[Federal Register Volume 82, Number 196 (Thursday, October 12, 2017)]
[Proposed Rules]
[Pages 47415-47421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21722]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Parts 201, 202

[Docket No. 2017-15]


Group Registration of Unpublished Works

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Copyright Office is proposing to create a new group 
registration option for a limited number of unpublished works. To 
qualify for this group option, all the works must be created by the 
same author or the same joint authors, and the author or joint authors 
must be named as the copyright claimant for each work. The claim to 
copyright in each work must be the same, and each work must be 
registered in the same administrative class. In general, applicants 
will be allowed to include up to five works in each submission. 
Applicants will be required to submit an online application and upload 
their works to the electronic registration system, although the Office 
may waive these requirements in exceptional cases. This new group 
registration option will replace the current ``unpublished 
collections'' option, which the Office has determined is an ineffective 
mechanism for registration of multiple unpublished works; among other 
things, it allows applicants to register an essentially unlimited 
number of works. The proposed rule will allow the Office to more easily 
examine each work for copyrightable authorship, create a more robust 
record of the claim, and improve the efficiency of the registration 
process. The Proposed Rule also makes unrelated technical amendments to 
the ``unit of publication'' regulation.

DATES: Comments must be made in writing and must be received in the 
U.S. Copyright Office no later than November 13, 2017.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office Web site 
at https://www.copyright.gov/rulemaking/group-unpublished/. If 
electronic submission of comments is not feasible due to lack of access 
to a computer and/or the internet, please contact the Office for 
special instructions using the contact information below.

FOR FURTHER INFORMATION CONTACT: Robert J. Kasunic, Associate Register 
of Copyrights and Director of Registration Policy and Practice; Erik 
Bertin, Deputy Director of Registration Policy and Practice; or Regan 
A. Smith, Deputy General Counsel, by telephone at 202-707-8040 or by 
email at [email protected], [email protected], and [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

A. Group Registration Under the 1976 Act

    When Congress enacted the Copyright Act of 1976 (the ``Act''), it 
authorized the Register of Copyrights (the ``Register'') to specify by 
regulation the administrative classes of works for the purpose of 
seeking a registration and the nature of the deposits required for each 
class. In addition, Congress gave the Register the discretion to allow 
groups of related works to be registered with one application and one 
filing fee, a

[[Page 47416]]

procedure known as ``group registration.'' See 17 U.S.C. 408(c)(1). 
Pursuant to this authority, the Register issued regulations permitting 
the U.S. Copyright Office (the ``Office'') to issue group registrations 
for certain limited categories of works, provided that certain 
conditions have been met. See generally 37 CFR 202.3(b)(5)-(7), (9)-
(10), 202.4.
    As the legislative history explains, allowing ``a number of related 
works to be registered together as a group represent[ed] a needed and 
important liberalization of the law. . . .'' H.R. Rep. No. 94-1476, at 
154 (1976); S. Rep. No. 94-473, at 136 (1975). Congress recognized that 
requiring applicants to submit separate applications for certain types 
of works may be so burdensome and expensive that authors and copyright 
owners may forgo registration altogether, since copyright registration 
is not a prerequisite to copyright protection. Id. If copyright owners 
do not submit their works for registration under this permissive 
system, the public record will not contain any information concerning 
those works. This creates a void in the public record that diminishes 
the value of the Office's database.
    At the same time, when multiple works are combined in one 
application, information about the individual works may not be as 
robustly captured than if the applicant had submitted individual 
applications for each work. Therefore, group registration options 
require careful balancing of the need for an accurate public record and 
the need for an efficient method of examining, indexing, and cataloging 
each work.

