[Federal Register: December 24, 2003 (Volume 68, Number 247)]
[Rules and Regulations]
37 CFR Part 259
[Docket No. 2003-4 CARP]
Filing of Claims for DART Royalty Funds
AGENCY: Copyright Office, Library of Congress.
ACTION: Waiver of regulation.
Due to continuing delays in the receipt of mail, the Copyright Office of the Library of Congress is announcing alternative methods for the filing of claims to the DART royalty funds for the year 2003. In order to ensure that claims are timely received, claimants are encouraged to file their DART claims online or by fax, utilizing the special procedures described in this document.
EFFECTIVE DATE: January 1, 2004.
Claims may be filed online through the Copyright Office Web site at http://www.copyright.gov/carp/dart/index.html.
Submissions by facsimile should be sent to (202) 252-3423. Submissions sent
by a commercial courier must be delivered to the Congressional Courier Acceptance
Site, located at 2nd and D Streets, NE., between 8:30 a.m. and 4 p.m. If sent
by mail, an original and two copies of each claim should be addressed to: Copyright
Arbitration Royalty Panel (CARP), P.O. Box 70977, Southwest Station, Washington,
DC 20024. If hand delivered by a party, an original and two copies of each claim
should be brought to: Office of the Copyright General Counsel, James Madison
Memorial Building, room 403, First and Independence Avenue, SE., Washington,
DC 20540. See SUPPLEMENTARY INFORMATION for information about online electronic
filing through the Copyright Office Web site.
FOR FURTHER INFORMATION CONTACT:
Chapter 10 of the Copyright Act, 17 U.S.C., places a statutory
obligation on manufacturers and importers of digital audio recording
devices and media (``DART'') who distribute the products in the United
States to submit royalty fees to the Copyright Office. 17 U.S.C. 1003.
Distribution of these royalty fees may be made to any interested
copyright owner who has filed a claim and (1) whose sound recording was
distributed in the form of digital musical recordings or analog musical
recordings and (2) whose musical work was distributed in the form of
digital musical recordings or analog musical recordings or disseminated
to the public in transmissions. 17 U.S.C. 1006.
Section 1007 provides that claims to these royalty fees must be
filed ``[d]uring the first 2 months of each calendar year'' with the
Librarian of Congress ``in such form and manner as the Librarian of
Congress shall prescribe by regulation.'' 17 U.S.C. 1007. Part 259 of
title 37 of the Code of Federal Regulations sets forth the procedures
for the filing of claims to the DART royalty funds. Section 259.5
states that in order for a claim to be considered timely filed with the
Copyright Office, the claims either have to be hand delivered to the
Office by the last day in February \1\ or if sent by mail, received by
the Office by the last day in February or bear a January or February
United States Postal Service postmark. 37 CFR 259.5(a). Claims received
after the last day in February will be accepted as timely filed only
upon proof that the claim was placed within the United States Postal
Service during the months of January or February. 37 CFR 259.5(e). A
January or February postmark of the United States Postal Service on the
envelope containing the claim or, if sent by certified mail return
receipt requested, on the certified mail receipt constitutes sufficient
proof that the claim was timely filed.\2\ 37 CFR 259.5(e). The
regulations do not provide for the filing of DART claims by alternative
methods such as online submission or facsimile transmission.
\1\ In any year in which the last day of February falls on
Saturday, Sunday, a holiday or other nonbusiness day within the
District of Columbia or the Federal Government, claims received by
the Copyright Office by the first business day in March, or properly
addressed and deposited with sufficient postage with the United
States Postal Service and postmarked by the first business day in
March, shall be considered timely filed. 37 CFR 259.5(b).
\2\ Claims dated only with a business meter that are received
after the last day in February will not be accepted as having been
timely filed. 37 CFR 259.5(c).
In the year 2001, due to severe disruptions in the delivery of mail
to the Office caused by threat of possible anthrax contamination, the
Copyright Office waived the regulations requiring that claims bear
``the original signature of the claimant or of a duly authorized
representative of the claimant,'' 37 CFR 259.3(b), and prohibiting the
filing by ``facsimile transmission,'' 37 CFR 259.5(d), for the filing
of claims to the DART royalty funds for the year 2001. See 67 FR 5213
(February 5, 2002). Due to continued security measures affecting the
delivery of mail, the Copyright Office waived regulations for the
filing of 2002 DART claims last year as well. Certain incoming mail
continues to be irradiated and all mail is diverted to an off-site
location for screening, resulting in delays in its delivery to the
Office. In light of these continuing delays, the Office once again is
waiving Sec. Sec. 259.3(b) and 259.5(d) and allowing the online and
facsimile submission of DART claims to the 2003 royalty funds. Online
forms are available and may be submitted via the Office's Web site.
