81 FR 86643 - Group Registration of Photographs
LIBRARY OF CONGRESS
Copyright Office Federal Register Volume 81, Issue 231 (December 1, 2016)
Copyright Office
Federal Register Volume 81, Issue 231 (December 1, 2016)
| Page Range | 86643-86656 | |
| FR Document | 2016-28706 |
[Federal Register Volume 81, Number 231 (Thursday, December 1, 2016)] [Proposed Rules] [Pages 86643-86656] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-28706] ----------------------------------------------------------------------- LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201, 202 [Docket No. 2016-10] Group Registration of Photographs AGENCY: U.S. Copyright Office, Library of Congress. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The U.S. Copyright Office is proposing to update its regulations governing group registration options for photographers to encourage broader participation in the registration system, increase the efficiency of the registration process, and create a more robust record of the claim. First, the Office has created new online registration applications specifically designed for group registrations of published photographs and group registrations of unpublished photographs. The proposed rule would require applicants to use these online applications, in lieu of any existing paper application. Applicants will be allowed to include up to 750 photographs with each application. Second, the proposal would eliminate less-efficient forms of registering photographs that have been adopted over the years-- namely, the pilot program permitting group registration of published photographs using the electronic application designed for registering a single work, and the option of registering a number of unpublished photographs as an ``unpublished collection.'' The pilot program for photographic databases will remain in effect. Third, the proposed rule will update the deposit requirement for group registrations of photographs and photographic databases by requiring applicants to submit their works in digital form. DATES: Comments on the proposed rule must be made in writing and must be received in the U.S. Copyright Office no later than January 3, 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 http://www.copyright.gov/rulemaking/group-photographs/. 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, or Erik Bertin, Deputy Director of Registration Policy and Practice, at 202- 707-8040. SUPPLEMENTARY INFORMATION: The U.S. Copyright Office (the ``Office'') is proposing to amend the regulation that [[Page 86644]] governs the group registration option for published photographs. In addition, the Office is proposing to create a new group registration option for unpublished photographs. Finally, the Office is proposing to amend the deposit requirements for groups of published photographs and photographic databases, and is proposing to establish similar deposit requirements for the new group option for unpublished photographs. These proposals are discussed in more detail below. The Office invites public comment on each proposal. Last year the Office issued a notice of inquiry concerning the practical and legal challenges faced by photographers, graphic artists, and illustrators (referred to herein as the ``Visual Works Inquiry'' \1\). See 80 FR 23054 (Apr. 24, 2015). The Office recognized that photographers, graphic artists, and illustrators have a broad impact on U.S. culture, but they face significant challenges in the digital age. To better understand these challenges, the Office requested written comments on how photographs, graphic artworks, and illustrations are monetized, licensed, registered, and enforced under the Copyright Act of 1976 (``the Copyright Act''). The Office sought information concerning the current marketplace for these types of works, as well as observations regarding the real or potential obstacles that these creators and their licensees or other representatives face when navigating the digital landscape. With respect to registration, the Office asked the public to identify the most significant challenges for photographers and other visual artists. 80 FR at 23056. --------------------------------------------------------------------------- \1\ Information concerning the Visual Works Inquiry is available on the Office's Web site at http://copyright.gov/policy/visualworks/. --------------------------------------------------------------------------- The Office received 2,795 comments and 166 reply comments in response to the Visual Works Inquiry. The Office has not attempted to address these comments in this notice of proposed rulemaking.\2\ The rule proposed in this notice focuses solely on photographs, and it represents an interim improvement to the current electronic registration system. In the future, the Office may consider other options as it assesses the broader concerns of visual artists generally. --------------------------------------------------------------------------- \2\ In preparing this notice of proposed rulemaking the Office did consider comments submitted in a prior rulemaking concerning the deposit requirements for photographic databases, which was completed in July 2012. Information concerning that rulemaking is available on the Office's Web site at http://copyright.gov/rulemaking/databases/. --------------------------------------------------------------------------- I. Background When Congress enacted the Copyright 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 deposit required for each such 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 procedure known as ``group registration.'' See 17 U.S.C. 408(c)(1). Pursuant to this authority, the Register issued regulations permitting 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)-(10). 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), reprinted in 1976 U.S.C.C.A.N. 5659, 5770; 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 record that diminishes the value of the Office's database. Congress cited ``a group of photographs by one photographer'' as an example of a ``group of related works'' that would be suitable for registration under section 408(c)(1). Id. At the same time, when large numbers of works are bundled together in one application, information about the individual works may not be adequately captured. Therefore, group registration options require careful balancing of the need for an accurate public record and the need for an efficient method of facilitating the registration of multiple photographs. II. Existing Registration Accommodations for Photographers Under the Copyright Office's existing regulations and registration practice, photographers have several options for registering groups or collections of photographs with one application and one filing fee. These options are summarized below. A. Group Registration of Published Photographs After conducting an extensive rulemaking, the Office issued a regulation in 2001 that allows applicants to register a group of published photographs with one application and one filing fee. See 66 FR 37142, 37149-50 (July 17, 2001). The Office refers to this procedure as the ``group option for published photographs'' or ``GRPPH.'' An applicant may register a group of photographs under this procedure if all the photographs were taken by the same photographer and were published within the same calendar year, and if the copyright claimant for all the photographs is the same person or organization. 37 CFR 202.3(b)(10)(i)-(iii). If the photographs were created as works made for hire, the application must provide both the name of the photographer and the name of the photographer's employer or the party who specially ordered or commissioned the photographs (e.g., ``ABC Corporation, employer for hire of John Doe''). Id. Sec. 202.3(b)(10)(ix). As a general rule, the applicant must provide a precise date of publication for each photograph in the group (i.e., month, day, and year), either by providing the date on the application, on a continuation sheet submitted on Form GR/PPh/CON,\3\ on a separate list submitted on paper or in a text file, or on the photographs themselves (e.g., writing the date on the back of each print, including the date in the file name for each image, etc.). Id. Sec. 202.3(b)(10)(iv)(A)- (D). Alternatively, the applicant may provide a range of dates (e.g., February 25, 2015 through May 25, 2015), but only if the photographs were published within three months before the date that the application is received in the Office. Id. Sec. 202.3(b)(10)(vi). If the applicant chooses to provide publication information on Form GR/PPh/CON, the applicant may include up to 750 photographs in the claim. Id. Sec. 202.3(b)(10)(v). By contrast, if the applicant provides publication information using any other method, there is no limit on the number of photographs that may be submitted. Id. Sec. 202.3(b)(10)(v), (viii). --------------------------------------------------------------------------- \3\ Form GR/PPh/CON is a continuation sheet for Form VA specifically designed for providing information for a group registration of published photographs. --------------------------------------------------------------------------- Initially, all applicants were required to file their claims using a paper application submitted on Form VA. As discussed below in Section III.A.1, the Office has established a pilot program [[Page 86645]] that allows applicants to submit their claims through the electronic registration system. Id. Sec. 202.3(b)(10)(xi). In all cases, the applicant must submit one copy of each photograph that is included in the group, and all the photographs must be submitted in the same format. Id. Sec. 202.3(b)(10)(x). The applicant may submit the photographs in digital form by saving them on a CD-ROM or DVD-ROM in a JPEG, GIF, TIFF, or PCD format.\4\ Alternatively, the applicant may submit the photographs in a physical form, such as prints, contact sheets, slides, photocopies, or even videotape. Id. Sec. 202.20(c)(2)(xx)(B)-(H). --------------------------------------------------------------------------- \4\ The regulation that currently governs the deposit requirements for GRPPH does not mention other types of storage devices, such as flash drives. 37 CFR 202.20(c)(2)(xx)(A). --------------------------------------------------------------------------- B. Other Registration Options In addition to the group option for published photographs, there are four other options for registering multiple photographs with the same application. These options are summarized below. 1. Unpublished Collections Since 1978 the Office has allowed applicants to register a number of unpublished works with one application and one filing fee if the works qualify as an ``unpublished collection.'' To qualify for this option, the works must be unpublished, the works must have at least one common author, the copyright claimant for each work and the collection as a whole must be the same person or organization, the works must be assembled in an orderly form, and the applicant must provide a single title identifying the collection as a whole. Id. Sec. 203.3(b)(4)(i)(B). Photographers may use this option to register their photographs if they satisfy these requirements, and at the present time there is no limit on the number of photographs that may be included within each collection. Under this option, the applicant may register the works using the electronic registration system or a paper application submitted on Form VA. Id. Sec. 202.3(b)(2). In all cases, the applicant must submit one copy of each photograph that is included in the collection. The applicant may submit the photographs in digital form (e.g., uploading digital files to the electronic registration system or mailing them to the Office on a CD- ROM or DVD-ROM, etc.) or physical form (e.g., prints, slides, photocopies, etc.), but all of the photographs must be submitted in the same format. Id. Sec. 202.20(c)(2)(xx). 2. Group Registration for Contributions to Periodicals Without prejudice to the Register's general authority to create group registration options under Section 408(c)(2) at the Register's discretion, Congress also directed the Register to create a group option for works by the same individual author that were first published as a contribution to a periodical. 17 U.S.C. 408(c)(2). In response to this directive, the Office established a procedure known as the ``group option for contributions to periodicals'' or ``GRCP.'' See 43 FR 965, 966-67 (Jan. 5, 1978). Photographers may use this option to register their photographs if they satisfy the requirements set forth in the regulation. First, all the photographs must be taken by the same individual, and none of them can be a work made for hire. 37 CFR 202.3(b)(8)(i)(A)-(B). Second, all the photographs must be first published as a contribution to a periodical (e.g., a newspaper, a magazine, a journal, etc.) and they must be published within a twelve- month period (e.g., June 1, 2014 through May 31, 2015). Id. Sec. 202.3(b)(8)(i)(C) & n.2. And, third, if the photographs were first published before March 1, 1989, each photograph must contain an appropriate copyright notice. Id. Sec. 202.3(b)(8)(i)(D). Under the current regulation, there is no limit on the number of photographs that may be registered under GRCP. The applicant must complete a paper application using Form VA and Form GR/CP.\5\ Id. Sec. 202.3(b)(8)(ii)(A)-(B). The applicant must submit the photographs in the precise form in which they were first published, and the copies must be submitted in physical--rather than digital--form. See id. Sec. 202.3(b)(8)(i)(E). For example, the applicant may submit the entire issue of the periodical that contains the photograph, the entire section of the newspaper that contains the photograph, a photocopy of the entire page from the periodical that contains the photograph, among other formats.