B. The Existing Regulation on Unpublished Collections

    When first implementing the Copyright Act of 1976, the Office 
issued a regulation that established a procedure for registering 
certain ``multiple self-contained works'' as a ``single work'' ``on a 
single application and upon payment of a single registration fee.'' See 
43 FR 965, 966 (Jan. 5, 1978); 37 CFR 202.3(b)(4)(i). The regulation 
provided that ``[i]n the case of unpublished works, all copyrightable 
elements that are otherwise recognizable as self-contained works, and 
are combined in a single unpublished `collection' '' ``shall be 
considered a single work.'' 37 CFR 202.3(b)(4)(i). The Office refers to 
this procedure as the registration accommodation for ``unpublished 
collections.'' \1\
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    \1\ The interim regulation also established a procedure for 
registering published works ``that are included in a single unit of 
publication.'' 37 CFR 202.3(b)(4)(i)(A). The Office refers to this 
as the ``unit of publication'' option. As discussed below, the 
Office is proposing to make certain technical amendments to this 
portion of the regulations.
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    The unpublished collection regulation provides that ``a combination 
of such elements shall be considered a `collection' if: (1) The 
elements are assembled in an orderly form; (2) The combined elements 
bear a single title identifying the collection as a whole; (3) The 
copyright claimant in all of the elements, and in the collection as a 
whole, is the same; and (4) All of the elements are by the same author, 
or, if they are by different authors, at least one of the authors has 
contributed copyrightable authorship to each element.'' Id. Sec.  
202.3(b)(4)(i)(B). The regulation further provides that a 
``[r]egistration of an unpublished `collection' extends to each 
copyrightable element in the collection and to the authorship, if any, 
involved in selecting and assembling the collection.'' Id. Sec.  
202.3(b)(4)(i).
    When the Office issued the regulation, it did not rely on its 
statutory authority to issue a group registration under section 
408(c)(1) of the 1976 Act. The Office ``reserved for implementation in 
a separate proceeding, the possibility of providing for `a single 
registration for a group of [ ]related works' under paragraph (c)(1) of 
section 408'' and invited ``comments and suggestions as to the types of 
related works that could appropriately be covered by [a] group 
registration. . . .'' 43 FR at 966.
    Instead, the regulation was ``based on existing Copyright Office 
practices.'' Id.\2\ In codifying these practices, the Office relied on 
its general authority to issue registrations for individual works under 
sections 408(a) and 409 of the statute, rather than its authority to 
issue a group registration under section 408(c)(1). See 17 U.S.C. 
408(a), 409 (authorizing the Office to register a ``work''); 43 FR at 
966; Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 205 (3d Cir. 
2005) (``The single work registration provision [for registering a unit 
of publication] . . . was promulgated pursuant to the language of 17 
U.S.C. 408(a)'' and ``codified the pre-existing Copyright Office 
practice of allowing copyright owners to register multiple works 
published together as a single work for a single fee.'').
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    \2\ These practices were reflected in an internal manual that 
the Office developed under the 1909 Act. See U.S. Copyright Office, 
Compendium of U.S. Copyright Office Practices S-6 (1st ed. 1973).
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C. Issues Involving Unpublished Collections

    The regulatory accommodation for unpublished collections was well-
intentioned but has imposed an increasing burden on the administration 
of the copyright registration system.
    The Office did not set a limit on the number of works that may be 
registered with this accommodation. As a result, applicants are able to 
submit dozens, hundreds, even thousands of works with one application 
and one filing fee. See, e.g., Palladium Music, Inc. v. EatSleepMusic, 
Inc., 398 F.3d 1193, 1195 (10th Cir. 2005) (noting that the plaintiff 
registered its works as an unpublished collection to offset the expense 
of submitting ``several thousand works''). This has strained the 
resources of all three divisions within the Registration Program. It 
also creates an imperfect record of what was submitted for registration 
and what was actually reviewed for copyrightable authorship. When 
confronted with such a voluminous amount of material, it is difficult 
for the Office to conduct a full and complete examination of each and 
every work in the collection, and in many cases it would be impossible 
to do so for the fee paid for this option (currently $55). See U.S. 
Copyright Office, Compendium of U.S. Copyright Office Practices Sec.  
1108 (3d ed. 2017) (``Compendium (Third)''). Use of the unpublished 
collections option in this manner has led to courts to raise 
concerns.\3\
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    \3\ See, e.g., Grundberg v. Upjohn Co., 137 FRD. 372, 384-85 (D. 
Utah 1991) (concluding that the Office erred as a matter of law by 
registering more than 90,000 documents as an unpublished collection, 
including ``documents which are not copyrightable, mixed in and 
listed indiscriminately with copyrightable documents'' without 
providing a ``reasonable or workable means'' for identifying the 
documents that should have been excluded from the claim).
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    The unpublished collection option also blurs the distinction 
between an unpublished collection and a collective work. A collective 
work is defined in the statute as a type of a compilation, and 
specifically, ``a work . . . in which a number of contributions, 
constituting separate and independent works in themselves, are 
assembled into a collective whole.'' 17 U.S.C. 101. An ``unpublished 
collection,'' however, doesn't usually exist as a ``work''--it is often 
assembled solely for purposes of registration. At the same time, the 
unpublished collection option was not promulgated as a form of group 
registration, even as it has some of those features (e.g., it covers 
each work that is eligible for copyright protection). This ``neither-
fish-nor-fowl'' feature of the unpublished collections option has 
always made it an oddity in Copyright Office practice.

