FR Termination Gap

8/6/2019 FR Termination Gap

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32316 Federal Register / Vol. 76, No. 108/ Monday, June 6, 2011/ Rules and Regulations

(2) Enforcement period. This rule iseffective and will be enforced from7 a.m. on June 6, 2011 to7 a.m. on June 9, 2011.

(b) Regulations. (1) In accordancewith the general regulations in 165.23of this part, entering into, transitingthrough, mooring or anchoring withinthis regulated area is prohibited unless

authorized by the Captain of the Port(COTP) Boston, or the designated on-scene representative.

(2) The on-scene representative isany Coast Guard commissioned,warrant, or petty officer who has beendesignated by the COTP Boston to acton his behalf. The on-scenerepresentative will be aboard either aCoast Guard or Coast Guard Auxiliaryvessel.

(3) Vessel operators desiring to enteror operate within the regulated areashall contact the COTP or thedesignated on-scene representative via

VHF channel 16 or 6172235750(Sector Boston command center) toobtain permission to do so.

(4) Vessel operators given permissionto enter or operate in the regulated areamust comply with all directions given tothem by the COTP or the designated on-scene representative.

(5) Notice of suspension ofenforcement: The COTP Sector Bostonmay temporarily suspend enforcementof the safety zone. If enforcement issuspended, the COTP will cause anotice of the suspension of enforcement

by all appropriate means to affect thewidest publicity among the affected

segments of the public. Such means ofnotification may also include, but arenot limited to, Broadcast Notice toMariners and Local Notice to Mariners.Such notification will include the dateand time that enforcement is suspendedas well as the date and time thatenforcement will resume.

Dated: May 24, 2011.

John N. Healey,

Captain, U.S. Coast Guard, Captain of thePort Boston.

[FR Doc. 201113838 Filed 6311; 8:45 am]

BILLING CODE 911004P

LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 20105]

Gap in Termination Provisions

AGENCY: Copyright Office, Library ofCongress.ACTION: Final rule.

SUMMARY: The Copyright Office isamending its regulations governingnotices of termination of certain grantsof transfers and licenses of copyrightunder section 203 of the Copyright Act.The amendments are intended to clarifythe recordation practices of theCopyright Office regarding the contentof certain notices of termination, and

the circumstances under which suchnotices will be accepted by the Office.In particular, they clarify that theCopyright Office will record section 203notices of termination of grants forworks created after 1977 even when theagreement to make a grant was made

before 1978.DATES: Effective Date: June 6, 2011.FOR FURTHER INFORMATION CONTACT:David O. Carson, General Counsel, P.O.Box 70400, Washington, DC 20024.Telephone: (202) 7078380. Telefax:(202) 7078366. All prior FederalRegister notices and public comments

in this docket and a related inquiry areavailable at http://www.copyright.gov/docs/termination.SUPPLEMENTARY INFORMATION:

Background

The Copyright Act gives authors (andsome heirs, beneficiaries andrepresentatives who are specified bystatute) the right to terminate certaingrants of transfers or licenses within thetime frames set forth in the statute andsubject to the execution of certainconditions precedent. Terminationrights (also referred to as recapture

rights) are equitable accommodationsunder the law. They allow authors ortheir heirs a second opportunity to sharein the economic success of their works.These termination rights are codified insections 203, 304(c), 304(d) and 203 ofTitle 17 of the United States Code. Theydo not apply to copyrights in worksmade for hire or grants made by will.Sections 304(c) and 304(d) establishtermination rights for works that hadsubsisting copyrights on January 1,1978, the effective date of the 1976Copyright Act. Section 203, which is thesubject of this rulemaking, establishes

termination rights for works subject togrants of transfers or licenses made onor after the effective date of the 1976Copyright Act, but only to the extentthey were executed by the author.

The current rulemaking addresses anarrow fact pattern that was also thesubject of a related notice of inquirypublished March 29, 2010. (75 FR15390). Through the notice of inquiry,the Office sought comments as towhether or how the terminationprovisions apply in circumstanceswhere an author agreed to make a grant

prior to January 1, 1978, but the workin question was created on or after

January 1, 1978circumstances raisedby some authors and songwriters andtheir representatives in discussions withthe Copyright Office and somecongressional offices. Such grants aresometimes called Gap Grants in lightof a perception that in creating the

section 304 termination process and thesection 203 termination process, asdescribed above, Congress may havecreated a gapby failing to addresscircumstances in which authors (orwould-be authors) agreed to make grantsprospectively, before January 1, 1978,for works they did not create until onor after that date.

