[Federal Register Volume 82, Number 114 (Thursday, June 15, 2017)]
[Rules and Regulations]
[Pages 27424-27428]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-12453]


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LIBRARY OF CONGRESS

 Copyright Office

37 CFR Parts 201 and 202

[Docket No. 2016-9]


Supplementary Registration

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Final rule.

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SUMMARY: The United States Copyright Office is modernizing its 
registration practices to increase the efficiency of the registration 
process for both the Office and copyright owners. To further these 
efforts, this final rule adopts modifications to the Office's 
procedures for supplementary registration. Specifically, the Office 
adopts a new rule that, in most cases, requires applicants to submit an 
online application in order to correct or amplify the information set 
forth in a basic registration. In addition, the Office is amending the 
regulation to codify and update certain practices that are set forth in 
the Compendium of U.S. Copyright Office Practices, Third Edition and to 
improve the readability of the regulation.

DATES:  Effective July 17, 2017.

FOR FURTHER INFORMATION CONTACT: Robert J. Kasunic, Associate Register 
and Director of Registration Policy and Practice, by telephone at (202) 
707-8040; Erik Bertin, Deputy Director of Registration Policy and 
Practice, by telephone at 202-707-8040; or Emma Raviv, Barbara A. 
Ringer Fellow, by telephone at 202-707-3246.

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 1, 2016, the Copyright Office (the ``Office'') 
published a Notice of Proposed Rulemaking (``NPRM'') setting forth 
proposed regulatory amendments designed to make the procedure for 
supplementary registration more efficient. See 81 FR 86656 (Dec. 1, 
2016). A supplementary registration is a special type of registration 
that may be used ``to correct an error in a copyright registration or 
to amplify the information given in a registration.'' Id. Specifically, 
it identifies an error or omission in an existing registration 
(referred to herein as a ``basic registration'') and places the 
corrected information or additional information in the public record. 
Section 408(d) of the Copyright Act authorizes the Register of 
Copyrights to establish such procedures. 17 U.S.C. 408(d).
    The NPRM explained in detail the rationale for one major change to 
the supplementary registration procedures. Previously, and since 2007, 
the Office allowed and encouraged applicants to register their works 
through the electronic registration system, see 72 FR 36883 (July 6, 
2007), but to seek a supplementary registration, applicants had to 
submit a paper application using Form CA. 37 CFR 201.5(c)(1), (c)(2). 
Under the rule proposed in the NPRM, applicants will be required to 
file an online application to correct or amplify the information set 
forth in a basic registration for any work that is capable of being 
registered through the electronic system, rather than filing a paper 
application. The NPRM identified the types of works that will be 
subject to this online filing requirement when the rule goes into 
effect, as well as other works that will be subject to this requirement 
in the near future. 81 FR at 86657-58 & nn. 3-8. The NPRM stated that 
if the Office subsequently moves registrations for other classes of 
works into the electronic system, supplementary registrations for those 
works will also be subject to this same requirement. Id. at 86658. 
Finally, the NPRM stated that applicants will be required to submit a 
paper application using Form CA to correct or amplify the registration 
record for works that cannot be registered through the electronic 
system, and it identified the three types of works that remain subject 
to the paper filing requirement. 81 FR at 86658 & nn. 11-13.
    The NPRM also proposed modifications to certain practices relating 
to supplementary registration. First, it clarified that the fee for 
online submission of a supplementary registration will be the same as 
the fee for paper submission, and that applicants may be assessed an 
additional fee if the basic registration has not yet been digitized by 
the Office, and if the applicant fails to provide a copy of that 
registration during the examination. Second, the NPRM proposed updating 
the regulation to reflect examination practices described in the 
Compendium of U.S. Copyright Office Practices, Third Edition 
(hereinafter ``Compendium''), the rules regarding when supplementary 
registration will be declined, and the practices regarding cross-
references in the Office's public record. The NPRM also proposed 
clarifying the relationship between the basic and supplementary 
registrations, requiring a certification that the applicant has 
reviewed the basic registration, and laying out the referral procedure 
in the event of an Office error.
    The Office received four comments in response to the NPRM, from 
Authors Guild (``AG''); the Motion Picture Association of America, Inc. 
(``MPAA''); Author Services, Inc., representing the literary, 
theatrical, and musical works of L. Ron Hubbard (``Author Services''); 
and a coalition of organizations and advocates representing visual 
artists including photographers, videographers, illustrators, artists, 
and designers, as well as their licensing representatives (the 
``Coalition of Visual Artists''). The Coalition of Visual Artists 
generally supported the modifications proposed in the NPRM, but 
articulated some concerns relating to the Office's separate rulemaking 
regarding group registration of photographs.\1\ Author Services, MPAA, 
and AG noted some objections but overall supported the proposed 
modifications. Having reviewed and carefully considered the comments 
received, the Office now issues a final rule that closely follows the 
proposed rule, with some alterations in response to the comments, as 
discussed below.\2\
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    \1\ 81 FR 86643 (Dec. 1, 2016).
    \2\ The final rule also makes some technical amendments to the 
proposed rule. It moves the regulation on supplementary registration 
to part 202 of title 37, which is the part that specifically 
addresses copyright registration. It also corrects spelling and 
punctuation discrepancies that appeared in Sec. Sec.  
201.3(c)(9)(ii) and 201.5(d)(4)(i) and (ii) of the proposed rule.