\6\ See id. --------------------------------------------------------------------------- \5\ Form GR/CP is an adjunct form specifically designed for providing information for a group registration of contributions to periodicals. \6\ The Office is issuing a separate notice of proposed rulemaking (published elsewhere in this volume of the Federal Register, and referred to herein as the ``GRCP Rulemaking'') that invites comment on a proposed rule that will modify the group option for contributions to periodicals. To be clear, the Office is not proposing any changes to the GRCP regulation as part of this rulemaking on group registration of photographs. --------------------------------------------------------------------------- 3. Group Registration for Photographic Databases In 1989, the Office created a procedure that allows database owners to register the updates and revisions to a database with one application and one filing fee. 37 CFR 202.3(b)(5); 54 FR 13177 (Mar. 31, 1989). The Office refers to this procedure as the ``group database option.'' In the late 1990s, some stock photography companies began using this option to register databases that contain large numbers of photographs. After consulting with representatives from the industry, the Office concluded that the database option could potentially be used to register a photographic database if certain requirements have been met. The Office noted this understanding in an earlier notice of proposed rulemaking that is discussed in Section III.A.1 below. See 76 FR 4072, 4075-76 (Jan. 24, 2011). The requirements for the database option are extremely complex.\7\ Briefly stated, an applicant may register the updates or revisions that were made to a database over a period of three months if the updates and revisions are owned by the same claimant and if the general content and organization of the updates and revisions are similar. 37 CFR 202.3(b)(5). The applicant must submit a detailed statement that describes the content and organization of the database, and in the case of a photographic database, the applicant must submit one copy of each photograph that is included in the group. The applicant may submit an online application or a paper application. The applicant may submit the photographs in digital or physical form, but all the photographs must be submitted in the same format. 37 CFR 202.20(c)(2)(xx). --------------------------------------------------------------------------- \7\ For a detailed summary of these requirements, see section 1117 of the Compendium of U.S. Copyright Office Practices, Third Edition (hereinafter the ``Compendium''). --------------------------------------------------------------------------- A registration for a photographic database covers the authorship involved in selecting, coordinating, and arranging the content of the database as a whole. It also may cover the individual photographs that are included within the database if the photographers transferred the exclusive rights in their respective works to the owner of the database, and if the selection, coordination, and/or arrangement of those photographs is sufficiently creative. See Compendium section 1117.2. That said, the Office has questioned whether this practice should be revised to limit the examination of a database to the authorship involved in creating the selection, coordination, and arrangement of the database as a whole and to exclude examination (and thus, the prima facie validity) of a claim in the component elements of the database. [[Page 86646]] See 77 FR 40268, 40269 (July 9, 2012); see also 76 FR at 4073. The Office generally discourages photographers from registering their works as part of a photographic database and instead encourages them to use one of the other options discussed in this section, in part, because they provide a better registration record for claims in the individual component works within a database, as opposed to a claim in the database itself as a compilation of data. See 77 FR at 40269 n.1; 76 FR at 4073. Moreover, registering photographs as part of a photographic database may limit the copyright owner's ability to seek certain remedies in an infringement action. This issue is discussed in more detail in Section III.G.3 below. 4. Collective Works Applicants may register a number of photographs with one application and one filing fee if they are part of a collective work. The statute defines a collective work as ``a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.'' 17 U.S.C. 101. A collective work may consist entirely of photographs, such as a book of photographs, an exhibition catalog, or a retrospective book that contains photographs taken by a particular photographer. A collective work also may combine photographs with other types of authorship, such as a calendar, textbook, coffee table book, or similar types of works. Applicants may register a collective work with an online application or a paper application. The claim may include photographs taken by multiple photographers, but the applicant does not need to name each photographer in the application and there is no limit on the number of photographs that may be included within each claim. If the claim is approved, the registration will cover the authorship involved in selecting, coordinating, and arranging the content of the collective work as a whole. It also may cover the individual photographs that are included within the collective work if (i) the claimant owns the copyright in both the individual photographs and the collective work as a whole, and if (ii) the photographs have not previously been published or registered. Although a registration for a collective work may cover the individual photographs contained therein, this type of registration may limit the copyright owner's ability to seek certain remedies in an infringement action. This issue is discussed in more detail in Section III.G.4 below. III. The Proposed Rule The Proposed Rule does several things. First, the Office is proposing to amend the regulation that governs the group option for published photographs to reflect certain technical upgrades that will be made to the electronic registration system. Second, the Office is proposing to create, for the first time, an equivalent group registration option for unpublished photographs. This new procedure will be known as the ``group option for unpublished photographs'' or ``GRUPH,'' and it will replace the option that currently allows photographers to register their works as an unpublished collection. These first two amendments will increase the efficiency of the registration process for both published and unpublished photographs alike by requiring applicants to submit their claims through the electronic registration system. In addition, GRUPH will foster early registration, thereby eliminating complex questions that arise when published and unpublished photographs are commingled. Third, the Office is proposing to update the deposit requirements for the group options for published photographs and photographic databases by requiring applicants to submit a digital copy of each photograph that is included in the group, and a separate document containing a sequentially numbered list that provides the title and file name for each photograph in the group. Applicants may submit these items by uploading them through the electronic system or by sending them on a physical storage device. This same requirement will apply to the new group option for unpublished photographs. Finally, the Proposed Rule will memorialize the Office's longstanding position regarding the scope of a group registration for photographs. Each of these proposals is discussed below.\8\ --------------------------------------------------------------------------- \8\ As mentioned above in footnote 6, the Office is issuing a separate notice of proposed rulemaking involving the group option for contributions to periodicals. The rule proposed in the GRCP Rulemaking states that the Office may refuse to issue a group registration or may cancel a group registration if it determines that the applicant failed to comply with the relevant requirements for a particular group option. These requirements will apply to any group option that the Office creates under section 408 of the Copyright Act, including GRCP, GRPPH, GRUPH, and the group option for photographic databases. --------------------------------------------------------------------------- A. Application Requirements for Groups of Published Photographs (GRPPH) and Groups of Unpublished Photographs (GRUPH) 1. Online Registration In February 2015 the Office completed a comprehensive analysis of its electronic registration system with input from technical experts and stakeholders. This analysis will support the Office's long-term goals of creating both a better interface and a better public record. See U.S. Copyright Office, Office of the Chief Information Officer, Report and Recommendations of the Technical Upgrades Special Project Team (February 2015), available at http://copyright.gov/docs/technical_upgrades/usco-technicalupgrades.pdf; see also Technological Upgrades to Registration and Recordation Functions, 78 FR 17722 (Mar. 22, 2013). In December 2015, the Register issued a strategic plan that sets forth the Office's performance objectives for the next five years. The plan provides a roadmap for re-envisioning almost all of the services that the Office provides, including how applicants register claims, submit deposits, record documents, share data, and access expert resources. With respect to information technology, the plan calls for ``a robust and flexible technology enterprise that is dedicated to the current and future needs of a modern copyright agency.'' U.S. Copyright Office, Strategic Plan 2016-2020: Positioning the United States Copyright Office for the Future, at 35 (Dec. 1, 2015), available at http://copyright.gov/reports/strategic-plan/USCO-strategic.pdf. At the direction of Congress,\9\ the Office also developed a detailed IT plan, and obtained public comments on specific strategies, costs, and timelines for technology objectives. U.S. Copyright Office, Provisional Information Technology Modernization Plan and Cost Analysis (Feb. 29, 2016), available at http://copyright.gov/reports/itplan/. --------------------------------------------------------------------------- \9\ H.R. Rep. No. 114-110, at 16-17 (2015). --------------------------------------------------------------------------- In the meantime, the Office has made some enhancements to the current electronic registration system that will benefit photographers, the Office, and the public at large. When the electronic registration system was introduced in 2007, it contained a ``standard'' application (referred to herein as the ``standard online application''). Applicants could use this application to register a single work; they also could use this application to register a number of works as an unpublished collection or as part of a collective work. See 72 [[Page 86647]] FR 36883, 36885 (July 6, 2007). But the standard online application was not meant to be used to register groups of published photographs, photographic databases, or contributions to periodicals, because the system was not designed to take in the information required for a group claim. Instead, photographers were required to submit these types of claims using a paper application submitted on Form VA (either alone or together with Form GR/PPh/CON or Form GR/CP). Photographers soon expressed interest in using the electronic system, and beginning in 2010, some applicants began submitting large numbers of photographs with the standard online application. Although this application was not designed to handle group registrations, the Visual Arts Division processed some of these claims in cases where the application contained all the information required for a group claim. Based on this experience, the Office issued an interim regulation in 2011 that established a pilot program allowing applicants to register groups of published photographs and photographic databases with the standard online application.\10\ 76 FR at 4074, 4075. Applicants that participate in the pilot program may submit their claims through the electronic system (rather than submitting a paper application), provided that they obtain prior authorization from the Visual Arts Division and follow the instructions from that Division concerning the information that should be included in the application and the proper method for submitting the deposit. 37 CFR 202.3(b)(5)(ii)(A), (b)(10)(xi). --------------------------------------------------------------------------- \10\ The pilot program does not apply to the group option for contributions to periodicals. --------------------------------------------------------------------------- The Office explained that, during the pilot, it would assess the desirability and feasibility of allowing applicants to submit groups of photographs through the electronic system on a permanent basis, and invited public comment on the issue. 76 FR 5106 (Jan. 28, 2011). The Professional Photographers of America (``PPA'') and other organizations that represent photographers supported the pilot program, predicting that the standard online application would require less time to complete than a paper application, and that applicants would receive their certificates in a more timely manner.\11\ --------------------------------------------------------------------------- \11\ PPA at 2, available at http://copyright.gov/rulemaking/databases/comments/professional-photographers-of-america.pdf. PPA jointly submitted its comments with Commercial Photographers International, the Society of Sport & Event Photographers, the Student Photographic Society, Evidence Photographers International Council, and the Stock Artists Alliance. Id. at 1. --------------------------------------------------------------------------- While the pilot program was well-intentioned, it has been extremely burdensome for both applicants and the Office. The standard online application was designed to handle claims involving one work or a limited number of works. Using the existing architecture to provide title and publication information for hundreds or even thousands of photographs is necessarily challenging for applicants who are unfamiliar with the system. Examining these types of claims also requires significantly more time. In some cases, registration specialists have spent an entire day processing a single claim, which has resulted in corresponding delays in issuing certificates of registration for such claims. Moreover, the increasing demand on the Office's limited resources has had an adverse effect on the examination of other types of works within the Visual Arts Division. To address these concerns, the Office has decided to eliminate the pilot program for published photographs, and replace it with an online application specifically designed for groups of published photographs. (The pilot program for photographic databases will remain in effect for the time being, though as discussed in Sections D.2 and G.3, the deposit requirements for photographic databases will be modified in some respects.) In addition, the Office has created a new online application specifically designed for groups of unpublished photographs. Under the Proposed Rule, applicants will be required to use the online application designated for GRPPH or GRUPH as a condition for using either of these group options. To facilitate this transition, the Office will contact each applicant that has participated in the pilot program for published photographs and will notify them that the pilot program will be replaced with a new procedure. The Office will provide instructions on how to complete the new applications on its Web site and in chapter 1100 of the Compendium. In addition, the Office will make its staff available to groups or associations that are interested in producing webinars or other educational programs for their members. Once the Proposed Rule goes into effect, the Office will no longer accept groups of published photographs or groups of unpublished photographs that are submitted with a paper application on Form VA (either with or without Form GR/PPh/CON).