[Federal Register Volume 76, Number 15 (Monday, January 24, 2011)]
[Rules and Regulations]
[Pages 4072-4076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1332]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. RM 2010-6]
Registration of Claims of Copyright
AGENCY: Copyright Office, Library of Congress.
ACTION: Interim rule.
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SUMMARY: The Copyright Office is adopting interim regulations governing
the electronic submission of applications for registration of automated
databases that predominantly consist of photographs, and applications
for group registration of published photographs. This interim rule
establishes a testing period and pilot program during which the
Copyright Office will assess the desirability and feasibility of
permanently allowing such applications to be submitted through the
Copyright Office's electronic filing system (``eCO''). Persons wishing
to submit electronic applications to register copyrights of such
photographic databases or of groups of published photographs should
contact the Visual Arts Division for permission and guidance on
electronic registration. Notwithstanding the ordinary deposit
requirements for group registration of automated databases, an
electronic application for group registration of an automated database
that consists predominantly of photographic authorship must include the
image of each claimed photograph in the database. The interim
regulations also allow applicants to use forms other than Form TX, as
appropriate, when submitting paper applications to register group
automated databases.
DATES: Effective Date: January 24, 2011.
FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or
Catherine Rowland, Attorney Advisor, Copyright Office, GC/I&R, P.O. Box
70400, Washington, DC 20024.
[[Page 4073]]
Telephone: (202) 707-8380. Telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION: In order to advise the public of and align
its regulations with its registration practices relating to certain
kinds of group registrations involving photographic authorship, the
Copyright Office is publishing this notice to establish a limited pilot
program to allow online submission of copyright applications for
photographs using the procedures for registration of (1) automated
databases and (2) groups of published photographs.
For over three years, the Copyright Office has offered and
encouraged the option of submitting applications for copyright
registration online. See Online Registration of Claims to Copyright, 72
FR 36883 (July 6, 2007). However, although online registration has been
available for basic registration claims, it has not yet been made
generally available for group registrations. While the Office has
proposed that online registration be required in the future for all
group registrations, see Registration of Claims to Copyright, Group
Registration Options, 73 FR 23390, 23392 (Apr. 30, 2008), that proposal
has not yet been implemented because most of the group registration
options require specialized applications that have not yet been
integrated into the Office's eCO system.
The Copyright Office has long had in place provisions permitting
photographers to register groups or collections of photographs. Since
the enactment of the Copyright Act of 1976, the Copyright Office has
permitted the registration of groups of unpublished photographs (or of
any other unpublished works) as part of a single ``collection'' when
certain requirements have been met. The most significant of those
requirements are that the copyright claimant in each of the works, and
in the collection as a whole, must be the same and that all the works
must have at least one common author. See 37 CFR 202.3(b)(4)(i)(B).
Similarly, for published works, registration as a single work has been
permitted for ``all copyrightable elements that are otherwise
recognizable as self-contained works, that are included in a single
unit of publication, and in which the copyright claimant is the same.''
37 CFR 202.3(b)(4)(i)(A).
In 2001, after an extensive rulemaking proceeding, the Office
adopted a group registration procedure for published photographs that
complemented the already existing unpublished collection procedure. See
Registration of Claims to Copyright; Group Registration of Photographs,
66 FR 37142 (July 17, 2001). The result was a new group registration
procedure permitting registration of a group of published photographs,
all taken by the same photographer and published within the same
calendar year, upon submission of an application for registration and a
deposit consisting of each of the images covered by the registration.
At the same time, the Office liberalized its requirements with respect
to acceptable formats of deposits of photographs for registrations of
unpublished collections, as well as for the new group registration of
published photographs option. See 37 CFR 202.3(b)(10) and
202.20(c)(2)(xx). The 2001 regulations ensured that the registration
record and the deposit would provide a sufficient record to inform the
public of the existence and scope of the registered copyright claim.
