[Code of Federal Regulations]
[Title 37, Volume 1]
[Revised as of July 1, 1999]
From the U.S. Government Printing Office via GPO Access
[CITE: 37CFR202.22]

[Page 445-448]
 
             TITLE 37--PATENTS, TRADEMARKS, AND COPYRIGHTS
 
                                CONGRESS
 
PART 202--REGISTRATION OF CLAIMS TO COPYRIGHT--Table of Contents
 
Sec. 202.22  Acquisition and deposit of unpublished television transmission programs.

    (a) General. This section prescribes rules pertaining to the 
acquisition of copies of unpublished television transmission programs by 
the Library of Congress under section 407(e) of title 17 of the United 
States Code, as amended by Pub. L. 94-553. It also prescribes rules 
pertaining to the use of such copies in the registration of claims to 
copywright, under section 408(b)(2).
    (b) Definitions. For purposes of this section:
    (1) The terms copies, fixed, publication, and transmission program 
and their variant forms, have the meanings given to them in section 101 
of title 17. The term network station has the meaning given it in 
section 111(f) of title 17.
    (2) Title 17 means title of the United States Code, as amended by 
Pub. L. 94-553.
    (c) Off-the-air copying. (1) Library of Congress employees acting 
under the general authority of the Librarian of Congress may make a 
fixation of an unpublished television transmission program directly from 
a transmission to the public in the United States, in accordance with 
section 407(e)(1) and (4) of Title 17 of the United States Code. The 
choice of programs selected for fixation shall be based on the Library 
of Congress acquisition policies in effect at the time of fixation. 
Specific notice of an intent to copy a transmission program off-the-air 
will ordinarily not be given. In general, the Library of Congress will 
seek to copy off-the-air a substantial portion of the programming 
transmitted by noncommercial educational broadcast stations as defined 
in section 397 of itle 47 of the United States Code, and will copy off-
the-air selected programming transmitted by commercial broadcast 
stations, both network and independent.
    (2) Upon written request addressed to the Chief, Motion Picture, 
Broadcasting and Recorded Sound Division by a broadcast station or other 
owner of the right of transmission, the Library of Congress will inform 
the requestor whether a particular transmission program has been copied 
off-the-air by the Library.
    (3) The Library of Congress will not knowingly copy off-the-air any 
unfixed or published television transmission program under the copying 
authority of section 407(e) of title 17 of the United States Code.
    (4) The Library of Congress is entitled under this paragraph (c) to 
presume that a television program transmitted to the public in the 
United States by a noncommercial educational broadcast station as 
defined in section 397 of title 47 of the United States Code has been 
fixed but not published.
    (5) The presumption established by paragraph (c)(4) of this section 
may be overcome by written declaration and submission of appropriate 
documentary evidence to the Chief, Motion Picture, Broadcasting and 
Recorded Sound Division, either before or after off-the-air copying of 
the particular transmission program by the Library of Congress. Such 
written submission shall contain:
    (i) The identification, by title and time of broadcast, of the 
transmission program in question;
    (ii) A brief statement declaring either that the program was not 
fixed or that it was published at the time of transmission;
    (iii) If it is declared that the program was published at the time 
of transmission, a brief statement of the facts of publication, 
including the date and place thereof, the method of publication, the 
name of the owner of the right of first publication, and whether the 
work was published in the United States with notice of copyright; and
    (iv) The actual handwritten signature of an officer or other duly 
authorized agent of the organization which transmitted the program in 
question.

[[Page 446]]

    (6) A declaration that the program was unfixed at the time of 
transmission shall be accepted by the Library of Congress, unless the 
Library can cite evidence to the contrary, and the off-the-air copy will 
either be
    (i) Erased; or
    (ii) Retained, if requested by the owner of copyright or of any 
exclusive right, to satisfy the deposit provision of section 408 of 
title 17 of the United States Code.
    (7) If it is declared that the program was published at the time of 
transmission, the Library of Congress is entitled under this section to 
retain the copy to satisfy the deposit requirement of section 407(a) of 
title 17 of the United States Code.
    (8) The Library of Congress in making fixations of unpublished 
transmission programs transmitted by commercial broadcast stations shall 
not do so without notifying the transmitting organization or its agent 
that such activity is taking place. In the case of network stations, the 
notification will be sent to the particular network. In the case of any 
other commercial broadcasting station, the notification will be sent to 
the particular broadcast station that has transmitted, or will transmit, 
the program. Such notice shall, if possible, be given by the Library of 
Congress prior to the time of broadcast. In every case, the Library of 
Congress shall transmit such notice no later than fourteen days after 
such fixation has occurred. Such notice shall contain:
    (i) The identification, by title and time of broadcast, of the 
transmission program in question;
    (ii) A brief statement asserting the Library of Congress' belief 
that the transmission program has been, or will be by the date of 
transmission, fixed and is unpublished, together with language 
converting the notice to a demand for deposit under section 407 (a) and 
(b) of title 17 of the United States Code, if the transmission program 
has been published in the United States.
    (9) The notice required by paragraph (c)(8) of this section shall 
not cover more than one transmission program except that the notice may 
cover up to thirteen episodes of one title if such episodes are 
generally scheduled to be broadcast at the same time period on a regular 
basis, or may cover all the episodes comprising the title if they are 
scheduled to be broadcast within a period of not more than two months.
    (d) Demands for deposit of a television transmission program. (1) 
The Register of Copyrights may make a written demand upon the owner of 
the right of transmission in the United States to deposit a copy of a 
specific transmission program for the benefit of the Library of Congress 
under the authority of section 407(e)(2) of title 17 of the United 
States Code.
    (2) The Register of Copyrights is entitled to presume, unless clear 
evidence to the contrary is proffered, that the transmitting 
organization is the owner of the United States transmission right.
    (3) Notices of demand shall be in writing and shall contain:
    (i) The identification, by title and time of broadcast, of the work 
in question;
    (ii) An explanation of the optional forms of compliance, including 
transfer of ownership of a copy to the Library, lending a copy to the 
Library for reproduction, or selling a copy to the Library at a price 
not to exceed the cost of reproducing and supplying the copy;
    (iii) A ninety-day deadline by which time either compliance or a 
request for an extension of a request to adjust the scope of the demand 
or the method for fulfilling it shall have been received by the Register 
of Copyrights;
    (iv) A brief description of the controls which are placed on the 
copies' use;
    (v) A statement concerning the Register's perception of the 
publication status of the program, together with language converting 
this demand to a demand for a deposit, under 17 U.S.C. 407 (a) and (c), 
if the recipient takes the position that the work is published; and
    (vi) A statement that a compliance copy must be made and retained if 
the notice is received prior to transmission.
    (4) With respect to paragraph (d)(3)(ii) of this section, the sale 
of a copy in compliance with a demand of this nature shall be at a price 
not to

