Proposed Rules for Reconsideration of Refusal to Register Copyrights

This notice of proposed rulemaking establishes procedures for applicants to request that the Copyright Office reconsider refusals to register copyright claims and claims in mask works or vessel hull designs. There are two opportunities for reconsideration of a refusal to register. At the first level of reconsideration, the Examining Division of the Copyright Office reviews its initial decision to refuse registration. At the second level, the Review Board will conduct the review of a refusal to register. The Review Board is composed of the Register of Copyrights, the General Counsel, and the Chief of the Examining Division, or their respective designees.

Under the proposed rules, an applicant may make a first request for reconsideration after he or she receives a written notice from the Examining Division explaining why the Division initially refused to register the applicant's claim. The request must be in writing and set forth the reasons for the applicant's objections, including any legal considerations. The applicable fee for a first request for reconsideration, as set forth in 37 CFR 201.3(d)(4), must accompany the written request for reconsideration. The written request must be received by the Copyright Office no later than three months from the date that appears in the written notice of its initial decision to refuse registration. The Examining Division bases its decision on all of an applicant's written submissions. It does not hear oral argument in support of the request for reconsideration.

If the Examining Division decides a work is entitled to be registered, it notifies the applicant in writing of that decision and the work is registered. However, if the Examining Division upholds its initial refusal to register, it sends the applicant a written notification stating the reasons for refusal within four months from the date the Division receives the first request for reconsideration. Failure by the Examining Division to issue a written notification within four months does not result in registration of the applicant's work.

Upon receiving written notice that the Examining Division has again refused registration, an applicant may seek a second reconsideration by
submitting a written request to the Review Board. With minor differences, the procedures for the second reconsideration by the Board are similar to the procedures for the first. If the Review Board decides a work is entitled to be registered, it will notify the applicant of that decision and the work will be registered. However, if the Board upholds the Examining Division's refusal to register, it will send the applicant a written notification
stating the reasons for refusal. A decision by the Review Board constitutes final agency action.

To ensure correct routing and handling of correspondence within the Copyright Office, the regulation also requires that the word "RECONSIDERATION" must be clearly indicated on the first line of the address appearing on the envelope. For the cover letter accompanying a
request for reconsideration, the subject line should indicate the Copyright Office control number assigned to applications and either "FIRST RECONSIDERATION" or "SECOND RECONSIDERATION.