In response to the Notice of Inquiryseeking comments on the so-calledgap, the Copyright Office receivedsixteen initial comments and nine replycomments. These comments areavailable online on the Copyright Office

Web site, at http://www.copyright.gov/docs/termination/. Most concluded thatthe termination right provided insection 203 of the Copyright Act isapplicable to Gap Grants as currentlycodified, reasoning that a grant is notfully executed under the law until therelevant work has been created.Multiple commenters expanded on thispoint, observing, in turn, that there can

be no author, no copyright interest andno grant of copyright under Title 17until there is first a work of authorship.One comment, however, urged caution,questioning whether, at least in the caseof written grants, Congress intended the

date of execution for the purposes ofsection 203 to mean the date the grantwas signed. This view could not applyto grants made orally, but it would meansection 203 cannot apply to any factpatterns in which grants are executed inwriting and signed prior to January 1,1978.

Based on the comments received andits own analysis, the Copyright Officeconcluded that the better interpretationof the law is that Gap Grants areterminable under section 203, ascurrently codified, because as a matterof copyright law, a transfer that predates

the existence of the copyrighted workcannot be effective (and thereforecannot be executed) until the work ofauthorship (and the copyright) comeinto existence. In arriving at thisconclusion, the Copyright Office lookedat the plain meaning of Title 17,including section 203, as well as thelegislative history of the terminationprovisions. It also considered transfer ofcopyrights and renewal rights undercommon law, prior to enactment of thetermination provisions. See Analysis ofGap Grants Under the Termination

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32317Federal Register / Vol. 76, No. 108/ Monday, June 6, 2011/ Rules and Regulations

Provisions of Title 17(December 7,2010), available at http://www.copyright.gov/reports/gap-grant%20analysis.pdf(hereinafter theDecember Analysis).

In the December Analysis, theCopyright Office also concluded thatlegislation to clarify the statute would

be beneficial, not only to better achieve

the policy objectives for book authors,songwriters and other intended

beneficiaries of the provision, but inorder to provide confidence andcertainty for publishers and othergrantees with respect to copyright title,transfers and licensing transactions inthe marketplace. Id. And the Officeacknowledged that its own recordationpractices required clarification, so thatstakeholders would know whether andhow to timely record terminationnotices pertaining to gap grants. Id.

The Offices recordation practices arethe focus of the current rulemaking,initiated in a notice of proposedrulemaking published in November. 75FR 72771 (November 26, 2010). In thenotice of proposed rulemaking, theOffice stated its current practices, whichpermit the recordation of a notice oftermination under section 203 when thenotice states that the grant was executedon a specified date that is on or after

January 1, 1978. It observed that aperson serving and submitting a noticeof termination based on the rationaledescribed above would be justified inincluding in the notice, as the date ofexecution of the grant, the date that thework was created, and that for purposes

of clearly identifying the grant beingterminated, it may be useful (in the caseof written grants) also to state the datethe grant was signed. Such recordation

by the Office would be withoutprejudice as to how a court mightultimately rule on whether thedocument is a notice of terminationwithin the scope of section 203. See 37CFR 201.10(f)(5).

The notice of proposed rulemakingsought comment on amendments toCopyright Office regulations that wouldclarify that, consistent with existingrecordation practices, the Office

reserves the right to refuse a documentfor recordation as a section 203 noticeof termination if the date of executionof the grant, as reflected in thedocument submitted as a notice oftermination, falls before January 1, 1978.The notice proposed an amendment tothe existing regulations on notices oftermination that would clarify certaincircumstances under which, based oncertain procedural failures drawn fromthe clear language of the Copyright Act,the Office will refuse to index as noticesof termination documents submitted

under section 203. These circumstancesincluded a recital in a notice oftermination of a date of execution of thegrant that falls before January 1, 1978 (asdiscussed above), an effective date oftermination that does not fall within theallowed statutory period (17 U.S.C.203(a)(3)), improperly timed service ofthe notice of termination (17 U.S.C.

203(a)(4)(A)), or submission ofdocuments for recordation as notice oftermination on or after the effective dateof termination (17 U.S.C. 203(a)(4)(A)).

Specifically, the notice of proposedrulemaking proposed to amend 201.10(f)(4) of the Copyright Officeregulations, which currently providesthat the Copyright Office reserves theright to refuse recordation of a notice oftermination if, in the judgment of theCopyright Office, such notice oftermination is untimely, by adding thefollowing language: Conditions underwhich a notice of termination will be

considered untimely include: The dateof execution stated therein does not fallon or after January 1, 1978, as required

by section 203(a) of title 17, UnitedStates Code; the effective date oftermination does not fall within thefive-year period described in section203(a)(3) of title 17, United States Code;or the documents submitted indicatethat the notice of termination wasserved less than two or more than tenyears before the effective date oftermination.