[[Page 447]]

exceed the cost to the Library of reproducing and supplying the copy. 
The notice of demand should therefore inform the recipient of that cost 
and set that cost, plus reasonable shipping charges, as the maximum 
price for such a sale.
    (5) Copies transferred, lent, or sold under paragraph (d) of this 
section shall be of sound physical condition as described in Appendix A 
to this section.
    (6) Special relief. In the case of any demand made under paragraph 
(d) of this section the Register of Copyrights may, after consultation 
with other appropriate officials of the Library of Congress and upon 
such conditions as the Register may determine after such consultation,
    (i) Extend the time period provided in subparagraph (d)(3)(iii);
    (ii) Make adjustments in the scope of the demand; or
    (iii) Make adjustments in the method of fulfilling the demand. Any 
decision as to whether to allow such extension or adjustments shall be 
made by the Register of Copyrights after consultation with other 
appropriate officials of the Library of Congress and shall be made as 
reasonably warranted by the circumstances. Requests for special relief 
under paragraph (d) of this section shall be made in writing to the 
Copyright Acquisitions Division, shall be signed by or on behalf of the 
owner of the right of transmission in the United States and shall set 
forth the specific reasons why the request shall be granted.
    (e) Disposition and use of copies. (1) All copies acquired under 
this section shall be maintained by the Motion Picture, Broadcasting and 
Recorded Sound Division of the Library of Congress. The Library may make 
one archival copy of a program which it has fixed under the provisions 
of section 407(e)(1) of title 17 of the United States Code and paragraph 
(c) of this section.
    (2) All copies acquired or made under this section, except copies of 
transmission programs consisting of a regularly scheduled newscast or 
on-the-spot coverage of news events, shall be subject to the 
restrictions concerning copying and access found in Library of Congress 
Regulation 818-17, Policies Governing the Use and Availability of Motion 
Pictures and Other Audiovisual Works in the Collections of the Library 
of Congress, or its successors. Copies of transmission programs 
consisting of regularly scheduled newscasts or on-the-spot coverage of 
news events are subject to the provisions of the ``American Television 
and Radio Archives Act'' (section 170 of title 2 of the United States 
Code) and such regulations as the Librarian of Congress shall prescribe.
    (f) Registration of claims to copyright. (1) Copies fixed by the 
Library of Congress under the provisions of paragraph (c) of this 
section may be used as the deposit for copyright registration provided 
that:
    (i) The application and fee, in a form acceptable for registration, 
is received by the Copyright Office not later than ninety days after 
transmission of the program, and
    (ii) Correspondence received by the Copyright Office in the envelope 
containing the application and fee states that a fixation of the instant 
work was made by the Library of Congress and requests that the copy so 
fixed be used to satisfy the registration deposit provisions.
    (2) Copies transferred, lent, or sold to the Library of Congress 
under the provisions of paragraph (d) of this section may be used as the 
deposit for copyright registration purposes only when the application 
and fee, in a form acceptable for registration, accompany, in the same 
container, the copy lent, transferred, or sold, and there is an 
explanation that the copy is intended to satisfy both the demand issued 
under section 407(e)(2) of title 17 of the United States Code and the 
registration deposit provisions.
    (g) Agreements modifying the terms of this section. (1) The Library 
of Congress may, at its sole discretion, enter into an agreement whereby 
the provision of copies of unpublished television transmission programs 
on terms different from those contained in this section is authorized.

[[Page 448]]

    (2) Any such agreement may be terminated without notice by the 
Library of Congress.

(17 U.S.C. 407, 408, 702)

[48 FR 37208, Aug. 17, 1983, as amended at 56 FR 7815, Feb. 26, 1991; 60 
FR 34168, June 30, 1995]