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[[Page 27425]]

II. Discussion of Comments

A. Online Filing Requirement

    MPAA, Author Services, and the Coalition of Visual Artists all 
generally support the proposal to require applicants to use the 
Office's electronic registration system to seek a supplementary 
registration. But these parties did voice some concerns about a 
complete transition to the digital system.
    MPAA noted that there may be situations where the online system may 
be unavailable. MPAA suggested that applicants should be allowed to 
submit a paper application on the ``rare occasion(s)'' where the online 
system is down and an online application cannot be filed. MPAA Comments 
at 2. This is a legitimate concern, but it is not limited to 
supplementary registration. It potentially affects any USCO service or 
function that is offered or provided solely online, including 
preregistration, the designation for agents for online service 
providers, and responses to notices of proposed rulemaking. The Office 
recently proposed a rule in a separate rulemaking to provide a means 
for preserving/establishing a filing date for a supplementary 
registration--or any other type of registration--in cases where the 
electronic system is offline. See 82 FR 12326 (March 2, 2017).
    AG agreed that the ``policy considerations'' for requiring 
applicants to use an online application ``are sound.'' AG Comments at 
3. They recognized that paper applications ``result in more work for 
the [Office].'' Id. at 2. However, AG expressed concern that a number 
of authors may prefer to use a paper application or may not have 
convenient access to the internet. Id. AG stated that the Office should 
continue to offer the paper application for a modest fee and should 
determine if there is sufficient demand for Form CA before phasing it 
out.\3\ Id.
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    \3\ AG filed comments on behalf of its 9,000 members but 
apparently did not poll its members to determine if they would 
prefer to use a paper application or if they would be unable to use 
the online application due to a lack of internet access.
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    Although the Office acknowledges the concerns, it has decided to 
implement the online application requirement and eliminate the paper 
application option for most works. The Office recognizes, however, that 
authors are accustomed to using Form CA. To ease the transition from 
the paper application to the online form, the Office is developing 
several new resources. The Office will revise Chapters 1400 and 1800 of 
the Compendium, which discuss the Office's practices and procedures for 
issuing supplementary registrations. The Office will also update 
Circular 8, which provides a general introduction to the topic of 
supplementary registration. The Office is also revising the 
instructions for Form CA to clarify the situations where this form can 
and cannot be used. And the Office has added a notice to the current 
form and instructions noting that in most cases, Form CA may not be 
used once the final rule goes into effect.
    In addition, the Office is also preparing an online tutorial that 
explains how to use the online application, and has prepared extensive 
help text within the application itself that should provide answers to 
frequently asked questions. In addition, Copyright Office staff will 
make themselves available to deliver tutorials for groups that are 
interested in learning more about the online registration process.
    The Office recognizes that some authors may not have broadband 
internet service or a convenient means of accessing the Office's Web 
site. In such cases, applicants could conceivably hire an attorney or 
seek pro bono representation to file the application on their behalf. 
But the Office recognizes that, as AG noted in its comments, this may 
impose a burden on applicants. AG Comments at 2. As AG suggested, the 
Office will address these concerns by offering ``special dispensation 
on a case by case basis.'' Id. The following provision (Sec.  
202.6(e)(7)) has accordingly been added to the final rule: ``In an 
exceptional case, the Copyright Office may waive the requirements set 
forth in paragraph (e)(1) of this section, subject to such conditions 
as the Associate Register and Director of the Office of Registration 
Policy and Practice may impose on the applicant.'' Authors who do not 
have internet access and are unable to use the online application 
should contact the Office, and the Office will review the specific 
details of their cases and determine their eligibility.
    The Office will then make accommodations for applicants who receive 
a waiver under this provision. One accommodation that the Office plans 
to implement will be to allow such applicants to contact the Public 
Information Office (``PIO'') by telephone for assistance in filling out 
the application. A member of the staff will ask the applicant to 
provide the information that is called for in the application, such as 
the title of the work and the number assigned to the basic 
registration. In addition, PIO staff will ask the applicant to identify 
the information in the basic registration that should be corrected or 
amplified. PIO staff will enter this information into the electronic 
registration system. Then they will print a copy of the application and 
mail it to the applicant for his or her review. If the applicant 
approves the draft, he or she will sign the application and mail it 
back to the Office, along with a check to cover the filing fee. In 
providing this service, members of the PIO staff are not providing 
legal advice; their assistance is merely a service for convenience, and 
applicants remain responsible for providing accurate and complete 
information in their applications. Applicants should be aware that if 
they use this option, the effective date for their supplementary 
registration will be based on the date that the signed application and 
the filing fee are received. At this time, the Office does not intend 
to charge an additional fee for applicants who submit applications with 
the assistance of PIO. The Office will track the number of applicants 
who use this option and the amount of time needed to handle these 
requests. The Office will use this information in conducting its next 
fee study.

