[Federal Register Volume 87, Number 107 (Friday, June 3, 2022)]
[Notices]
[Pages 33836-33839]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11953]


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LIBRARY OF CONGRESS

 Copyright Office

[Docket No. 2022-3]


Best Edition Study: Notice and Request for Public Comment

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

ACTION: Notice of inquiry.

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SUMMARY: The U.S. Copyright Office is undertaking a public study at the 
request of Senator Thom Tillis to evaluate the deposit requirements of 
section 407 and 408 of the Copyright Act and consider whether 
``removing the `best edition' requirement from the registration deposit 
process in section 408 could help improve the registration process.'' 
To aid in its review of this topic, the Office is soliciting input from 
interested members of the public.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on July 18, 2022.

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 https://www.copyright.gov/policy/best-edition. 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: Megan Efthimiadis, Assistant to the 
General Counsel, by email at [email protected] or telephone at (202) 
707-8350.

SUPPLEMENTARY INFORMATION: On May 24, 2021, Senator Thom Tillis sent a 
letter seeking the Copyright Office's ``expertise and guidance 
regarding adjusted copyright examination and registration 
requirements.'' \1\ Specifically, Senator Tillis requested that the 
Office complete ``a study regarding the feasibility of decoupling the 
deposit requirements of Section 407 of Title 17 from Section 408.'' \2\ 
The letter states that ``[s]ome have asserted that'' decoupling ``could 
help improve the registration process by permitting low resolution 
digital deposits, for example.'' \3\ In conducting the study, Senator 
Tillis asked the Office to consult with the Library of Congress to 
address the Library's need to grow its collections, as well as to 
consider the Office's own needs as part of the registration process.\4\
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    \1\ Letter from Sen. Thom Tillis, Ranking Member, Subcomm. on 
Intell. Prop. of the S. Comm. on the Judiciary, to Shira Perlmutter, 
Reg. of Copyrights, U.S. Copyright Office 1 (May 24. 2021), https://www.copyright.gov/policy/best-edition/5-24-21-Ltr-USCO-Copyright-Examination-and-Registration-Requirements-Studies-Final.pdf.
    \2\ Id.
    \3\ Id.
    \4\ Id.
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    To guide its consideration of these issues, the Office is 
soliciting public comments on topics related to this inquiry. These 
comments will be used to inform the Office's discussions with the 
Library and its consideration of the Office's needs with respect to 
deposits for registration purposes.

[[Page 33837]]

I. Background

(A) Legal Background

    The Copyright Act has two provisions requiring copyright owners to 
deposit copies of their works. First, under section 407 of the Act, 
once a copyrighted work is published in the United States, the 
copyright owner must, within three months of publication, deposit ``two 
complete copies of the best edition'' of the work with the Copyright 
Office ``for the use or disposition of the Library of Congress.'' \5\ 
Second, under section 408, copyright owners who apply to register works 
that have been published must generally include with their applications 
a deposit that consists of ``two complete copies or phonorecords of the 
best edition'' of their works.\6\ The term ``best edition,'' as used in 
both section 407 and section 408 is defined as ``the edition, published 
in the United States at any time before the date of deposit, that the 
Library of Congress determines to be most suitable for its purposes.'' 
\7\
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    \5\ 17 U.S.C. 407(a), (b). See generally 37 CFR 202.19, 202.20.
    \6\ 17 U.S.C. 408(b)(2).
    \7\ Id. 101. See also id. 407(b).
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    Copyright owners can deposit a single set of best edition materials 
that will satisfy their obligations under both sections 407 and 408. 
Section 408 explicitly provides that deposits made to satisfy section 
407 may also be used to satisfy the registration deposit requirement, 
provided they are accompanied by a copyright application and fee.\8\ 
When applicants submit the required best edition copies with their 
registration applications, the Office provides the Library with copies 
of the materials that are within the Library's selection criteria for 
addition to its collections.\9\
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    \8\ Id. 408(b).
    \9\ In many cases, the Copyright Office has issued regulations 
to require only one copy instead of two. See, e.g., 37 CFR 
202.19(d)(2)(vi) (permitting deposit of one complete copy of best 
edition for literary monographs), 202.20(c)(2)(i)(E) (permitting 
deposit of one complete copy of best edition of musical compositions 
published in copies).
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    Together, the deposits received pursuant to sections 407 and 408 
allow the Library of Congress to grow its collection as the nation's 
library. The Copyright Office generally transfers over 700,000 
copyright deposits to the Library each year.\10\
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    \10\ See U.S. Copyright Office, Annual Report Fiscal 2019, at 48 
(2019), https://www.copyright.gov/reports/annual/2019/ar2019.pdf 
(roughly 727,000 deposits transferred to Library); U.S. Copyright 
Office, Annual Report for Fiscal 2018, at 24 (2018), https://www.copyright.gov/reports/annual/2018/ar2018.pdf (almost 737,000 
deposits transferred to Library). The number of deposits decreased 
in fiscal year 2020 due to a backlog of processing physical deposits 
as a result of the COVID-19 pandemic. U.S. Copyright Office, Annual 
Report Fiscal 2020, at 40 (2020), https://www.copyright.gov/reports/annual/2020/ar2020.pdf (roughly 550,000 deposits transferred).
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(B) Best Edition Requirements