[[Page 47417]]

II. The Proposed Rule

    To address these issues and improve the quality and efficiency of 
the registration process, the Office is proposing to create a new group 
registration option for unpublished works. The new procedure, known as 
the ``group option for unpublished works'' or ``GRUW,'' will replace 
the administrative accommodation that allows applicants to register 
their works as an unpublished collection. Key details of the proposal 
are discussed below. The Office welcomes public comment on each aspect 
of the proposed rule.

A. Eligibility Requirements

1. The Group Must Be Limited to Unpublished Works
    As with the current unpublished collection option, applicants may 
use this option only if all the works in the group are unpublished. The 
applicant will be responsible for making this determination, and 
generally, the Office will accept that determination unless it is 
contradicted by the information contained within the registration 
materials.\4\ But if the applicant provides the wrong information, 
there is a risk that the registration may be challenged or invalidated 
in an infringement action.\5\
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    \4\ The Compendium, Third provides a detailed discussion of the 
definition of ``publication'' and ``the public,'' as well as 
specific examples on how the Office applies these definitions to 
different types of works. See generally Compendium (Third) 
Sec. Sec.  1000-1900.
    \5\ See, e.g, Ledesma v. Del Records, Inc., No. 2:15-cv-4266-
ODW-GJSx, 2015 U.S. Dist. LEXIS 163109, at *8 (C.D. Cal. Dec. 4, 
2015); Family Dollar Stores, Inc. v. United Fabrics Int'l, Inc., 896 
F. Supp. 2d 223, 231 (S.D.N.Y. 2012); Determined Productions, Inc. 
v. Koster, No. C 92-1697 BAC, 1993 U.S. Dist. LEXIS 4586, at *2 
(N.D. Cal. Apr. 13, 1993).
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2. The Works Must Be Registered in the Same Administrative Class
    All the works within the group must be registered in the same 
administrative class. For example, an applicant could register a group 
of unpublished poems, essays, and short stories, because each work 
would be classified as a ``literary work.'' By contrast, an applicant 
could not register a group of unpublished stories, photographs, and 
songs, because these works fall within different administrative 
classes.
    There are two reasons for this requirement. First, the Office 
assigns each claim to the division that specializes in examining 
literary works, visual arts works, or works of the performing arts. If 
the applicant included different types of works within the same claim, 
the Office would have to assign those works to different examiners in 
different divisions. This would slow the examination and delay the 
final registration decision. Second, the Office assigns one 
registration number to the certificate of registration for a group of 
unpublished works. The prefix for this number is based on the 
administrative classification that best describes the works in the 
group (TXu for literary works, VAu for visual arts works, PAu for 
performing arts works, and SRu for sound recordings). If an applicant 
included different types of works within the same claim, the 
registration number would not match the group as a whole.
3. The Number of Works That May Be Included in the Group
    The Office proposes that as a general rule, applicants may include 
up to five works in each claim. This represents a change from the 
current regulation, which has no limit on the number of works that may 
be included in an unpublished collection. As discussed above, this 
reduces the quality of the registration record, and makes it difficult 
to examine each work for copyrightable authorship.
    The Copyright Office is committed to creating the best public 
record possible for a group registration, including pertinent 
information and an appropriate assessment of the copyrightability of 
each work within that group. To further those statutory goals, the 
Office must impose some limit on the number of works that may be 
submitted, given its limited examination staff and the modest filing 
fee for a group registration of multiple works. The Office has 
determined that a limit of five works would allow it to examine each 
work for copyrightable authorship and to confirm that the legal and 
formal requirements for registration have been met. Under the proposed 
rule, the application will contain only five title fields and a pop up 
warning for anyone that inserts punctuation into a title field warning 
that only five works may be listed. If an applicant submits more than 
five works the Office may ask the applicant to exclude the additional 
works from the claim or may simply refuse registration.\6\
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    \6\ The Office will not accept an application that includes a 
compilation, a collective work, a database, or a Web site, because 
they often contain individual works of authorship. Examining a work 
comprised of individual works increases the complexity of a claim 
and requires significantly more time than a claim that is limited to 
one individual work. Likewise, the Office will not accept claims 
involving multiple architectural works, because the regulations 
expressly state that ``a single application may cover only a single 
architectural work.'' 37 CFR 202.11(c)(2).
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    There is a limited exception for sound recordings. Under the 
current regulations governing applications for individual works, an 
applicant may register a sound recording together with the musical 
work, dramatic work, or literary work embodied in that recording, 
provided that both works are fixed in the same phonorecord, the 
applicant has submitted one application for both works,\7\ and the 
claimant for both works is the same person or organization. 37 CFR 
202.3(b)(1)(iv)(A)-(C). Similarly, under the proposed rule, applicants 
can include up to five sound recordings, together with a musical work, 
literary work, or dramatic work embedded in each recording with each 
group registration application.\8\ To do so, they must satisfy the same 
conditions that apply with respect to individual sound recording 
registrations, as well as the generally applicable requirements for 
this group registration option, including that the author for each 
sound recording and the works embodied in those recordings must also be 
the claimant for those works, and that the authorship and ownership 
must be identical for each work. For example, applicants would be able 
to register a group of songs and sound recordings jointly written and 
performed by Peter and Paul, but they would not be able to register a 
song written by Peter and Paul together with a recording performed 
solely by Mary. The reasons for these additional requirements are 
discussed below.
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    \7\ When submitting an online application, the applicant must 
select ``sound recording'' as the type of work. When submitting a 
paper application, the applicant must use Form SR. 37 CFR 
202.3(b)(1)(iv), (b)(2)(ii).
    \8\ To be clear, applicants would be able to submit a group of 
sound recordings that each contain one musical work, dramatic work, 
or literary work. Applicants would not be able to submit a group of 
recordings that each contain a combination of musical, dramatic, and 
literary works.
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4. Titles of the Works
    Applicants will be required to provide a title for each work in the 
group. By contrast, they will not need to provide a title for the group 
as a whole, because that information will be added automatically by the 
electronic registration system.\9\ This represents a change from the 
current regulation, under which applicants are expected to provide a 
title for the collection as a whole but not for the works themselves. 
Id. Sec.  202.3(b)(4)(i)(B)(2). This change will improve the quality of 
the registration record. Interested parties