The effect of the proposedamendment would have been that if anotice of termination of a Gap Grant

provided, as the date of execution of thegrant, a date on or after January 1, 1978,the Office would record the notice as anotice of termination under section 203.The Office would not question that dateeven if it knew that an agreement togrant the transfer or license was signed

before January 1, 1978, since therewould be legitimate grounds toconclude that the grant could notactually have been executed until thework that was the subject of the granthad been created.

Comments

The Office received seven commentsin response to the notice of proposedrulemaking. All of the commentersexpressed support for the generalproposition that the Office shouldrecord notices of termination of GapGrants, although not all necessarilyagreed that such notices actually meetthe requirements for notices oftermination under section 203.

Most groups representing authors andperformers who submitted commentsgenerally supported the proposed rule,although some proposed more extensive

regulation. The Future of MusicCoalition characterized the proposal asan appropriate compromise to facilitatethe notice of termination filingrequirements for Gap Grants,but notedthat this rulemaking is not a substitutefor statutory clarification. It noted thatunder an approach that bases the dateof execution of a grant upon the date the

work was created, there may bedifficulties in establishing the actualdate of creation of the work and notedthat an approach that considers the dateof creation to be the date of executionwould be less friendly to authors,especially when individual contractsapply to works created piecemeal orinvolve the transfer of multiple futureworks.

In a jointly filed comment, TheAuthors Guild and the SongwritersGuild of America endorsed theCopyright Offices December Analysis aswell as the proposed regulation, but

suggested a further amendment thatwould affirmatively state that the Officewill record notices of termination ofGap Grants under section 203. Theyproposed the following language:Notices of termination for workscreated on or after January 1, 1978, thegrants of transfers and licenses ofcopyrights for which were entered into

before January 1, 1978, will be acceptedunder section 203.

Attorney Casey del Casinos commentcharacterized the proposed regulation asan important step in addressing andattempting to correct what is clearly anoversight on the part of Congress with

respect to so-called gap works, butnoted that the use of the date ofcreation in the proposed rule change,while doctrinally sound, may in reality

be problematicbecause the date ofcreation of a work is not always easy toascertain, especially if the specific dateof creation must be recited in the noticeof termination. He suggested that theproblem could be ameliorated if onlythe year of creation must be provided.Alternatively, he suggested that whenthe date of creation is unknown orunascertainable, it should be sufficientto provide the date of publication, a date

which is generally easier to determine.Karyn Soroka of Soroka Music Ltd.offered a similar comment.

Attorneys Michael Perlstein, BillGable and Kenneth Freundlich alsoexpressed concern about practicaldifficulties likely to generate litigation iffurther clarification could not beachieved through legislation or bestpractices, noting that neither authorsnor their grantees (e.g. publishingcompanies) were ever on notice thatthey needed to retain documentsevidencing date of creation (as

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distinguished from date of delivery, forexample), and that even if suchdocuments may once have existedneither party often will have preservedthem. They therefore proposedguidelines that they characterized asauthor-friendly, consistent withlegislative and judicial intent thatauthors and their heirs benefit from the

termination statutes. These guidelinesproposed a hierarchy of five criteria to

be used to determine the date ofexecution of a grant, culminating in adefault rule for unpublished works withno registered copyright and no author-provided proof of creation. In suchcases, there would be a rebuttablepresumption the work was created(which thereby executed the grant) onthe statutorily fixed date of January 1,1978.

Those representing grantees of rightsalso supported the Offices proposal toamend its regulations to make clear that

the Office will record notices oftermination of Gap Grants, but theysought additional amendments that they

believe would make it clearer thatrecordation does not mean the noticesare legally valid. In other words, theyargued that the Office should take careto articulate that its acceptance andrecordation of Gap Grants under section203 is without prejudice to a courtruling that Gap Grants are notterminable as a matter of law.

For example, the Software andInformation Industry Association (SIIA)stated that the better practice would befor the Copyright Office to leave any

merits-based evaluation to the courtsand suggested that the amendedregulation clarify that the Officesdecision to record such terminations has

been made simply to help preserve thefiling partys rights, reserving theultimate determination of the issue forthe courts. While acknowledging thatthe Office has concluded that there arelegitimate grounds to conclude that GapGrants may be terminated under section203 because they could not have beenexecutedbefore the works subject tothe grants were actually created, SIIArequested that the amended regulation

make clear thatthere are also legitimategrounds to assert that in the case of a

grant signed (or, in the case of an orallicense, agreed to) before January 1,1978 regarding rights in a work notcreated until January 1, 1978 or later,such a grant was executed on the datesuch grant was signed and that thetermination provisions of section 203 ofTitle 17 do not apply to any suchgrants; that the Copyright Office wasnot and is not making any merit-basedevaluation of the arguments either way;and that the regulation simply would

act to help preserve the filing partysrights, reserving the ultimatedetermination of the issue for thecourts. SIIA Comment at 2.

