37 C.F.R. PART 354—SUBMISSIONS TO THE REGISTER OF COPYRIGHTS
Title 37 - Patents, Trademarks, and Copyrights
Authority: 17 U.S.C. 802.
Source: 70 FR 30905, May 31, 2005, unless otherwise noted.
(a) Discretionary referrals. The Copyright Royalty Board may seek guidance from the Register of Copyrights with respect to a material question of substantive law, concerning an interpretation or construction of those provisions of the Copyright Act, that arises in the course of their proceedings. (b) How presented. One or more of the Copyright Royalty Judges may refer what he or she believes to be a material question of substantive law to the Register of Copyrights at any time during a proceeding. (c) Motion; content. Any participant may submit a motion to the Copyright Royalty Board (but not to the Register of Copyrights) requesting their referral to the Register of Copyrights a question that the participant believes would be suitable for referral under paragraph (a) of this section. The motion should be captioned “Motion of [Participant(s)] Requesting Referral of Material Question of Substantive Law.” The motion should set forth, at the outset, the precise legal question for which the moving party is seeking interlocutory referral to the Register of Copyrights. The motion should then proceed to explain, with brevity, why the issue meets the criteria for potential referral under paragraph (a) of this section and why the interests of fair and efficient adjudication would be best served by obtaining interlocutory guidance from the Register of Copyrights. The motion should not include argument on the merits of the issue, but may include a suggested schedule of briefing that would make reasonable provision for comments and legal arguments, in such a way as to avoid delay and duplication. (d) Time of motion. A motion for referral of a material question of substantive law to the Register of Copyrights should be filed as soon as possible in the relevant proceeding. However, such a motion may be submitted to the Copyright Royalty Board at any time before a final determination is issued. (e) Action on motion—(1) Referral granted. Upon consideration of a Motion Requesting Referral of Material Question of Substantive Law, if one or more of the Copyright Royalty Judges agrees with the request, the Chief Judge shall issue an appropriate referral. The referral will identify the Judge or Judges voting in favor of the referral, the issue to be referred, and the schedule for the filing of briefs by the parties of the issues. After the briefs and other relevant materials are received, they will be transmitted to the Register of Copyrights. A Copyright Royalty Judge who voted against the referral who wishes to do so may include a statement explaining that vote in the referral package. (2) Referral denied. If none of the Copyright Royalty Judges agrees with the request, the Board will issue an order denying the request which will provide the basis for the decision. A copy of any order denying a Motion Requesting Referral of Material Question of Substantive Law will be transmitted to the Register of Copyrights. (f) No effect on proceedings. The issuance of a request to the Register of Copyrights for an interpretive ruling under this part does not delay or otherwise affect the schedule of the participants' obligations in the relevant ongoing proceeding, unless that schedule or those obligations are expressly changed by order of the Board. (g) Binding effect; time limit. The Copyright Royalty Board will not issue a final determination in a proceeding where the referral of a question to the Register of Copyrights under this part is pending, unless the Register has not delivered the decision to the Copyright Royalty Board within 14 days after the Register receives all of the briefs of the participants. If the decision of the Register of Copyrights is timely delivered to the Copyright Royalty Board, the decision will be included in the record of the proceeding. The legal interpretation embodied in the timely delivered response of the Register of Copyrights in resolving material questions of substantive law is binding upon the Copyright Royalty Board and will be applied by them in their final determination in the relevant proceeding. (a) Mandatory referrals. If the material question of substantive law described in §354.1(a) is a novel question of law, referral to the Register of Copyrights by the Copyright Royalty Board is mandatory. A “novel question of law” is a question of law that has not been determined in the prior decisions, determinations, or rulings under the Copyright Act of the Copyright Royalty Board, the Librarian of Congress, the Register of Copyrights, the Copyright Arbitration Royalty Panels (to the extent they are consistent with the current decisions, determinations, or rulings of the Register of Copyrights or the Librarian of Congress), or the former Copyright Royalty Tribunal. (b) Procedures. The procedures set forth for the discretionary referral of material questions of copyright law to the Register of Copyrights by the Copyright Royalty Board, set forth in §354.1, shall also govern the mandatory referral of novel questions, except that the Register of Copyrights' decision will be timely if it is delivered to the Copyright Royalty Board within 30 days after the Register of Copyrights has received all of the briefs or comments of the participants. The Copyright Royalty Board will not issue a final determination in a proceeding where the referral of a novel question to the Register of Copyrights under this part is pending, unless this 30-day period has expired. If, during the 14-day period of a discretionary referral of a material question of law under §354.1, the Register of Copyrights determines that the question is a “novel” one within the meaning of §354.2(a), the Register may notify the Copyright Royalty Board of that determination. The Copyright Royalty Board will be bound by such a determination by the Register of Copyrights and will regard the Register's decision as timely delivered if it is received within the 30-day period applicable to novel question referrals. The Copyright Royalty Board shall consult with the Register of Copyrights with respect to any determination or ruling that would require that any act be performed by the Copyright Office, and any such determination or ruling shall not be binding upon the Register of Copyrights. Nothing in this part is intended to impair the jurisdiction of the Copyright Royalty Board or to interfere with the conduct of its proceedings. Referrals to the Register of Copyrights under this part shall not include questions of procedure before the Copyright Royalty Board, the ultimate adjustments and determinations of copyright royalty rates and terms, the ultimate distribution of copyright royalties, or the acceptance or rejection of royalty claims, rate adjustment petitions, or petitions to participate.
Title 37: Patents, Trademarks, and Copyrights
PART 354—SUBMISSIONS TO THE REGISTER OF COPYRIGHTS
Section Contents
§ 354.1 Material questions of copyright law.
§ 354.2 Novel questions.
§ 354.3 Register of Copyrights' authority to redesignate referrals.
§ 354.4 Consultation regarding acts required by the Register of Copyrights.
§ 354.5 Jurisdiction of the Copyright Royalty Board unaffected.
§ 354.1 Material questions of copyright law.
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§ 354.2 Novel questions.
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§ 354.3 Register of Copyrights' authority to redesignate referrals.
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§ 354.4 Consultation regarding acts required by the Register of Copyrights.
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§ 354.5 Jurisdiction of the Copyright Royalty Board unaffected.
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