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Federal Register / Vol. 86, No. 37 / Friday, February 26, 2021 / Rules and Regulations
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Although the Office is proceeding with this clarifying proposed amendment, to address concerns raised by commenters, it takes this opportunity to explain that the amendment is not intended to be substantive and is being adopted to harmonize the provision with regulatory language governing the rejection of documents submitted for recordation under section 205 of the Copyright Act.19 Moreover, the amendment is not intended to alter the Offices examination practices for notices of termination. Rather, the Office will continue to examine notices for compliance with statutory timing provisions. On this topic, the Office recently stated that while it views recordation generally as a ministerial act, it has continued its more comprehensive review of notices of termination submitted for recordation.20
Under current examination practices, if a notice appears to be untimely, the recordation specialist will correspond with the remitter to afford them the opportunity to amend, re-serve, and refile notices where possible. If, in the judgment of the Office, a notice is definitely untimely and cannot be amended, the specialist will offer the remitter the option to record it as a document pertaining to copyright under section 205 of the Copyright Act.21
Should the remitter refuse this option, the Office may then exercise its discretion to reject the notice.22 Thus, while the Office typically still will decline to record a notice that it determines to be untimely and this adjustment signals no change in practice in that respect, the additional discretion provided by this change helps to a notice it knows to be untimely; RIAA
Comments at 34.
19 See 37 CFR 201.4a The Office may reject any document submitted for recordation that fails to comply with 17 U.S.C. 205, the requirements of this section, or any relevant instructions or guidance provided by the Office.; id. 201.4e1, e3i.
20 See Modernizing Copyright Recordation, 82 FR
52213, 52218 & n.68 Nov. 13, 2017 interim rule.
21 37 CFR 201.10f1iiB If a notice of termination is untimely, the Office will offer to record the document as a document pertaining to a copyright pursuant to 201.4, but the Office will not index the document as a notice of termination..
22 In a scenario where a notice is timely as to somebut not allworks identified, the recordation specialist will typically first correspond to provide the remitter an opportunity to amend, reserve, and re-file where possible. Where it is too late to amend and re-serve the notice i.e., the termination window has closed or will close in less than two years or the remitter otherwise declines to withdraw the submission, the specialist may record the document as a notice of termination, but only index the works for which the notice is timely.

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advance the broader policy favoring recordation where legally permitted.23
Second, the proposed rule clarified the circumstances under which recordation of an untimely notice is barred by statute. In a 2017 interim rule, the Office amended the regulations to provide examples of situations in which a notice will be considered untimely.24
One such example refers to cases where the date of recordation is after the effective date of termination. 25
Because the relevant statutory provisions provide that a copy of the notice shall be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect, 26 the NPRM proposed to amend this example to clarify that a date of recordation on or after the effective date of termination will be considered untimely.27 RIAA agreed with proposed rule.28 Linda Edell Howard and NSAI each opposed this change, asserting that a notice may be recorded if it is submitted to the Office on the effective date of recordation.29
Because that interpretation is contrary to the statutory text, however, the final rule adopts the proposed amendment.
B. Harmless Errors The NPRM proposed broadening the harmless errors exception, which currently applies only to errors in a notice, to apply equally to immaterial errors in complying with other regulatory provisions established by the Office. Under the proposed rule, any error in preparing, serving, or seeking to record a notice would be considered harmless, provided that the error does not materially affect the adequacy of the information required to serve the purposes of the termination statutes or materially affect . . . the Offices ability to record the notice. 30
Comments on this proposed change were mixed. Three commenters fully supported the rule as proposed.31
Another commenter, MPA, agreed with certain principles in the Offices 23 See 37 CFR 201.10f4 Recordation of a notice . . . 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, including before a court of competent jurisdiction..
24 82 FR 52220.
25 37 CFR 201.10f1iiA emphasis added.
26 17 U.S.C. 203a4A, 304c4A emphasis added.
27 85 FR at 34152.
28 RIAA Comments at 5.
29 Edell Howard Comments at 4; NSAI Comments at 3.
30 85 FR 34155.
31 Edell Howard Comments at 5; NSAI Comments at 3; Recording Academy Comments at 2.

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proposal, but viewed the proposed language as overbroad and potentially ambiguous. 32 MPA further argued that errors in the manner of service itself should not be treated as harmless because as a technical procedure . . .
strict compliance is typically required in the analogous litigation context, and proposed more narrowly tailored language.33 Raising similar concerns, NMPA and RIAA opposed expanding the scope of the rule, contending that 1
errors in serving a notice are not and should not be considered harmless; and 2 the wording of the proposed rule suggests that an error that does not affect the Offices ability to record the notice may be considered harmless even if the error materially affects the ability of the notice to serve the purposes of the statute.34
While the Office will proceed with expanding the scope of the current harmless errors rule, it agrees that the language could more precisely describe its intended application. Therefore, the Office modifies the final rule as follows.
First, although an error in serving the notice would likely not be considered harmless because it would materially affect the notices ability to serve the purposes of the statute, the Office has revised the provision to clarify that harmless errors in a statement of service shall not render a notice invalid.35 The final rule also specifies that errors in indexing information, whether provided electronically or using a cover sheet such as the current Form TCS, may be harmless. In other words, if the cover sheet or electronic indexing information deviates in immaterial ways from the information provided on the notice itself, such errors may be harmless provided that the information in the notice itself adequately serves the purposes of the statute. Thus, the revised language clarifies that the harmless error provision extends only to immaterial errors in the notice, statement of service, or indexing information provided to the Office.
Second, because the final rule now expressly includes the statement of service and indexing information in this harmless error provision, it strikes the proposed language that certain errors may be harmless so long as they do not materially affect, in the Offices discretion, the Offices ability to record the notice. This language was intended 32 MPA

Comments at 6.
at 67.
34 NMPA Comments at 45; RIAA Comments at 33 Id.

5.
35 See MPA Comments at 6 proposing language similar to that adopted by the final rule.

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