Note however, that the alternative methods set forth in this Notice
apply only to the filing of DART claims for the 2003 royalties which
are due by March 1, 2004, and in no way apply to other filings with the
Office. Please note that as a result of the last date in February
occurring on a Sunday this year, the DART claims are due on Monday,
March 1, 2004, in accordance with 37 CFR 259.5(b).
This Notice covers only the means by which claims may be accepted
as timely filed; all other filing requirements, such
as the content of claims, remain unchanged, except as noted herein. See
37 CFR part 259.
Acceptable Methods of Filing DART Claims for the Year 2003
Claims to the 2003 DART royalty funds may be submitted as follows:
a. Online Submission
In order to best ensure the timely receipt by the Copyright Office
of DART claims, the Office strongly encourages claimants to file their
claims online by February 29, 2004, via the Copyright Office Web site.
The Office has devised online electronic forms for filing both single
and joint DART claims. Claimants will be able to access and complete
the forms via the Copyright Office Web site and may submit the forms
online as provided in the instructions accompanying the forms. DART
forms will be posted on the Office Web site at http://www.copyright.gov/carp/dart/index.html.
Claimants filing a joint claim
may list each of their joint claimants directly on the Office's online
joint claim form or may submit the list of joint claimants as a file
attachment to the submission page. Lists of joint claimants sent as an
attachment must be in a single file in either Adobe Portable Document
(``PDF'') format, in Microsoft Word Version 2000 or earlier, in
WordPerfect 9 or earlier, or in ASCII text. There will be a browse
button on the form that will allow claimants to attach the file
containing the list of joint claimants and then to submit the completed
form to the Office. The attachment must contain only the list of names
of joint claimants. Joint claims with attachments containing
information other than the joint claimants' names will be rejected.
The DART forms will be available for use during the months of
January, February and on March 1, 2004. It is critically important to
follow the instructions in completing the forms before submitting them
to the Office. Claims submitted online using forms or formats other
than those specified in this Notice will not be accepted by the Office.
Claims filed online must be received by the Office no later than 11:59
p.m. E.S.T. on March 1, 2004. Specifically, the completed electronic
forms must be received in the Office's server by that time. Any claim
received after that time will be considered untimely filed. Claimants
will receive an electronic mail message in response stating that the
Office has received their submission. Therefore, claimants utilizing
this filing option are required to provide an e-mail address. Claimants
submitting their claims online are strongly encouraged to send their
claim no later than February 29, 2004, in order to avoid any unforseen
delays in receipt of claims by the Office.
When filing claims online, all provisions set forth in 37 CFR part
259 apply except Sec. 259.3(b), which requires the original signature
of the claimant or of the claimant's duly authorized representative on
the claim. The Office is waiving this provision for this filing period
because at this time the Office is not equipped to receive and process
Claims may be filed with the Office via facsimile transmission and
such filings must be sent to (202) 252-3423. Claims filed in this
manner must be received in the Office no later than 5 p.m. E.S.T. on
March 1, 2004. The fax machine will be disconnected at that time.
Claims sent to any other fax number will not be accepted by the Office.
When filing claims via facsimile transmission, claimants must
follow all provisions set forth in 37 CFR part 259 with the exception
of Sec. 259.5(d), which prohibits the filing of claims by facsimile
transmission. The Office is waiving this provision at this time in
order to assist claimants in the timely filing of their claims.
c. By Mail
Section 259.5(a)(2) directs claimants filing their claims by mail
to send the claims to the Copyright Arbitration Royalty Panel, P.O. Box
70977, Southwest Station, Washington, DC 20024. Claimants electing to
send their claims by mail are encouraged to send their claims by
certified mail return receipt requested, to have the certified mail
receipt (PS Form 3800) stamped by the United States Postal Service, and
to retain the certified mail receipt in order to provide proof of
timely filing, should the claim reach the Office after March 1, 2004.