B. Copy of the Basic Registration

    The NPRM explains that in certain circumstances, a registration 
specialist may ask the applicant to provide a copy of the basic 
registration certificate if that certificate had not previously been 
digitized by the Office (and thus cannot be retrieved through the 
electronic system). 81 FR 86659. Author Services contends that 
applicants should be allowed to digitally upload a copy of the basic 
registration certificate at the time of application (rather than 
waiting for the Office to request the certificate), and, indeed, should 
be required to do so in all cases. Author Services Comments at 1. 
Absent such an option, it opposes the proposed fee for preparing an 
additional copy of the basic registration. Id. at 2.
    While it may be possible to add an upload feature to the online 
application, doing so would increase the cost of development and delay 
the implementation of the release. And, in any event, submitting a copy 
of the basic registration certificate is unnecessary in most cases. As 
explained in the NPRM, the examiner should be able to generate a copy 
of the certificate from the Office's electronic system, if the 
registration was issued after 1994. If the certificate is not available 
through the electronic system, the examiner will ask the applicant to 
submit a copy via email. In most of those cases, the applicant should 
be able to provide a copy of the certificate, because the rule requires 
the applicant to certify that he

[[Page 27426]]

or she reviewed the basic registration certificate before submitting 
the application. If the applicant nevertheless is unable to submit a 
copy of the certificate in response to the examiner's request, only 
then will the Office will charge an additional fee to generate the 
basic certificate. 81 FR 86659 & n.21. Thus, Authors Services' concern 
regarding the fee will not arise in any case where the applicant has 
the basic registration certificate at hand.

