[Federal Register Volume 87, Number 140 (Friday, July 22, 2022)]
[Rules and Regulations]
[Pages 43744-43746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15522]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. 2022-4]


Liberalizing the Deposit Requirements for Registering a Single 
Issue of a Serial Publication

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

ACTION: Final rule.

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SUMMARY: The U.S. Copyright Office is amending the rules for 
registering a single issue of a serial publication, such as an 
individual issue of a magazine or journal. Under the current 
regulations, two copies of the best edition are generally needed to 
register this type of work, and must be in a physical format if the 
issue was published in that form. The amended rule will liberalize the 
deposit requirements by letting copyright owners submit one copy of 
such works instead of two. It also gives copyright owners the option of 
uploading a digital copy through the electronic registration system, 
even if the issue was published in a physical format. Alternatively, 
copyright owners may mail one copy to the Office in a physical format, 
although mailing a physical copy will delay the examination of the 
claim and result in a later effective date of registration.

DATES: Effective August 22, 2022.

FOR FURTHER INFORMATION CONTACT: Suzanne V. Wilson, General Counsel and 
Associate Register of Copyrights, by email at [email protected], 
or Robert J. Kasunic, Associate Register for Copyrights and Director of 
Registration Policy and Practice, by email at [email protected]. Each 
person may be reached by telephone at 202-707-8050.

SUPPLEMENTARY INFORMATION:

Background

    When Congress enacted the Copyright Act of 1976, it authorized the 
Register of Copyrights to issue regulations specifying administrative 
classes of works for the purpose of seeking a registration.\1\ Pursuant 
to this authority, the Register established an administrative class for 
``serials,'' known as Class SE.\2\ For purposes of registration, a 
``serial'' is defined as ``a work issued or intended to be issued in 
successive parts bearing numerical or chronological designations and 
intended to be continued indefinitely.'' \3\ Examples of works that may 
qualify as a serial include issues of periodicals, newspapers, 
journals, and annuals.\4\
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    \1\ 17 U.S.C. 408(c).
    \2\ 37 CFR 202.3(b)(1)(v).
    \3\ Id.
    \4\ Id.
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    Section 408 of the Copyright Act states that an application for 
registration must be accompanied by ``two complete copies . . . of the 
best edition'' if the work has been published in the United States.\5\ 
The ``best edition'' 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.'' \6\ 
Section 407 of the Copyright Act separately states that if a work has 
been published in this country, the copyright owner or the owner of the 
exclusive right of publication is required to deposit two complete 
copies of the best edition of that work with the Copyright Office 
within three months after publication.\7\ This is known as the 
``mandatory deposit requirement.''
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    \5\ 17 U.S.C. 408(b)(2). If the work was first published in a 
foreign country but has not been published in the United States, the 
applicant must submit one complete copy of the foreign edition. Id. 
at 408(b)(3).
    \6\ Id. at 101.
    \7\ Id. at 407(a)(1), (b).
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    Copies that are submitted to the Copyright Office to satisfy the 
section 407 mandatory deposit requirement are intended ``for the use or 
disposition of the Library of Congress.'' \8\ Likewise, copies of 
published works that are submitted for registration under section 408 
are made ``available to the Library of Congress for its collections.'' 
\9\ To avoid duplication, section 408 specifies that copies deposited 
under section 407 ``may be used to satisfy the deposit provisions'' of 
section 408 ``if they are accompanied by the prescribed application and 
fee.'' \10\
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    \8\ Id. at 407(b).
    \9\ Id. at 704(b).
    \10\ Id. at 408(b).
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    Both sections 407 and 408 give the Register authority to issue 
regulations concerning the nature of the copies that must be deposited, 
and the ability to create exceptions to the deposit requirements set 
forth in the statute. Section 408 gives the Register authority to 
``require or permit, for particular classes [of works], . . . the 
deposit of only one copy . . . where two would normally be required'' 
for copyright registration.\11\ Similarly, section 407 gives the 
Register authority to issue regulations that ``require [the] deposit of 
only one copy'' for the purpose of mandatory deposit.\12\
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    \11\ Id. at 408(c)(1).
    \12\ Id. at 407(c).
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    The legislative history confirms that the Register may adjust the 
deposit requirements to reduce burdens on copyright owners and to 
improve efficiencies within the Copyright Office. In discussing the 
Register's authority under section 407, Congress made clear that the 
mandatory deposit requirement should be ``as flexible as possible, so 
that there will be no obligation to make deposits where it serves no 
purpose, so that only one copy . . . may be deposited where two are not 
needed, and so that reasonable adjustments can be made to meet 
practical needs in special cases.'' \13\ Similarly, the legislative 
history for section 408 states that the ``[d]eposit of one copy . . . 
rather than two would probably be justifiable . . . in any case where 
the Library of Congress has no need for the deposit.'' \14\
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    \13\ H.R. Rep. No. 94-1476, at 151 (1976).
    \14\ Id. at 154.
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    In 2018, the Register exercised this authority to modify the 
mandatory deposit requirement for serials.\15\ If a serial is published 
in the United States in a physical form, or in both a physical and 
electronic format, publishers are required to provide the Library with 
two complimentary subscriptions to that serial, unless they have been 
informed by the Office that the serial is not needed for the Library's 
collections.\16\ By contrast, if a serial is published solely in 
electronic form, publishers have no affirmative obligation to provide a 
subscription, unless the Office issues a formal demand.\17\
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    \15\ 83 FR 61546 (Nov. 30, 2018).
    \16\ 37 CFR 202.19(d)(2)(xi).
    \17\ Id. at 202.19(c)(5).
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    Today, the Register exercises her authority to liberalize another 
deposit requirement related to serials, specifically for the 
registration of a single issue of a serial publication. First, the new 
rule lets copyright owners deposit one copy of the issue instead of 
two.\18\ Second, it provides flexibility in