In the event there is a question as to whether the claim was deposited
with the United States Postal Service during the months of January,
February, or on March 1, 2004, the claimant must produce the certified
mail receipt (PS Form 3800) which bears a United States Postal Service
postmark, indicating an appropriate date.
Because of delays in the receipt of mail, claimants are urged not
to use the mail as a means of filing their claims to the 2003 DART
royalty funds. While the Office is not prohibiting the filing of claims
by mail, those who do so assume the risk that their claim will not
reach the Office in a timely manner. Claims sent by mail must be
addressed in accordance with Sec. 259.5(a)(2), and the Office again
strongly encourages the claimant to send the claim by certified mail
return receipt requested, to have the certified mail receipt (PS Form
3800) stamped by the United States Postal Service, and to retain the
certified mail receipt, as it constitutes the only acceptable proof of
timely filing of the claim. Claims dated only with a business meter
that are received by the Office after March 1, 2004, will be rejected
as being untimely filed.
When filing claims by this method, claimants must follow all
provisions set forth in 37 CFR part 259.
d. Hand Delivery
Beginning December 29, 2003, the Library of Congress will no longer
accept in-person, on site deliveries from non-governmental, commercial
couriers or messengers. See 68 FR 70039 (December 16, 2003). Instead,
couriers must deliver materials for staff at the Library of Congress,
including claims to DART royalties, directly to the Congressional
Courier Acceptance Site (``CCAS''), located on 2nd and D Streets, NE.
The CCAS will accept items from couriers with proper identification,
e.g., a valid driver's license, Monday through Friday between 8:30 a.m.
and 4 p.m. The date of receipt as documented by CCAS will be considered
the date of receipt by the Copyright Office for purposes of timely
filing. Any claim received from CCAS which does not have a date stamp
of March 1, 2004 or earlier, will be considered untimely for this
filing period and rejected by the Copyright Office. Alternatively, if a
party chooses to hand deliver its claim personally, it can still do so.
However, it is possible that under the new system such deliveries may
still be redirected to CCAS for processing. For this reason, claimants
who choose to have their claims hand delivered to the Copyright Office
are strongly encouraged to have their claims delivered by 4 p.m. on
Friday, February 27, 2004. The Copyright Office cannot guarantee timely
receipt of a hand delivered claim after this date.
Waiver of Regulation
The regulations governing the filing of DART claims require ``the
original signature of the claimant or of a duly authorized
representative of the claimant,'' 37 CFR 259.3(b), and do not allow
claims to be filed by ``facsimile transmission,'' 37 CFR 259.5(d). This
Notice, however, waives these provisions as set forth herein solely for
the purpose of filing claims to the 2003 DART royalties. The Office is
not, and indeed cannot, waive the statutory
deadline for the filing of DART claims. See, United States v. Locke,
471 U.S. 84, 101 (1985). Thus, claimants are still required to file
their claims by March 1, 2004.
Waiver of an agency's rules is ``appropriate only if special
circumstances warrant a deviation from the general rule and such
deviation will serve the public interest.'' Northeast Cellular
Telephone Company v. FCC, 897 F.2d 1164, 1166 (D.C. Cir. 1990); see
also, Wait Radio v. FCC, 418 F.2d 1153 (D.C. Cir. 1969), cert. denied,
409 U.S. 1027 (1972). Under ordinary circumstances, the Office is
reluctant to waive its regulations. However, the continuing delays in
the receipt of the mail constitutes a special circumstance which has
led the Office to deviate from its usual mail processing procedures.
Thus, given the delays in the receipt of mail, the Office believes that
the public interest will best be served by waiving, for this filing
period, the requirement that DART claims bear the original signature of
the claimant or of a duly authorized representative of the claimant,
when, and only when, such claim is filed online through the Office's
Web site. See 67 FR at 5214.
The Office cannot waive the statutory deadline set forth in 17
U.S.C. 1007 and accept claims filed after March 1, 2004. See Locke,
supra. Therefore, in order to serve the public interest the Office is
providing claimants with alternative methods of filing, in addition to
those set forth in the regulations, in order to assist them in timely
filing their claims. By allowing claims to be filed online and by
facsimile transmission, the Office is affording to all claimants an
equal opportunity to meet the statutory deadline.
Dated: December 19, 2003.
Register of Copyrights.