However, some groups of photographs have also been registered by
using another option permitting group registration of automated
databases. The group database registration option was first announced
in 1989. See Registration of Claims to Copyright Registration and
Deposit of Databases, 54 FR 13177 (March 31, 1989). It has been used to
register databases consisting predominantly of photographic images
since at least 1997. See, e.g., Registration No. VA 863-785 (Corbis
Digital Online Update Group, from March 18-June 30, 1997) (effective
date Nov. 6, 1997). While a published database would be registerable
under the ``single unit of publication'' rule of Sec.
202.3(b)(4)(i)(A), the group database registration provisions permit
the making of a single registration that covers up to three months'
worth of updates and revisions to an automated database when all of the
updates or other revisions (1) are owned by the same copyright
claimant, (2) have the same general title, (3) are similar in their
general content, including their subject, and (4) are similar in their
organization. 37 CFR 202.3(b)(5). Using this provision, stock
photography agencies have been able to obtain registrations covering
all the photographs added to their databases within a three-month
period when they have obtained copyright assignments from the
photographers.
In the coming months, the Copyright Office is likely to initiate a
review of the circumstances and conditions under which database
registrations may be made and the extent to which, going forward, such
registrations should continue to be deemed to cover not only the
compilation authorship (i.e., the authorship involved in the selection,
coordination and arrangement of the data and/or works assembled in a
database) but also any or all of the works assembled in the database.
Accordingly, and in light of the longstanding availability of the
option of registering unpublished collections and the lengthy and
carefully considered rulemaking that established the procedures for
group registration of published photographs, the Office prefers and
urges claimants to use those two options when registering groups of
photographs rather than using the provisions for registration of
automated databases.
However, at least at this point in time, the Office is not prepared
to impose new limits on the availability of group registration for
automated databases when the content that is registered is primarily
photographic in nature. In fact, the Visual Arts Division has accepted
some online applications for registration of photographic databases and
has adopted certain practices that are not currently reflected in the
Office's regulations. The Register has concluded that it would be
advantageous to the Office and applicants to conduct a pilot program to
evaluate the conditions under which online registration of automated
databases consisting predominantly of photographs can and should be
made, and to clarify in the Office's regulations that online
applications may be accepted for such databases.
Similarly, some applicants have already submitted online
applications for registration under the Office's procedure for group
registration of published photographs in recent months. Although the
Office had not announced the availability of online applications for
group registration of photographs, the Visual Arts Division has
processed some online applications when all the required information
has been included. In order to reconcile this practice with the
Office's regulations and to determine what ultimately will be the
specific requirements for online applications for group registration of
published photographs, the Office is also offering a pilot program to
assess online applications for group registration of photographs.
Issues with Respect to Registration of Automated Databases Consisting
Predominantly of Photographs
1. Online Submission of Applications; Availability of the Appropriate
Forms for Print Applications
Currently, the Office encourages the initial registration of an
automated database to be submitted electronically through the Office's
eCO system.
[[Page 4074]]
However, the Office generally has not allowed group registrations,
including group registrations of automated databases, to be submitted
through the eCO system because eCO is not yet set up to take in the
information required on the specialized application forms for many of
the Office's group registration options. With respect to group
registration of automated databases, the Office's existing regulation
provides that ``[a]n application for group registration of automated
databases under section 408(c)(1) of title 17 and this subsection shall
consist of * * * [a] Form TX'' along with the filing fee and deposit.
37 CFR 202.3(b)(5)(ii)(A). Form TX is a paper application
Other information provided by the Copyright Office relating to
group database registrations also appears to be inconsistent with the
acceptance of online applications. Until very recently, Circular 65,
Copyright Registration for Automated Databases, stated: ``Group
registrations cannot be submitted through eCO or fill-in Form CO.
Instead, the Form TX must be completed and mailed to the Copyright
Office with the appropriate fee and deposit.'' See Copyright Office,
Circular 65, Copyright Registration for Automated Databases 3 (2009)
(currently undergoing revision). See also Copyright Office Form Letter
110, Group Registration for Automated Databases (Revised: 27-Jun-2008),
available at http://www.copyright.gov/fls/fl110.html.