[[Page 43745]]

how to submit that copy to the Office. Under the current rules, if the 
issue was published solely in electronic format, copyright owners may 
upload one digital copy to the electronic registration system.\19\ The 
new rule gives copyright owners of serials published in a physical 
formator in both a physical and electronic format the same ability to 
deposit an electronic copy for registration purposes. Copyright owners 
may still submit one physical copy, but as discussed below the 
inevitable additional time required for the Copyright Office to receive 
and process the copy will delay the examination of the claim and result 
in a later effective date of registration. To expedite examination of 
the claim and obtain an earlier effective date of registration, this 
rule allows copyright owners to upload a single digital copy of the 
issue if they comply with the following technical requirements.\20\
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    \18\ The Office recently updated the regulations governing the 
deposit requirement for the group registration option for serial 
issues. 37 CFR 202.4(d)(3); 84 FR 60918 (Nov. 12, 2019); 83 FR 61546 
(Nov. 30, 2018). Today's final rule only applies to claims involving 
a single issue of a serial publication. The requirements for 
registering two or more issues with the group registration option 
remain unchanged.
    \19\ This rule does not change the deposit requirements for 
registering a serial that is published solely in electronic format. 
Copyright owners are still required to submit ``all elements 
constituting the work in its published form, i.e., the complete work 
as published, including metadata and authorship for which 
registration is not sought.'' 37 CFR 202.20(b)(2)(iii)(B). In other 
words, ``[p]ublication in an electronic only format requires 
submission of the digital file(s) in exact first-publication form 
and content.'' Id.
    \20\ To be clear, copyright owners must comply with these 
technical requirements if they want to upload a digital copy of a 
work that was published in a physical form. As discussed in footnote 
19, they do not need to comply with these requirements when 
uploading a digital copy of a work that was published solely in 
electronic form.
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    A digital copy submission must be contained in one electronic file, 
and the copy must be presented in an orderly form. A digital copy will 
be considered ``orderly'' if the cover and the entire content of the 
issue are included in the same file, the pages are arranged in 
sequential reading order, and the digital copy contains the same 
content as the physical copy. In addition, the file must be viewable 
and searchable, it must contain embedded fonts,\21\ and it must be free 
from any access or copy restrictions that prevent the viewing, storage, 
or examination of the deposit, such as those implemented through 
digital rights management.
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    \21\ This means that the fonts that appeared within the issue 
when it was published must be included within the file itself.
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    In addition, the file must be submitted in Portable Document Format 
(``PDF''), and it must be uploaded to the electronic registration 
system as an individual file (not in a .zip file). The size of the file 
must not exceed 500 megabytes. To meet this size limitation, applicants 
may compress the PDF file in accordance with instructions on the 
Office's website.
    Applicants will be encouraged to follow the file-naming conventions 
specified on the Office's website.\22\ Specifically, the file name 
should start with the International Standard Serial Number (``ISSN'') 
that has been assigned to the publication (if any), and it should 
include the publication date in ``YYYYMMDD'' format. For example, the 
file name for an issue published on January 1, 2022 under ISSN 1234-
5678 would be ``12345678_20220101.pdf'' (leaving out the hyphen in the 
middle of the ISSN and adding an underscore between the ISSN and the 
publication date). If an ISSN number has not been assigned to the 
serial, the file name should include the title of the serial and the 
publication date for that issue.\23\ For instance, the file name for a 
serial titled Fashion Weekly published on January 15, 2022 would be 
``fashion_weekly_20220115.pdf''.
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    \22\ Guidance will be provided on the Registration Portal for 
