[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Proposed Rules]
[Pages 66182-66184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27866]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 202

[Docket No. 2018-13]


Simplifying Copyright Registration for Architectural Works

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Copyright Office is proposing to amend its regulations 
pertaining to the registration of architectural works. To improve the 
efficiency of this process, applicants will be required to submit their 
claims through the online application process, rather than a paper 
application, and they will be encouraged to upload a digital copy of 
their works through the electronic registration system, instead of 
submitting a physical copy. The proposed rule also clarifies that a 
date of construction is needed only if the architectural work was 
embodied in unpublished plans or drawings on or before December 1, 1990 
and if the work was constructed before January 1, 2003. The Office 
invites public comment on the proposed changes.

DATES: Comments on the proposed rule must be made in writing and must 
be received in the U.S. Copyright Office no later than February 11, 
2019.

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 website 
at http://www.copyright.gov/rulemaking/architecturalworks/. If 
electronic submission of comments is not feasible due to lack of access 
to a computer and/or the internet, please contact the Office using the 
contact information below for special instructions.

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; Jordana 
Rubel, Assistant General Counsel by telephone at 202-707-8040 or by 
email at r[email protected], [email protected], and 
[email protected].

SUPPLEMENTARY INFORMATION: As part of the U.S. Copyright Office's 
ongoing effort to improve the quality and readability of its 
regulations, the Office is proposing to amend the rules governing the 
registration of architectural works, which have remained essentially 
unchanged since 1992. 57 FR 45307 (Oct. 1, 1992); 68 FR 38630 (June 30, 
2003). The regulation pertaining to the registration and application 
requirements is set forth in 37 CFR 202.11, the regulation governing 
the deposit requirements for registration is set forth in 37 CFR 
202.20(c)(2)(xviii). The regulation governing the mandatory deposit 
requirements, set forth in 37 CFR 202.19(d)(2)(viii), will remain 
unchanged. The Office welcomes comments on these proposed changes.

Application Requirements

    The current regulation states that applicants must use a paper 
application to register an architectural work and that the claim must 
be submitted on Form VA. 37 CFR 202.11(c)(3). This does not reflect the 
Office's current practices. Since 2008, the Office has accepted claims 
submitted through the Office's electronic registration system 
(``eCO''), and in fact, many architecture claims are filed in this 
manner.
    Under the proposed rule, applicants will be required to submit 
their claims through the eCO system using the Standard Application. The 
Office will no longer accept architectural works submitted for 
registration on a paper application using Form VA. If a paper 
application is received after the effective date of this rule, the 
Office will refuse registration and instruct the applicant to resubmit 
the claim on the Standard Application.\1\
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    \1\ The Office recently issued a notice of proposed rulemaking 
clarifying that the Single Application may not be used to register 
an architectural work. The Single Application is an electronic 
application designed ``for those authors who file the simplest kind 
of [claim].'' 78 FR 38843, 38845 (June 28, 2013). Architecture 
claims are not a good fit for this application because they tend to 
be very complex. 83 FR 5227, 5228 (Feb. 6, 2017). To avoid potential 
confusion, the proposed rule removes the word ``single'' wherever it 
appears in the regulation on architectural works.
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    A substantial majority of the U.S. population has access to the 
internet, and the Office expects that most architects will be able to 
use the electronic system. See 81 FR 86643, 86648 & nn. 15-16 (Dec. 1, 
2016). Architects typically use sophisticated computer software to 
create their works, and thus, should be capable of using the Standard 
Application to register their claims.\2\
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    \2\ As with other rules recently promulgated by the Office, the 
proposed rule would allow the Office to waive the online filing 
requirement in exceptional cases. Applicants who do not have 
internet access and are unable to use the Standard Application may 
request a waiver in writing. The Office will review each request and 
will make accommodations for applicants who receive a waiver, such 
as making staff available to assist with filling out the 
application.
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    The Office believes that requiring applicants to use the Standard 
Application, rather than Form VA, is necessary to improve the overall 
efficiency of the registration process. Most claims submitted on Form 
VA require correspondence or other action from the Office. Applicants 
often fail to provide information expressly requested on the form, or 
add extraneous information that is not requested. In

[[Page 66183]]

each case, the Office must scan these paper applications into the 
registration system and input the relevant information by hand. This is 
a cumbersome, labor-intensive process. Addressing these issues imposes 
significant burdens on the Office's limited resources, and has had an 
adverse effect on the examination of other types of works within the 
Visual Arts Division.
    The regulation also states that applicants should provide ``[t]he 
date of construction of the building,'' and ``[i]f the building has not 
yet been constructed'' the application should include a statement to 
that effect. The proposed rule clarifies that this information is only 
needed if the architectural work was embodied in unpublished plans or 
drawings on or before December 1, 1990 and if the building was 
constructed before January 1, 2003. See 37 CFR 202.12(d)(3)(i) 
(buildings constructed before December 1, 1990 not eligible for 
copyright protection); id. at 202.12(d)(3)(ii) (unconstructed buildings 
embodied in unpublished drawings or plans as of December 1, 1990 not 
eligible for copyright protection unless the building was constructed 
by December 31, 2002). In all other cases, a date of construction is 
not needed.