    The Office's regulations at appendix B to part 202 of title 37 of 
the Code of Federal Regulations--known as the Best Edition Statement--
describe how to identify the best edition of a work. The regulations do 
not require a specific format; they instead describe an order of 
preference for formats of different types of works.\11\ In most cases, 
physical copies of works must be submitted to meet the best edition 
requirement. For example, for printed textual matter, the Library of 
Congress prefers that the deposit be the largest possible size (other 
than a large-type edition for the partially-sighted), illustrated in 
color, and contain ``archival-quality rather than less-permanent 
paper,'' a hard cover, library binding, and a sewn rather than glued 
binding.\12\ For photographs, the Library prefers the most widely 
distributed edition of the photograph, or an unmounted 8x10-inch glossy 
print on archival-quality paper.\13\
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    \11\ See, e.g., 37 CFR 202, App. B.I.C.2 (for printed textual 
works with illustrations, the best edition is version with 
``[i]llustrations in color rather than black and white.''). The Best 
Edition Statement divides works into 10 categories: I. Printed 
Textual Matter, II. Photographs, III. Motion Pictures, IV. Other 
Graphic Matter, V. Phonorecords, VI. Musical Compositions, VII. 
Microforms, VIII. Machine-Readable Copies, IX. Electronic-Only Works 
Published in the United States and Available Only Online, and X. 
Works Existing in More Than One Medium. Id.
    \12\ See id. 202, App. B.I.
    \13\ Id. 202, App. B.II.
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(C) Exceptions to Best Edition Requirements

    The Office has the authority to waive the requirement that deposits 
be the best edition of a work, and it has done so in many 
circumstances. For section 407 deposits, the Office has promulgated 
regulations permitting deposit of versions that might not be the best 
edition as defined by the Best Edition Statement. For example, 
copyright owners of pictorial and graphic works published in small 
numbers have the option to deposit ``photographs or other identifying 
material'' of the works.\14\ For other types of works, such as greeting 
cards and three-dimensional sculptural works, the Office's regulations 
waive the deposit requirement altogether.\15\ Additionally, for 
electronic-only books and serials published only in electronic form and 
available only online, deposit is required only on demand from the 
Copyright Office.\16\ The Office also may waive the best edition 
requirement for section 407 deposits for individual works upon request 
for ``special relief,'' typically when complying with the requirement 
would be burdensome or impractical.\17\ These requests may permit 
copyright owners to deposit a version of their work that does not fit 
the best edition requirement, such as an electronic copy of a work that 
was published as physical printed text. The Library and the Copyright 
Office have entered into continuing ``special relief'' agreements with 
a number publishers, whereby electronic copies of works in a 
publisher's catalog are accepted as a substitute for the best edition 
under certain conditions.
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    \14\ See id. 202.19(d)(2)(iv).
    \15\ See id. 202.19(c)(2), (6).
    \16\ See 37 CFR 202.19(c)(5), 202.24.
    \17\ Id. 202.19(e).
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    The Office provides similar flexibility for section 408 
registration deposits. For many works, such as computer programs, 
useful articles, and works exceeding 96 inches in any dimension, the 
Office permits applicants to deposit identifying material instead of 
the best edition.\18\ Identifying material is a deposit that provides 
at least ``an adequate representation'' of the content an applicant 
seeks to register.\19\ While the Office was closed to the public during 
the COVID-19 pandemic, the Office provided the option for applicants 
submitting electronic applications for works that required deposit of 
``best edition'' physical copies to upload electronic copies of the 
works in addition to mailing the required physical copies, which 
enabled the Office to examine the works remotely.\20\ As with section 
407 deposits, the Office, in consultation with the Library, may also 
waive the best edition requirement on a case-by-case basis as ``special 
relief,'' upon request to permit the deposit of other formats that are 
more convenient for the applicant.\21\
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    \18\ See id. 202.20(c)(vii), (xi)(A)(2), (xiii).
    \19\ Id. 202.21(b).
    \20\ U.S. Copyright Office, Operations Updates During the COVID-
19 Pandemic, https://www.copyright.gov/coronavirus/.
    \21\ 37 CFR 202.20(d).
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(D) Criticism of Best Edition Requirements