[[Page 47418]]

typically search for works by title, and it may be difficult to find a 
particular work if the applicant fails to provide this information in 
the application. Indeed, the lack of titles for individual works in an 
unpublished collection has created confusion as to whether a 
registration for an unpublished collection covers the individual works 
or the collection as a whole. See, e.g., Szabo v. Errisson, 68 F.3d 
940, 942-44 (5th Cir. 1995). The proposed rule addresses these issues 
by providing an efficient and straightforward way to identify the 
individual works, while providing clear guidance that the registration 
covers the individual works.
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    \9\ The title for the group will be used to identify the 
registration in the online public record, and it will consist of the 
title of the first work followed by the phrase ``and [1, 2, 3, or 4] 
other unpublished works.''
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5. The Author and Claimant for Each Work Must Be the Same
    Under the proposed rule, all the works in the group must be created 
by the same author or the same joint authors. For example, an applicant 
could submit five songs created solely by Peter or five songs created 
jointly by Peter, Paul, and Mary. But the applicant could not submit 
two songs created by Peter together with three songs created by Peter, 
Paul, and Mary. In this situation, the applicant would need to separate 
the songs into two groups and submit a separate application for each 
group.
    This represents another change in policy. The current unpublished 
collections regulation states that all the elements in the collection 
must be created by the same author--unless they were created by 
multiple authors, in which case at least one author must contribute 
copyright authorship to each element. 37 CFR 202.3(b)(4)(i)(B)(4). This 
standard has made the examination of these claims unnecessarily 
complicated. Requiring the author or co-authors of each work to be the 
same simplifies eligibility requirements, which will improve the 
efficiency of the examination by allowing the Office to focus on the 
works themselves.
    The proposed rule provides that the copyright claimant for each 
work must be the same person or organization, similar to the regulation 
that currently governs unpublished collections. Id. Sec.  
202.3(b)(4)(i)(B)(3). But the proposed rule adds an additional 
requirement, namely, that the author or joint authors must be named as 
the claimant for each work in the group. Thus, if the applicant 
submitted five songs created jointly by Peter, Paul, and Mary, those 
individuals must also be named as co-claimants for each song--even if a 
different party actually owned the copyright in those works. This 
requirement comports with the basic principle that an author may always 
be named as the copyright claimant, id. Sec.  202.3(a)(3), as well as 
the Office's longstanding view that an author may be named as a 
claimant, even if the author does not own any of the exclusive rights 
when the claim is submitted, see Compendium (Third) Sec.  619.7 (citing 
42 FR 48944, 48945 (Sept. 26, 1977)).
    Requiring the author(s) to be named as the copyright claimant(s) 
will again simplify the registration process. Under general Copyright 
Office practice, if the author and claimant are not the same person, 
the applicant is required to provide a transfer statement explaining 
how the claimant acquired all of the rights that initially belonged to 
the author. When registering unpublished collections, applicants often 
name a third party as the copyright claimant, but fail to provide a 
transfer statement. In such cases, the Office must correspond to 
determine if the claimant actually owns all of the exclusive rights in 
the works, which delays the registration decision and contributes to 
the overall backlog of pending claims. Given the reduced fee for 
examination of multiple works, the Office must minimize known problems. 
Moreover, imposing this limitation will help target the group 
registration option to its intended beneficiaries: Individual creators 
or small businesses who might not otherwise use the more expensive 
standard registration application to register their unpublished works 
on an individual basis. The Office has taken a similar approach with 
the group registration options for serials, newsletters, and published 
photographs. 37 CFR 202.3(b)(6)(i)(F), (b)(9)(iv), (b)(10)(i)-(ii). 
Based on this experience, the Office expects that this same approach 
will produce an optimal public record, while reducing the 
administrative burden that these claims impose on the Office.
    While the Office proposes this change to facilitate the efficiency 
