practices.

108.02

Scope of examination. The Copyright Office registers claims to copyright whenever the requirements of the law appear to be met. It does not grant copyrights.

108.03

Comparison of works. The Copyright Office does not generally make comparisons of copyright deposits to determine whether or not particular material has already been registered.

108.04

Extent of copyright claims. In general the registration of a claim to copyright is con sidered to extend to all the component parts of the work which are the subject matter of copyright and in which the applicant has the right to claim on the basis of the particular application under consideration. Where part of the work was previously published or was covered by a previous registration, the copyright claim as reflected in the application should generally be limited to the new material covered by the claim being registered. Also, where a work contains material which is unpublished and unregistered, and where the claim does not extend to such material, the application should reflect this limitation in the scope of the registration. Moreover, the coverage of a registration cannot, subject to certain exceptions, extend beyond the material deposited to make that registration.

108.05

Factual determinations. In connection with its examining and related activities, the Copyright Office does not ordinarily make findings of fact with respect to publication or any other thing done outside the Copyright Office.

108.05(a)

Requests for explanation. The Copyright Office reserves the right to request, in appropriate cases, explanations of statements made by an applicant.

108.05(b)

Administrative notice. The Copyright Office may take notice of matters of general knowledge. It may use such knowledge as the basis for questioning applications that appear to contain or be based upon inaccurate or erroneous information.

108.06

Adverse claims. The sequence of receipt in the Copyright Office of separate claims by two or more applicants plays no part in determining registrability. Where the Copyright Office is aware that two or more persons or organizations are adversely claiming copyright in, and are seeking separate registrations for, the same material, the Office may inform each applicant of the existence of the other claim(s) and inquire concerning the basis of each claim. All such claims will be registered if they are reasserted and if they are in order as confirmed by the response to the Copyright Office inquiry. The Copyright Office does not conduct "opposition" or "interference" proceedings such as those provided by the Federal trademark and patent laws.

108.07

The rule of doubt. The Copyright Office will register the claim even though there is a reasonable doubt about the ultimate action which might be taken under the same circumstances by an appropriate court with respect to whether (1) the material deposited for registration constitutes copyrightable subject matter or (2) the other legal and formal requirements of the statute have been met.

108.08

Cautionary or warning letters. When registration is made under the rule of doubt, the Copyright Office will ordinarily send a letter to the applicant cautioning that the claim may not be valid and stating the reason: and such letter may warn, where appropriate, that the problem may exist for future works and point out how it can be avoided. The Office may send the letter and withhold the application until specifically authorized by the applicant to make registration, or it may make registration before sending the letter.

108.09

Refusal to register. The Copyright Office will not register a claim where (1) the material deposited does not constitute copyrightable subject matter or (2) the claim is invalid for any other reason. See also section 108.07 above concerning the rule of doubt. The Office will notify the applicant in writing of the reasons for such refusal.

108.10

Obscene or pornographic works. The Copyright Office will not ordlnarily attempt to examine a work to determine whether it contains material that might be considered obscene or pornographic.

108.11

Works containing classified information. When, in examining or processing materials received in the Copyright Office, it is noted that such material contains, or reasonably appears to contain, information classified by the U.S. Government for such reasons as national defense or national security, (1) the appropriate security official of the Library of Congress should be immediately notified through supervisory channels, (2) the material should be held or disposed of in accordance with instructions from that official, and (3) the examination or other processing of the material by the Copyright Office should be suspended until the matter is resolved.

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Communications between the applicant and the Copyright Office. Communications between the Copyright Office and applicants may be by letter or other written means, by telephone, or by personal interview.

109.01

In general. As a general policy the Copyright Office may register claims without communicating with the applicant whenever possible. The Copyright Office will communicate with the applicant before registration only when the claim as a whole is not in substantial compliance with the practices of the Copyright Office as reflected in this Compendium.

109.02

Office communications. All Copyright Office communications should be clear in meaning, concise in statement, and polite in tone.

109.03

Opinions and advice. Copyright Office communications that result from the examination of claims should be limited to questions concerning registration and related matters. They should conform to the general policy of the Copyright Office by avoiding the expression of opinions or the offer of advice on such matters as the rights of persons in connection with contracts or alleged infringements. Also, there should be no offer or undertaking to resolve disputes concerning conflicting claims to copyright or similar matters. See section 108.06 above, concerning adverse claims.