The Recording Industry Associationof America (RIAA) raised the same pointas SIAA, as well as a finer point theOffice had not previously considered. Itobserved that the proposed amendment

would recite the Copyright Offices rightto refuse to record a notice oftermination if, in the judgment of theOffice, the notice is untimely, but alsowould treat the recital by an author ofthe date of execution (in the notice oftermination itself) as an issue relating totimeliness of the notice. As a result, theOffices act of recording a notice oftermination of a Gap Grant could beconstrued as a judgment by the Officethat the particular notice is timely.Having defined the issue of date ofexecution of the grant as an issuerelating to timeliness of the notice, the

effect of the regulation might be to givethe Offices judgment as to timeliness insuch cases greater weight than theOffice intended.

Discussion

The Copyright Office recognizes thepractical concerns raised by somecommenters with respect to establishingan effective date of execution based onthe date of creation of a work. How doesone recall and prove the date ofcreation, especially in the absence ofsupporting documentation? The task isobviously challenging, but it is notunique to Gap Grants and it is not new.

For example, authors who wish toterminate oral agreements (grants ofnonexclusive rights do not require asigned writing) must reconstruct datesfrom memory or supporting conduct ordocumentation. To be clear, theCopyright Office is not suggesting thatrequiring authors to reconstruct precisedates decades after the fact is an optimalpolicy solution; it is merely pointing outthat the challenges exist irrespective ofGap Grant scenarios. Indeed, as noted inthe December Analysis, the challengeswill be ongoing for purposes of section203. That is, in every instance where a

grant of rights has been or will be madeprospectively, whether in writing ororally, the author will need to determinethe date of execution of the grantseparately from the date the grant wasinitiated, in order to secure an effectivedate of termination. This would seem to

be a particular problem for grants thatdid not or will not cover the publicationright, although this too is not entirelyclear. When the grant covers thepublication right, section 203 allows fortermination during a 5-year windowcommencing 35 years from publication

or 40 years from the date of executionof the grant, whichever is sooner. Thusthe question: can an author perform thestatutory calculation if she cannotascertain both a date of execution of thegrant and (if the work was published) apublication date?

The proposals of some commenterswere aimed at simplifying the practical

challenges noted above and providingguidance to authors and grantees alikefor the sake of the marketplace.Consider, for example, the suggestedhierarchy of five criteria to be used todetermine the date of execution of agrant that was proposed by Mr.Perlstein, Mr. Gable and Mr. Freundlich(including the suggestion that the dateof publication may be used as a proxy)and the year of creation solutionproposed by Mr. del Casino. While thesemay be useful ideas, they beg someimportant questions: Does the CopyrightOffice have the authority to promulgate

these kinds of solutions under itsrulemaking authority? And if it does, aresuch regulations within the scope of theregulatory action that was proposed inthe current rulemaking?

Starting with the latter point, thecurrent rulemaking sought comment ona proposal to make limited proceduralrevisions to existing Copyright Officeregulations. These revisions wouldmake clear that as long as the notice oftermination identified the date ofexecution of the grant as a date on orafter January 1, 1978, the Office wouldnot refuse to record it for lack oftimeliness. In explaining the reasons for

the proposed regulatory amendment, thenotice observed, consistent with manycomments submitted in response to theMarch 2010 notice of inquiry, thatthere are legitimate grounds to assertthat, in the case of a grant signed (or, inthe case of an oral license, agreed to)

before January 1, 1978 regarding rightsin a work not created until January 1,1978 or later, such a grant cannot beexecuted until the work exists. 75 FR72772, (November 26, 2010). Therefore,[a] person serving and submitting anotice of termination based on therationale described above would be

justified in including in the notice, asthe date of execution of the grant, thedate that the work was created. Id. Thisis the rationale the Copyright Officelater found to be persuasive anddocumented in its December Analysis.