\12\ Likewise, the Office will no longer accept these types of claims if they are submitted with a standard online application, rather than the online application designated for GRPPH or GRUPH.\13\ In such cases the Office will ask the applicant to resubmit the photographs using the appropriate application, which may affect the effective date of registration that is assigned to the claim. The Office invites comment on this proposal, including whether it should eliminate the paper application for these group options, phase them out after a specified period of time, or continue to offer them for photographers who prefer to use the paper- based system. --------------------------------------------------------------------------- \12\ By contrast, Applicants may continue to use Form VA to register a photographic database if they meet the eligibility requirements for that option. Similarly, photographers may continue to use Form VA to register an individual photograph or a collective work, although the Office strongly encourages applicants to use the online application rather than the paper form. \13\ By contrast, applicants may continue to use the standard online application to register a photographic database, as long as they comply with the requirements for the pilot program. Photographers may continue to use the standard application to register photographs as part of a collective work. Likewise, photographers may continue to use the standard online application to register an individual photograph. --------------------------------------------------------------------------- 2. Relationship to Supplementary Registration Rulemaking 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). Specifically, it identifies an error or omission in an existing registration (referred to herein as a ``basic registration'') and places the corrected information or additional information in the public record. The Office refers to this type of registration as a ``CA,'' which stands for ``correction and amplification.'' The Office is issuing a separate notice of proposed rulemaking (published elsewhere in this volume of the Federal Register, and referred to herein as the ``CA Rulemaking'') that will modify the regulation that governs this procedure. Under the rule proposed in the CA Rulemaking, applicants will be required to file an online application in order to correct or amplify the information set forth in a basic registration for any photograph that is capable of being registered through the electronic system--even if the work was originally registered with a paper application submitted on Form VA (either with or without Form GR/PPh/CON). [[Page 86648]] If the rules proposed in the CA Rulemaking and in this proceeding both go into effect, applicants will be required to file an online application in order to correct or amplify a basic registration for works registered under the GRPPH and GRUPH options. If an applicant attempts to use a paper application, the Office will ask the applicant to resubmit the claim using the online form. As discussed in Section III.C.1 below, if the basic registration encompasses more than 750 photographs, multiple applications may need to be submitted to correct or amplify that registration. Applicants will not need to contact the Visual Arts Division in order to correct or amplify a basic registration for a group of photographs registered under GRPPH or GRUPH. This online-filing requirement will also apply when correcting or amplifying a basic registration for works registered under the pilot program for group registration option for photographic databases.\14\ Applicants will need to contact the Visual Arts Division before filing an application to correct or amplify a basic registration for a photographic database. This is due to the fact a supplementary registration for a photographic database will have to be submitted under the pilot program. As discussed in Section III.A.1, the Visual Arts Division closely monitors claims submitted under this program to ensure that applicants complete the online application in an appropriate manner. --------------------------------------------------------------------------- \14\ Under the rule proposed in the CA Rulemaking, the online filing requirement for supplementary registrations will also apply to basic registrations for a single photograph, a collection of unpublished photographs, or a collective work that contains photographs. --------------------------------------------------------------------------- Comments concerning this proposal should be submitted as part of the CA Rulemaking, and should not be submitted as part of this rulemaking on group registration of photographs. 3. Policy Considerations Supporting Online-Only Registration A substantial majority of the U.S. population has access to the internet,\15\ and the Office expects that most photographers will be able to use the electronic system.\16\ That said, the Office recognizes that millions of Americans do not have broadband service, and that the Proposed Rule may impose a burden on photographers who fall within this segment of the population.\17\ Nevertheless, the Office believes that the benefits of requiring applicants to use the online application designated for GRPPH or GRUPH outweigh the potential burden on photographers who do not have direct access to the internet. --------------------------------------------------------------------------- \15\ The Pew Research Center found that 84% of adults use the internet, including 85% of the people in urban and suburban communities and 78% of the people in rural communities. Pew Research Center, Americans' Internet Access: 2000-2015, at 2, 10 (June 26, 2015), available at http://www.pewinternet.org/files/2015/06/2015-06-26_internet-usage-across-demographics-discover_FINAL.pdf. \16\ Approximately 94% of the claims submitted in fiscal year 2015 were filed through the electronic system, while 6% of the claims were submitted on a paper application. \17\ The Federal Communications Commission (``FCC'') reported that 17% of the population does not have access to a broadband service with connection speeds of twenty-five megabits per second (``mbps'') for downloads and three mbps for uploads. This figure includes 8% of the people who live in urban areas, 53% of the people in rural areas, and 63% of the people in U.S. territories and Tribal lands. Federal Communications Commission, 2015 Broadband Progress Report at 4 (Jan. 29, 2015), available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-10A1.pdf. --------------------------------------------------------------------------- As discussed above, the PPA and other organizations that represent photographers expressed support for online registration in a prior rulemaking. They stated that ``only a tiny fraction of photographers (1% according to PPA member surveys)'' register their works with the Office, in part, because the paper application takes too much time to complete. PPA, supra note 11, at 1. Thus, requiring applicants to use the online application will encourage broader participation in the registration process. If a photographer does not have broadband at home, at the home of a relative, friend, or neighbor, or at her place of employment, there are other options for registering large numbers of published or unpublished photographs. If the copyright owner has a tablet or laptop, she could complete and submit the online application at a coffee shop, a bookstore, or any other place where wi-fi or cellular service is available.\18\ She could log onto the electronic system at a public library or other institution that provides computers with internet access. Although the photographer would have to submit the application through the electronic system and pay the filing fee through a secure Web site (www.pay.gov), she would not necessarily have to submit her photographs over the internet. As discussed in Section III.D.1.c, the photographer could save her photographs onto a flash drive or other storage device and mail it to the Office with the required shipping slip that is generated by the electronic registration system. --------------------------------------------------------------------------- \18\ When filing an application for a supplementary registration there is no need to upload a copy of the work that is covered by the basic registration. Thus, applicants will be able to submit these types of claims with a tablet or other wi-fi enabled device. In some cases, the registration specialist may need to compare the information provided in the application for supplementary registration with the copy of the work that was submitted with the application for the basic registration. For instance, this may be necessary if the supplementary registration changes the publication status of the work or adds additional authors to the registration record. If the Office does not have a copy of the work in its possession, the registration specialist may ask the applicant to submit a replacement copy. See Compendium section 1802.9(C). But in all cases, the replacement copy could be sent by first class mail, courier, or hand delivery; the copy does not need to be uploaded to the electronic system (though this would be an option if the applicant has broadband service). --------------------------------------------------------------------------- In the alternative, the photographer could hire an attorney to submit the application on her behalf, either by paying for the attorney's services or by obtaining pro bono representation.\19\ The Office also notes that a number of companies will prepare an application and file it with the Office for a fee. These companies typically provide this service for copyright owners who wish to register a single work, but they could conceivably expand their offering to include groups of photographs. --------------------------------------------------------------------------- \19\ The Office does not require applications to be prepared or submitted by an attorney. In certain special cases the Office may suggest that the copyright owner consider seeking legal advice, but the Office does not furnish the names of copyright attorneys, publishers, agents, or other similar information. See 37 CFR 201.2(a)(2). --------------------------------------------------------------------------- The Office's decision to offer a group option for photographers is entirely discretionary, and Congress gave the Office broad authority to set the requirements for these types of claims. 17 U.S.C. 408(c)(1). For the foregoing reasons, the Office believes that requiring applicants to submit an online application as a condition for seeking a group registration for a group of photographs is a reasonable trade-off for improving the overall efficiency of the group registration process. Nonetheless, the Office invites comment on this aspect of the Proposed Rule. B. Filing Fee for GRPPH and GRUPH The filing fee for registering groups of published or unpublished photographs will be $55, which is the amount the Office currently charges for a group of published photographs submitted with an online application under the pilot program.\20\ 37 CFR 201.3(c)(3)(i). --------------------------------------------------------------------------- \20\ Likewise, the filing fee for registering a photographic database will remain unchanged. Applicants will continue to pay $55 if the claim is submitted with an online application under the pilot program, and will continue to pay $65 if the claim is submitted with a paper application on Form VA. 37 CFR 201.3(c)(3). --------------------------------------------------------------------------- In 2012 the Office conducted a study pursuant to section 708 of the Copyright Act, which authorizes the Register to establish, adjust, and recover fees for certain services that the Office provides [[Page 86649]] to the public. Initially, the Office proposed to increase the filing fee for a group of published photographs, but after weighing the concerns expressed by photographers the Office decided to keep the fee for submitting an online application under the pilot program at $55 and the fee for submitting a paper application at $65. The Office noted that photographers ``expressed significant concern about the impact of fees on their ability to protect their works,'' given ``the number of works they produce and must register in order to receive the full range of judicial remedies for infringement.'' U.S. Copyright Office, Proposed Schedule and Analysis of Copyright Fees To Go Into Effect On Or About April 1, 2014, at 15 (Nov. 14, 2013), available at http://www.copyright.gov/docs/newfees/USCOFeeStudy-Nov13.pdf. Section 708(b) authorizes the Register to adjust the fees that the Office charges for certain services (including the fee for seeking a group registration), but before doing so the Register must conduct a study of the costs incurred by the Office for registering claims, recording documents, and providing other services. In conducting this study, the Register must consider the timing of any fee adjustments and the Office's authority to use the fees consistent with its budget. 17 U.S.C. 708(b)(1). Section 708(b) provides that the Register may adjust these fees no ``more than that necessary to cover the reasonable costs incurred by the Copyright Office for . . . [such services], plus a reasonable inflation adjustment to account for any estimated increase in costs.'' 17 U.S.C. 708(b)(2). It also provides that the Office must submit a proposed fee schedule to Congress and that the Office may implement the schedule 120 days thereafter (unless Congress enacts a law stating that it does not approve the schedule). 