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Federal Register / Vol. 86, No. 37 / Friday, February 26, 2021 / Rules and Regulations
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was instituted in 2014, the majority of copyright owners have consented to service by email.52 The Office welcomes future feedback on how this provision operates in practice from both terminating parties and grantees.
In establishing this provision, the Office notes that the requirement that consent be obtained within thirty days before a notice is served ensures that terminating parties obtain consent close in time to serving a notice and affords grantees greater predictability about when they can expect to receive the notice. If for any reason a grantee does not reply to a request for or declines consent, the terminating party continues to bear the burden of serving the notice in acceptable manner, provided there is still time within the statutory framework to do so.53 For this reason, terminating parties seeking consent to serve a notice by email should afford sufficient time to arrange for an alternate method of service. Finally, the third added requirementthat the terminating party serve the notice to an email address provided by the grantee protects both terminating parties and grantees from the risk that notices could be filtered as spam or sent to inactive or unmonitored email addresses. In this respect, service by email may be more reliable than physical service because mailed notices need only be sent to the last known address for the grantee, which may not be up-to-date.54
In addition to providing an avenue for express consent in this manner, the final intention may be submitted by email if the copyright owner or authorized agent states that such submission will be accepted; id.
210.6g12 permitting electronic service of monthly statements of account on either the copyright owner or an agent of the copyright owner with authority to receive Statements of Account on behalf of the copyright owner; id. 210.7g12
same process for annual statements of account.
52 See Public Notice Regarding Timing Provisions for Persons Affected by COVID19, U.S. Copyright Office, https www.copyright.gov/coronavirus/ In practice, the Office understands that a majority of copyright owners have generally elected electronic delivery, but a minority receive NOIs and SOAs by paper, either because they simply have not opted into electronic delivery, or, for a smaller minority, because they have affirmatively expressed a preference for paper..
53 The RIAA proposed that the regulations should state that failure of a grantee to respond to a consent request shall constitute a refusal to consent and that grantors will be held to the statutory timeframes notwithstanding any delay caused by the failure to respond at all or in a prompt manner. RIAA Comments at 8. Although the Office agrees that grantors bear the risk that a grantee may not respond to a request, it sees no need to further regulate compliance with governing statutory timeframes.
54 See RIAA Comments at 23, 67 noting that because a grantees last known address is not necessarily the current owners up-to-date address . . . the service requirements do not guarantee that the current rights owner will have actual or timely knowledge of a purported termination.

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rule establishes two other ways that grantees may generally opt in to accept email service for notices. First, a grantee or successor-in-title may designate and publicly post on its website an email address either for service of process in general or for service of notices of termination specifically.55 Should a grantee no longer wish to accept service of notices by email, it can modify its policy or website accordingly. Because a grantee may update its policies or its website at any time, however, it would be prudent for the terminating party to verify the grantees current policies and contact information by checking its website immediately prior to serving a notice by email.
Finally, the final rule will enable a grantee to opt in to email service in the event the Copyright Office establishes a public directory for these purposes and the grantee registers an email address in accordance with Office instructions.
Two commenters proposed such a registry, akin to the directory the Office established and maintains for designated agents under the Digital Millennium Copyright Act.56 Although the Office has no immediate plans for creating this option, it is taking this opportunity to establish the regulatory framework to facilitate such a directory in the future.
D. Identification of a Work Under the current rule, a title is required to identify each work in a notice, and the original registration number is to be provided if possible and practicable. 57 The NPRM
proposed to amend this provision to allow works to be identified by title, registration number, or both.58
Most commenters supported the overall goal of encouraging terminating parties to include registration numbers 55 Cf. 37 CFR 201.18a6 providing that a copyright owner or an agent of a copyright owner with authority to receive Notices of Intention may make public a written policy that it will accept Notices of Intention to make and distribute phonorecords pursuant to 17 U.S.C. 115 . . .
delivered by means including electronic transmission other than by mail or reputable courier.
56 See id. 201.38; MPA Comments at 89; RIAA
Comments at 7. The Office observes that this option is also akin to other filings administered by the Office, such as its list of transmitting entities publicly performing pre-1972 sound recordings requiring direct notice under the Music Modernization Act. See 37 CFR 201.36; Directory of Notices of Contact Information for Transmitting Entities Publicly Performing Pre-1972 Sound Recordings, U.S. Copyright Office, https
www.copyright.gov/music-modernization/pre1972soundrecordings/notices-contact-information.html.
57 37 CFR 201.10b1iii, 2iv.
58 85 FR 3415455.

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for works identified in a notice.59
Several expressed concern, however, that allowing a work to be identified solely by registration number might lead to material errors and make it more difficult for grantees to identify works.60
NMPA noted that catalogues of many music publishers include the titles of works, but do not always include registration numbers, 61 while RIAA
observed that using a registration number alone may be inadequate to identify a sound recording that was registered as part of an album.62
Commenters also questioned why the rule change was needed, as almost all grantors who have the registration number for a work would also have its title, particularly because a certificate of registration includes both.63
In light of the public comments, the Office concludes that the benefit of providing flexibility about how works may be identified in a notice is outweighed by the negative consequences that could flow from permitting a work to be identified by registration number alone. The final rule accordingly removes this proposed change. The Office will continue to require that each work in a notice be identified by title and, where possible and practicable, by the original registration number.64
E. Date of Recordation Under the proposed rule, the date of recordation for a notice of termination would be determined by the date when the notice is received by the Office, irrespective of when the accompanying fee and statement of service are received.65 The Office proposed this change because assigning a later date of recordation due to a fee miscalculation or immaterial filing error could deprive a terminating party of the opportunity to exercise their rights if the date assigned falls on or after the effective date of termination.66 In support of the 59 Joint Comments of Authors Guild et al. at 6;
Edell Howard Comments at 56; MPA Comments at 9; NMPA at 8; Recording Academy Comments at 2.
60 Joint Comments of Authors Guild et al. at 6;
Copyright Alliance Comments at 34; MPA
Comments at 910; NMPA Comments at 8; RIAA
Comments at 89.
61 NMPA Comments at 8.
62 RIAA Comments at 89.
63 See Copyright Alliance Comments at 34; MPA
Comments at 10; RIAA Comments at 8.
64 Because the Office instituted this rulemaking, in part, to make compliance with its regulations governing notices of termination less burdensome, it declines to obligate parties to include both the title and registration number or include other identifying indicia, as some commenters proposed.
See Edell Howard Comments at 56; RIAA
Comments at 10.
65 85 FR 34155.
66 Id. at 34153.

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