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Notice of Rule Making Copyright Office Fees

Notice of Rule Making Copyright Office Fees

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Notice of Rule Making
Notice of Rule Making

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15910
Federal Register
/Vol. 79, No. 56/Monday, March 24, 2014/Rules and Regulations
1
See
17 U.S.C. 708.
2
See
17 U.S.C. 708(b).
3
Fees, 74 FR 32805 (U.S. Copyright Office July 9, 2009). In 1997, Congress created a new fee system allowing the Office to set all of its fees by regulation rather than in the statute. An Act to make technical amendments to certain provisions of title 17, United States Code, Public Law 105–80, 111 Stat. 1529 (1997). Before then, Congress itself set the fees for certain basic copyright services, including registration and recordation (often referred to as ‘‘statutory fees’’) and the Register set the fees for other special services by regulation. In enacting statutory copyright fees, Congress considered a number of criteria, including the cost of providing the service, the value of the service to the Library of Congress, and the benefit of the service to the general public.
4
17 U.S.C. 708(b). The Register sent the proposed schedule to Congress on November 14, 2013. It is available at
5
Id.
section 708(a). With the 2010 enactment of the Satellite Television Extension and Localism Act of 2010, Public Law 111–175, 124 Stat. 1218 (2010) (codified in Sections 111, 119, and 122 of title 17) (‘‘STELA’’), Congress for the first time authorized the Office to charge fees to licensees for the Office’s processing of cable and satellite statements of account under the Section 111, 119, and 122 statutory licenses. Such fees are to be ‘‘reasonable and may not exceed one-half of the cost necessary to cover reasonable expenses incurred by the Copyright Office for the collection and administration of the statements of account and any royalty fees deposited with such statements.’’ 17 U.S.C. 708(a). To implement STELA, the Office conducted a study of its costs in relation to the filing of cable and satellite statements and solicited input from stakeholders on proposed fees through a notice and comment proceeding.
See
Copyright Office Fees, 77 FR 18742 (Mar. 28, 2012); Copyright Office Fees, 77 FR 72788 (Dec. 6, 2012),
As noted above, the STELA fees are not required to be submitted to Congress. In November 2013, the Office issued a final rule establishing filing fees under STELA.
See
Copyright Office Fees: Cable and Satellite Statement of Account Fees, 78 FR 71498 (Nov. 29, 2013) (to be codified at 37 CFR pt. 201),
6
17 U.S.C. 708(b)(1).
project operating under an existing Commission approval, the project approval reference and a description of the operational changes requested. * * * * *
Dated: March 17, 2014.
Stephanie L. Richardson,
Secretary to the Commission.
[FR Doc. 2014–06323 Filed 3–21–14; 8:45 am]
BILLING CODE 7040–01–P
LIBRARY OF CONGRESS U.S. Copyright Office 37 CFR Parts 201 and 203
[Docket No. 2012–1]
Copyright Office Fees: Registration, Recordation and Related Services; Special Services; Licensing Division Services; FOIA Services
AGENCY
:
U.S. Copyright Office, Library of Congress.
ACTION
:
Final rule.
SUMMARY
:
The United States Copyright Office of the Library of Congress is publishing a final rule establishing adjusted fees for its services. The adjusted fees will recover a significant part of the costs to the Office of registering copyright claims and provide greater cost recovery for certain other services provided by the Office. The new fee schedule reflects some increased and decreased fees, as well as some fees that the Office determined did not require adjustment. Under the new fee structure, the fee for online registration of a standard claim will increase from $35 to $55. However, a new online registration option for single works by single authors that are not works made for hire has been introduced at a lower fee of $35. In addition to fees for registration, related services, and special services, this final rule establishes updated fees for FOIA- related services.
DATES
:
This rule is effective May 1, 2014.