17 U.S.C. 708(b)(5). Once the Proposed Rule has been implemented, the Office will monitor the cost of processing groups of published and unpublished photographs to determine if future fee adjustments may be warranted. The Office will use this information in conducting its next fee study. C. Eligibility Requirements for GRPPH and GRUPH This section discusses the eligibility requirements for the group option for published photographs and the group option for unpublished photographs. Applicants that fail to satisfy these requirements will not be permitted to use these options. 1. Photographs That May Be Included in the Group Among the key requirements of the Proposed Rule are that all the works in the group must be photographs, the group must contain no more than 750 photographs, and the applicant must specify the total number of photographs that are included in the group. These requirements must be satisfied, regardless of whether the applicant uses the group option for published or unpublished photographs. This represents a change in policy. Under the current regulation, applicants may register a group of published photographs by submitting a paper application on Form VA and may use Form GR/PPh/CON to provide titles, publication dates, and other pertinent information for each photograph. Completing Form GR/PPh/CON is optional, although it does provide certain advantages. See Compendium section 1116.2. When using Form GR/PPh/CON, the applicant may only include up to 750 photographs in each group. By contrast, if the applicant uses any other method for submitting a group of published photographs--such as completing the standard online application under the pilot program or submitting a paper application on Form VA without completing Form GR/PPh/CON--there is no limit on the number of photographs that may be included in the group. Likewise, when an applicant submits a number of photographs as an unpublished collection under Sec. 202.3(b)(4)(i)(B), there is no limit on the number of photographs that may be included in the claim (regardless of whether the applicant submits the claim through the electronic system or with a paper application). The Office recognizes that photographers are prolific creators. A photographer may take dozens or even hundreds of copyrightable images in a single session and thousands of images over the course of a week, a month, or a year. The Office created a group option for photographs, in part, because it is unrealistic and cost-prohibitive to expect photographers to register all of their images on an individual basis. At the same time, the Office recognizes that an effective public record must provide sufficient information about each claim. Photographers who register their works in a timely manner may be entitled to claim statutory damages in an infringement action and the granularity of the public record is critical to that determination. Given resource limitations and the modest filing fee for this group option, the Office must impose some limit on the total number of photographs that may be submitted under the group option for published photographs and the new option for unpublished photographs. Based on its experience with Form GR/PPh/CON, the Office has determined that a limit of 750 photographs strikes an appropriate balance between the interests of photographers and the administrative capabilities of the Office. To ensure that applicants do not attempt to circumvent the 750- photograph limit the Office proposes to eliminate the pilot program that allows applicants to submit groups of published photographs with the standard online application.\21\ If an applicant submits more than 750 photographs or fails to use the online application designated for GRPPH, the Office will ask the applicant to resubmit the claim using the appropriate application and will ask the applicant to limit the claim to no more than 750 photographs. --------------------------------------------------------------------------- \21\ The Proposed Rule only eliminates the pilot program for GRPPH. As discussed in Section III.A.1, the pilot program for photographic databases will remain in effect for the time being. --------------------------------------------------------------------------- For the same reason, the Office will no longer register a group of unpublished photographs as an unpublished collection. If an applicant submits more than 750 photographs or fails to use the online application designated for GRUPH, the Office will ask the applicant to resubmit the claim using the appropriate application and will ask the applicant to limit the number of photographs in the group. The limit on the number of photographs, in turn, will affect the procedure for correcting or amplifying a basic registration for a group of published photographs. As noted in Section III.A.2, the rule proposed in the CA rulemaking will require applicants to file an online application in order to seek a supplementary registration for a group of photographs. If the basic registration covers 750 photographs or fewer, the applicant will be able to correct or amplify the registration record with a single supplementary registration submitted through the online system. But if the basic registration was issued before the Proposed Rule goes into effect, and if that registration covers more than 750 photographs, multiple supplementary registrations may be needed to correct or amplify the record for those works. 2. Authorship and Ownership Another key requirement is that all the photographs in the group must be taken by the same photographer. [[Page 86650]] Applicants will not be allowed to submit groups of photographs taken by different photographers (e.g., 300 photographs by Raul Martinez, 300 photographs by Jose Rodriguez, and 150 photographs by Diego Hernandez). Likewise, the Office will not accept applications claiming that two or more individuals jointly created each photograph in the group as a joint work.\22\ These requirements are consistent with the regulation that currently governs GRPPH. See 37 CFR 202.3(b)(10)(ii). --------------------------------------------------------------------------- \22\ Joint authors will not be able to use GRPPH or GRUPH. The Office is willing to entertain these types of claims if the applicant submits a separate application for each individual photograph (i.e., not using the group option) and provides a sufficient basis for the claim of joint authorship. --------------------------------------------------------------------------- In all cases, the claim will be limited to ``photographs'' and that term will be added automatically to the application by the electronic system. The system will not accept claims in ``digital editing,'' ``compilation,'' or any other form of authorship other than ``photographs.'' \23\ Likewise, the Office will not allow applicants to add other forms of authorship to the claim during the examination process or with a supplementary registration. --------------------------------------------------------------------------- \23\ To assert a claim in ``digital editing'' applicants may submit a separate application and a separate filing fee for each photograph (rather than submitting a group of photographs under GRPPH or GRUPH). In appropriate cases, applicants may assert a claim in a ``compilation'' of photographs by registering them as part of a collective work, such as a book of photographs, an exhibition catalog, a calendar, or the like. --------------------------------------------------------------------------- In all cases, the copyright claimant for each photograph must be the same person or organization.\24\ Specifically, the claimant must be the author of all the photographs in the group, or the copyright owner that owns all the exclusive rights in those photographs.\25\ --------------------------------------------------------------------------- \24\ This requirement appears in the current regulation governing groups of published photographs. 37 CFR 202.3(b)(10)(i). \25\ The term ``claimant'' is defined in Sec. 202.3(a)(3)(iii) of the regulations. That provision contains a footnote stating that a person or organization that has obtained ``the contractual right to claim legal title to the copyright'' may be named as claimant. 37 CFR 202.3(a)(3)(ii) n.1. The Office proposed to eliminate this footnote in a prior rulemaking. See Registration of Copyright: Definition of Claimant, 77 FR 29257, 29259 (May 17, 2012). The Office expects to issue a final rule in that proceeding before the new regulations governing GRPPH and GRUPH go into effect. --------------------------------------------------------------------------- Applicants will be allowed to register a group of photographs if the claimant obtained all the exclusive rights in those works through a transfer of ownership. Likewise, applicants will be allowed to register a group of photographs as works made for hire (i) if all the photographs are identified in the application as works made for hire, (ii) if all the photographs were created by the same individual for the same employer, and (iii) if the photographer and the employer are both listed in the name of author field (e.g., ``Advertising Agency LLC, employer for hire of John Smith'').\26\ However, the Office will not allow applicants to combine works made for hire with works obtained through a transfer of ownership. Similarly, the electronic system will not allow works created by one photographer to be combined with works created by a different photographer (even if those works are owned by the same claimant). --------------------------------------------------------------------------- \26\ This requirement appears in the current regulation governing groups of published photographs. 37 CFR 202.3(b)(10)(ix). --------------------------------------------------------------------------- For example, if an advertising agency acquired a group of photographs from a particular photographer through an assignment of copyright and acquired another group of photographs taken by the same photographer through a work made for hire agreement, the agency could register those photographs under GRPPH or GRUPH only by separating the photographs into two groups and submit a separate application for each group (i.e., one application with the work made for hire question answered ``yes'' and the other with the question answered ``no''). Likewise, if the agency hired five freelancers to take photographs pursuant to a work made for hire agreement, the agency should separate the photographs into five separate groups (i.e., one group for each photographer) and submit a separate application for each group. 3. Publication and Titles The group options for published and unpublished photographs are designed to be mutually exclusive of each other. Under the Proposed Rule, an applicant will be allowed to register a group of unpublished photographs if all the photographs are unpublished, and will be allowed to register a group of published photographs if all the photographs are published. Applicants will not be allowed to combine published and unpublished photographs in the same claim. In addition, in the case of published photographs, all the works must be published within the same nation and within the same calendar year (e.g., January 1 through December 31, 2016).\27\ When completing the online application, applicants will be asked to verify this information by providing the earliest date and the most recent date that photographs were published during the year. --------------------------------------------------------------------------- \27\ The current regulation governing GRPPH states that the photographs must be published within the same calendar year, but does not indicate whether the photographs must be published within the same nation. 37 CFR 202.3(b)(10)(iii). --------------------------------------------------------------------------- To register a group of published or unpublished photographs, applicants will be required to provide a title for the group as a whole, and will be required to include this information in the online application itself. For example, the applicant may provide a title that identifies the photographer and the month/year that the photographs were created, such as ``Jack Jackson's photos May through July 2016,'' or one that identifies the subject matter of the photographs, such as ``Tropical Images from Hawaii.'' In addition to this basic information about the group of photographs, applicants will be required to submit a separate document in Excel format (``.xls''), Portable Document Format (``PDF''), or other electronic format that may be specifically approved by the Office that contains a sequentially numbered \28\ list with a title, file name (matching the file name of the corresponding deposit copy), and in the case of GRPPH, the month and year of publication \29\ (e.g., ``January 2016,'' ``February 2016,'' etc.) for each photograph in the group.