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Federal Register / Vol. 86, No. 37 / Friday, February 26, 2021 / Rules and Regulations serving the notice on the grantees or successors in title, and recording a copy of the notice with the Copyright Office.2 Recordation of the notice with the Office before the effective date of termination is a condition to its taking effect, and such notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation. 3 More broadly, section 702
of the Act authorizes the Register to establish regulations . . . for the administration of the functions and duties made the responsibility of the Register under title 17, and section 705a requires the Register to ensure that records of . . . recordations . . .
are maintained, and that indexes of such records are prepared. 4
In establishing regulations under this authority, the Office has long held the view that the required contents of the notice must not become unduly burdensome to grantors, authors, and their successors, who may lack knowledge of certain information, such as the applicable dates.5 Therefore, to the extent permitted by the statute, the Office generally seeks to avoid outright rejection of termination notices submitted for recordation on grounds of technical noncompliance with Office regulations. Instead, the Office will often correspond with remitters to assist them in bringing deficient submissions into compliance with the relevant regulations 6for example, by 2 85

FR 3415051 citing 17 U.S.C. 203, 304c.
U.S.C. 203a4, 304c4. These provisions also apply to section 304d1, another termination provision, which incorporates section 304c4 by reference. Id. at 304d1.
4 Id. at 702, 705a.
5 Termination of Transfers and Licenses Covering Extended Renewal Term, 42 FR 45916, 45918 Sept.
13, 1977 We remain convinced that the required contents of the notice must not become unduly burdensome to grantors, authors, or their successors, and must recognize that entirely legitimate reasons may exist for gaps in their knowledge or certainty.; id. at 45917 The preparation of notices of termination will be occurring at a time far removed from the original creation and publication of a work and, in many cases, will involve successors of original authors having little, if any, knowledge of the details of original creation or publication.; id. at 45918
recognizing that it will commonly be the case that the terminating author, or the terminating renewal claimant . . . will not have a copy of the grant or ready access to a copy.
6 See, e.g., Modernizing Copyright Recordation, 82 FR 22771, 22771 May 18, 2017 notice of proposed rulemaking summarizing the Offices document recordation process, which can . . .
involve considerable correspondence with remitters to remedy deficient submissions before they can be recorded; U.S. Copyright Office, Compendium of Copyright Office Practices sec. 2310.7 3d ed. 2021
Compendium Third Where a notice does not comply with recordation requirements, a recordation specialist may communicate with the remitter, may refuse to record the notice, or may
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supplying required information omitted from the original submission. This general policy in favor of recordation is particularly appropriate in light of the asymmetrical consequences associated with the determination of whether or not to record a notice.7 As the Offices regulations state, recordation is not a determination by the Office of the notices validity or legal effect and is without prejudice to any party claiming that the legal or formal requirements for effectuating termination including the requirements pertaining to service and recordation of the notice of termination have not been met. 8 By contrast, a refusal to record can permanently invalidate a notice of termination that is otherwise legally sound, and thereby deprive the copyright owner of the ability to reclaim rights in her work.9
II. The Final Rule With this background and these policies in mind, the Office proposed several amendments to its regulations governing notices of termination to facilitate recordation and compliance with regulatory requirements. The Office received ten comments in response.10 Commenters generally supported the broad goal of modernizing recordation of notices by improving efficiency and clarifying the Offices processes.11 At the same time, comments also emphasized the refuse to index the notice as a notice of termination..
7 The Office previously observed that adopting a permissive recordation policy is consistent with the statutory purpose of allowing authors to exercise their termination rights. See U.S. Copyright Office, Analysis of Gap Grants under the Termination Provisions of Title 17 3 2010 Gap Grant Analysis citing H.R. Rep. No. 941476, at 124
1976; S. Rep. No. 94473, at 108 1975.
8 37 CFR 201.10f4; see Ray Charles Found. v.
Robinson, 795 F.3d 1109, 111718 9th Cir. 2015
noting that validity and effect of notices can only be determined by a court of law, not the Copyright Office.
9 Gap Grant Analysis at ii n.3.
10 See Authors Alliance Comments; Joint Comments of The Authors Guild, American Photographic Artists, Songwriters Guild of America, Inc., Society of Composers & Lyricists, National Press Photographers Association, Professional Photographers of America, American Society of Media Photographers, Inc., The American Society for Collective Rights Licensing, The North American Nature Photography Association, and Graphic Artists Guild, Inc. Authors Guild et al.;
Linda Edell Howard Comments; Motion Picture Association MPA Comments; Music Artists Coalition MAC Comments; Nashville Songwriters Association International NSAI
Comments; National Music Publishers Association NMPA Comments; Recording Academy Comments; Recording Industry Association of America RIAA Comments.
11 See Authors Alliance Comments at 1; Joint Comments of Authors Guild et al. at 12; Edell Howard Comments at 1; MAC Comments at 1; NSAI
Comments at 2; Recording Academy Comments at 2.

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importance of recordation to grantees, consistent and reliable examination practices, and encouraging preparation of notices that clearly communicate accurate information about the grants and works they identify.12 Having considered these comments, the Office issues this final rule with modifications.
A. Timeliness The Office proposed two updates to the rule governing timeliness. First, the Office proposed to relax the existing provision stating that the Office will refuse to record a notice that appears to be untimely, substituting the phrase may refuse. 13 Until recently, the provision said that the Office reserves the right to refuse recordation of a notice of termination. 14 The 2017
notice announcing the amendment of the provision to will refuse did not discuss the basis for that change.15 As explained in the NPRM, the proposed rule would afford the Office additional discretion to record a notice in unusual casesfor example, where there is uncertainty about the date of a works creation that could be relevant to the calculation of the termination window.16 Most commenters supported giving the Office the ability to exercise this discretion, at least where there is some uncertainty whether a notice is in fact untimely.17 Some commenters, however, expressed concerns about the Office recording notices that are clearly untimely, arguing that doing so would disserve both grantors, who may be able to correct and re-file such notices, and grantees, who desire confidence that the Office will not record notices that definitively fail to comply with statutory timing provisions.18
12 See,
e.g., RIAA Comments at 23.
FR 34155.
14 See Recordation of Notices of Termination of Transfers and Licenses; Clarifications, 74 FR 12554, 12556 Mar. 25, 2009.
15 See 85 FR 34151.
16 Id.
17 Joint Comments of Authors Guild et al. at 3
4; Edell Howard Comments at 3; NSAI Comments at 2; Recording Academy Comments at 2; MPA
Comments at 56 suggesting that if the proposed rule is adopted, the may in the regulation should operate only as a safety valve to address particular unusual situations where an apparently untimely notice may not actually be untimely; RIAA
Comments at 34.
18 Copyright Alliance Comments at 2 taking no position on recordation of notices filed late, but commenting that notices that are facially premature should be refused to help grantors by making them aware the notices are defective and to spare grantees the burden of challenging validity in court; MPA at 6 Absent unusual circumstances, the Office should maintain its practice of refusing to record notices that appear on their face to be untimely.; NMPA Comments at 13 commenting that the Office does not have discretion to record 13 85

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