1704.2 Review of the Second Request for Reconsideration
The second appeal will be reviewed by the Review Board. The Review Board consists of the Register of Copyrights and the General Counsel of the U.S. Copyright Office (or their respective designees) and a third individual designated by the Register. 37 C.F.R. § 202.5 (F).
The Review Board will base its decision on the applicant’s written submission and the administrative record. Specifically, the Board will consider the arguments and evidence set forth in the applicant’s second request for reconsideration, as well as the application and the deposit copy(ies). In addition, the Board may consider any prior correspondence between the applicant and the Office, or may take administrative notice of matters of general knowledge or matters known to the Office or the Review Board. If the Board needs additional information to review the second request, it will notify the applicant in writing. The Review Board will not hear oral argument on a second request for reconsideration.
Both the decision made by the registration specialist and the decision to uphold the refusal to register following the applicant’s first request for reconsideration are subject to de novo review, which means that the Board will take a fresh look at whether the work meets the statutory requirements for copyright registration.
A majority of the Review Board’s members must agree to uphold or reverse a refusal to register. A decision issued by the Review Board has no precedential value, nor is any decision binding upon the Board in any other appeal.
If the Review Board decides to register the applicant’s work, it will notify the applicant in writing. This notification will be sent to the individual who submitted the second request for reconsideration, and the certificate of registration will be sent separately to the mailing address specified in the application. See Chapter 600, Section 622.4.
If the Review Board decides to uphold the refusal to register, it will notify the applicant in writing and will explain the reasons for its decision. This notification will be sent to the individual who submitted the second request for reconsideration. If the Review Board has been notified that the work is involved in litigation, the Review Board will send a copy of its decision to counsel of record for the parties in that dispute.
See generally 37 C.F.R. § 202.5 (C) (4) (discussing the procedure for reviewing a second request for reconsideration).