\30\ This list must be submitted together with the copies of the photographs, by uploading them through the electronic system or by sending them on a physical storage device. The specific requirements of this list are discussed below. --------------------------------------------------------------------------- \28\ Each entry on the list must be sequentially numbered (i.e., 1, 2, 3, etc.); these numbers can be entered automatically with most spreadsheet programs. The Office will use this information to count the number of photographs that are included in the deposit, and to ensure that it matches the number of photographs claimed in the application. \29\ Applicants will not be required to provide a precise date of publication for each photograph in the group (i.e., month, day, and year). This represents a change in the current policy for registering a group of published photographs. Under the current regulation for GRPPH, applicants generally are required to provide a month, day, and year of publication for each photograph, although they may provide a range of dates if the application is received within three months after the first date of publication specified in the application. \30\ The specific requirements for the numbered list are discussed below in Section III.D.1.b. --------------------------------------------------------------------------- In addition, applicants will be encouraged--but not required--to provide title and publication information in the online application itself. The Office will provide instructions on its Web site that will explain how to copy this information from the numbered list into the appropriate fields in the online application. Although applicants will not be required to provide title and publication information in the online application, there are certain advantages to doing so. [[Page 86651]] If the applicant includes the titles in the online application, they will appear on the certificate of registration and in the Office's online database. This will improve the quality of the registration record by making the information more accessible to the public. If this information appears on the certificate, and if the certificate is issued within five years after the publication of a particular photograph, the certificate will create a legal presumption that the work was published in the month and year specified on the certificate. See 17 U.S.C. 410(c). By contrast, if the applicant provides title and publication information in the numbered list, but does not include that information in the online application itself, the titles and publication dates will not appear on the certificate of registration or the Office's online database (although the Office will keep a copy of the numbered list in its files). In such cases, the Office will add an annotation to the record, such as ``Regarding title: deposit contains complete list of titles that correspond to the individual photographs included in this group.'' In comments regarding the Office's pilot program for electronic registration of photographs, the PPA and other organizations stated that photographers struggle with the definition of ``publication'' and ``the public,'' and find it difficult to determine whether their works are published or unpublished, particularly when they are distributed in digital form. PPA, supra note 11, at 2-3. They explained that their members are reluctant to register their works, in part, because they worry about the possible consequences of classifying an unpublished photograph as a published work (or vice versa). They asked the Office to address this ``barrier to registration'' by providing clarification and guidance on these issues. Id. at 3. The new group option for unpublished photographs will help mitigate this problem by encouraging early registration. The Office strongly encourages photographers to register their works before they are published (i.e., before any distributions have occurred), because this avoids much of the confusion concerning publication and the treatment of published works. The new group option supports this objective by giving photographers a convenient and cost-effective means for registering their photographs before they are distributed to the public. In addition, the Office released a comprehensive revision of the Compendium in 2014, which sets forth and explains key administrative duties of the Copyright Office under title 17 of the United States Code. See 79 FR 78911, 78911-12 (Dec. 31, 2014). Among other improvements, the Compendium contains an entire chapter on publication. This chapter provides a detailed discussion of the definition of ``publication'' and ``the public'' and specific examples of how the Office applies these definitions to photographs and other types of works. See generally Compendium, chapter 1900. The Compendium provides guidance on how to determine whether a work is published or unpublished when it is posted on the internet or distributed online. See id. section 1008.3. It also explains how to correct an error in a registration if the applicant mistakenly claims that the work was published or unpublished. See id. sections 1802.6(I), 1802.7(C). In the future, the Office intends to develop a portal on its Web site that will provide photographers with pertinent information on a wide range of copyright issues. In developing these resources it would be helpful to learn more about the specific methods that photographers use to distribute their works to their customers and the general public. The Office previously asked for written comments on this issue in the Visual Works Inquiry, and it welcomes additional input as part of this rulemaking. D. The Deposit Requirement The Proposed Rule will modify the deposit requirements for the group option for published photographs and the group option for photographic databases, and it will establish similar requirements for the new option for unpublished photographs. These requirements are summarized below.\31\ --------------------------------------------------------------------------- \31\ The rule proposed in the GRCP Rulemaking will modify the deposit requirements for registering a group of contributions to periodicals in some respects. By contrast, the Office is not proposing to make any changes to the deposit requirements for an individual photograph or a collective work, such as a calendar or a book of photographs. To register an individual photograph, the applicant should submit two complete copies of the best edition if the photograph has been published in the United States or one complete copy if the photograph is unpublished. To register a collective work, the applicant should submit one complete copy of the collective work (if it is unpublished) or two complete copies of the best edition (if the work has been published in the United States). See generally Compendium, chapter 1500. --------------------------------------------------------------------------- 1. Deposit Requirements for GRPPH and GRUPH a. Digital Photographs Under the Proposed Rule, applicants will be required to submit a digital copy of each photograph that is included in a group of published photographs (GRPPH) or a group of unpublished photographs (GRUPH). Applicants will be required to submit each photograph in one of the following formats: JPEG, GIF, TIFF, or PCD. The Office will no longer accept physical copies, such as prints, contact sheets, slides, photocopies, videotapes, or clippings from a newspaper, magazine, or other publication. This should not impose a significant burden on photographers because it appears that the vast majority of them use digital cameras. b. Numbered List of Photographs In addition, as noted above, applicants will be required to submit a separate document containing a sequentially numbered list that identifies the title and file name--and in the case of published photographs, the month and year of publication--for each photograph in the group. The Office will provide a template on its Web site that may be used to prepare this list. The title and file name for a particular photograph may be the same, and may consist solely of numbers, letters, and spaces that were automatically assigned by the camera or a unique identifier that has been assigned to the image by a third party, such as the PLUS Registry. As noted above, the file names specified in the list must match the corresponding file names in the deposit copy. However, the file name should not contain slashes or any other form of punctuation. Including punctuation marks in the file name (other than spaces) may cause a system error that may prevent the Office from viewing the photographs. The Office also discourages applicants from stating ``Untitled,'' ``No Title,'' or the like, because interested parties typically search for works by title and it may be impossible to locate a particular photograph unless a meaningful title has been provided. The Office will use the list to examine and document the claim, particularly in cases where the applicant does not provide title or publication information in the online application itself. In addition, the Office may use the list to locate and retrieve the deposit in the event it is needed for litigation or other legitimate purposes. For these reasons, the titles and file names specified in the list must correspond to the titles and files names for the actual photographs that are included in the deposit. In this respect, the Proposed Rule builds upon a suggestion that the Digital Media [[Page 86652]] Licensing Association (``DMLA'') offered in a prior rulemaking.\32\ --------------------------------------------------------------------------- \32\ DMLA was previously known as the Picture Archive Council of America (``PACA''). In a prior rulemaking, it stated that works deposited with the Office should be accessible upon request so that parties can easily determine whether a particular photograph is covered by a particular registration. PACA at 1, available at http://copyright.gov/rulemaking/databases/comments/picture-archive-council-of-america.pdf. --------------------------------------------------------------------------- The list must be contained in an electronic file in Excel format (``.xls''), Portable Document Format (``PDF''), or other electronic format that may be specifically approved by the Office. The file name for the list must include the title of the group as a whole and the eleven-digit case number that is automatically assigned to the application by the electronic system (e.g., '' [Title of Group] Case Number 12345678910''). The Office will provide further guidance regarding the preferred format and naming conventions for these file names on its Web site and in Chapter 1100 of the Compendium. When completing the online application, applicants will be asked to provide the file name for this document in the application itself. This will help the Office connect the numbered list with the relevant application, and to distinguish it from the files that contain the digital photographs. c. Procedure for Submitting the Digital Photographs and the Numbered List of Photographs Applicants will be required to submit the files containing the digital photographs together with the file that contains the sequentially numbered list of photographs. Applicants may upload these files through the electronic system. Alternatively, they may save them onto a physical storage device, such as a flash drive or a CD-R or DVD- R, and send it to the Office by mail, by courier, or by hand delivery together with the required shipping slip. When submitting files through the electronic system, applicants will be strongly encouraged to save them in a .zip file and then upload the .zip file to the system. In all cases, the size of each uploaded file must not exceed 500 megabytes, although the applicant may digitally compress the photographs to comply with this limitation. When submitting files on a flash drive or other storage device, applicants must send that device in the same package with the shipping slip that is generated by the electronic system. If the applicant fails to include the required shipping slip, the Office may be unable to connect the storage device with the appropriate application. In such cases, the applicant will be required to pay an additional fee to search for the deposit and connect it with the application. If the deposit cannot be located, the applicant will be required to resubmit the storage device, which may change the effective date of registration for the claim. Packages that are delivered to the Office by mail or by courier will be irradiated to destroy possible contaminants, such as anthrax. This process may damage files stored on electronic media. To avoid this result, applicants will be strongly encouraged to send physical storage devices to the Office in boxes rather than envelopes. Additional information concerning the recommended procedure for delivering physical deposits by mail or by courier will be provided in the Compendium. 2. Deposit Requirements for Photographic Databases The Proposed Rule will impose the same deposit requirements on a database that consists predominantly of photographs. Specifically, database owners will be required to submit a digital copy of each photograph that is included in the claim, and a separate document containing a sequentially numbered list that identifies the title and file name--and in the case of published photographs, the month and year of publication--for each photograph.\33\ Database owners will be required to submit digital copies, regardless of whether they intend to file an online application under the pilot program (in which case the photographs and the numbered list may be uploaded to the electronic system or submitted on a physical storage device with the required shipping slip) or a paper application (in which case the photographs and the numbered list may be submitted on a physical storage device together with Form VA).\34\ --------------------------------------------------------------------------- \33\ As discussed in Section III.D.1.b, the Office will provide a standard template that may be used to prepare the numbered list of photographs. \34\ When submitting an online application the storage device must be accompanied by the shipping slip that is generated by the electronic system. When submitting a paper application, the device must be accompanied by Form VA. --------------------------------------------------------------------------- E. When should a group registration be filed? An application for a group registration may be filed at any time. However, a photograph must be registered in a timely manner to seek statutory damages and attorney's fees in an infringement action. Specifically, a copyright owner typically may seek these remedies if a photograph was registered (i) before the infringement commenced or (ii) within three months after the first publication of that work. See 17 U.S.C. 412. In the case of unpublished photographs, the Office strongly encourages photographers to register their works before sharing them with any other party. By doing so, photographers preserve the ability to seek statutory damages and attorney's fees in subsequent infringement disputes involving those works. In the case of published photographs, the Office encourages photographers to submit their claims every three months (instead of filing on an annual or semi-annual basis), and in each case, to file the claim within three months after the earliest date of publication specified in the application. For example, if a photographer first published his or her photographs on June 1, 2016, it would be advisable to submit a complete application, deposit, and filing fee on or before September 1, 2016. By doing so, the photographer would preserve his or her ability to seek statutory damages and attorney's fees for any infringements that began after the effective date of registration (i.e., after September 1, 2016), as well as any infringements that occurred within three months after the date of publication (i.e., between June 1, 2016 and September 1, 2016). F. The Scope of a Group Registration The Proposed Rule memorializes the Office's longstanding position regarding the scope of a registration for a group of published photographs, and it confirms that the Office will take the same position regarding the group option for unpublished photographs. When the Office issues a group registration, it prepares one certificate of registration for the entire group and assigns one registration number to that certificate. The Proposed Rule clarifies that a registration for a group of published