    While the best edition requirement satisfies important Library 
acquisition objectives, it can in some instances be an obstacle to 
registration and generally increases the Copyright Office's 
registration processing times. Some copyright owners have explained 
that they have difficulty complying with the best edition requirement 
because they do not possess copies of the best edition

[[Page 33838]]

of a work. Obtaining two copies--or even one--of the best edition of a 
work may sometimes be time-consuming and expensive. Shaftel & 
Schmelzer, a consulting firm that works with visual artists, has 
explained that ``[v]isual creators sometimes have to purchase published 
copies at full retail price to submit with their registration 
application, adding significant cost to our registration. . . .'' \22\ 
The statutory requirement that the best edition be one that has been 
published also creates a hurdle because creators may have difficulty 
determining if a particular version of a work has been published.\23\
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    \22\ Shaftel & Schmelzer, Comments Submitted in Response to 
Notification of Inquiry on Registration Modernization, at 21 (Jan. 
11, 2019). See also Coalition of Visual Artists, Comments Submitted 
in Response to Notification of Inquiry on Registration 
Modernization, at 25 (Jan. 15, 2019) (``Tracking down hard copies of 
the first published use of a particular image is often difficult or 
impossible. And purchasing two copies of a book, for example, 
unnecessarily increases registration expense.'').
    \23\ On December 4, 2019, the Office published a notification of 
inquiry in which it noted the uncertainty expressed by some 
registration applicants as to how the term ``publication'' applies 
in the online context, and sought perspectives and suggestions 
regarding possible new regulations interpreting the statutory 
definition of publication and policy guidance regarding the role 
that publication should play in copyright law and the registration 
process. 84 FR 66328 (Dec. 4, 2019). The Office recently described 
the actions it has taken to provide additional guidance regarding 
the definition of ``publication,'' and discussed how it will 
supplement those efforts going forward. Letter from Shira 
Perlmutter, Reg. of Copyrights, U.S. Copyright Office, to Sen. Thom 
Tillis, Ranking Member, Subcomm. on Intell. Prop. of the S. Comm. on 
the Judiciary (Dec. 1, 2021).
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    In response to a prior Copyright Office inquiry, the Association of 
American Publishers (``AAP'') commented that publishers of literary 
works sometimes find the Office's registration deposit requirements to 
be ``costly, risky, and illogical,'' and indicated they would welcome 
the ability to submit electronic deposits for registration if they 
could do so in a manner that was secure, with the deposit ``kept wholly 
separate from the collections of the Library and its access or 
interlibrary lending or surplus books policies.'' \24\ In particular, 
AAP explained that the current best edition requirements do not accept 
ePub files, which are its members' preferred format.\25\ Likewise, the 
Copyright Alliance urged the Office to create options for applicants to 
upload digital deposits in a manner that takes into account applicants' 
operational systems and work processes.\26\ Visual artists also have 
maintained that the ability to submit digital deposits of their works 
encourages registration.\27\
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    \24\ Association of American Publishers, Comments Submitted in 
Response to Notification of Inquiry on Registration Modernization, 
at 2 (Jan. 15, 2019).
    \25\ Id. at 2 n.2.
    \26\ Copyright Alliance, Comments Submitted in Response to 
Notification of Inquiry on Registration Modernization, at 25-26 
(Jan. 15, 2019).
    \27\ See, e.g., Coalition of Visual Artists, Comments Submitted 
in Response to Notification of Inquiry on Registration 
Modernization, at 25-26 (Jan. 15, 2019) (describing the ``two best-
edition'' requirement as ``archaic, unnecessary and impractical''); 
Graphic Artists Guild, Comments Submitted in Response to 
Notification of Inquiry on Registration Modernization, at 8-9 (Jan. 
15, 2019) (requesting that applicants be permitted to submit digital 
deposits for all types of works and only be required to provide a 
physical deposit if the Library determines that it wants to include 
the work in its collection).
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    As the Office has explained to Congress, the section 408 best 
edition requirement often increases registration processing times for a 
number of reasons.\28\ After electronic applications and fees have been 
submitted, authors or publishers must incur the time and expense of 
packaging and shipping physical copies of works, along with shipping 
slips that connect the physical works with the electronic applications. 
Once the physical copies arrive at the Office, they must undergo off-
site security screening and decontamination, be matched to a 
corresponding electronic application, have security measures applied, 
and be physically brought to an examiner's workspace before examination 
can begin. The time delay adversely affects applicants because the 
effective date of registration is not assigned until the Office has 
received the deposit in addition to the application and fee.\29\ 
Second, under the current rules, in addition to examining whether a 
work is copyrightable, an examiner must review each deposit for 
compliance with the best edition rules to confirm whether the proper 
version has been received. Correspondence with applicants is often 
necessary to ensure that they have complied with the Library's best 
edition criteria and the Copyright Office's regulations.\30\ This adds 
additional complexities and time to the examination process.
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    \28\ Letter from Karyn A. Temple, Reg. of Copyrights, U.S. 
Copyright Office, to Sen. Thom Tillis, Chairman, Subcomm. on Intell. 
Prop. of the S. Comm. on the Judiciary, and Sen. Christopher A. 
Coons, Ranking Member, Subcomm. on Intell. Prop. of the S. Comm. on 
the Judiciary 18 (May 31, 2019), https://www.copyright.gov/laws/hearings/response-to-march-14-2019-senate-letter.pdf (``Senate 
Letter''); Letter from Karyn A. Temple, Reg. of Copyrights, U.S. 
Copyright Office, to Rep. Jerrold Nadler, Chairman, H. Comm. on the 
Judiciary, and Rep. Doug Collins, Ranking Member, H. Comm. on the 
Judiciary 18 (May 31, 2019), https://www.copyright.gov/laws/hearings/response-to-april-3-2019-house-letter.pdf (``House 
Letter'').
    \29\ 17 U.S.C. 410(d); U.S. Copyright Office, Compendium of U.S. 
Copyright Office Practices sec. 625 (3d ed. 2021).
    \30\ Senate Letter at 18; House Letter at 18.
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    As a result, applications with physical deposits take much longer 
for the Office to process than those with electronic deposits.\31\ On 
average, examination of electronic applications that do not need 
correspondence takes 1.1 months for those with electronic deposits and 
takes 10.8 months for those with physical deposits. The average 
processing time for electronic applications that do need correspondence 
is 3.4 months for those with electronic deposits and 13.1 months for 
those with physical deposits.\32\
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    \31\ Senate Letter at 19; House Letter at 19.
    \32\ U.S. Copyright Office, Registration Processing Times, 
https://www.copyright.gov/registration/docs/processing-times-faqs.pdf.
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(E) Digital Deposit Options