Unlike most of the other group registration options, group
registration for automated databases does not require a special group
form. As noted above, traditionally such registrations have been made
using Form TX, the paper form used for all published and unpublished
nondramatic literary works. The Copyright Office's online registration
system, eCO, currently is capable of handling applications for group
registration of automated databases. However questions remain about the
capacity of the system to accommodate applications listing very large
numbers of authors or titles, and large or complex electronic transfers
of deposits may encounter issues related to file size or transmission
speed.
Moreover, although the provisions for group registration of
automated databases traditionally have been used primarily for
registrations of databases consisting either of literary works or of
data, the Office has also, for over a decade, accepted applications for
group registration of automated databases when the works collected in a
database have consisted predominantly of photographic authorship. Such
applications have been made using Form VA, the paper form used for
works of the visual arts.
Thus, to the extent that the existing regulation on group
registration of automated databases requires the use of Form TX, it is
inconsistent with existing practice in two respects: (1) Some
applications have been made online using eCO, rather than using a paper
form, and (2) even when a paper form is used, a form other than Form TX
may be used depending on the subject matter of the works included in
the database.
In order to reconcile the regulatory text with current practice,
the Office is amending its regulations governing group registration of
automated databases to clarify that, rather than being required to use
Form TX, an applicant should use the form that best reflects the
subject matter of the works included in the database.\1\ For example,
when the works in a database consist predominantly of photographs, the
print application should be made by submitting Form VA rather than Form
TX. Moreover, the Office is formally announcing its pilot program
allowing applicants to file online applications for automated databases
consisting predominantly of photographs. Before filing such an online
application, however, the applicant must first contact the Office's
Visual Arts Division at 202-707-8202 to coordinate the filing and to
obtain proper guidance concerning the information to be included in the
application. Applicants will only be allowed to file online
applications for automated databases consisting predominantly of
photographs after obtaining authorization from the Visual Arts Division
and following the Division's instructions. In order to utilize the
online registration system's capacity to accept more information in an
application covering a large number of works and thereby to create a
clearer, more comprehensive public record, and in order to adapt to
lessons learned as such applications are examined and processed, the
Visual Arts Division will permit participation in the pilot program
only by applicants who can utilize the online registration system
consistent with those goals. For now, the online registration option
for group database registrations will be limited to photographic
databases.
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\1\ With respect to paper forms, the existing practice appears
to have related only to Form VA, but in principle there is no reason
why Form PA or Form SR should not be used to register a database
when the authorship consists predominantly of works of the
performing arts or sound recordings, respectively.
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2. Deposit Requirements
A significant respect in which the provisions governing
registration of automated databases differ from the other provisions
for registration of photographs discussed above lies in the relaxed
deposit requirements for databases embodied in machine-readable copies
(other than in a CD-ROM format). Section 202.20(c)(2)(vii)(D)(5) of the
Copyright Office regulations provides that for group database
registrations (as well as single database applications), the
application need not be accompanied by a deposit of the entire work,
but instead may be accompanied by identifying material consisting of
fifty representative pages or data records marked to show the new
material added on one representative day, along with some additional
identifying information. As a result, the deposit accompanying a
database registration application can consist of a fraction of the
copyrightable material that is covered by the registration.
This is in stark contrast to the deposit requirements for
registration of unpublished collections, for group registrations of
published photographs, and for most other forms of copyright
registration. Section 202.3(b)(10)(x), which governs the deposit for a
group registration of photographs, provides that the deposit shall
consist of ``one copy of each photograph [to] be submitted in one of
the formats set forth in Sec. 202.20(c)(2)(xx).'' See also Sec.
202.20(c)(1)(i) (``in the case of unpublished works, [the deposit shall
consist of] one complete copy or phonorecord,'' a provision that
applies to registrations of unpublished collections as well as
individual unpublished works). Section 202.20(c)(2)(xx) provides for a
number of options with respect to the formats in which photographs may
be submitted.