The Copyright Office notes that someof the alternative solutions proposed insome of the comments submitted byrepresentatives of authors appear to go

beyond the scope of the limitedprocedural rule governing recordationpractice that was proposed in thisrulemaking proceeding. Moreover, none



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of the commenters who urged caution inresponse to the Offices proposal havehad an opportunity to respond to thenew proposals made in those comments.The Office concludes that to adopt arule that goes beyond that which wasproposed in the notice of proposedrulemaking would be beyond the scopeof the current rulemaking and would

require notice and opportunity forfurther comment by all interestedparties. The Office does not wish topostpone the issuance of a finalregulation in the current rulemaking,

but is considering publishing a newnotice of inquiry that will address theadditional proposals.

The Office also has questionsregarding the scope of its regulatoryauthority to publish new proposals,practical solutions or alternatives todocumenting the date of execution ofthe grant, even in instances when saiddate is elusive by reasonable standards

and where many stakeholders wouldwelcome guidance. As a general matter,the Copyright Office is authorized toissue regulations based upon existinglaw and the statutory grant of authorityto establish regulations for theadministration of the statutory functionsand duties made the responsibility ofthe Office, such as the administration ofa recordation program. See 17 U.S.C.702. Moreover, the existing regulations,as well as the final regulation adoptedtoday, follow Copyright Office practicewith respect to the content of notices oftermination. Since the Office first issued

regulations governing notices oftermination in 1977, the regulationshave provided that a notice oftermination must recite the relevantdate used to calculate the period duringwhich termination may be effected. SeeFinal Regulation, Termination ofTransfers and Licenses CoveringExtended Renewal Term, 42 FR 45916,45917 (September 13, 1977) (imposingrequirement, for notices of terminationunder section 304(c), that notices recitethe date copyright was secured becausethe period during which terminationmay be effected is measured from the

date copyright was originally secured

).When the Office first proposedregulations governing notices oftermination under section 203, itproposed that such notices includeidentification of the date of executionof the grant being terminated for thesame reason. Notice of ProposedRulemaking, Notice of Termination,67 FR 77951, 77953 (December 20,2002). No one submitted comments inopposition to the proposed regulation,and the requirement was subsequentlyadopted in interim and final regulations.

See Interim Rule, Notice of Termination,67 FR 78176 (December 23, 2002) andFinal Regulation, Notice of Termination,68 FR 16958 (April 8, 2003). Thishistory notwithstanding, the CopyrightOffice does recognize that terminationseffected under section 203 are only nowripe, meaning that they are possible forthe first time as of January 1, 2013. This

is not to say notices could not be filedsooner. Indeed, for grants entered intothirty-five years ago, during 1978, theycould first be filed as of 2003, as earlyas 10 years prior to the earliest possibleeffective date. But we do allow for thefact that stakeholders are now focusedon the issue to an increasing degree, asthe actual effective dates for section 203

begin to loom.The Copyright Office also wishes to

underscore that the existing regulations,and the regulation adopted today, donot provide that a notice of terminationshould identify the date of creation of

the work. Rather, the regulation requiresidentification of the date of execution ofthe grant because for purposes of section203, the date of execution is central toestablishing the 5-year window, 3540years later, during which termination ispermissible and may be effected. But, asnoted above and in the Offices moreextensive Analysis of Gap Grants Underthe Termination Provisions of Title 17,the purpose of the regulation beingadopted today is to permit recordationof a notice of termination of a Gap Grantwhen the terminating party recites, asthe date of execution of the grant, thedate the work was created. The notice

of termination need not expressly recitethat the work was created on aparticular date (although it may do so).However, for purposes of establishingtimeliness, it seems prudent, if notessential, that the notice recite a date ofexecution of the grant. This said, and asstated above, the Office is not unwillingto consider the issue more fully in aseparate proceeding, which couldaddress questions including whethercurrent regulatory authority wouldallow the Office to publish practicalsolutions or alternatives to documentingthe date of execution, for the sake of

providing guidance to authors andgrantees alike and for the sake ofestablishing clarity in the marketplace.

The Office also believes the existingregulations on notices of terminationoffer some relief to terminating partieswhen they cannot precisely identify thedate the work was created. Section201.10 has, since it was first adopted in1977, included a harmless errorprovision. That provision currentlyprovides that errors made in giving thedate or registration number referred toin paragraph (b)(1)(iii), (b)(2)(iii), or

(b)(2)(iv) of this section * * * shall notaffect the validity of the notice if theerrors were made in good faith andwithout any intention to deceive,mislead, or conceal relevantinformation. 37 CFR 201.10(e)(2). Thus,since 1977 harmless errors inidentifying the date copyright wasoriginally secured i[n] each work to

which the notice of terminationapplies, the requirement set forth inparagraph (b)(1)(iii), have not affectedthe validity of the notice. Morepertinently, harmless errors in recitingthe date of execution, the requirementset forth in paragraph (b)(2)(iii) ofsection 201.10, also have not affectedthe validity of a notice of terminationunder section 203 since regulationsgoverning section 203 notices oftermination were first adopted. Thisprovision should provide relief forterminating parties who provide a dateof execution which, although it is as

accurate as the terminating party is ableto ascertain, turns out not to be theactual date of execution of the grant (i.e.,in the case of a Gap Grant, the actualdate the work was created), so long asthe date is provided in good faith andwithout any intention to deceive,mislead or conceal relevant information.

