[Federal Register: January 21, 2000 (Volume 65, Number 14)]

[Proposed Rules]               

[Page 3404-3406]



Copyright Office

37 CFR Part 201

[Docket No. 2000-1]


Copyright Rules and Regulations: Information Given by the 

Copyright Office

AGENCY:  Copyright Office, Library of Congress.

ACTION:  Notice of proposed rulemaking.


SUMMARY:  The Copyright Office is proposing amendments to its 

regulations governing information given to the public for litigation 

purposes in cases where the application for registration is still in-

process. The Office is also proposing to publish in regulatory text the 

existing requirement for submission of a Litigation Statement when a 

third party needs copies of material accompanying a registration claim 

for use in actual or pending litigation and other minor clarifications 

to these regulations. These proposed amendments will allow a qualified 

party greater access to in-process registration materials and also 

provide clearer information to the public on how to get these 


DATES:  Written comments are due March 21, 2000.

ADDRESSES:  An original and ten copies of the comments should be 

addressed, if sent by mail, to: David O. Carson, General Counsel, 

Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 

20024. If delivered by hand, an original and ten copies should be 

delivered to: Office of the General Counsel, United States Copyright 

Office, James Madison Memorial Building, Room 403, First Street and 

Independence Avenue, S.E., Washington, DC.

FOR FURTHER INFORMATION CONTACT:  David O. Carson, General Counsel, or 

Patricia L. Sinn, Senior Attorney, Copyright GC/I&R, P.O. Box 70400, 

Southwest Station, Washington, DC 20024. Telephone: (202) 707-8380. 

Fax: (202) 707-8366.


1. Background

    The Copyright Act makes the Register of Copyrights responsible for 

all administrative functions and duties under title 17 and authorizes 

the Register to establish regulations for this administration. 17 

U.S.C. 701, 702. As an Office of public record, the Copyright Office 

provides a public record of completed registrations and recordations, 

and it permits access to these records and to the materials or files 

accompanying a registration claim--the application, the deposit, and 

any correspondence--when the conditions specified in the regulations 

are met. See 17 U.S.C. 705, 706. See also 37 CFR 201.2.

    The Copyright Office's existing regulations tell the public how to 

get information on or access to such registration materials. 37 CFR 

202.1, 202.2. In the past, the regulations have distinguished between 

providing these materials to copyright claimants and providing them to 

third parties, and also between providing copies in cases where the 

claim has been examined and registered or refused and in those where 

the claim is still pending or in-process. By in-process the Office 

means those materials, including correspondence files, applications, 

and deposit copies,

[[Page 3405]]

associated with claims to registration that are still being processed 

and those for which the process has been reopened.

    The Copyright Office already permits limited access to in-process 

files. See 37 CFR 201.2(b)(2)-(5), 201.2(c)(1)-(2). However, the Office 

no longer sees a reason to distinguish between a request for material 

from an in-process file and material from a closed file when a 

qualified party needs this material for litigation purposes. The 

Office, therefore, proposes amending its regulations to permit the 

making of copies of material accompanying in-process claims--including 

the deposit--in the same circumstances relating to litigation as those 

in which copies may be made from a closed file. See 37 CFR 


    Information needed to initiate a search.\1\ A party requesting a 

search for any material accompanying a registration claim in order to 

get information, inspect, or get copies of such material must provide 

as much specific information as possible about the material desired, 

including facts such as the name(s) of the copyright claimant(s) of 

record (or his or her designated agent), the title(s) of the work(s) to 

be located and copied; and the date(s) the work(s) was submitted for 

registration. See 37 CFR 201.2(b)(3)(i).


    \1\ See generally Circular 6. For information on searching the 

Office's records to investigate the copyright status of a work see 

Circular 22.