Deposit Requirements for Registration

    Under the current rule, to register an architectural work with the 
Copyright Office, applicants must submit ``one complete copy of an 
architectural drawing or blueprint in visually perceptible form showing 
the overall form of the building and any interior arrangements of 
spaces and/or design elements'' being registered. If the building has 
been constructed, applicants also must submit photographs of the work. 
37 CFR 202.20(c)(2)(xviii)(A), (B). The proposed rule clarifies that 
the ``overall form of the building'' refers to exterior elevations of 
the building when viewed from the front, rear, and sides, while 
``interior arrangements of spaces and/or design elements'' refers to 
walls or other permanent structures that divide the interior into 
separate rooms and spaces.
    In addition, the proposed rule would amend the deposit requirement 
by allowing applicants to submit drawings, and photographs of an 
architectural work in any form that allows the Office to access, 
perceive, and examine the entire copyrightable content of the work, 
including by being uploaded through the electronic registration system 
in an acceptable file format.\3\ In doing so, the proposed rule removes 
language listing an order of preference for drawings and photographs 
that are submitted in a physical format.
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    \3\ The list of acceptable file formats is posted on the 
Office's website at https://www.copyright.gov/eco/help-file-types.html.
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    The Office routinely accepts digital copies of architectural works 
instead of requiring physical copies as stated in the current 
regulation, and in fact, it prefers to receive digital--rather than 
physical--copies. The Office does not need physical drawings, or 
photographs to examine an architectural work for copyrightable 
authorship, or to determine whether the applicant satisfied the formal 
and legal requirements for registration. See 17 U.S.C. 410(a) 
(providing that the Register of Copyrights must determine whether 
``material deposited [for registration] constitutes copyrightable 
subject matter''). Electronic submissions take less time to process and 
are easier to handle than physical copies, in part, because a 
registration specialist can examine a digital copy as soon as it has 
been uploaded to the electronic registration system. By contrast, when 
an applicant files an online application and mails a physical copy to 
the Office, it takes added time to connect the application with the 
correct deposit.
    Digital uploads may also provide architects with more prompt legal 
benefits. When the Office registers an architectural work and issues a 
certificate of registration, the effective date of registration is the 
date on which the Office received the application, filing fee, and 
deposit in proper form. When an applicant uploads a digital copy to the 
electronic system, the Office typically receives the application, 
filing fee, and deposit on the same date. But when an applicant sends 
physical drawings, or photographs, the deposit may arrive long after 
the date that the application and filing fee were received--thereby 
establishing a later effective date of registration. Moreover, digital 
copies are easier to store and retrieve than physical copies, including 
if the copyright owner or other interested parties need to obtain a 
copy of a particular work for use in litigation or another legitimate 
purpose.
    Finally, the proposed rule explicitly identifies architectural 
works as one of the types of work for which only a single copy is 
required to be deposited under section 202.20(c)(2)(i). This is a 
technical edit because the current rule already states that only one 
deposit copy is required. See 37 CFR 202.20(c)(2)(xviii).

Mandatory Deposit Requirements

    To be clear, the proposed rule only applies to copies that are 
submitted for purposes of registering an architectural work under 
section 408 of the Copyright Act and sections 202.11 and 202.20 of the 
Office's regulations. It makes no amendment to the rules regarding 
copies submitted for the purpose of complying with the mandatory 
deposit requirement under section 407 of the statute or section 202.19 
of the regulations. 37 CFR 202.20(a) (``The provisions of this section 
are not applicable to the deposit of copies and phonorecords for the 
Library of Congress under section 407 of title 17, except as expressly 
adopted in Sec.  202.19.'').
    Section 407 states that if a work is published in the United 
States, the copyright owner or the owner of the exclusive right of 
publication should deposit two copies of the ``best edition'' of that 
work with the Library of Congress within three months after 
publication. 17 U.S.C. 407(a)-(b). Under the current regulations, 
architects may satisfy this requirement by registering their works with 
the Office, or by sending copies directly to the Copyright Office's 
Copyright Acquisitions Division for use or disposition by the Library 
without seeking a registration. Because the same copies can potentially 
be used for both registration and mandatory deposit, the deposit 
requirements for architectural works currently set forth in sections 
202.19 and 202.20, are essentially identical and they both refer to 
physical drawing submissions.
    As noted above, the proposed rule would let architects register 
their works by providing an electronic copy of their drawings, and 
photographs instead of a physical copy. But to be clear, a digital copy 
submitted for purposes of registration does not satisfy the mandatory 
deposit requirement under section 407, which is outlined in 37 CFR 
202.19(d)(2)(viii). To satisfy this requirement, architects submitting 
electronic registration deposits are expected to deposit a physical 
copy of the most finished form of presentation drawings, as defined in 
37 CFR 202.19(d)(2)(viii), within three months after the work has been 
published in the United States, and if an appropriate deposit is not 
received within that time frame, the Copyright Acquisitions Division 
may issue a written demand for that material under section 202.19 of 
the regulations.