Of course, if the wrong date is recitedin the notice and a court subsequentlydetermines that the actual date ofexecution was at a time that places theeffective date of termination or the dateof service of the notice of terminationoutside of the statutory windows, theharmless error doctrine will be of no

assistance. But that would not be theresult of the misstatement in the noticeof termination of the date of execution;rather, it would be because upon areview of all the relevant facts, a courtconcludes that the actual date ofexecution was too early or too late toprovide a basis for the service of thenotice of termination.

With respect to the specific regulatorytext proposed in the notice of proposedrulemaking, the RIAAs comment haspersuaded the Copyright Office thattreating the identification of the date ofexecution as a matter oftimeliness is

the wrong approach because it conflatestwo different topics: (1) Whether anotice of termination was served and/orsubmitted for recordation on time, and(2) whether the grant that is the subjectof the notice of termination was madeat a time that qualifies it for terminationunder section 203. The analysis of thefirst topic assumes that the grant isterminable under section 203; it simplyexamines whether the notice was servedand recorded in the permissible timeframe. In contrast, the analysis of thesecond topic addresses the very



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eligibility of the grant for terminationunder section 203.

Moreover, as originally drafted, theproposed amendments to 201.10(f)(4)related only to section 203 notices oftermination, even though 201.10(f)(4)in fact covers both section 203 andsection 304 notices of termination. Inparticular, the following passage

ignored the fact that paragraph 4 issupposed to cover both types oftermination:

Conditions under which a notice oftermination will be considered untimelyinclude: The date of execution stated thereindoes not fall on or after January 1, 1978, asrequired by section 203(a) of title 17, UnitedStates Code; the effective date of terminationdoes not fall within the five-year perioddescribed in section 203(a)(3) of title 17,United States Code.

The Office has therefore concludedthat the language relating toidentification of the date of execution ofthe grant should not be included in 201.10(f)(4), but should be moved to aseparate paragraph (f)(5) addressingonly the issue of date of execution. Theother proposed revisions to 201.10(f)(4), describing situations inwhich a notice of termination will beconsidered untimely, should remain butshould be amplified by a reference tosection 304(c)(3) (which, like section203(a)(3), requires that the effective dateof termination fall within a prescribedtime frame) following the language thatcurrently addresses situations in whichthe effective date of termination doesnot fall within the five-year period

specified by section 203(a)(3). As aresult, the second sentence of 201.10(f)(4) shall read as follows:Conditions under which a notice oftermination will be considered untimelyinclude: The effective date oftermination does not fall within thefive-year period described in section203(a)(3) or section 304(c)(3), asapplicable, of title 17, United StatesCode; or the documents submittedindicate that the notice of terminationwas served less than two or more thanten years before the effective date oftermination. As noted in the notice of

proposed rulemaking, the circumstancesidentified in this paragraph (b)(4) arenot intended to be an exhaustive list ofprocedural failures that may result infailure to record notices of termination.

For the sake of clarity, the newparagraph addressing identification ofthe date of execution shall alsospecifically address the issue of GapGrants:

(5) In any case where an author agreed,prior to January 1, 1978, to make a grant ofa transfer or license of rights in a work thatwas not created until on or after January 1,

1978, a notice of termination of a grant undersection 203 of title 17 may be recorded if itrecites, as the date of execution, the date onwhich the work was created.

The sole remaining issue is whether,as SIIA suggested, additional language isnecessary to clarify that this regulationis not a merits-based determination thatcould be incorrectly used by authors as

authority for the applicability of section203 of Title 17. As stated in the noticeof proposed rulemaking, the Officesrecordation of notices of termination ofGap Grants is without prejudice to howa court might ultimately rule onwhether any particular documentqualifies as a notice of terminationwithin the scope of section 203,consistent with longstanding practicesfor all notices of termination recorded

by the Office. By permitting recordationof such a notice of termination, theOffice permits the terminating party tomove forward based upon a reasonable

interpretation of the statute. Refusing topermit recordation of a notice oftermination of a Gap Grant would putthe Office in the position of imposing anunjustified impediment to the ability ofan author or an authors heirs to assertwhat may well be a viable right toterminate a grant. If there is any disputeover the validity of such a notice oftermination (or of notices of terminationof Gap Grants in general), that disputeshould be settled in the courts (or inCongress, if Congress accepts theOffices suggestion to enact legislationthat will clarify the status of GapGrants).