The Copyright Office believes that when registration is made for a
database consisting predominantly of photographs and the copyright
claim extends to the individual photographs themselves, each of those
photographs should be included as part of the deposit accompanying the
application. As the Office said when it announced its regulations on
group registration of published photographs:
[T]he Office rejects the plea of at least one commenter to
permit the use of descriptive identifying material in lieu of the
actual images. Although the Office had previously expressed a
willingness to consider such a proposal, the most recent notice of
proposed rulemaking noted that `the Office is reluctant to implement
a procedure that would permit the acceptance of deposits that do not
[[Page 4075]]
meaningfully reveal the work for which copyright protection is
claimed.' 65 FR at 26164. Deposit of the work being registered is
one of the fundamental requirements of copyright registration, and
it serves an important purpose. As the legislative history of the
Copyright Act of 1976 recognizes, copies of registration deposits
may be needed for identification of the copyrighted work in
connection with litigation or for other purposes. See H.R. Rep. No.
94-1476, at 171 (1976). See also Seiler v. Lucasfilm, Inc., 808 F.2d
1316, 1322 (9th Cir. 1986) (noting that `possibilities for fraud
would be limitless' if reconstructions of claimant's original work
could be submitted as registration deposits); Tradescape.com v.
Shiraram, 77 F.Supp.2d 408, 413-14 (S.D.N.Y. 1999) (noting that when
deposit of redacted version of computer program is permitted, the
result in infringement litigation is uncertainty as to whether
allegedly infringed code actually is the subject of an existing
registration). The ability of litigants to obtain a certified copy
of a registered work that was deposited with the Office prior to the
existence of the controversy that led to a lawsuit serves an
important evidentiary purpose in establishing the identify and
content of the plaintiff's work.
Registration of Claims to Copyright, Group Registration of Photographs,
66 FR 37142, 37147 (July 17, 2001).
Moreover, the actual practice with respect to online registrations
of predominantly photographic databases has in fact been to include all
of the photographs in the deposit. In order to conform to actual
practice and the Office's determination of what a reasonable deposit
requirement should include, the Office is amending its regulations to
provide that when an online application is made for registration of an
automated database consisting predominantly of photographs, the deposit
shall include all of the photographs claimed to be part of the
registration. Identifying material will not constitute a sufficient
deposit. As noted above, this conforms with what has in fact already
been the general practice with respect to online applications. The
Office is separately publishing a notice of proposed rulemaking that
would impose a similar requirement with respect to paper applications
for registration of photographic databases.
The requirement that all photographs covered by a registration are
to be included as part of the deposit is in addition to the existing
deposit requirements for identifying material set forth in section
202.20(c)(2)(vii)(D).
Because of issues regarding limitations on the size of deposits
that may be submitted online, applicants for group registrations of
photographic databases must confer with the Visual Arts Division with
respect to each application to determine whether to submit their
deposits electronically, or whether to submit the deposits by mail
using one of the approved formats set forth in 37 CFR 202(c)(2)(xx).
Issues with Respect to Group Registration of Published Photographs
As with group database registrations, up to now the Office has not
formally announced that online registration is available for group
registration of published photographs. However, a number of claimants
have submitted applications for group registration of published
photographs through eCO and the Visual Arts Division has in some cases
processed those claims.
Because experience has shown that the requirements for group
registration of published photographs can be satisfied by means of
online applications, the Office has decided that it will undertake a
pilot program to assess the online application process for these
applications. This will enable the Office to determine whether the eCO
system can successfully handle different applications for group
registration of published photographs. Therefore, applicants wishing to
obtain group registrations for published photographs will be allowed to
apply for registration online during the pilot program. As with group
registrations of photographic databases, before filing such an online
application, the applicant must first contact the Office's Visual Arts
Division at 202-707-8202 to coordinate the filing and to obtain
guidance concerning the information to be included in the application.
Applicants will only be allowed to file such online applications after
obtaining authorization from the Visual Arts Division and following the
Division's instructions. Additionally, applicants must confer with the
Visual Arts Division with respect to each application in order to
determine whether their deposits may be submitted electronically due to
potential limitations on the size of electronically submitted deposits.
Technical Correction
The Office is also amending Section 202.20(c)(2)(xx) to correct
three cross-references to other regulations.