C. Other Concerns

    The Coalition of Visual Artists expressed concern that defendants 
often challenge the validity of basic registrations if there appear to 
be any errors in the certificate, even if they are merely technical 
mistakes. Coalition of Visual Artists Comments at 11-12. It urged that 
such errors ``should not invalidate registrations, and shouldn't 
require subsequent filing or correction costs,'' and encouraged the 
Office to provide more guidance as to the types of errors that are 
considered harmless/immaterial and, as such, do not require the filing 
of a supplementary registration for purposes of correcting the basic 
registration. Id. at 12.
    Compendium section 1800 provides detailed guidance on the types of 
corrections and amplifications that can or cannot be made with a 
supplementary registration, but the Office generally does not 
distinguish between material and immaterial errors. Nor would it be 
appropriate, in the context of this rulemaking, for the Office to 
attempt to catalog what errors are or are not material. In general, the 
Office encourages applicants to file applications for supplementary 
registration as soon as any errors in the basic application are 
discovered, and especially before initiating an infringement suit. If 
the Office is aware that a lawsuit has been filed, it may suspend 
further action on an application for supplementary registration until 
the dispute has been resolved if the proposed change is likely to be 
directly at issue in the case.
    Photographers represented by the Coalition of Visual Artists 
expressed concern that they would need to submit a separate application 
in order to correct each defect in a registration, such as errors in 
publication status, publication year, or the nation of first 
publication. Coalition of Visual Artists Comments at 13-14. This 
concern appears to be based on a misunderstanding of the rule: It 
should be possible to address all of the errors in a basic registration 
as part of one supplementary registration application, so long as those 
changes are otherwise permitted. Compendium sec. 1802.9(D).
    The photographers also expressed concerns with respect to the 
interaction between this rule and the separate proposed rule regarding 
group registration for unpublished photographs. See 81 FR 86643 (Dec. 
1, 2016). They worried that if they use the group option for 
unpublished photographs, they may need to file a supplementary 
registration if some of the photographs in that group are published at 
some point in the future. They also expressed concern that a 
supplementary registration may be needed if the photographer needs to 
``change, revise or edit'' the works that are later chosen for 
publication. Coalition of Visual Artists Comments at 11. Both concerns 
are misplaced. When the Office issues a group registration, it is 
effective as of the date that the application fee and deposit are 
received. If the photographs were unpublished as of that date, there is 
no need to correct or amplify the record if some or all of those works 
are later published. The fact that some or all of the photographs may 
be published at some point in the future does not affect the validity 
of the original registration. Indeed, if an applicant sought a 
supplementary registration seeking to change a registration for a group 
of unpublished photographs based on the later publication of some or 
all of those photographs, the Office would refuse to issue it. The 
regulation expressly states that a supplementary registration cannot be 
used to reflect ``changes in facts'' that occurred after the basic 
registration was issued, such as a subsequent change in publication 
status. Nor may a supplementary registration be used to reflect changes 
in the content of the work, such as the preparation of a new version of 
a preexisting work. 37 CFR 201.5(b)(2)(iii).
    Of course, photographers may seek a new basic registration when 
they create a new or derivative version of a preexisting image. And 
they may seek a new basic registration when a previously unpublished 
photograph has been published. 37 CFR 202.3(b)(11)(i). But this is not 
necessary to maintain the validity of an existing registration for the 
unpublished photograph or the preexisting photograph that was used to 
create the derivative work.
    Finally, the photographers represented by the Coalition of Visual 
Artists noted that it is difficult to distinguish between a published 
and an unpublished photograph. Coalition of Visual Artists Comments at 
15. According to them, photographers may (presumably unintentionally) 
combine published and unpublished photographs in the same registration 
application, even though the Office's various registration options for 
multiple works require published and unpublished works to be registered 
separately. Id.
    Although the distinction between published and unpublished works is 
beyond the scope of this rulemaking, the Office notes that its rules 
regarding supplementary registration allow correction of such mistakes. 
Specifically, a supplementary registration may be used to exclude any 
published photographs from the group and limit the claim to the 
unpublished photographs that were unpublished as of the effective date 
(or vice versa). The Office notes, however, that under its rule it will 
not be possible to split the registration into two separate claims--one 
registration covering the unpublished photographs and the other 
covering the published ones. In such cases, a new basic registration 
would be needed to register the photographs that were excluded from the 
earlier registration. The deposit requirements for published and 
unpublished photographs are the same, as the Coalition for Visual 
Artists noted, but the eligibility and application requirements for 
such works are significantly different. Indeed, in general, when the 
Office registers works under one type of registration procedure, it 
will not accept an application that seeks to reclassify the works under 
a different type of procedure. For example, a supplementary 
registration cannot be used to change a registration for a group of 
published photographs into a registration for a compilation, a 
collective work, photographic database (or vice versa). These types of 
changes would alter the fundamental nature of the claim, and would 
undermine the legal presumptions afforded to the initial examination of 
the works. And it would be inconsistent with the statutory and 
regulatory provisions stating that a supplementary registration 
augments--but does not supersede--the basic registration. 17 U.S.C. 
408(d); 37 CFR 201.5(d)(2).