The amendment proposed in thenotice of proposed rulemakingincluded, in 201.10(f)(4), the already-existing language that Whether adocument so recorded is sufficient inany instance to effect termination as amatter of law shall be determined by acourt of competent jurisdiction.However, that language would no longerapply to recordation of Gap Grants nowthat the language relating to Gap Grantsis being expanded and moved to aseparate paragraph. In considering theissue further, the Office concludes thatthe proposed language is no longer

necessary in 201.10(f)(4) because theexisting regulatory text in 201.10(f)(5)(which will be renumbered as 201.10(f)(6) following the insertion ofthe new paragraph (f)(5)) makes it clearthat recordation of a notice oftermination does not mean that thenotice meets the requirements of thelaw:

A copy of the notice of termination shallbe recorded in the Copyright Office beforethe effective date of termination, as acondition to its taking effect. However, thefact that the Office has recorded the notice

does not mean that it is otherwise sufficientunder the law. Recordation of a notice oftermination by the Copyright Office iswithout prejudice to any party claiming thatthe legal and formal requirements for issuinga valid notice have not been met.

However, we have modified thatparagraph to include a reference to acourt of competent jurisdiction, as this

phrase appears in the existing languagein paragraph (f)(4) and was included inthe notice of proposed rulemaking.

List of Subjects in 37 CFR Part 201

Copyright, General provisions.

Final Regulation

In consideration of the foregoing, theCopyright Office amends part 201 of 37CFR, as follows:

PART 201GENERAL PROVISIONS

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

Authority: 17 U.S.C. 702; section 201.10also issued under 17 U.S.C. 203 and 304.

2. Section 201.10 is amended asfollows: a. By revising paragraph (f)(4);b. By redesignating paragraphs (f)(5)and (f)(6) as paragraphs (f)(6) and (f)(7); c. By adding a new paragraph (f)(5); d. In redesignated paragraph (f)(6), byremoving met. and adding in its placemet, including before a court ofcompetent jurisdiction.

201.10 Notices of termination oftransfers and licenses.

* * * * *(f) * * *(4) Notwithstanding anything to the

contrary in this section, the CopyrightOffice reserves the right to refuserecordation of a notice of termination assuch if, in the judgment of the CopyrightOffice, such notice of termination isuntimely. Conditions under which anotice of termination will be considereduntimely include: the effective date oftermination does not fall within thefive-year period described in section203(a)(3) or section 304(c)(3), asapplicable, of title 17, United States

Code; or the documents submittedindicate that the notice of terminationwas served less than two or more thanten years before the effective date oftermination. If a notice of termination isuntimely or if a document is submittedfor recordation as a notice oftermination on or after the effective dateof termination, the Office will offer torecord the document as a documentpertaining to copyright pursuant to 201.4(c)(3), but the Office will notindex the document as a notice oftermination.



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(5) In any case where an authoragreed, prior to January 1, 1978, to agrant of a transfer or license of rights ina work that was not created until on orafter January 1, 1978, a notice oftermination of a grant under section 203of title 17 may be recorded if it recites,as the date of execution, the date onwhich the work was created.

* * * * *

Dated: May 27, 2011.

Maria A. Pallante,

Acting Register of Copyrights.

Approved by

James H. Billington,

The Librarian of Congress.

[FR Doc. 201113845 Filed 6311; 8:45 am]

BILLING CODE 141030P

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Part 52

[EPAR03OAR20110379; FRL93144]

Approval and Promulgation of AirQuality Implementation Plans;Pennsylvania; Revision to theInspection and Maintenance (I/M)ProgramQuality Assurance Protocolfor the Safety Inspection Program inNon-I/M Counties