or unpublished photographs covers each photograph in the group, and that each photograph is registered as a separate ``work.'' This understanding is consistent with the statutory scheme. The legislative history makes clear that group registration was ``a needed and important liberalization of the law [then] in effect,'' which to that point had required ``separate registrations where related works or parts of a work are published separately.'' H.R. Rep. No. 94-1476, at 154 (1976). In particular, Congress noted that ``the technical necessity for separate applications and fees has caused copyright owners to forego copyright altogether.'' Id. Given that context, it would be anomalous for works [[Page 86653]] registered as part of a group registration application to be given less protection than if they had been registered through separate applications. For similar reasons, the Proposed Rule also clarifies that when a group of photographs is registered under GRPPH or GRUPH, the group as a whole is not considered a compilation or a collective work under sections 101, 103(b), or 504(c)(1) of the Copyright Act. The group is merely an administrative classification created solely for the purpose of registering multiple photographs with one application and one filing fee. See 17 U.S.C. 408(c)(1) (``Th[e] administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title.''). Although an applicant may exercise some judgment in selecting the photographs that are included within a particular group, that decision does not necessarily constitute copyrightable authorship. Instead, the selection is based on the regulatory requirements for these group options, and any coordination or arrangement of the photographs is merely an administrative formality that facilitates the examination of the works. Likewise, the Proposed Rule clarifies that the group is not considered a derivative work under sections 101, 103(b), or 504(c)(1) of the Copyright Act. When a group of photographs is compiled for the purpose of facilitating registration, those works are not ``recast, transformed, or adapted'' in any way, and the group as a whole is not ``a work based upon one or more preexisting works'' because there is no copyrightable authorship in simply following the administrative requirements for GRPPH or GRUPH. 17 U.S.C. 101 (definition of ``derivative work''). G. Group Registration of Published and Unpublished Photographs Distinguished From Other Registration Options This section discusses the key differences between the options for registering a group of published or unpublished photographs as compared to the options for registering an unpublished collection, a group of contributions to periodicals, a photographic database, or a collective work. 1. Group Registration of Unpublished Photographs vs. Unpublished Collections The group option for unpublished photographs is intended to replace the option that currently allows an applicant to register a number of photographs as an unpublished collection. Once the Proposed Rule goes into effect, the Office will no longer accept an application to register photographs under Sec. 202.3(b)(4)(i)(B) of the regulations, regardless of whether the photographs are submitted with a standard application or a paper application (although the Office will continue to accept applications to register other types of works under this provision). As explained, the GRUPH option provides a more efficient mechanism for capturing information about photographs, and incorporating that information into the public record. Requiring applicants to use this option may also provide photographers with certain legal benefits. When an applicant submits photographs via the unpublished collection option, and asserts a claim in both the individual photographs as well as the selection and arrangement of the collection as whole, the Office will register the claim as an unpublished collective work, rather than an unpublished collection. A collective work is--by definition--a form of compilation. 17 U.S.C. 101 (``The term `compilation' includes collective works.''). Section 504(c)(1) of the Copyright Act states that a copyright owner may be entitled to recover ``an award of statutory damages for all infringements involved in [an infringement] action, with respect to any one work,'' but ``[f]or the purposes of this subsection, all the parts of a compilation . . . constitute one work.'' 17 U.S.C. 504(c)(1). In other words, when a number of photographs are registered as an unpublished collective work, the copyright owner would be entitled to seek only one award of statutory damages in an infringement action, rather than a separate award for each photograph. In contrast, as noted above in Section III.F, when a number of photographs are registered under the GRUPH option, each photograph is registered as a separate work. For purposes of registration, the group as a whole is not considered a collective work or compilation, and thus, the individual photographs within the group would not be subject to the limitation on statutory damages set forth in section 504(c)(1). Instead, a registration for a group of unpublished photographs is treated as a separate registration for each photograph that is included within the group. 2. Group Registration of Published Photographs vs. Group Registration for Contributions to Periodicals The group option for published photographs is not intended to alter or replace the group option for contributions to periodicals. Photographers may continue to register their works as a group of published photographs or a group of contributions to periodicals, as long as they satisfy the relevant requirements for each option. There are some notable differences between these registration options. While a group of published photographs may include no more than 750 images, there is no limit on the number of photographs that may be included within a group of contributions to periodicals. Moreover, a group of published photographs may include photographs that were published during the same calendar year, while a group of contributions to periodicals may include photographs that were published over a twelve-month period--even if that period extends from one calendar year to the next (e.g., September 1, 2015 through August 31, 2016). In addition, to be eligible for GRPPH, the photographs may be published in any manner, but there is no need to specify the medium of publication and no need to submit the photographs in the specific form in which they were first published. To be eligible for GRCP, the photographs must be first published in a periodical (e.g., a newspaper, a magazine, etc.), the applicant must provide pertinent information about each periodical (e.g., title, issue number, publication date, etc.), and the applicant must submit a copy of the photographs as they appeared in each publication (e.g., a copy of the entire periodical, a copy of an entire section from a newspaper, etc.). The Office generally encourages applicants to use GRPPH, in part, because the deposit requirements for published photographs are more flexible than the deposit requirements for GRCP. Regardless of whether the applicant uses GRPPH or GRCP, the registration will cover all the photographs that are included within the group. 3. Group Registration of Photographs vs. Group Registration for Photographic Databases As noted above, the Proposed Rule makes certain modifications to the deposit requirement for databases that predominantly consist of photographs. The Proposed Rule will not change any of the other requirements for these types [[Page 86654]] of claims. See 37 CFR 202.3(b)(5); 202.20(c)(2)(vii)(D)(8). Although the Office will continue to accept these claims, the Office strongly encourages photographers, stock photography companies, database providers, and other interested parties to register their works with the group option for published or unpublished photographs-- rather than the database option--for several reasons. Many photography Web sites and catalogs do not qualify as a database, and therefore, are not eligible for the group option for photographic databases. For purposes of registration, a database is defined ``as a compilation of digital information comprised of data, information, abstracts, images, maps, music, sound recordings, video, other digitized material, or references to a particular subject or subjects. In all cases, the content of a database must be arranged in a systematic manner, and it must be accessed solely by means of an integrated information retrieval program or system with the following characteristics.'' Compendium section 1117.1. First, ``a query function must be used to access the content.'' Id. Second, ``[t]he information retrieval program or system must yield a subset of the content, or it must organize the content based on the parameters specified in each query.'' Id. Stock photography Web sites or catalogs that merely display photographs do not satisfy these requirements and therefore are not considered databases for the purpose of registration. In most cases, users may access all the content on a Web site or in a catalog by scrolling or browsing through the individual images or categories of related images. Id. section 1002.6. By contrast, users cannot access the content of a database in its entirety. Id. Instead, they must use a query function to identify specific content within the database, and they must use an information retrieval system to extract the content that matches the user's search criteria. Id. While a user may view the entire content of a Web site or catalog, a user may view the content of a database only to the extent that it matches a particular query that the user entered into the information retrieval system. Id. While some Web sites may provide a search feature that may be used to locate particular images or categories of images, these types of features do not qualify as an information retrieval system nor do they transform an ordinary Web site into a database, because these features are not the sole means for accessing the images posted on the site. See id. If the Office determines that a particular Web site, catalog, or other work does not qualify as a database, the Office will refuse to register the work as a database or as a group of updates or revisions to a photographic database. Copyright owners also should consider the following issue before registering their photographs as part of a photographic database. As noted above in Section III.G.1, the Copyright Act states that a copyright owner may be entitled to recover ``an award of statutory damages for all infringements involved in [an infringement] action, with respect to any one work,'' but ``[f]or the purposes of this subsection, all the parts of a compilation . . . constitute one work.'' 17 U.S.C. 504(c)(1). A database is--by definition--a compilation. See Alaska Stock, LLC v. Houghton Mifflin Harcourt Publishing Co., 747 F.3d 673, 676 (9th Cir. 2014) (concluding that a photographic database is a collective work); see also Compendium section 1117.1 (same). Consequently, when a group of photographs is registered as a database, the copyright owner may be entitled to seek only one award of statutory damages for the database as a whole--rather than a separate award for each photograph--even if the defendant infringed all the photographs that are covered by the registration. By contrast, when a copyright owner registers a group of photographs under GRPPH or GRUPH, the registration covers each photograph in the group, but the group itself is not a compilation within the meaning of the Copyright Act. Therefore, any claim for infringement would not be subject to the limitation set forth in Section 504(c)(1) of the Copyright Act. For these reasons, the group options for published and unpublished photographs provide significant benefits, while avoiding the potential downside of registering a number of works as part of a photographic database. 4. Group Registration of Photographs vs. Collective Works The Proposed Rule will not change the requirements for registering a number of photographs as part of a collective work, such as a book of photographs, a travel guide, or the like. Applicants may continue to register these types of works with a standard application submitted through the electronic system or with a paper application submitted on Form VA. Registration of photographs as part of a collective work differs in many respects from group registration of photographs. A registration for a collective work may include photographs taken by multiple photographers (even if the photographers are not explicitly named in the application), and there is no limit on the number of photographs that may be included within each claim. If the claim is approved, the registration will cover the authorship involved in selecting, coordinating, and/or arranging the content of the collective work as a whole. It also may cover the individual photographs that appear in the collective work if the claimant owns the copyright in those images and the collective work as a whole, and if the photographs have not been previously published or registered. There are some drawbacks to registering photographs as a collective work. As discussed in Section III.G.1, a collective work is--by definition--a compilation. As such, these types of works are subject to the limitation set forth in section 504(c)(1) of the Copyright Act. When a number of photographs are registered as part of a collective work, the copyright owner may be entitled to receive only one award of statutory damages in an infringement action, even if the defendant infringed all the photographs that appear in that work (regardless of whether the collective work is published or unpublished). By contrast, when a group of photographs are registered under GRPPH or GRUPH, the copyright owner would not be subject to the collective-work limitation in section 504(c)(1). For this reason, photographers may wish to register their photographs under GRPPH or GRUPH, even if those works also may be eligible for registration as part of a collective work. H. Technical Amendments The Proposed Rule will move the regulation governing published photographs from Sec. 202.3 to Sec. 202.4.