    Access to contents of works. Currently, the Office outlines 

procedures for gaining access to registration records or materials in 

37 CFR 201.2(b). Often a request for access to these materials is 

associated with legal proceedings. In particular, Sec. 201.2(b)(5) 

permits access to in-process files by someone other than the copyright 

claimant in extraordinary circumstances; in practice the circumstances 

under which this relief has been granted are equivalent to actual or 

prospective litigation. The Office proposes amending this subsection to 

allow the making of copies of such material available in cases 

identical to those already set out in 37 CFR 201.2(d) for closed files 

wherein a qualified party may request certified or uncertified 

reproductions of copies, phonorecords, or other identifying material 

deposited in connection with registration of a work. Section 

201.2(d)(1) specifies what information should be included in the 

request to get copies of records. Section 201.2(d)(2) specifies three 

conditions in which copies may be made of registration materials. They 

are: (1) at the written request of the claimant, or his or her 

designated agent, or from an owner of exclusive rights; (2) at the 

written request of an attorney for litigation purposes; and (3) upon 

receipt of a court order. The proposed regulations would permit access 

to and copying of in-process files under the same circumstances found 

in 201.2(d)(2) and (3).\2\ In the second situation the attorney or 

authorized representative must file a Litigation Statement with the 

Copyright Office.


    \2\ Copyright Office regulations already permit copies of in-

process files in the first situation.


2. Use of the Litigation Statement

    The proposed amendment requires use of a Litigation Statement for 

requesting in-process materials to be used in litigation. The Office 

has recommended the use of a Litigation Statement for completed files 

for a long time. In 1991, it announced that in order to obtain copies 

of material deposited with the Office in support of a registration 

claim, an attorney or authorized agent had to submit a Litigation 

Statement. 56 FR 12957 (March 29, 1991). A party that provides a false 

statement of a material fact in a Litigation Statement is subject to 

criminal penalties under the terms of 18 U.S.C. 1001. Currently, the 

Litigation Statement requires that the materials sought be identified 

by registration number, year of registration, and title and description 

of the work. The Litigation Statement also requires a description of 

the active or prospective litigation for which the material is to be 

used, including:

    1. Name and address of client (or person requesting the material).

    2. Whether the client is or may become Plaintiff or Defendant in 


    3. Name of the other party.

    4. Nature of the controversy.

    5. Name of court if proceedings have been instituted.

If the litigation is prospective, the Litigation Statement requires a 

statement of the facts surrounding the controversy and a copy of any 

letter or other document that supports the claim that litigation may be 


    Just above the signature line, the following statement appears: ``I 

hereby affirm to the Copyright Office that a controversy exists and 

that the requested copy will be used only in connection with the 

specified actual or prospective litigation. I also acknowledge that any 

other use of this copy would be in violation of the Regulations of the 

Copyright Office 37 CFR 201.2(d)(2).''

    The Litigation Statement also includes a warning that any false 

statement of a material fact made on the form may be a criminal 

offense, with a reference to 18 U.S.C. 1001 et seq. The texts of 18 

U.S.C. 1001 and 37 CFR 201.2(d)(2) are reproduced on the back of the 

Litigation Statement.

    A Litigation Statement may be requested from the Certification and 

Documents Section of the Information and Reference Division. The Office 

keeps a record of requests for copies of registration materials made 

using the Litigation Statement for at least three years, and this 

system of records is available to the public through the Certification 

and Documents Section.

    When the Office adopts final rules concerning access to and copying 

of in-process materials, it will make minor amendments to the existing 

Litigation Statement to conform with those regulations. For example, it 

will change Registration No. to Registration No. or Control No. if an 

application is pending, and broaden the term ``Copyright Registration'' 

to cover both completed registrations and applications for copyright 

registration that are still pending.

3. Other Amendments

    The Office is also proposing minor amendments to 37 CFR 201.1(c) 

and (d) and 201.2(b)(6), (b)(7) and (c)(4) to update official addresses 

and to clarify what kind of information the Office can or cannot 


4. Questions for Public Comment

    The Copyright Office requests public comment on any aspect of these 

regulations but especially the following:

    1. Should a party who needs copies of material for use in pending 

or actual litigation be permitted to get copies of in-process materials 

in the same way that he or she can if the work had been registered or 

the file closed? Why or why not?