List of Subjects

37 CFR Part 201

    Copyright, General provisions.

37 CFR Part 202

    Copyright, Preregistration and registration of claims to copyright.

[[Page 27427]]

Final Regulations

    For the reasons set forth in the preamble, the U.S. Copyright 
Office amends 37 CFR parts 201 and 202 as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

    Authority: 17 U.S.C. 702.


0
2. Amend Sec.  201.3 by revising paragraph (c)(9) to read as follows:


Sec.  201.3  Fees for registration, recordation, and related services, 
special services, and services performed by the Licensing Division.

* * * * *
    (c) * * *

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(9) Registration of a correction or amplification to a claim:
(i) Supplementary registration: Electronic filing or paper filing    130
(ii) Correction of a design registration: Form DC................    100
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* * * * *


Sec.  201.5  [Removed and Reserved]

0
3. Remove and reserve Sec.  201.5.

PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

0
4. The authority citation for part 202 continues to read as follows:

    Authority:  17 U.S.C. 408(f), 702.


Sec.  202.3  [Amended]

0
5. Amend Sec.  202.3 as follows:
0
a. In paragraph (b)(11)(iii), remove the phrase ``by that applicant; 
and'' and add in its place ``by that applicant.''
0
b. Remove paragraph (b)(11)(iv).

0
6. Add Sec.  202.6 to read as follows:


Sec.  202.6  Supplementary registration.