\35\ In the future, the Office intends to move all regulations governing the various group options that have been implemented under section 408(c) of the Copyright Act to Sec. 202.4. This change is intended to improve the readability of the existing regulations, but it does not represent a substantive change in policy. --------------------------------------------------------------------------- \35\ The Office recently issued a notice of proposed rulemaking that would remove the current text of Sec. 202.4 and reserve that section for later use. See Copyright Office Technical Amendments, 81 FR 67940, 67942 (Oct. 3, 2016). --------------------------------------------------------------------------- In addition, the Proposed Rule incorporates the definitions of ``claimant'' and ``Class VA'' that are set forth in Sec. 202.3, and it confirms that an application for a group of photographs may be submitted by any of the parties listed in Sec. 202.3(c)(1), namely (i) the author or copyright claimant of those [[Page 86655]] works, (ii) the owner of any of the exclusive rights in those works, or (iii) a duly authorized agent of any author, claimant, or owner of exclusive rights. 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 is amended to read as follows: Authority: 17 U.S.C. 702. 0 2. Amend Sec. 201.3 by: 0 a. Redesignating paragraphs (c)(3) through (18) as paragraphs (c)(4) through (19), respectively. 0 b. Adding new paragraph (c)(3). 0 c. Revising newly redesignated paragraph (c)(4). The revisions and additions to read as follows: Sec. 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division. * * * * * (c) * * * ------------------------------------------------------------------------ ------------------------------------------------------------------------ (3) Registration of a claim in a group of published photographs or 55 a claim in a group of unpublished photographs..................... (4) Registration for a database that predominantly consists of photographs and updates thereto:.................................. (i) Electronic filing.............................................. 55 (ii) Paper filing.................................................. 65 ------------------------------------------------------------------------ * * * * * 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 by: 0 a. In paragraph (b)(3) removing the phrase ``, subject to the limitations in paragraph (b)(10)(v) of this section'' . 0 b. Revising paragraph (b)(4)(ii). 0 c. Removing and reserving paragraph (b)(10). 0 d. In the text of paragraph (c)(2), removing the reference to footnote ``6'' and adding in its place a reference to footnote ``5''. 0 e. In paragraph (c)(2), revising footnote 5. The revisions to read as follows: Sec. 202.3 Registration of copyright. * * * * * (b) * * * (4) * * * (ii) In the case of an application 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. * * * * * (c) * * * (2) * * * \5\ In the case of an application to register a group of newspapers, newsletters, contributions to periodicals, or photographs under paragraphs (b)(7) or (9) of this section or under Sec. 202.4, the deposit shall comply with the respective requirements specified in those paragraphs. * * * * * 0 6. Revise Sec. 202.4 to read as follows: Sec. 202.4 Group Registration. (a) This section prescribes conditions for issuing a registration for a group of related works under section 408(c) of title 17 of the United States Code. (b) Definitions. For purposes of this section, the terms copy and work made for hire have the meanings set forth in section 101 of title 17 of the United States Code, and the terms claimant and Class VA have the meanings set forth in Sec. 202.3(a)(3) and (b)(1)(iii). (c) [Reserved] (d) [Reserved] (e) [Reserved] (f) [Reserved] (g) [Reserved] (h) [Reserved] (i) Group registration of unpublished photographs. Pursuant to the authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has determined that a group of unpublished photographs may be registered in Class VA with one application, one filing fee, and the required deposit, if the following conditions are met: (1) All the works in the group must be photographs. (2) The group must include no more than 750 photographs, and the application must specify the total number of photographs that are included in the group. (3) All the photographs must be created by the same photographer. (4) The copyright claimant for all the photographs must be the same person or organization. (5) The photographs may be registered as works made for hire if all the photographs are identified in the application as such, if all the photographs were created by the same photographer for the same employer, and if the application identifies both the photographer and the employer in the name of author field (e.g., ``ABC Corporation, employer for hire of John Doe''). (6) All the photographs must be unpublished. (7) The applicant must provide a title for the group as a whole. (8) The applicant must complete and submit the online application designated for a group of unpublished photographs. (The Office will not register a group of unpublished photographs as an unpublished collection under Sec. 202.3(b)(4)(i)(B).) The application may be submitted by any of the parties listed in Sec. 202.3(c)(1). (9) The appropriate filing fee, as required by Sec. 201.3(c) of this chapter, must be included with the application or charged to an active deposit account. (10) The applicant must submit one copy of each photograph in one of the following formats: JPEG, GIF, TIFF, or PCD. The file name for a particular photograph may consist of letters, numbers, and spaces, but the file name should not contain any other form of punctuation. The photographs may be uploaded to the electronic registration system together with the required numbered list, preferably in a .zip file containing all the photographs. The file size for each uploaded file must not exceed 500 megabytes; the photographs may be compressed to comply with this requirement. Alternatively, the photographs and the required numbered list may be saved on a physical storage device, such as a flash drive, CD-R, or DVD-R, and delivered to the Copyright Office together with the required shipping slip generated by the electronic registration system. (11) The applicant must submit a sequentially numbered list containing a title and file name for each photograph in the group (matching the corresponding file names for each photograph specified in paragraph (i)(10)). The title and file name for a particular photograph may be the same. [[Page 86656]] The numbered list must be contained in an electronic file in Excel format (.xls), Portable Document Format (PDF), or other electronic format approved by the Office, and the file name for the list must contain the title of the group and the case number assigned to the application by the electronic registration system (e.g., ``Title Of Group Case Number 16283927239.xls''). (j) Group registration of published photographs. Pursuant to the authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has determined that a group of published photographs may be registered in Class VA with one application, one filing fee, and the required deposit, if the following conditions are met: (1) All the works in the group must be photographs. (2) The group must include no more than 750 photographs, and the application must specify the total number of photographs that are included in the group. (3) All the photographs must be created by the same photographer. (4) The copyright claimant for all the photographs must be the same person or organization. (5) The photographs may be registered as works made for hire if all the photographs are identified in the application as such, if all the photographs were created by the same photographer for the same employer, and if the application identifies both the photographer and the employer in the name of author field (e.g., ``XYZ Corporation, employer for hire of Jane Doe''). (6) All the photographs must be published within the same nation and within the same calendar year, and the applicant must specify the earliest and latest date that the photographs were published during the year. (7) The applicant must provide a title for the group as a whole. (8) The applicant must complete and submit the online application designated for a group of published photographs. The application may be submitted by any of the parties listed in Sec. 202.3(c)(1). (9) The appropriate filing fee, as required by Sec. 201.3(c) of this chapter, must be included with the application or charged to an active deposit account. (10) The applicant must submit one copy of each photograph in one of the following formats: JPEG, GIF, TIFF, or PCD. The file name for a particular photograph may consist of letters, numbers, and spaces, but the file name should not contain any other form of punctuation. The photographs may be uploaded to the electronic registration system together with the required numbered list, preferably in a .zip file containing all the photographs. The file size for each uploaded file must not exceed 500 megabytes; the photographs may be compressed to comply with this requirement. Alternatively, the photographs and the required numbered list may be saved on a physical storage device, such as a flash drive, CD-R, or DVD-R, and delivered to the Copyright Office together with the required shipping slip generated by the electronic registration system. (11) The applicant must submit a sequentially numbered list containing the title, file name, and month and year of publication for each photograph in the group (matching the corresponding file names for each photograph specified in paragraph (j)(10)). The title and file name for a particular photograph may be the same. The numbered list must be contained in an electronic file in Excel format (.xls), Portable Document Format (PDF), or other electronic format approved by the Office, and the file name for the list must contain the title of the group and the case number assigned to the application by the electronic registration system (e.g., ``Title Of Group Case Number 16283927239.xls''). (k) [Reserved] (l) [Reserved] (m) [Reserved] (n) The scope of a group registration. When the Office issues a group registration under paragraphs (i) or (j) of this section, the registration covers each work in the group and each work is registered as a separate work. For purposes of registration, the group as a whole is not considered a compilation, a collective work, or a derivative work under sections 101, 103(b), or 504(c)(1) of title 17 of the United States Code. 0 7. Amend Sec. 202.20 by: 0 a. Revising paragraph (c)(2)(vii)(D)(8); and. 0 b. Removing paragraph (c)(2)(xx). The revision to read as follows: Sec. 202.20 Deposit of copies and phonorecords for copyright registration. * * * * * (c) * * * (2) * * * (vii) * * * (D) * * * (8) In the case of an application for registration of a database that consists predominantly of photographs (including a group registration for revised or updated versions of such a database), ``identifying portions'' shall instead consist of all individual photographs included in the claim. Photographs must be submitted in digital form in one of the following formats: JPEG, GIF, TIFF, or PCD. In addition, the applicant must submit a sequentially numbered list containing the title and file name--and if the photographs have been published, the month and year of publication--for each photograph in the group. The title and file name for a particular photograph may be the same and may consist of letters, numbers, and spaces, but the file name should not contain any other form of punctuation. The numbered list must be contained in an electronic file in Excel format (.xls), Portable Document Format (PDF), or other electronic format approved by the Office. The file name for the list must contain the title of the database, and the case number assigned to the application by the electronic registration system, if any (e.g., ``Title Of Database Case Number 162883927239.xls''). The photographs and the numbered list may be uploaded to the electronic registration system with the permission and under the direction of the Visual Arts Division, preferably in a .zip file containing these materials. The file size for each uploaded file must not exceed 500 megabytes; the photographs may be compressed to comply with this requirement. Alternatively, the photographs and the numbered list may be saved on a physical storage device, such as a flash drive, CD-R, or DVD-R, and delivered to the Copyright Office together with the required shipping slip generated by the electronic registration system or with a paper application submitted on Form VA. * * * * * Dated: November 22, 2016. Sarang V. Damle, General Counsel and Associate Register of Copyrights. [FR Doc. 2016-28706 Filed 11-30-16; 8:45 am] BILLING CODE 1410-30-P
![Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules 86643
(h) Group registration of contributions included in the group, either by ACTION: Notice of proposed rulemaking.
to periodicals. Pursuant to the authority submitting the entire issue of the
granted by 17 U.S.C. 408(c)(2), the periodical where the contribution was SUMMARY: The U.S. Copyright Office is
Register of Copyrights has determined first published, the entire section of the proposing to update its regulations
that a group of contributions to newspaper where it was first published, governing group registration options for
periodicals may be registered in Class or the specific page(s) from the photographers to encourage broader
TX or Class VA with one application, periodical where the contribution was participation in the registration system,
one filing fee, and the required deposit, first published. The contributions must increase the efficiency of the registration
if the following conditions are met: be contained in separate electronic files process, and create a more robust record
(1) All the contributions in the group that comply with § 202.20(b)(2)(iii). The of the claim. First, the Office has created
must be created by the same individual. files must be submitted in Portable new online registration applications
(2) The copyright claimant must be Document Format (PDF) or other specifically designed for group
the same person or organization for all electronic format approved by the registrations of published photographs
the contributions. Office, and they must be uploaded to and group registrations of unpublished
(3) The contributions must not be the electronic registration system, photographs. The proposed rule would
works made for hire. preferably in a .zip file containing all require applicants to use these online
(4) Each work must be first published the files. The file size for each uploaded applications, in lieu of any existing
as a contribution to a periodical, and all file must not exceed 500 megabytes; the paper application. Applicants will be
the contributions must be first files may be compressed to comply with allowed to include up to 750
published within a twelve-month period this requirement. photographs with each application.