FOR FURTHER INFORMATION CONTACT
:
 Jacqueline C. Charlesworth, General Counsel and Associate Register of Copyrights, or Chris Weston, Attorney- Advisor, Office of the General Counsel, at the U.S. Copyright Office, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone: (202) 707–8350.
SUPPLEMENTARY INFORMATION
:
I. Background
This final rule adjusts Copyright Office fees in accordance with the applicable provisions of title 17, United States Code (the ‘‘Copyright Act’’ or ‘‘Act’’). While some of the Office’s services are free to the public— including the Public Information Office’s provision of valuable guidance on copyright registration and other issues—the Office does charge fees for many of its services.
1
The Copyright Act provides that the Register of Copyrights may adjust the Office’s fees based on a study of its costs for administering the registration of claims and recordation of documents and the provision of other services.
2
Since the Act was amended to provide for these adjustments, the Office has undertaken fee studies every several years and made changes accordingly. The Office last adjusted its fees in 2009.
3
 Section 708(a) of the Act specifies that ‘‘[f]ees shall be paid to Register of Copyrights’’ for the following services: (1) Filing an application under Section 408 for registration of a copyright claim or for a supplementary registration, including the issuance of a certificate of registration if registration is made (2) Filing an application for registration of a claim for renewal of a subsisting copyright, including the issuance of a certificate of registration if registration is made (3) Issuing a receipt for a deposit under Section 407 (4) Recording a transfer of copyright ownership or other document (5) Filing a notice of intention to obtain a compulsory license under Section 115(b) (6) Recording a statement revealing the identity of an author of an anonymous or pseudonymous work, or recording a statement relating to the death of an author (7) Issuing an additional certificate of registration (8) Issuing any other certification (9) Making and reporting of a search, and any related services (10) Filing a statement of account based on secondary transmissions of primary transmissions pursuant to Sections 119 and 122 (11) Filing a statement of account based on secondary transmissions of primary transmissions pursuant to Section 111 In addition, Section 708(a) authorizes the Register to fix fees for other services, such as the cost of preparing copies of Office records. Section 708 contemplates two different fee-setting mechanisms. Fees for the services described in (1) through (9) above—which include the Office’s registration and recordation functions and thus reflect especially important public policy objectives—are to be set forth in a proposed schedule that is sent to Congress 120 days before the adjusted fees can take effect.
4
Other fees, including those for the filing of cable and satellite statements of account under (10) and (11) and additional Office services, are not submitted to Congress but instead are established by the Register of Copyrights based on the Office’s costs.
5
 Before proposing new fees for the services enumerated in (1) through (9), the Register must conduct a study of the Office’s costs for registering claims, recording documents, and providing other services, and must consider the timing of any fee adjustments and the Office’s authority to use the fees consistent with the Office’s budget.
6
 Section 708(b) further provides that the Register may adjust these fees to ‘‘not more than necessary to cover the
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15911
Federal Register
/Vol. 79, No. 56/Monday, March 24, 2014/Rules and Regulations
7
Id.
section 708(b)(2).
8
Id.
section 708(b)(4).
9
Copyright Office Fees, 77 FR 3506 (Jan. 24, 2012).
10
The Office previously referred to the most common registration filings (including for single authors claiming single works) as ‘‘basic’’ applications and registrations. The Office recently  began using the term ‘‘standard’’ so it could differentiate between the newly introduced single author/single work offering—which the Office refers to as the ‘‘single application’’ option—and other traditional ‘‘basic’’ registrations, which it now refers to as ‘‘standard.’’
11
The comments can be viewed on the Copyright Office Web site at
12
While the NOI requested comments on additional categories of services, and the Office may continue to explore these issues, at present it lacks sufficient information to proceed with the potential expansion of its special handling or expedited services. In addition, the NOI garnered a number of proposals that the Office appreciates but that could not be addressed solely in the context of a fee study, including: Whether photographers could pay a flat fee for registration of photographs in the context of a business-to-business submission model; whether copyright registration certificates and/or recorded documents could be made available online for free; and whether the Office should accept deposits of works in electronic formats that might be insufficient for the Library’s ‘‘best edition’’ requirement.