of examinations, it also expects that, in practice, this requirement 
will not prove difficult for those individual creators and small 
businesses who are the targets of this group registration option. Of 
course, those applicants who do not qualify for the group registration 
option may still register unpublished works individually using the 
standard application.
6. Anonymous Works and Pseudonymous Works
    This group registration option may be used to register anonymous 
works or pseudonymous works, but all the works in the group must all be 
either anonymous or created under the same pseudonym. For example, an 
applicant could submit stories by ``Anonymous'' or stories by ``Mark 
Twain'' (a.k.a. Samuel Clemens) but could not register these stories 
with the same application. As with the regular registration 
application, the applicant should be careful not to inadvertently 
include the author's real name, as it would become part of the public 
records and cannot be changed after registration.\10\ In the context of 
this group registration application, this includes ensuring that the 
author and claimant fields in the application are the same (i.e., both 
list ``anonymous'' or both list the pseudonym).\11\
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    \10\ See generally 81 FR 63440, 63441 (Sept. 15, 2016) (proposed 
rule regarding removal of personally identifiable information); 82 
FR 9004 (Feb. 2, 2017) (final rule).
    \11\ While the statute states that the application shall include 
``the name . . . of the copyright claimant,'' 17 U.S.C. 409(1), 
Congress also clearly intended to give authors the ability to 
register their works anonymously or under an assumed name, Id. Sec.  
409(3). Allowing applicants to provide a fictitious name in one part 
of the application, while requiring them to disclose the author's 
real name in the other, would undermine that objective and 
discourage anonymous or pseudonymous authors from registering their 
works with the Office.
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7. Works Made for Hire
    An unpublished work may be registered as a work made for hire if it 
is identified as such in the application and if the employer is named 
as the author/claimant. Likewise, an applicant may register an 
unpublished work that was jointly created by an individual and an 
organization. But, under the proposed rule, because the author(s) and 
claimant(s) for each work must be the same, an applicant would not be 
able to submit works created for a company pursuant to a work made for 
hire agreement, together with works created by an individual and 
acquired by that same company through a transfer of ownership.
8. The Authorship Statement for Each Work Must Be the Same
    Under the proposed rule, the applicant must provide a brief 
statement that describes the new copyrightable authorship, and the 
authorship statement for all works must be exactly the same. For 
example, if the author created five songs, the applicant would state 
``unpublished musical works (without or without lyrics).'' If the 
author created five sound recordings and the songs embodied in each 
recording, the applicant would state ``unpublished sound recordings and 
musical works (without or without lyrics).''
    This represents a change in practice, in that the current 
regulation focuses on the ``copyrightable elements'' of the

[[Page 47419]]

submitted works, rather than the works as a whole themselves, and the 
online application accordingly contains a series of checkboxes, such as 
``text,'' ``music,'' and ``lyrics.'' 37 CFR 202.3(b)(4)(i)(B). This may 
encourage applicants to assert a claim in the individual elements of 
their works, rather than asserting a claim in the works as a whole.
9. Limitation of Claim
    If the works contain an appreciable amount of material that has 
been previously published or previously registered, the applicant must 
exclude that material from the claim. Likewise, applicants should 
disclaim material that is owned by a third party or material that is in 
the public domain. This basic rule is the same as under the current 
regulation, though the new online application will implement it 
differently, by giving the applicant an opportunity to identify any 
elements that should be excluded from the claim using his or her own 
words, rather than a set of predetermined checkboxes. The new online 
application will also remove the requirement to identify the new 
material that should be ``included'' in the claim. As described above, 
applicants will be asked simply to identify the type of work the author 
created, and the Office will assume that the applicant intends to 
register all copyrightable aspects of the work that have not been 
expressly disclaimed.