AGENCY: Environmental ProtectionAgency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is taking direct finalaction to approve revisions to thePennsylvania State Implementation Plan(SIP). The revision consists of a change

by the Commonwealth of Pennsylvaniato the quality assurance program for itsmotor vehicle inspection andmaintenance program (I/M program).Specifically, the Commonwealth isamending a provision of its prior SIP-approved I/M program to change theduration of the timing of qualityassurance audits performed by thePennsylvania Department ofTransportation (PENNDOT) as part of

their program oversight. Theamendment allows for these audits to beconducted within five days of vehicleinspection, instead of the two-daywindow allowed under the priorapproved SIP. This SIP revision affectsforty-two counties in Pennsylvaniawhere visual emissions equipmentinspections are performed as part of theCommonwealths annual vehicle safetyinspection program (i.e., non-I/Mcounties). It does not affect the twenty-five counties where separate enhancedI/M emissions inspections are

performed in addition to the annualsafety inspection program (i.e., I/Mcounties). This SIP revision applies toPENNDOT staff overseeing stations thatconduct safety inspections in non-I/Mprogram counties. It does not impactmotorists subject to the program orstations that perform emissionsinspections. EPA is approving this

amendment to Pennsylvanias approvedI/M SIP in accordance with therequirements of the Clean Air Act(CAA).

DATES: This rule is effective on August5, 2011 without further notice, unlessEPA receives adverse written comment

by July 6, 2011. If EPA receives suchcomments, it will publish a timelywithdrawal of the direct final rule in theFederal Register and inform the publicthat the rule will not take effect.ADDRESSES: Submit your comments,identified by Docket ID Number EPAR03OAR20110379 by one of thefollowing methods:

A. http://www.regulations.gov.Followthe on-line instructions for submittingcomments.

B. E-mail:[email protected].

C. Mail: EPAR03OAR20110379,Cristina Fernandez, Associate Director,Office of Air Program Planning,Mailcode 3AP30, U.S. EnvironmentalProtection Agency, Region III, 1650Arch Street, Philadelphia, Pennsylvania19103.

D. Hand Delivery: At the previously-listed EPA Region III address. Such

deliveries are only accepted during theDockets normal hours of operation, andspecial arrangements should be madefor deliveries of boxed information.

Instructions: Direct your comments toDocket ID No. EPAR03OAR20110379. EPAs policy is that all commentsreceived will be included in the publicdocket without change, and may bemade available online at http://www.regulations.gov,including anypersonal information provided, unlessthe comment includes informationclaimed to be Confidential BusinessInformation (CBI) or other information

whose disclosure is restricted by statute.Do not submit information that youconsider to be CBI or otherwiseprotected through http://www.regulations.govor e-mail. Thehttp://www.regulations.govWeb site isan anonymous access system, whichmeans EPA will not know your identityor contact information unless youprovide it in the body of your comment.If you send an e-mail comment directlyto EPA without going through http://www.regulations.gov,your e-mailaddress will be automatically captured

and included as part of the commentthat is placed in the public docket andmade available on the Internet. If yousubmit an electronic comment, EPArecommends that you include yourname and other contact information inthe body of your comment and with anydisk or CDROM you submit. If EPAcannot read your comment due to

technical difficulties and cannot contactyou for clarification, EPA may not beable to consider your comment.Electronic files should avoid the use ofspecial characters, any form ofencryption, and be free of any defects orviruses.

Docket: All documents in theelectronic docket are listed in thehttp://www.regulations.govindex.Although listed in the index, someinformation is not publicly available,i.e., CBI or other information whosedisclosure is restricted by statute.Certain other material, such as

copyrighted material, is not placed onthe Internet and will be publiclyavailable only in hard copy form.Publicly available docket materials areavailable either electronically in http://www.regulations.govor in hard copyduring normal business hours at the AirProtection Division, U.S. EnvironmentalProtection Agency, Region III, 1650Arch Street, Philadelphia, Pennsylvania19103.

Copies of the State submittal areavailable at the PennsylvaniaDepartment of EnvironmentalProtection, Bureau of Air Quality

Control, P.O. Box 8468, 400 MarketStreet, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT:Brian Rehn, (215) 8142176, or bye-mail at [email protected].

SUPPLEMENTARY INFORMATION:Throughout this document, wheneverwe, us, or our is used, we meanEPA.

I. Background

On May 22, 2009, the Commonwealthof Pennsylvania submitted a formalrevision to its SIP. That SIP revision,

which is the subject of this action,consists of an amendment to theenhanced motor vehicle emissioninspection program SIP submitted byPennsylvania on December 1, 2003 andapproved as part of theCommonwealths SIP on October 6,2005 (70 FR 58313). This SIP revisionamends Pennsylvanias qualityassurance program, which applies toPENNDOT staff that oversee the anti-tampering visual inspection performedas part of the annual safety inspectionprogram in the forty-two Pennsylvania

http://www.regulations.gov/mailto:[email protected]://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/mailto:[email protected]:[email protected]:[email protected]://www.regulations.gov/http://www.regulations.gov/mailto:[email protected]://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/http://www.regulations.gov/

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