13
Copyright Office Fees, 77 FR 18742 (Mar. 28, 2012).
14
Some of the fees discussed in the NPR, including various service fees, Licensing Division fees, and FOIA fees, are set by the Office pursuant to its authority under Section 708(a) rather than through the Section 708(b) process, and hence were not discussed in the proposed schedule submitted to Congress.
15
77 FR at 18743.
16
Id.
18743.
17
Id.
18
Id.
19
Id.
20
Id.
21
Id.
18744.
22
Id.
23
Id.
24
Id.
25
Id.
26
Id.
27
Id.
28
Id.
29
Id.
reasonable costs incurred by the Copyright Office for ... [such services], plus a reasonable inflation adjustment to account for any estimated increase in costs.’’
7
Finally, Section 708(b) mandates that the ‘‘[f]ees [so] established ... shall be fair and equitable and give due consideration to the objectives of the copyright system.’’
8
 Additionally, when assessing fees for providing services under the Freedom of Information Act (‘‘FOIA’’), the Office considers Office of Management and Budget (‘‘OMB’’) guidelines that explain the methodology for setting such fees. Pursuant to Section 708, the Office commenced its most recent cost study in October 2011. The Office began its work by compiling preliminary fee and service data from fiscal 2011 and followed this initial research with formal public outreach. On January 24, 2012, the Office published a Notice of Inquiry (‘‘NOI’’)
9
 seeking comments on the following two questions: (1) With respect to the standard
10
registration application fee, whether special consideration should be provided to individual author-claimants registering a single work; and (2) whether the Office should expand, improve, or add to its offerings, including, for example, additional expedited services and fee options. The Office received ten comments in response to the initial inquiry.
11
A majority of the comments supported special consideration for author- claimants registering a single work. Other comments discussed potential additional services.
12
 After reviewing the initial comments from the NOI and the data from fiscal 2011, the Office published a Notice of Proposed Rulemaking (‘‘NPR’’) on March 28, 2012.
13
In the NPR, the Office set forth a proposed fee schedule, along with its reasoning. The NPR reviewed potential fee changes in four categories: (1) Registration, recordation, and related service fees; (2) other service fees; (3) Licensing Division fees; and (4) FOIA fees.
14
The Office explained that, for most of the fees, it had calculated its costs based on traditional methodology using an activity-based costing process to determine the full cost of each Office service.
15
The Office used OMB guidelines to determine proposed FOIA fees. Proposed fees for Licensing Division services were based either on a separate cost study that addressed the  budget and expenditures of the Licensing Division or, in the case of Licensing Division services that parallel other services in the Office, were based on the cost study covering Office services. The NPR proposed that the Office continue to offer both paper and electronic registration options for standard registration claims and continue to charge a higher fee for paper forms, which are less efficient than electronic forms for both the Office and applicants.
16
The Office also proposed offering a discounted registration fee for single authors who file an online claim for a single work that is not a work made for hire.
17
Referencing its obligation to consider the objectives of the copyright system, the Office noted the importance of independent authors’ contributions to the nation’s economy and to the Library of Congress’s collections.
18
It also noted that many who commented on the NOI supported a lower fee in such situations.
19
 The NPR proposed the following fees for standard registration claims: $100 for paper applications (up from $65); and $65 for other electronic claims (up from $35). Additionally, the Office recommended a fee of $45 for the new category of single authors filing online claims for single works not made for hire.
20
In this regard, it should be noted that the $35 online application fee initiated in 2009 was discounted to encourage electronic registrations. Prior to that, the fee for standard applications had been universally set at $45. The Office also proposed raising the fees applicable to group registrations, including for groups of published photographs.
21
 The NPR also proposed new fees for renewal forms. The Office proposed reducing renewal fees from $115 to $100.