    The Office has been exploring options that would permit 
registration applicants to submit digital copies of works and provide 
the Library with physical copies only upon demand. Since 2018, the 
Office has required applicants seeking to register a group of 
newspapers to file an online application rather than a paper 
application and to upload a complete electronic copy of each issue 
through the electronic registration system instead of submitting them 
in physical form.\33\ The Library has incorporated electronic copies of 
these registration deposits into its collections, and provides its 
patrons with secure onsite access to them, subject to a number of 
security restrictions.\34\ If this model were applied to other 
categories and classes of registered works, the Office could both meet 
the Library's collections needs and expand the ability of applicants to 
provide electronic deposits in lieu of physical best edition copies, 
while providing secure, rights-restricted access to the works.
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    \33\ 37 CFR 202.4(e).
    \34\ Id. 202.18.
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    The Library's Office of Chief Information Officer (``OCIO'') is 
currently working with the Office to build a new Enterprise Copyright 
System (``ECS'') to improve the Office's provision of copyright 
services to the public, including its registration services. This will 
include replacing the Office's current electronic system for 
registration. As part of the Office's prior rulemaking on registration 
modernization, the Office inquired about providing greater flexibility 
for copyright applicants to deposit digital versions of their works, 
with physical copies only deposited upon request. The responses to that 
inquiry were generally very positive.\35\
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    \35\ See 85 FR 12704, 12711-12 (Mar. 3, 2020) (summarizing 
public comments on issue of digital deposits).
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    The Library has been focusing on its digital collecting capacity 
and capability