B. Electronic Filing Requirements

1. Online Application
    Under the proposed rule, applicants will be required to use an 
online application specifically designed for this group registration 
option. If an applicant attempts to register multiple unpublished works 
with standard online application or a paper application, the Office 
will refuse to register the claim. In such cases, the applicant will 
need to submit a new application using the designated application for 
GRUW, which will result in a later effective date of registration and 
will require a new filing fee and deposit. Recently, the Office changed 
its practices to require other applications to be filed online, and the 
rationales provided in those rulemaking documents apply equally 
here.\12\
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    \12\ See 82 FR 27424, 27424-25 (June 15, 2017) (final rule for 
supplementary registration); 82 FR 29410, 29410-11 (June 29, 2017) 
(final rule for group registration of contributions to periodicals).
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    To facilitate this transition, the Office will add appropriate 
warnings to the electronic registration system and the instructions for 
the paper applications. The Office will prepare an online tutorial that 
explains how to use the new application and ``help text'' within the 
application itself that will provide answers to frequently asked 
questions. In addition, the Office will revise the portions of 
Compendium, Third and Circular 34 that discuss the Office's practices 
and procedures for group registrations.
    As with the other rules recently promulgated, the proposed rule 
allows the Office to waive the online filing and electronic upload 
requirements in exceptional cases. Applicants who do not have internet 
access and are unable to use the online application may request a 
waiver in writing. The Office will review each request and will make 
accommodations for applicants who receive a waiver, including by 
providing a mechanism by which staff will assist in filling out the 
application.\13\
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    \13\ See 82 FR at 72425.
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2. Supplementary Registration
    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,'' including a 
registration for a group of related works. 17 U.S.C. 408(d); see also 
37 CFR 202.6(b)(1)(i). Specifically, it identifies an error or omission 
in an existing registration and places the corrected information or 
additional information in the public record.
    The Office recently issued a final rule that modified this 
procedure, in most cases requiring supplementary registration 
applicants to file an online application. 37 CFR 202.6. The Office 
explained that this online-filing requirement would apply to 
supplementary registrations for ``works registered as an unpublished 
collection.'' 81 FR 86656, 86657 (Dec. 1, 2016). It also noted that if 
it decided to move ``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. Thus, if 
applicants need to correct or modify information appearing in a 
registration for an unpublished collection or a registration for a 
group of unpublished works, they must use the online application, or 
the Office will instruct the applicant to resubmit the claim using the 
online version of this form. See id.
    To be clear, a supplementary registration cannot be used to convert 
a registration for an unpublished collection into a registration for a 
group of unpublished works. 82 FR 27424, 27426 (June 15, 2017). 
Reclassifying an unpublished collection as a group registration would 
alter the fundamental nature of the claim and would be inconsistent 
with the statutory and regulatory provisions stating that a 
supplementary registration augments--but does not supersede--a basic 
registration. 17 U.S.C. 408(d); 37 CFR 202.6(f)(2).
3. Deposit Requirements
    Under the proposed rule, applicants will be required to 
electronically submit one complete copy or phonorecord of each work in 
the group. Specifically, applicants must upload each work to the 
electronic registration system as an electronic file in one of the 
acceptable file formats listed on the Office's Web site (http://copyright.gov/eco/help-file-types.html). The Office will not accept 
physical copies or physical phonorecords, such as print-outs, 
photocopies, CDs, DVDs, or the like.
    Applicants may save the deposits in a .zip file before upload that 
file to the system, but if the .zip file contains any unacceptable file 
types the claim will be refused. In all cases, the works must be 
submitted in an orderly manner and the size of each upload must not 
exceed 500 megabytes. Applicants may compress the works to comply with 
this limitation.