Adoption of Interim Regulations
Section 553(b)(3)(A) of the Administrative Procedure Act states
that general notice of proposed rulemaking is not required for rules of
agency organization, procedure, or practice. Since the Office finds
that the following interim regulations are rules of agency
organization, procedure, or practice, no notice of proposed rulemaking
is required. Additionally, the interim regulations are consistent with
the Office's existing practices and relieve applicants from procedural
restrictions. Pursuant to section 553(d) of the Administrative
Procedure Act, these regulations may be effective immediately.
Moreover, the Register finds that because these regulations provide
additional options to applicants for registration of automated
databases and for group registration of published photographs, good
cause exists for making these interim rules effective immediately and
without notice and comment. As the pilot program for online
registration of these groups proceeds, the Office will learn from its
experience and develop proposals for more comprehensive final
regulations.
List of Subjects in 37 CFR Part 202
Copyright.
Interim Regulation
For the reasons set forth in the preamble, part 202 of Title 37 of
the Code of Federal Regulations is amended to read as follows:
PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
0
1. The authority citation for part 202 continues to read as follows:
Authority: 17 U.S.C. 408(f), 702.
0
2. Amend Sec. 202.3as follows:
0
a. By revising paragraph (b)(5)(ii)(A); and
0
b. By adding new paragraph (b)(10)(xi).
The revisions and additions to Sec. 202.3 read as follows:
Sec. 202.3 Registration of copyright.
* * * * *
(b) * * *
(5) * * *
(ii) * * *
(A) A form that best reflects the subject matter of the material in
the database as set forth in paragraph (b)(2) of this section,
completed in accordance with the basic instructions on the form and the
Special Instructions for Group Registration of an Automated Database
and its Updates or Revisions, except that in the case of an application
for group registration of an automated database consisting
predominantly of photographs, after consultation and with the
permission and under the direction of the Visual Arts Division, the
application may be submitted electronically.
* * * * *
(10) * * *
[[Page 4076]]
(xi) Instead of using Form VA, an applicant may submit an
electronic application for group registration of published photographs
after consultation and with the permission and under the direction of
the Visual Arts Division.
* * * * *
0
3. Amend Sec. 202.20 as follows:
0
a. By amending (c)(2)(vii)(D)(5) to add ``or in the case of
electronically submitted applications for automated databases that
predominantly consist of photographs, the claimant shall deposit
identifying portions that comply with (D)(8) of this section; the
claimant shall'' after ``if unpublished,'' and deleting ``and shall''
before ``also deposit'';
0
b. By adding new paragraph (c)(2)(vii)(D)(8);
0
c. By amending the introductory text in paragraph (c)(2)(xx) to add
``and for automated databases that consist predominantly of photographs
registered with an application submitted electronically under Sec.
202.3(b)(5)(ii)(A)'' after ``(group registration of published
photographs)'', by removing ``202.3(b)(3)(i)(B)'' and adding
``202.3(b)(4)(i)(B)'' in its place; and by removing ``202.3(b)(9)'' and
adding ``202.3(b)(10)'' in its place; and
0
d. By amending paragraph (c)(2)(xx)(F) to add ``or database'' after
``included in the group'' and to remove ``202.3(b)(9)'' and add
``202.3(b)(10)'' in its place.
The revisions and additions to Sec. 202.20 read as follows:
Sec. 202.20 Deposit of copies and phonorecords for copyright
registration.
* * * * *
(c) * * *
(2) * * *
(vii) * * *
(D) * * *
(8) In the case of an application submitted electronically for
registration of a database that consists predominantly of photographs
(including a group registration for revised or updated versions of such
a database), ``identifying portions'' shall instead consist of all
individual photographs included in the claim either in one of the
formats set forth in paragraph (c)(2)(xx) of this section or in an
electronic format submitted along with the electronic application after
consultation and with the permission and under the direction of the
Visual Arts Division.
* * * * *
Dated: December 30, 2010.
Marybeth Peters,
Register of Copyrights.
Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 2011-1332 Filed 1-21-11; 8:45 am]
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