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Federal Register / Vol. 86, No. 157 / Wednesday, August 18, 2021 / Rules and Regulations
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small copyright claims, the Office noted that while copyright registration helps to produce a valuable public record of American creativity as well as material information to parties in litigation, at times it may also act as a procedural hurdle for copyright claimants . . . who may not be aware of the repercussions of not registering in a timely manner. 11
Congress similarly noted that many small claimants currently do not register their works because they do not expect to be able to enforce their rights in federal court. 12
The CASE Act addresses these concerns by allowing a party to file an infringement claim with the CCB once a completed application, a deposit, and the required fee for registration have been delivered to the Office.13 The legislative history characterizes this approach as taking a more liberal attitude towards the commencement of a proceeding while registration of a work is in progress. 14 But before the CCB renders a decision in any infringement dispute, the CASE Act mandates that the work at issue must be registered by the Office, and the other parties in the proceeding must have an opportunity to address the registration certificate.15 Recognizing that some infringement claims may involve works for which a registration application has been submitted, but for which the Office has not yet rendered a decision, the statute directs the CCB to hold such proceedings in abeyance.16 If the Office refuses the registration, the CCB action will be dismissed without prejudice.17
The CCB also may dismiss an action without prejudice if it has been held in abeyance for at least one year, upon providing thirty days written notice to the parties.18 As the legislative history explains, this process is intended to strike a balance between still encouraging timely registration of works with the promise of a higher damages caps in federal court with the reality that smaller creators may have numerous understandable reasons for not routinely engaging in the registration process. 19
To ensure that the work at issue in a CCB proceeding is registered in a timely manner before the CCB issues a determination, the CASE Act directs the 11 Copyright Small Claims at 1617; see also H.R.
Rep. No. 116252, at 2526.
12 H.R. Rep. No. 116252, at 26.
13 17 U.S.C. 1505a1.
14 H.R. Rep. No. 116252, at 25.
15 17 U.S.C. 1505b1.
16 Id. at 1505b2.
17 Id. at 1505b3; see also Copyright Small Claims at 10809.
18 17 U.S.C. 1505b2.
19 H.R. Rep. No. 116252, at 26.

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Office to establish regulations allowing the Copyright Office to make a decision, on an expedited basis, to issue or deny copyright registration for an unregistered work that is at issue before the Board. 20
The CASE Act also limits the materials related to a CCB proceeding that must be disclosed under the Freedom of Information Act FOIA.
Subject to certain conditions and exceptions, FOIA requires agencies to make their records available to the public either proactively or in response to a request.21 The CASE Act provides that all information relating to proceedings of the Copyright Claims Board under this chapter is exempt from disclosure under FOIA, except for determinations, records, and information that are published on the Offices website and that relate to a CCB
final determination.22
B. Proposed Rule and Public Comment On April 26, 2021, the Office issued a notice of proposed rulemaking the NPRM requesting public comment on proposed processes for small claims expedited registration and a conforming amendment for disclosures under FOIA.23 The NPRM proposed to allow a claimant or counterclaimant with a pending copyright registration application to seek expedited review of that application by making such a request and paying the requisite fee, but only after he or she submitted the completed registration application and the respondent either opted in to the CCB proceeding or did not timely opt out. The proposed rule would not enable the CCB to proceed with a dispute involving a work for which registration is still pending or has been denied. Additionally, the NPRM
proposed an amendment to the Offices FOIA regulations to reflect that, as required by the CASE Act, only those CCB determinations, records, and information that are published on the Offices website and that relate to a CCB
final determination are subject to disclosure under FOIA.
The Office received four comments in response to the NPRM. The Office had asked stakeholders to try to submit joint comments where they had agreement, and one set of comments, submitted by 20 17

U.S.C. 1505d.
5 U.S.C. 552.
22 17 U.S.C. 1506t4.
23 86 FR 21990 Apr. 26, 2021. Comments received in response to the April 2021 NPRM are available at https www.regulations.gov/document/
COLC-2021-0002-0001/comment. References to comments responding to the April 2021 NPRM are by party name abbreviated where appropriate, followed by NPRM Comments.
21 See
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the Copyright Alliance, was joined by twenty separate stakeholder groups.24
One of those organizations, the National Press Photographers Association, also submitted separate comments.
Comments were also filed by the Science Fiction and Fantasy Writers of America, Inc. SFWA and by Verizon. On the whole, the comments were broadly supportive of the proposed rule and conforming amendment, while providing substantive feedback on some specific provisions. Verizons comments were generally critical of the creation of CCB as an institution and raised concerns about possible abusive actions by claimants.
Having carefully considered each of the comments, the Office now issues a final rule that closely follows the proposed rule, with certain modifications. First, the final rule adjusts the language pertaining to the initiation of an expedited registration request to provide that such a request may be made only after the proceeding has become active. Second, the final rule clarifies that the CCB will provide notice to all parties to a proceeding when a proceeding is dismissed without prejudice after being held in abeyance for more than one year pending a registration decision. Third, the final rule provides additional flexibility as to the methods of payment that may be accepted for small claims expedited registration. Fourth, the final rule specifies the standard governing denials of requests for small claims expedited registration. Finally, the final rule uses the word request rather than claim to refer to the action a claimant or counterclaimant takes to initiate small claims expedited registration, to remove possible confusion with other uses of the term claim.
In the NPRM, the Office noted that it anticipated publishing this rule as an interim rule.25 Because, however, the public has had an opportunity to comment on the proposed rule, and in light of the limited number of comments received, the Office does not believe 24 The groups joining the Copyright Alliance are ACT The App Association, American Photographic Artists, American Society for Collective Rights Licensing, Inc., American Society of Media Photographers, Inc., The Authors Guild, CreativeFuture, Digital Media Licensing Association, Graphic Artists Guild, Inc., Independent Book Publishers Association, Music Artists Coalition, Music Creators North America, National Music Council of the United States, National Press Photographers Association, North American Nature Photography Association, Professional Photographers of America, The Recording Academy, Screen Actors Guild-American Federation of Television and Radio Artists, Society of Composers & Lyricists, Songwriters Guild of America, Inc., and Songwriters of North America.
25 86 FR at 21992.

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