[Federal Register Volume 76, Number 19 (Friday, January 28, 2011)]
[Proposed Rules]
[Pages 5106-5107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1884]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. 2011-2]


Deposit Requirements for Registration of Automated Databases That 
Predominantly Consist of Photographs

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of proposed rulemaking and request for comments.

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SUMMARY: The Copyright Office is proposing to amend its regulations, 
including the recently published interim regulations regarding 
electronic registration of automated databases that consist 
predominantly of photographs and group registration of published 
photographs (the ``Interim Regulations''), governing the deposit 
requirements for applications for automated databases that consist 
predominantly of photographs. The proposed amendments would require 
that, in addition to providing material relating to claimed compilation 
authorship, the deposits for such databases include the image of each 
photograph in which copyright is claimed. The Office believes that this 
amendment will align the deposit requirements for such databases with 
the deposit requirements for published or unpublished photographs as a 
single work or group registration of published photographs and provide 
a better public record identifying the scope of the copyright claim.

DATES: Comments must be received in the Office of the General Counsel 
of the Copyright Office no later than February 28, 2011.

ADDRESSES: The Copyright Office strongly prefers that comments be 
submitted electronically. A comment page containing a comment form is 
posted on the Copyright Office Web site at http://www.copyright.gov/docs/databases. The Web site interface requires submitters to complete 
a form specifying name and organization, as applicable, and to upload 
comments as an attachment via a browse button. To meet accessibility 
standards, all comments must be uploaded in a single file in either the 
Adobe Portable Document File (PDF) format that contains searchable, 
accessible text (not an image); Microsoft Word; WordPerfect; Rich Text 
Format (RTF); or ASCII text file format (not a scanned document). The 
maximum file size is 6 megabytes (MB). The name of the submitter and 
organization should appear on both the form and the face of the 
comments. All comments will be posted publicly on the Copyright Office 
Web site exactly as they are received, along with names and 
organizations. If electronic submission of comments is not feasible, 
please contact the Copyright Office at 202-707-8125 for special 
instructions.

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. Telephone: (202) 707-8380. Telefax: (202) 
707-8366.

SUPPLEMENTARY INFORMATION: 

Background

    The Copyright Office has long allowed photographers to register 
groups or collections of photographs, including groups of either 
published or unpublished photographs (or of any other unpublished 
works) as part of a single work when certain requirements have been 
met. See 37 CFR 202.3(b)(4)(i)(A) and (B). It has also adopted a group 
registration procedure for published photographs that complements the 
unpublished collection procedure. See 37 CFR 202.3(b)(10).
    Despite the availability of these options, however, some applicants 
have registered groups of photographs as part of automated databases. A 
published database is registerable under the ``single unit of 
publication'' rule of Sec.  202.3(b)(4)(i)(A), and the group database 
registration provisions permit single registrations 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.

[[Page 5107]]

37 CFR 202.3(b)(5). Using this provision, stock photography agencies 
have registered all the photographs added to their databases within a 
three-month period when they have obtained copyright assignments from 
the photographers.
    The regulations governing registration of automated databases 
embodied in machine-readable copies (other than in a CD-ROM format) 
require deposits that are significantly different than the deposits 
required in connection with the other regulations for registration of 
photographs, discussed above. Section 202.20(c)(2)(vii)(D)(5) of the 
Office's regulations provides that the applications for database 
registrations need not be accompanied by a deposit of the entire work, 
but instead may include identifying material consisting of fifty 
representative pages or data records marked to show the new material 
added on one representative day, along with additional identifying 
information. The deposit accompanying a database registration 
application thus can consist of a fraction of the copyrightable 
material 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 37 CFR 
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).
    There is no good reason why a registration should issue for a 
database consisting predominantly of photographs when the copyright 
claim extends to the individual photographs themselves unless each of 
those claimed photographs is actually included as part of the deposit. 
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 meaningfully reveal the work for which copyright 
protection is claimed.'' 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. 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 [identity] and content of the plaintiff's work.

Registration of Claims to Copyright, Group Registration of Photographs, 
66 FR 37142, 37147 (July 17, 2001) (citations omitted). Moreover, the 
actual practice with respect to almost all registrations of 
predominantly photographic databases has in fact been to include all of 
the photographs in the deposit.

    For these reasons, in the recently announced interim regulation 
establishing a pilot program for online applications for group 
registration of databases consisting predominantly of photographic 
authorship, the Office included a requirement that the deposit 
accompanying such an online application authorship must include the 
image of each claimed photograph in the database. Interim Rule, 
Registration of claims of copyright, 76 FR 4072-4076 January 24, 2011).
    In order to conform to the prevailing practice and the Office's 
determination of what a reasonable deposit requirement should include, 
the Office proposes to apply that requirement to deposits accompanying 
paper applications for group registration of databases consisting 
predominantly of photographic authorship. The proposed amendment would 
provide that, for any registration (whether the application is made by 
paper application or online pursuant to the Interim Regulation) of an 
automated database consisting predominantly of photographs, the deposit 
shall include, in addition to the descriptive statement currently 
required under section 202.20(c)(2)(vii)(D)(5), all of the photographs 
included in the copyright claim being registered. Identifying material 
will not constitute a sufficient deposit. As noted above, this conforms 
with what has in fact been the prevailing practice. The Office also 
notes that it will, in the future, consider extending this requirement 
to other types of databases.

Proposed Regulations

    In consideration of the foregoing, the Copyright Office proposes to 
amend part 202 of 37 CFR, as follows:

List of Subjects in 37 CFR Part 202

    Copyright.

PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

    1. The authority citation for part 202 continues to read as 
follows:

    Authority:  17 U.S.C. 407, 408, 702.

    2. Amend Sec.  202.20 as follows:
    a. In paragraph (c)(2)(vii)(D)(5) introductory text by removing 
``electronically submitted'' after ``or in the case of'';
    b. In paragraph (c)(2)(vii)(D)(8) by removing ``submitted 
electronically'' after ``case of an application''; and
    c. In paragraph (c)(2)(xx) introductory text remove ``registered 
with an application submitted electronically under Sec.  
202.3(b)(5)(ii)(A)'' after ``and for automated databases that consist 
predominantly of photographs''.

    Dated: January 24, 2011.
Maria Pallante,
Acting Register of Copyrights.
[FR Doc. 2011-1884 Filed 1-27-11; 8:45 am]
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