the Literary Division, which is located at https://copyright.gov/registration/literary-works/. Similar guidance will be added to the 
Compendium of U.S. Copyright Office Practices at a later date.
    \23\ Copyright owners may obtain an ISSN by contacting the U.S. 
ISSN Center (www.loc.gov/issn).
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    Over the next twelve months, the Copyright Office plans to contact 
copyright owners that routinely submit single serial issues to notify 
them about the change in the deposit requirements and the technical 
requirements for uploading a digital deposit. If an applicant uploads a 
digital deposit but fails to follow the technical requirements during 
this one-year transition period, the Office may communicate with the 
applicant to discuss the missing technical requirements and allow it to 
cure the deficiencies.
    Accepting digital deposits in cases where the serial was published 
in a physical format will benefit both the Office and copyright owners 
by improving the efficiency of the registration process. Because a 
significantly larger percentage of single serial issues are submitted 
with physical deposits, the average processing time in FY21 for claims 
involving a single serial issue was significantly longer than claims 
involving other types of literary works.\24\ The average processing 
time for a single serial issue with a physical deposit was 280 days in 
FY21; if correspondence was needed, the processing time jumped to 307 
days. By contrast, the average processing time for a single serial 
issue with an electronic deposit was 72 days, which is comparable to 
the overall average for other types of literary works.\25\
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    \24\ During this time, 75% of single serial issues were 
submitted with a physical deposit. For other types of literary 
works, the numbers were reversed: 75% of those claims were submitted 
with an electronic deposit, while 25% were submitted with a physical 
deposit.
    \25\ The average processing time for other literary works was 57 
days in FY21.
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    There are many reasons for the disparity in the review time between 
physical and electronic submissions, the most significant one being 
related to the time required for the Office to receive mailed deposits. 
When an applicant uploads a digital file in an acceptable file format, 
the Office typically receives the application, filing fee, and deposit 
on the same date. The examiner can review the uploaded file as soon as 
the claim has been assigned, because the Office does not need physical 
copies to examine a serial for copyrightable authorship.
    Conversely, when an applicant submits an online application and 
mails physical copies to the Office, the deposit may arrive long after 
the date that the application and filing fee were received, and in some 
cases it may take weeks to connect the application with the correct 
deposit. In addition to the inherent delay in mail versus electronic 
submission, physical mail sent to the Office faces additional delays. 
Before the physical deposit can be delivered to the Office, it must be 
sent offsite to be screened and decontaminated for possible 
pathogens.\26\ Then the Office's Materials Control and Analysis 
Division (``MCA'') must manually match the deposit to the corresponding 
application. To facilitate this process, applicants are expected to 
print a ``shipping slip'' that contains a barcode generated by the 
electronic registration system, and attach that document to the 
physical deposits.\27\ Unfortunately, many serials are submitted 
without the required shipping slip. In such cases, MCA must correspond 
with the applicant to obtain the case number that was assigned to the 
application, search for the application in the electronic registration 
system, and manually generate a new shipping slip with an identifying 
barcode.
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    \26\ See Compendium of U.S. Copyright Office Practices, Third 
Edition 1508.6, 1508.6(A), and 1508.6(B) (2021) (``Compendium'').
    \27\ 37 CFR 202.3(b)(2)(i)(D) (``an applicant may send physical 
copies or phonorecords as necessary to satisfy the best edition 
requirements, by mail to the Copyright Office, using the required 
shipping slip generated during the online registration process'').
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    In the vast majority of cases, the Serials Division of the Library 
of Congress does not need these physical copies for its collections. 
Physical deposits would be useful only if (1) the

[[Page 43746]]