109.04

One letter concerning more than one application. When more than one application is submitted to the Copyright Office by an applicant in one package, the Office will ordinarily attempt to deal in a single letter with all of those applications which require correspondence, rather than produce a separate letter for each one. Also, the Office may deal in one letter with materials received separately from a single applicant.

109.05

Communications from applicants. The Copyright Office will generally consider all statements and materials submitted by applicants. However, any abusive or scurrilous written materials directed to the Office or any of its employees will be returned unanswered see 37 C.F.R. 201.2(c)(4). Similarly, Copyright Office employees will terminate any conversation or interview, if an applicant makes abusive or scurrilous statements, or engages in threatening behavior.

109.06

Languages. The Copyright Office will ordinarily write to applicants only in the English language and will ordinarily conduct conversations and interviews with applicants only in English. As a general rule, the Office is willing to entertain applications and record documents that are in languages other than English, and to deal with correspondence from applicants which is in a language other than English. In special cases, however, the Office may require the submission of an English translation of statements on applications, documents, or correspondence before it takes action.

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Applicants. The applicant for registration may be the author or other copyright claimant, or the owner of exclusive right(s) in the work. Moreover, a duly authorized agent may apply for registration on behalf of such author, claimant, or owner.

110.01

Minors. The author, claimant, or owner can be a minor, even though State law may regulate or control business dealings involving minors. The Copyright Office will generally accept an application submitted either by a minor or by the minor's parents or guardian, if it is otherwise in order.

110.02

Mental incompetents. The author, claimant, or owner can be a mentally incompetent person. If a committee or guardian has been appointed for a person adjudged to be incompetent, such committee or guardian should generally serve as agent of the applicant.

110.03

Prisoners. The author, claimant, or owner can be an inmate of a prison or other penal institution. The Copyright Office will generally accept an application submitted by such a person as applicant, if it is otherwise in order.

110.04

Paupers. There is no provision of law which requires or permits the waiver or reduction of the registration fee or any other registration requirement of the copyright law on the grounds that the applicant is a pauper or is otherwise impecunious.

110.05

Agents. Any duly authorized agent may act on behalf of the applicant. The Copyright Office will generally accept the statement of a person that he or she is acting as the agent of the author, claimant, or owner. However, the Office may, in special cases, request such agent to submit documentation showing that he or she is empowered to act for the author, claimant, or owner. Where such author, claimant, or owner is other than a natural person (for example, where a corporate entity is the claimant), the application must be submitted by a natural person acting as agent. The name of a corporate entity or other organization is not acceptable as the signature of the applicant or agent unless it is accompanied by the signature of a natural person authorized to sign on behalf of such entity or organization.

110.06

Attorneys. The Copyright Office does not require that the author, claimant, or owner be represented by an attorney, although the Office may suggest in special cases that the applicant consider seeking the advice of an attorney. No special qualifications or test is imposed on lawyers as a condition to dealing with the Copyright Office.

110.07

False representation. The copyright law provides that any person who knowingly makes a false representation of a material fact in an application for registration, or in any written statement filed in connection with an application, shall be guilty of a criminal offense and shall be fined not more than $2,500. See 17 U.S.C. 506(e).

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Territorial limitations. The U.S. copyright law has no extraterritorial effect in that generally its provisions with respect to infringement extend only to violations occurring in the United States. Since the practices of the Copyright Office spring solely from the U.S. law, ordinarily the Compendium of Copyright Office Practices deals only with U.S. copyright, unless it expressly states otherwise.

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Recordations and Import Statements. The basic policies set forth above also apply, with some few alterations and exceptions, to the recordation of transfers of copyright ownership and other documents pertaining to copyrights, and to requests for the issuance of Import Statements. See Chapter 1200: MANUFACTURING PROVISIONS, and Chapter 1500: CORRECTIONS AND AMPLIFICATIONS OF COPYRIGHT OFFICE RECORDS: SUPPLEMENTARY REGISTRATIONS.

[END OF CHAPTER 100]