[[Page 33839]]

for over two decades and has expressed a commitment to continuing to 
strengthen its digital collections. The Library has stressed that new 
electronic deposit options for copyright owners must take into account 
``the Library's collection needs, technological capabilities, and 
security and access issues.'' \36\ The Library's Library Collections 
and Services Group (part of which was formerly known as Library 
Services) has expressed support for permitting digital deposits for all 
copyright applications in the long run. Noting that the Library depends 
on the items acquired via copyright deposit to help build its 
collection, it further explained that ``[w]hile the submission of e-
copies as opposed to print copies for purposes of registration would 
pose some difficulties in terms of service to Congress and other user 
groups, having access to e-copies of the content will be beneficial in 
the long term.'' \37\
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    \36\ Id. See also Carla Hayden, Libr. of Congr., Responses to 
Questions for the Record, Subcomm. on Intell. Prop. of the S. Comm. 
on the Judiciary at 17 (Jan. 7, 2020), https://www.judiciary.senate.gov/imo/media/doc/Hayden%20Responses%20to%20QFRs.pdf (noting that digital deposits 
options must ``appropriately balance security with ease of use'').
    \37\ Library of Congress Library Services, Comments Submitted in 
Response to Notification of Inquiry on Registration Modernization, 
at 1-2 (Jan. 15, 2019).
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    The Library's Digital Collections Strategy: Fiscal Years 2022-2026 
focuses on ``further mainstreaming and routinizing digital collecting 
and digital collections management across the wide range of areas, 
formats, and subjects the Library of Congress collects.'' \38\ Pursuant 
to this Strategy, the Library has committed to continuing to work 
closely with the Office to explore possible regulatory updates to the 
deposit requirements, including ``planning electronic deposit workflows 
related to the acquisition of electronic deposits for mandatory deposit 
and registration deposit'' for works that could include ``books, 
serials, motion pictures, sound recordings, music compositions, maps, 
photographs, prints, drawings, design and architectural materials, 
technical designs, technical reports, and web content.'' \39\ The 
Strategy also notes that the Library plans to transition to ``e-
preferred,'' in which digital formats are preferred over traditional 
physical formats, across its major acquisitions streams, including 
deposits from the Copyright Office.\40\
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    \38\ Library of Congress, Digital Collections Strategy Fiscal 
Years 2022-2026, at 3 (2021), https://www.loc.gov/acq/devpol/Digital%20Collections%20Strategy%20Overview_final.pdf.
    \39\ Id. at 4.
    \40\ Id. at 4-5.
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II. Subjects of Inquiry

    To guide the Office's consideration of these issues and its 
consultation with the Library, the Office invites written comments on 
the subjects below. A party choosing to respond to this notice of 
inquiry need not address every subject, but the Office requests that 
responding parties clearly identify and separately address each subject 
for which a response is submitted. The Office also requests that 
commenters explain their interest in the study and, with respect to 
each answer, the basis for their knowledge. Citations to published data 
and other external documents that support commenters' viewpoints are 
particularly helpful to the Office's review of written comments.
    1. One way to address concerns raised regarding the best edition 
requirement would be to limit the categories of deposits to it applies. 
To what categor(y/ies) of deposits do you think the best edition 
requirement should apply and why? What would be the impact on Library 
collections? What would be the impact on claimants' ability to register 
their copyrights?
    2. If registration and mandatory deposit requirements were no 
longer linked, how would this affect the deposit burden on copyright 
owners? How would it affect the Library's collections? How would it 
affect claimants' ability to register their copyrights?
    3. Should the Office expand the options for submitting electronic 
deposits for the purpose of examining registration applications and 
selection by the Library for its collections while retaining the 
requirement to submit best edition copies upon demand by the Library 
pursuant to section 407? Why or why not?
    4. Would copyright owners prefer to deposit electronic deposit 
copies for registration purposes instead of copies that meet the best 
edition standards? Why or why not? Would copyright owners like the 
option to provide electronic copies or best edition physical copies? 
Why or why not? How would the submission of electronic copies for 
registration affect the Library's collections and operations? What 
effect would the use of electronic copies have on the public record, 
and on a researcher's ability to use the work?
    5. Would the option to deposit electronic deposit copies create 
security concerns that the Copyright Office's and the Library's 
protocols do not currently address? What are the security concerns most 
important to applicants if electronic deposit copies are permitted and 
how could the Library address them?
    6. The Copyright Act requires that a ``best edition'' of a work 
must be the edition published in the U.S. Can this definition be 
interpreted to include digital file formats that were not themselves 
distributed to the public but contain the same copyrightable material 
as the edition distributed to the public?
    7. Please identify any pertinent issues regarding digital deposit 
and the best edition requirement not referenced above that the Office 
should consider in conducting its study.

    Dated: May 31, 2022.
Suzanne V. Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2022-11953 Filed 6-2-22; 8:45 am]
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