    (a) General. This section prescribes conditions relating to the 
filing of an application for supplementary registration under section 
408(d) of title 17 of the United States Code to correct an error in a 
copyright registration or to amplify the information given in a 
registration. No correction or amplification of the information in a 
basic registration will be made except pursuant to the provisions of 
this section. As an exception, where it is discovered that a basic 
registration contains an error caused by the Copyright Office's own 
action, the Office will take appropriate measures to rectify its 
mistake.
    (b) Definitions. (1) A basic registration means any of the 
following:
    (i) A copyright registration made under sections 408, 409, and 410 
of title 17 of the United States Code;
    (ii) A renewal registration made under section 304 of title 17 of 
the United States Code; or
    (iii) A copyright registration or a renewal registration made under 
title 17 of the United States Code as it existed before January 1, 
1978.
    (2) A supplementary registration means a registration issued under 
section 408(d) of title 17 of the United States Code and the provisions 
of this section.
    (c) Persons entitled to file an application for supplementary 
registration. Supplementary registration can be made only if a basic 
copyright registration for the same work has already been completed. 
After a basic registration has been completed, any author or other 
copyright claimant of the work, or the owner of any exclusive right in 
the work, or the duly authorized agent of any such author, other 
claimant, or owner, who wishes to correct or amplify the information 
given in the basic registration for the work may file an application 
for supplementary registration.
    (d) Basis for issuing a supplementary registration. (1) 
Supplementary registration may be made either to correct or to amplify 
the information in a basic registration.
    (2) A correction is appropriate if information in the basic 
registration was incorrect at the time that basic registration was 
made.
    (3) An amplification is appropriate:
    (i) To supplement or clarify the information that was required by 
the application for the basic registration and should have been 
provided, such as the identity of a co-author or co-claimant, but was 
omitted at the time the basic registration was made; or
    (ii) To reflect changes in facts, other than those relating to 
transfer, license, or ownership of rights in the work, that occurred 
since the basic registration was made.
    (4) Supplementary registration is not appropriate:
    (i) To reflect a change in ownership that occurred on or after the 
effective date of the basic registration or to reflect the division, 
allocation, licensing, or transfer of rights in a work;
    (ii) To correct errors in statements or notices on the copies or 
phonorecords of a work, or to reflect changes in the content of a work; 
or
    (iii) To correct or amplify the information set forth in a basic 
registration that has been cancelled under Sec.  201.7 of this chapter.
    (5) If an error or omission in a basic renewal registration is 
extremely minor, and does not involve the identity of the renewal 
claimant or the legal basis of the claim, supplementary registration 
may be made at any time. In an exceptional case, however, supplementary 
registration may be made to correct the name of the renewal claimant 
and the legal basis of the claim if clear, convincing, and objective 
documentation is submitted to the Copyright Office which proves that an 
inadvertent error was made in failing to designate the correct living 
statutory renewal claimant in the basic renewal registration.
    (6) In general, the Copyright Office will not issue a supplementary 
registration for a basic registration made under title 17 of the United 
States Code as it existed before January 1, 1978. In an exceptional 
case, the Copyright Office may issue a supplementary registration for 
such a registration, if the correction or amplification is supported by 
clear, convincing, and objective documentation.
    (e) Application for supplementary registration. (1) To seek a 
supplementary registration for a work registered in Class TX, PA, VA, 
SR, or SE., an unpublished collection or a unit of publication 
registered under Sec.  202.3, or a group of related works registered 
under Sec.  202.3(b)(6) through (10) or Sec.  202.4, an applicant must 
complete and submit the online application designated for supplementary 
registration.
    (2) To seek a supplementary registration for a database that 
consists predominantly of photographs registered under Sec.  
202.3(b)(5), an applicant must complete and submit the online 
application designated for supplementary registration after 
consultation with and under the direction of the Visual Arts Division.
    (3) To seek a supplementary registration for a restored work 
registered under Sec.  202.12, a database that does not consist 
predominantly of photographs registered under Sec.  202.3(b)(5), or a 
renewal registration, an applicant must complete and submit a paper 
application using Form CA.
    (4) Before submitting the application, the applicant must sign a 
certification stating that the applicant reviewed a copy of the 
certificate of registration for the basic registration that will be 
corrected or amplified by the supplementary registration. To obtain a 
copy of the certificate, the applicant may submit a written request to 
the Records Research and Certification Section using the procedure set 
forth in Chapter 2400 of the Compendium of

[[Page 27428]]

U.S. Copyright Office Practices, Third Edition.
    (5) The appropriate filing fee, as required by Sec.  201.3(c) of 
this chapter, must be included with the application or charged to an 
active deposit account. At the Office's discretion, the applicant may 
be required to pay an additional fee to make a copy of the certificate 
of registration for the basic registration that will be corrected or 
amplified by the supplementary registration.
    (6) Copies, phonorecords, or supporting documents cannot be made 
part of the record for a supplementary registration and should not be 
submitted with the application.
    (7) In an exceptional case, the Copyright Office may waive the 
requirements set forth in paragraph (e)(1) of this section, subject to 
such conditions as the Associate Register and Director of the Office of 
Registration Policy and Practice may impose on the applicant.
    (f) Effect of supplementary registration. (1) When the Copyright 
Office completes a supplementary registration, it will issue a 
certificate of supplementary registration bearing a new registration 
number in the appropriate class. The Office will cross-reference the 
records for the basic registration and the supplementary registration 
by placing a note in each record that identifies the registration 
number and effective date of registration for the related registration.
    (2) As provided in section 408(d) of title 17 of the United States 
Code, the information contained in a supplementary registration 
augments but does not supersede that contained in the basic 
registration. The basic registration will not be expunged or cancelled.

    Dated: May 31, 2017.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.
    Approved by:

Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2017-12453 Filed 6-14-17; 8:45 am]
 BILLING CODE 1410-30-P