22
Similarly, the Office proposed lowering the fee for filing a Renewal Addendum, the necessary filing for renewal when standard registration for the work was not made during the original term, from $220 to $100.
23
The Office proposed these reductions  because renewals are no longer required to secure the full term of copyright protection and it is not feasible to attempt full cost recovery.
24
The NPR noted that setting a fee ‘‘to recover full cost would be prohibitive and negate the goals of the Office in encouraging registration of these older claims, many of which may still be commercially viable, and incorporating these claims into the public record.’’
25
 Additionally, the NPR discussed raising fees for other Office services. It proposed raising the basic recordation fee from $105 to $120 and the fee for each additional ten titles recorded from $30 to $35.
26
The Office suggested these increases because, on the whole, it has not recovered the cost of processing recordations in recent years.
27
The Office further recommended increased fees for certification services and issuance of receipts for deposits under 17 U.S.C. 407.
28
The Office also proposed raising the fee for search reports prepared from Office records to $200 per hour with a two-hour minimum.
29
 The NPR discussed potential changes to the Office’s service fees, which include fees for expedited service (or ‘‘special handling’’), secure test processing, requests to reconsider rejections of claims, and reproduction of Office records, among other things. The Office proposed increasing the fees for many of these services, with many of
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15912
Federal Register
/Vol. 79, No. 56/Monday, March 24, 2014/Rules and Regulations
30
Id.
31
Id.
18745.
32
Id.
33
Id.
34
17 U.S.C. 115(b).
35
77 FR at 18745.
36
Id.
18745–46.
37
Id.
18746.
38
Id.
39
Id.
40
Id.
41
Comments of the Am. Ass’n of Independent Music (‘‘A2IM’’) at 1 (May 3, 2012).
42
 Joint Comments of Am. Soc’y of Media Photographers & Prof’l Photographers of Am. at 2 (May 14, 2012).
43
Id.
3.
44
17 U.S.C. 708(b)(5).
45
See id.
section 708. The fees set in 37 CFR 201.3(e)(6) and (7) (the STELA implementation fees) went into effect on January 1, 2014. They are included in the fee schedule set forth in this Final Rule for ease of insertion into the Code of Federal Regulations.
46
This includes FASAB’s
Managerial Cost Accounting Concepts and Standards for the Federal Government,
which promotes activity-based costing for calculating the cost of providing services.
See
Office of Mgmt. & Budget,
Statement #4/Managerial Cost Accounting Concepts and Standards for the Federal Government
(July 31, 1995),
47
See
Office of Mgmt. & Budget,
Circular No. A– 25 Revised, http://www.whitehouse.gov/omb/ circulars
48
Among other things,
Circular A–25
provides that services with a broad-reaching benefit generally need not recover their full costs, whereas special services,
i.e.,
those that provide a particular benefit to a particular customer, may recover more than their full cost. The excess revenue collected from special services fees can offset losses accruing from other fees that may not recover their full cost.
these proposals reflecting cost increases. The Office, however, did not propose increased fees for all services (
e.g.,
photocopying fees), and recommended that some fees be lowered.
30
 Regarding expedited handling, the NPR noted that the proposed cost increase reflected inflationary changes and that the Office declined to add additional expedited handling categories at this time.
31
The NPR also stated that the fees for secure test processing should be increased because the review process could include one or more staff members and thus be quite labor intensive.
32
Finally, the NPR explained that, while the Office was not proposing an increase in the fees for requests for reconsideration of rejected claims, it did propose that each request  be limited to a single claim.
33
 The NPR also proposed new fees for filing Notices of Intent under Section 115 of the Copyright Act. The Office accepts Notices of Intent when a user cannot serve the requisite notice of use of a musical work on the copyright owner pursuant to Section 115 because Office records do not reflect the owner’s identity and address.
34
Recently, there has been an exponential expansion of these notices due to the increased use of musical works by online services.