Library has selected the serial for its collections; (2) certain issues 
are missing from the collections (or previously deposited copies of 
such issues had been lost or damaged); and (3) the physical copies that 
were submitted for purposes of registration happened to be the precise 
issues that are needed to fill the gap in the collection. While this 
could theoretically happen, it does not happen often enough to justify 
the work and expense required on the part of both the claimant and the 
Office to submit and process physical copies within the Office.
    For copyright owners, the rule will reduce the cost of seeking a 
registration by lowering the incremental cost of producing and mailing 
physical copies to the Office. It also provides them with certain 
benefits. When the Office registers a serial issue, the effective date 
of registration is the date that the Office received the application, 
filing fee, and deposit in proper form. As discussed above, when an 
applicant uploads a digital copy of the deposit to the electronic 
registration system, the Office typically receives the application, 
filing fee, and deposit on the same date. By comparison, as described 
above, when an applicant sends physical copies to the Office 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, if an applicant uploads a complete copy through 
the electronic registration system, the Office will retain a digital 
copy of the issue for twenty years.\28\ Digital copies are much easier 
to track, store, and retrieve than physical copies. This is critical if 
the copyright owner or other interested parties need to obtain a copy 
of a particular issue for use in litigation or another purpose.
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    \28\ See Compendium 1510.1 (``Published deposit materials are 
currently stored for twenty years'').
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    To be clear, copyright owners may continue to submit their deposits 
in a physical format if they wish to do so, and in such cases, one copy 
will be required instead of two.\29\ For all of the reasons provided 
here, the Office strongly encourages applicants to upload copies to the 
electronic registration system, instead of sending them in a physical 
format.
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    \29\ The rule also confirms that the copy must be sent in the 
same package with the shipping slip that is generated by the 
electronic system, as required by the current regulation.
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    This is a technical change to a ``rule[ ] of agency . . . procedure 
[and] practice,'' \30\ By reducing the number of copies required for 
registering a single issue of a serial publication, and by giving 
copyright owners the option of submitting their deposits either in 
digital or physical format, it does not harm the interests of any 
parties and eases the deposit burden for some applicants. Accordingly, 
the Office finds good cause for publishing this as a final rule without 
first issuing a notice of proposed rulemaking.\31\
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    \30\ 5 U.S.C. 553(b)(A).
    \31\ See 5 U.S.C. 553(b)(B) (rules may be issued without notice 
of proposed rulemaking where the agency finds that an NPRM is 
``unnecessary, or contrary to the public interest'').
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List of Subjects in 37 CFR Part 202

    Copyright, Preregistration and registration of claims to copyright.

Final Regulations

    For the reasons set forth in the preamble, the Copyright Office 
amends 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. Amend Sec.  202.20 by revising paragraph (c)(2) introductory text 
and by adding paragraph (c)(2)(i)(N) to read as follows:


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

* * * * *
    (c) * * *
    (2) In the case of certain works, the special provisions set forth 
in this clause shall apply. In any case where this clause specifies 
that one copy or phonorecord may be submitted, that copy or phonorecord 
shall represent the best edition, or the work as first published, as 
set forth in paragraph (c)(1) of this section, unless stated otherwise.
    (i) * * *
    (N) A single issue of a serial publication, for which the deposit 
may comply with the requirements set forth in paragraphs (b)(2)(iii)(B) 
or (c)(2)(i)(N)(1) or (2) of this section.
    (1) If the issue was published in a physical format, the applicant 
may upload a digital copy to the electronic registration system 
provided that the following requirements have been met. The file must 
be submitted in Portable Document Format (PDF), it must be assembled in 
an orderly form, and it must be uploaded as one electronic file (i.e., 
not in a .zip file). The file must be viewable and searchable, contain 
embedded fonts, and be free from any access or copy restrictions (such 
as those implemented through digital rights management) that prevent 
the viewing, storage, or examination of the issue. The file size for 
the upload must not exceed 500 megabytes, but the file may be 
compressed to comply with this requirement, consistent with 
instructions on the Office's website. Applicants are encouraged to use 
the file-naming convention specified on the Copyright Office's website.
    (2) Alternatively, the applicant may submit a single physical copy 
of the issue. If the claim is submitted with the Standard Application, 
the copy must be accompanied by the required shipping slip generated by 
the electronic registration system, the shipping slip must be attached 
to the copy, the copy and the shipping slip must be included in the 
same package, and the package must be sent to the address specified on 
the shipping slip.
* * * * *

    Dated: June 27, 2022.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.

    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2022-15522 Filed 7-21-22; 8:45 am]
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