C. Filing Fee

    The filing fee for registering a group of unpublished works will be 
$55, which is the amount the Office currently charges for registering 
an unpublished collection with the online application. 37 CFR 
201.3(c)(1)(ii). Once the proposed rule has been implemented, the 
Office will monitor the cost of examining these claims to determine if 
future fee adjustments may be warranted. It also will track the number 
of applicants who request a waiver from the online filing and 
electronic upload requirements (if any) and the amount of time needed 
to handle these requests. The Office will use this information in 
conducting its next fee study.

D. The Scope of a Group Registration

    As in the recently concluded rulemaking for group registration of 
contributions to periodicals, the Office proposes to clarify that a 
registration for a group of unpublished works covers each work in the 
group and each one is registered as a separate work. 82 FR 29410, 29414 
(June 29, 2017); see also 81 FR 86634, 86641 (noting that this is ``the 
Office's longstanding position regarding the scope of a registration 
for a group of contributions to

[[Page 47420]]

periodicals.''). The proposed rule also clarifies that applicants may 
not assert a claim in the selection, coordination, or arrangement of 
the works within the group and that the group as a whole is not 
considered a compilation or a collective work, or a derivative work. 
See 81 FR at 86641.

F. Refusals To Register

    Section 410(b) of the Act directs the Office to refuse registration 
if it determines that ``the material deposited does not constitute 
copyrightable subject matter or that the claim is invalid for any other 
reason.'' 17 U.S.C. 410(b). If the Office determines that one or more 
of the works in a group is uncopyrightable, the examiner will ask the 
applicant to exclude those works from the claim. If the applicant 
agrees, the Office will issue a registration for the remaining works in 
the group. If the applicant declines to exclude the uncopyrightable 
works, the Office will issue a refusal for the entire group. 37 CFR 
202.4(k).

G. Technical Amendments

    The proposed rule confirms that a group of related works may be 
registered with one application and one filing fee if the conditions 
set forth in Sec.  202.4 have been met. The regulation governing the 
group option for unpublished works will be set forth in Sec.  202.4(c), 
and the regulation governing unpublished collections under Sec.  
202.3(b)(4)(i)(B) will be removed. It also confirms that an application 
for a group of related works may be submitted by any of the parties 
listed in Sec.  202.3(c)(1) of the regulations.
    The proposed rule makes a number of other tangentially related 
technical amendments; these are not intended to represent substantive 
changes in policy. For example, the proposed rule removes the terms 
``single'' work, ``single'' application, ``single'' registration fee, 
and ``single'' unit of publication from this portion of the 
regulations. It replaces them with the terms ``one work,'' ``one 
application,'' ``one filing fee,'' and ``the same unit of 
publication.'' This is intended to avoid potential confusion with the 
``single application,'' which may only be used to register ``a single 
work by a single author that is owned by the person who created it.'' 
37 CFR 202.3(b)(2)(B). For similar reasons, the proposed rule removes 
the last sentence from Sec.  202.3(b)(2)(i)(B), which states that an 
unpublished collection or unit of publication cannot be registered with 
the Single Application, because once the proposed rule goes into 
effect, this clarification will be superfluous.

IV. Conclusion

    The proposed rule will allow broader participation in the 
registration system by expanding the class of works that may be 
registered as a group, increase the efficiency of the registration 
process, and create a more robust record of the claim. The Office 
invites public comment on these proposed changes.

List of Subjects

37 CFR Part 201

    Copyright, General provisions.

37 CFR Part 202

    Copyright, Preregistration and registration of claims to copyright.

Proposed Regulation

    For the reasons set forth in the preamble, the U.S. Copyright 
Office proposes amending 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 as follows:
0
a. Redesignate paragraphs (c)(2) through (19) as paragraphs (c)(3) 
through (20), respectively.
0
b. Add new paragraph (c)(2) to read as follows:


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

* * * * *
    (c) * * *

------------------------------------------------------------------------
 
------------------------------------------------------------------------
(2) Registration for a claim in a group of unpublished works........  55
------------------------------------------------------------------------

* * * * *

PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

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

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

0
4. Amend Sec.  202.3 as follows:
0
a. In paragraph (b)(2)(i)(B) remove ``unpublished collections,'' and 
remove the fifth sentence.
0
b. Revise the heading of paragraph (b)(4).
0
c. Revise paragraph (b)(4)(i).
0
d. Remove paragraphs (b)(4)(i)(A), (B), and (B)(1) through (4).
0
e. Redesignate paragraph (b)(4)(ii) as paragraph (c)(4).
0
f. Add new paragraph (b)(4)(ii).
0
g. Revise newly designated paragraph (c)(4),
    The additions and revisions read as follows:


Sec.  202.3   Registration of copyright.