Technical Amendments

    Finally, the proposed rule codifies the Office's longstanding view 
that

[[Page 66184]]

architectural works are considered ``works of the visual arts'' for 
purposes of registration, and as such, they may be registered in Class 
VA. It also improves the organization and readability of the regulation 
by removing superfluous references and moving the text of two footnotes 
into the main body of the regulation. See 37 CFR 202.11(a), (b)(1).

List of Subjects in 37 CFR Part 202

    Copyright.

Proposed Regulations

    For the reasons set forth in the preamble, the Copyright Office is 
proposing to amend 37 CFR part 202 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. In Sec.  202.3, add a sentence at the end of paragraph (b)(1)(iii) 
to read as follows:


Sec.  202.3  Registration of copyright.

* * * * *
    (b) * * *
    (1) * * *
    (iii) * * * This class also includes published and unpublished 
architectural works.
* * * * *
0
3. Amend Sec.  202.11 as follows:
0
a. Revise paragraph (a).
0
b. Revise paragraphs (b)(1) and (2).
0
c. Remove paragraph (c)(2) and redesignate paragraph (c)(5) as (c)(2).
0
d. Revise paragraphs (c)(3) and (c)(4).
0
e. Add new paragraph (c)(5).
    The revisions and additions read as follows:


Sec.  202.11  Architectural works.

    (a) General. This section prescribes rules pertaining to the 
registration of architectural works.
    (b) Definitions. (1) For the purposes of this section, the term 
building means humanly habitable structures that are intended to be 
both permanent and stationary, such as houses and office buildings, and 
other permanent and stationary structures designed for human occupancy, 
including but not limited to churches, museums, gazebos, and garden 
pavilions.
    (2) Unless otherwise specified, all other terms have the meanings 
set forth in Sec. Sec.  202.3 and 202.20.
    (c) * * *
    (3) Registration limited to one architectural work. For published 
and unpublished architectural works, an application may cover only one 
architectural work. Multiple architectural works may not be registered 
using one application. For works such as tract housing, one house model 
constitutes one work, including all accompanying floor plan options, 
elevations, and styles that are applicable to that particular model. 
Where dual copyright claims exist in technical drawings and the 
architectural work depicted in the drawings, any claims with respect to 
the technical drawings and architectural work must be registered 
separately.
    (4) Online application. (i) The applicant must complete and submit 
the Standard Application. The application should identify the title of 
the building. If the architectural work was embodied in unpublished 
plans or drawings on or before December 1, 1990, and if the building 
was constructed before January 1, 2003, the application should also 
provide the date that the construction was completed.
    (ii) In an exceptional case, the Copyright Office may waive the 
online filing requirement set forth in paragraph (c)(4)(i) 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.
    (5) Deposit requirements. (i) For designs of constructed or 
unconstructed buildings, the applicant must submit one complete copy in 
a visually perceptible format of the most finished form of an 
architectural drawing showing the overall form of the building (i.e., 
exterior elevations of the building when viewed from the front, rear, 
and sides), and any interior arrangements of spaces and/or design 
elements in which copyright is claimed (i.e., walls or other permanent 
structures that divide the interior into separate rooms and spaces). 
The deposit should disclose the name(s) of the architect(s) and 
draftsperson(s) and the building site, if known. For designs of 
constructed buildings, the applicant also must submit identifying 
material in the form of photographs complying with Sec.  202.21, which 
clearly show several exterior and interior views of the architectural 
work being registered.
    (ii) The deposit may be submitted in any form that allows the 
Copyright Office to access, perceive, and examine the entire 
copyrightable content of the work being registered, including by 
uploading the complete copy and identifying material in an acceptable 
file format to the Office's electronic registration system. Deposits 
uploaded to the electronic registration system will be considered 
solely for the purpose of registration under section 408 of title 17 of 
the United States Code, and will not satisfy the mandatory deposit 
requirement under section 407 of title 17 of the United States Code.
* * * * *
0
4. Amend Sec.  202.20 as follows.
0
a. Add paragraph (c)(2)(i)(M).
0
b. Remove and reserve paragraph (c)(2)(xviii).
    The addition reads as follows:


Sec.  202.20  Deposit of copies and phonorecords for copyright 
registration.

* * * * *
    (c) * * *
    (2) * * *
    (i) * * *
    (M) Architectural works, for which the deposit must comply with the 
requirements set forth in Sec.  202.11.
* * * * *

    Dated: December 19, 2018.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2018-27866 Filed 12-21-18; 8:45 am]
 BILLING CODE 1410-30-P