copyright 1995 David A. Einhorn and Laurie Epstein; Anderson Kill Olick & Oshinsky , New York, New York, U.S.A.
On May 4, 1995, the Copyright Office announced a new appeal procedure for applicants who are denied copyright registration. Specifically, the Copyright Office has established a Board of Appeals, on an interim basis, which will make a final ruling regarding copyrightability. The Board of Appeals will be replacing the once exclusive authority of the Examining Division, to make final decisions on this matter. The new system, effective June 5, is embodied in amendments to Section 606 of the Compendium II of Copyright Office Practices, and will be followed by detailed proposed rules after the office has acquired some experience with the interim procedure.
Under Section 410(b) of Title 17, the Register of Copyrights must refuse registration if she determines that the deposited material lacks copyrightable subject matter or that the applicant's claim is invalid for any other reason. Previously, Section 606 provided an applicant whose claim had been denied registration, with the opportunity for two reconsiderations, each handled within the Examining Division. If a claim was refused after two reconsiderations, Section 606.04 provided that the Chief of the Examining Division would notify the applicant in writing of the reasons. The Division Chief's decision constituted final agency action.
This practice by the Office concerning appeals was criticized on the ground that containment within the Examining Division led to an overly closed system. This criticism has lead to amendment of the appeals process.
In the amended version of the text of Section 606, a new appeals procedure is introduced. The applicant who has been denied registration will still receive two opportunities for reconsideration. After notification of first denial, the applicant may set forth in writing his or her objections to the refusal and request that the Copyright Office reconsider its action. If the claim is refused after reconsideration, the head of the appropriate section of the Examining Division will send the applicant written notification of the reasons for refusal.
If the applicant seeks a second reconsideration, this will now be directed to the newly formed Board of Appeals. The Board of Appeals will consist of the Register of Copyrights, the General Counsel, and the Chief of the Examining Division, or their respective designees. The Board of Appeals will then consider the second appeal and render a final decision. The designated chair of the Board of Appeals will write to the applicant, enumerating the reasons for acceptance or denial of the claim. The Appeal Board's decision will constitute final agency action.
After the Office has had some practical experience with the new system it will offer a detailed proposal and seek public comment. Following a review of these comments, the Office will publish a detailed notice of proposed rulemaking for the new appeal procedure.