* * * * *
    (b) * * *
    (4) Registration as one work. (i) A group of related works may be 
registered with one application and upon the payment of one filing fee 
if the conditions set forth in Sec.  202.4 are met.
    (ii) For the purpose of registration on one application and upon 
the payment of one filing fee, the following shall be considered one 
work: In the case of published works, all copyrightable elements that 
are otherwise recognizable as self-contained works, that are included 
in the same unit of publication, and in which the copyright claimant is 
the same.
* * * * *
    (c) * * *
    (4) In the case of applications for registration made under 
paragraphs (b)(4) through (b)(10) of this section or under Sec.  202.4, 
the ``year of creation,'' ``year of completion,'' or ``year in which 
creation of this work was completed'' means the latest year in which 
the creation of any copyrightable element was completed.
0
5. Amend Sec.  202.4 as follows:
0
a. Revise paragraph (b).
0
b. Add paragraph (c).
0
c. Revise paragraph (g) introductory text.
0
d. Remove paragraph (g)(7) and redesignate paragraphs (g)(8) and (9) as 
paragraphs (g)(7) and (8), respectively.
0
e. In paragraph (m) remove ``paragraph (g) of''.
    The addition and revisions read as follows:


Sec.  202.4   Group Registration.

* * * * *
    (b) Definitions. For the purposes of this section, unless otherwise 
specified, the terms used have the meanings set forth in Sec.  202.3 
and Sec.  202.20.
    (c) Group registration of unpublished works. Pursuant to the 
authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights 
has determined that a group of unpublished works may be registered in 
Class TX, PA, VA, or SR with one application, the required deposit, and 
the filing fee required by Sec.  201.3(c) of this chapter, if the 
following conditions are met:
    (1) All the works in the group must be unpublished, and they must 
be registered in the same administrative class.
    (2) Generally, the applicant may include up to five works in the 
group. If the conditions set forth in Sec.  202.3(b)(1)(iv)(A) through 
(C) have

[[Page 47421]]

been met, the applicant may include up to five sound recordings and 
five musical works, literary works, or dramatic works in the group.
    (3) The group may include individual works, joint works, or 
derivative works, but may not include compilations, collective works, 
databases, or Web sites.
    (4) The applicant must provide a title for each work in the group.
    (5) All the works must be created by the same author or the same 
joint authors, and the author and claimant information for each work 
must be the same.
    (6) The works may be registered as anonymous works, pseudonymous 
works, or works made for hire if they are identified in the application 
as such.
    (7) The applicant must identify the authorship that each author or 
joint author contributed to the works, and the authorship statement for 
each author or joint author must be the same. Claims in the selection, 
coordination, or arrangement of the group as a whole will not be 
permitted on the application.
    (8) The applicant must complete and submit the online application 
designated for a group of unpublished works. The application may be 
submitted by any of the parties listed in Sec.  202.3(c)(1).
    (9) The applicant must submit one complete copy or phonorecord of 
each work. Each work must be contained in a separate electronic file 
that complies with Sec.  202.20(b)(2)(iii). The files must be submitted 
in one of the electronic formats approved by the Office, they must be 
assembled in an orderly form, and they must be uploaded to the 
electronic registration system, preferably in a .zip file containing 
all the files. The file size for each uploaded file must not exceed 500 
megabytes; the files may be compressed to comply with this requirement.
    (10) In an exceptional case, the Copyright Office may waive the 
online filing requirement set forth in paragraph (c)(8) of the section 
or may grant special relief from the deposit requirement under Sec.  
202.20(d), subject to such conditions as the Associate Register and 
Director of the Office of Registration Policy and Practice may impose 
on the applicant.
* * * * *
    (g) Group registration of contributions to periodicals. Pursuant to 
the authority granted by 17 U.S.C. 408(c)(2), the Register of 
Copyrights has determined that a group of contributions to periodicals 
may be registered in Class TX or Class VA with one application, the 
required deposit, and the filing fee required by Sec.  201.3(c), if the 
following conditions are met:
* * * * *


Sec.  202.20   [Amended]

0
6. Amend Sec.  202.20 in paragraph (c)(2)(xx) by removing ``Sec.  
202.3(b)(4)(i)(B) (unpublished collections) or'' .

    Dated: October 4, 2017.
Sarang V. Damle
General Counsel and Associate Register of Copyrights.
[FR Doc. 2017-21722 Filed 10-11-17; 8:45 am]
 BILLING CODE 1410-30-P