35
The Office thus is developing an electronic filing system for these notices and, as part of its study, undertook to determine updated filing fees for Notices of Intent.
36
Based on the Office’s study, it proposed a fee of $75 for a notice with a single title, and for notices incorporating additional titles, a fee of $20 per ten additional titles submitted on paper and $10 per one hundred additional titles submitted electronically.
37
 Finally, the NPR addressed fees for responding to FOIA requests. The Office noted that it has not adjusted its FOIA fees since 1999. Following the OMB guidelines, which specify that FOIA fees should be established using direct costs, the Office proposed fees as follows: (1) For searches conducted by administrative staff, $15 for the first half hour and $7.50 for each additional fifteen minutes; and (2) for searches provided by professional staff, $35 for the first half hour and $17.50 for each additional fifteen minutes.
38
Similarly, the Office proposed adopting new fees for reviewing the documents at the same rates as those proposed for a FOIA search by administrative and professional staff, although the fees for reviewing the documents would be  based on fifteen-minute increments and without a minimum fee.
39
Finally, the Office proposed to eliminate the separate FOIA fee for a copy of a certificate of copyright registration and the separate FOIA fee for certification services, currently referenced in 37 CFR 203.6(b)(1), (4), respectively, as those fees are to be assessed in accordance with the fees for those services as provided in the Office’s general fee schedule.
40
 The Office received 138 comments in response to the NPR. Some of the commenters requested that the Office expand the definition of single claimant/single author, review the renewal fees, and look to discount bulk registrations. The majority, however, expressed concerns about the proposed fee increases generally. The comments came from a wide range of stakeholders, including photographers, visual artists, several major associations, and others, among them the American Association of Independent Music (‘‘A2IM’’), Association of American Publishers, ProQuest, EMI CMG Publishing, Graphic Artists Guild, American Photographic Artists, and the Copyright Alliance. Some of the comments focused on authors’ financial challenges and their difficulty in shouldering higher costs. For example, A2IM argued that ‘‘[t]he combination of dedicated anti-piracy resources and regulatory/judicial resources now required of our members to defend their businesses are resources that our [small and medium sized enterprises] simply do not have the financial means or administrative means to meet.’’
41
Similarly, the American Society of Media Photographers and Professional Photographers of America claimed that ‘‘proposed fee increases would be catastrophic for working photographers and would drastically reduce the frequency of their copyright registrations,’’ which would be ‘‘devastating to photographers and detrimental to the public record, users of photographs, and the Copyright Office.’’
42
Some of these comments specified the potential harm in raising group registration rates for published photographs, noting that ‘‘a price increase that nearly doubles the cost of group registration for photographers appears to fly in the face of the Copyright Office’s mission to increase participation in the registration process.’’
43
 After carefully considering its costs and the comments in response to the NPR, on November 14, 2013, the Office submitted a proposed fee schedule to Congress. The schedule addressed those fees authorized by Section 708(a)(1)–(9), including fees for registration and recordation, and its recommendations are followed in this notice and final rule. By statute, Congress has 120 days to enact a law disapproving the Office’s proposed fee schedule; if it does not, the Register may institute the proposed fees in a final rule.
44
Now that 120 days have elapsed without the enactment of contrary legislation, the Office is hereby providing notice of the new fee schedule, to go into effect on May 1, 2014. This final rule also sets forth fees for other additional Office services that the Register is authorized to establish through its rulemaking authority without the need to submit them to Congress.
45
 
II. Fee Setting Methodology
In conducting its fee study, the Office considered established accounting procedures used by other governmental entities, including the Federal Accounting Standards Advisory Board’s (‘‘FASAB’s’’) guidelines for determining the full cost of federal agency program activities
46
and the OMB’s
Circular A– 25 Revised: User Charge
47
document regarding costing guidelines and establishing user fees.
48
 The Office looked primarily to two models to evaluate its costs, namely the additive and activity-based methods.
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