    2. Should additional information or documentation be required from 

those who file a Litigation Statement? For example, to verify that a 

party requesting information is truly involved in actual or prospective 

litigation, should the party be required to submit a copy of a document 

(e.g. the complaint or, in the case of prospective litigation, 

correspondence to or from an alleged infringer) that describes what the 

dispute over a copyrighted work entails?

    3. If litigation is prospective rather than actual, should the 

Office contact the copyright owner or any other party to verify the 

likelihood of litigation?

[[Page 3406]]

List of Subjects in 37 CFR Part 201


    In consideration of the foregoing, it is proposed that part 201 of 

37 CFR be amended as follows:


    1. The authority citation for part 201 continues to read as 


    Authority: 17 U.S.C. 702.

    2. Sections 201.1(c) and (d) are revised to read as follows:

Sec. 201.1  Communications with the Copyright Office.

* * * * *

    (c) Copies of records or deposits. Requests for copies of records 

or deposits should be addressed to the Library of Congress, Copyright 

Office, Certifications and Documents Section, LM-402, 101 Independence 

Avenue, S.E., Washington, D.C. 20559-6000.

    (d) Search of records. Requests for searches of registrations and 

recordations in the completed catalogs, indexes, and other records of 

the Copyright Office should be addressed to the Library of Congress, 

Copyright Office, Reference & Bibliography Section, LM-451, 101 

Independence Avenue, S.E., Washington, D.C. 20559-6000.

    3. Section 201.2 is amended as follows:

    a. By revising paragraphs (b)(5) and (b)(6);

    b. By removing the last sentence of paragraph (b)(7) and adding two 

sentences in its place;

    c. By revising paragraph (c)(4);

    d. In paragraph (d)(2) introductory text, by adding the phrase ``or 

an application for copyright registration'' after the phrase ``in 

connection with a copyright registration''; and

    e. By revising paragraph (d)(2)(ii) introductory text.

    The revisions to Sec. 201.2 read as follows:

Sec. 201.2  Information given by the Copyright Office.

* * * * *

    (b) * * *

    (5) In exceptional circumstances the Register of Copyrights may 

allow inspection or even copying of pending applications and open 

correspondence files by someone other than the copyright claimant, upon 

submission of a written request which is deemed by the Register to show 

good cause for such access and establishes the person making the 

request is one properly and directly concerned. Any request for such 

access or copying of this material should be directed to the 

Certifications and Documents Section which will either refer the 

requestor to the General Counsel, or if litigation is involved, send 

the requestor the Copyright Office's form known as a Litigation 

Statement. If a Litigation Statement is required, it must be submitted 

on the Office's form, comply with Sec. 201.2(d)(2) (ii), contain an 

original signature, and be returned to the Certifications and Documents 

Section at the address given in 37 CFR 201.1(c).

    (6) Direct public access will not be permitted to any financial or 

accounting records, including records maintained on Deposit Accounts.

    (7) * * * As the Office updates and revises certain chapters of 

Compendium II, it will make the information available on the Copyright 

Office's web site. This information is also available for public 

inspection and copying in the Certifications & Documents Section.

    (c) * * *

    (4) The Copyright Office will not respond to any abusive or 

scurrilous correspondence or correspondence where the intent is 


    (d) * * *

    (2) * * *

    (ii) The Copyright Office receives and approves on a form requested 

from the Certification and Documents Section, a Litigation Statement 

containing a request from an attorney on behalf of either a plaintiff 

or defendant in connection with litigation, actual or prospective, 

involving a registered work or a work on which registration is sought. 

The following information must be included in such a request:

* * * * *

    Dated: January 13, 2000.

Marybeth Peters,

Register of Copyrights.