(e.g., January 1, 2015 through December (i) [Reserved] Second, the proposal would eliminate
31, 2015; February 1, 2015 through (j) [Reserved] less-efficient forms of registering
January 31, 2016). For purposes of this (k) [Reserved] photographs that have been adopted
section, a periodical is a collective work (l) Refusal to register. The Copyright over the years—namely, the pilot
that is issued or intended to be issued Office may refuse registration if the program permitting group registration of
on an established schedule in applicant fails to satisfy the published photographs using the
successive issues that are intended to be requirements for registering a group of electronic application designed for
continued indefinitely. In most cases, related works under this section or registering a single work, and the option
each issue will bear the same title, as § 202.3(b)(5)–(7), (9), or (10). of registering a number of unpublished
well as numerical or chronological (m) Cancellation. If the Copyright photographs as an ‘‘unpublished
designations. Examples include Office issues a registration for a group collection.’’ The pilot program for
newspapers, magazines, newsletters, of related works and subsequently photographic databases will remain in
journals, bulletins, annuals, the determines that the requirements for effect. Third, the proposed rule will
proceedings of societies, and other that group option have not been met, update the deposit requirement for
similar works. and if the claimant fails to cure the group registrations of photographs and
(5) If any of the contributions were deficiency after being notified by the photographic databases by requiring
first published before March 1, 1989, Office, the registration may be cancelled applicants to submit their works in
those works must bear a separate in accordance with § 201.7 of this digital form.
copyright notice, the notice must chapter. DATES: Comments on the proposed rule
contain the copyright owner’s name (or (n) The scope of a group registration. must be made in writing and must be
an abbreviation by which the name can When the Office issues a group received in the U.S. Copyright Office no
be recognized, or a generally known registration under paragraph (h) of this later than January 3, 2017.
alternative designation for the owner), section, the registration covers each
ADDRESSES: For reasons of government
and the name that appears in each work in the group and each work is
registered as a separate work. For efficiency, the Copyright Office is using
notice must be the same.
(6) The applicant must complete and purposes of registration, the group as a the regulations.gov system for the
submit the online application whole is not considered a compilation, submission and posting of public
designated for a group of contributions a collective work, or a derivative work comments in this proceeding. All
to periodicals. The application must under sections 101, 103(b), or 504(c)(1) comments are therefore to be submitted
identify each contribution that is of title 17 of the United States Code. electronically through regulations.gov.
included in the group, including the Specific instructions for submitting
Dated: November 22, 2016. comments are available on the
date of publication for each contribution Sarang V. Damle,
and the periodical in which it was first Copyright Office Web site at http://
General Counsel and Associate Register of www.copyright.gov/rulemaking/group-
published. The application may be Copyrights.
submitted by any of the parties listed in photographs/. If electronic submission
§ 202.3(c)(1). The application should be
[FR Doc. 2016–28700 Filed 11–30–16; 8:45 am] of comments is not feasible due to lack
filed in Class TX if a majority of the
BILLING CODE 1410–30–P of access to a computer and/or the
contributions predominantly consist of Internet, please contact the Office using
text, and the application should be filed the contact information below for
LIBRARY OF CONGRESS special instructions.
in Class VA if a majority of the
contributions predominantly consist of FOR FURTHER INFORMATION CONTACT:
jstallworth on DSK7TPTVN1PROD with PROPOSALS
Copyright Office
photographs, illustrations, artwork, or Robert J. Kasunic, Associate Register of
other works of the visual arts. 37 CFR Parts 201, 202 Copyrights and Director of Registration
(7) The appropriate filing fee, as Policy and Practice, or Erik Bertin,
required by § 201.3(c) of this chapter, [Docket No. 2016–10] Deputy Director of Registration Policy
must be included with the application and Practice, at 202–707–8040.
Group Registration of Photographs
or charged to an active deposit account. SUPPLEMENTARY INFORMATION: The U.S.
(8) The applicant must submit one AGENCY: U.S. Copyright Office, Library Copyright Office (the ‘‘Office’’) is
copy of each contribution that is of Congress. proposing to amend the regulation that
VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\01DEP1.SGM 01DEP1](https://thefederalregister.org/doc/81_FR_86874/page/1.svg)
![86644 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules
governs the group registration option for I. Background A. Group Registration of Published
published photographs. In addition, the Photographs
Office is proposing to create a new When Congress enacted the Copyright
Act, it authorized the Register of After conducting an extensive
group registration option for rulemaking, the Office issued a
unpublished photographs. Finally, the Copyrights (the ‘‘Register’’) to specify by
regulation in 2001 that allows
Office is proposing to amend the deposit regulation the administrative classes of
applicants to register a group of
requirements for groups of published works for the purpose of seeking a
published photographs with one
photographs and photographic registration and the nature of the
application and one filing fee. See 66 FR
databases, and is proposing to establish deposit required for each such class. In
37142, 37149–50 (July 17, 2001). The
similar deposit requirements for the addition, Congress gave the Register the Office refers to this procedure as the
new group option for unpublished discretion to allow groups of related ‘‘group option for published
photographs. These proposals are works to be registered with one photographs’’ or ‘‘GRPPH.’’
discussed in more detail below. The application and one filing fee, a An applicant may register a group of
Office invites public comment on each procedure known as ‘‘group photographs under this procedure if all
proposal. registration.’’ See 17 U.S.C. 408(c)(1). the photographs were taken by the same
Pursuant to this authority, the Register photographer and were published
Last year the Office issued a notice of issued regulations permitting the Office
inquiry concerning the practical and within the same calendar year, and if
to issue group registrations for certain the copyright claimant for all the
legal challenges faced by photographers, limited categories of works, provided
graphic artists, and illustrators (referred photographs is the same person or
that certain conditions have been met. organization. 37 CFR 202.3(b)(10)(i)–
to herein as the ‘‘Visual Works See generally 37 CFR 202.3(b)(5)–(10). (iii). If the photographs were created as
Inquiry’’ 1). See 80 FR 23054 (Apr. 24,
As the legislative history explains, works made for hire, the application
2015). The Office recognized that
allowing ‘‘a number of related works to must provide both the name of the
photographers, graphic artists, and
be registered together as a group photographer and the name of the
illustrators have a broad impact on U.S.
represent[ed] a needed and important photographer’s employer or the party
culture, but they face significant who specially ordered or commissioned
challenges in the digital age. To better liberalization of the law.’’ H.R. Rep. No.
94–1476, at 154 (1976), reprinted in the photographs (e.g., ‘‘ABC
understand these challenges, the Office Corporation, employer for hire of John
requested written comments on how 1976 U.S.C.C.A.N. 5659, 5770; S. Rep.
No. 94–473, at 136 (1975). Congress Doe’’). Id. § 202.3(b)(10)(ix).
photographs, graphic artworks, and As a general rule, the applicant must
illustrations are monetized, licensed, recognized that requiring applicants to
submit separate applications for certain provide a precise date of publication for
registered, and enforced under the each photograph in the group (i.e.,
Copyright Act of 1976 (‘‘the Copyright types of works may be so burdensome
and expensive that authors and month, day, and year), either by
Act’’). The Office sought information providing the date on the application,
concerning the current marketplace for copyright owners may forgo registration
altogether, since copyright registration on a continuation sheet submitted on
these types of works, as well as Form GR/PPh/CON,3 on a separate list
observations regarding the real or is not a prerequisite to copyright
protection. Id. If copyright owners do submitted on paper or in a text file, or
potential obstacles that these creators on the photographs themselves (e.g.,
and their licensees or other not submit their works for registration
writing the date on the back of each
representatives face when navigating the under this permissive system, the public
print, including the date in the file
digital landscape. With respect to record will not contain any information
name for each image, etc.). Id.
registration, the Office asked the public concerning those works. This creates a
§ 202.3(b)(10)(iv)(A)–(D). Alternatively,
to identify the most significant void in the record that diminishes the
the applicant may provide a range of
challenges for photographers and other value of the Office’s database.
dates (e.g., February 25, 2015 through
visual artists. 80 FR at 23056. Congress cited ‘‘a group of May 25, 2015), but only if the
The Office received 2,795 comments photographs by one photographer’’ as an photographs were published within
and 166 reply comments in response to example of a ‘‘group of related works’’ three months before the date that the
the Visual Works Inquiry. The Office that would be suitable for registration application is received in the Office. Id.
has not attempted to address these under section 408(c)(1). Id. At the same § 202.3(b)(10)(vi). If the applicant
comments in this notice of proposed time, when large numbers of works are chooses to provide publication
rulemaking.2 The rule proposed in this bundled together in one application, information on Form GR/PPh/CON, the
notice focuses solely on photographs, information about the individual works applicant may include up to 750
and it represents an interim may not be adequately captured. photographs in the claim. Id.
improvement to the current electronic Therefore, group registration options § 202.3(b)(10)(v). By contrast, if the
registration system. In the future, the require careful balancing of the need for applicant provides publication
Office may consider other options as it an accurate public record and the need information using any other method,
assesses the broader concerns of visual for an efficient method of facilitating the there is no limit on the number of
artists generally. registration of multiple photographs. photographs that may be submitted. Id.
§ 202.3(b)(10)(v), (viii).
II. Existing Registration Initially, all applicants were required
1 Information concerning the Visual Works
jstallworth on DSK7TPTVN1PROD with PROPOSALS
Inquiry is available on the Office’s Web site at
Accommodations for Photographers to file their claims using a paper
http://copyright.gov/policy/visualworks/. application submitted on Form VA. As
2 In preparing this notice of proposed rulemaking
Under the Copyright Office’s existing
regulations and registration practice, discussed below in Section III.A.1, the
the Office did consider comments submitted in a
prior rulemaking concerning the deposit photographers have several options for Office has established a pilot program
requirements for photographic databases, which registering groups or collections of
was completed in July 2012. Information 3 Form GR/PPh/CON is a continuation sheet for
concerning that rulemaking is available on the
photographs with one application and Form VA specifically designed for providing
Office’s Web site at http://copyright.gov/ one filing fee. These options are information for a group registration of published
rulemaking/databases/. summarized below. photographs.
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![Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules 86649
to the public. Initially, the Office 1. Photographs That May Be Included in the total number of photographs that
proposed to increase the filing fee for a the Group may be submitted under the group
group of published photographs, but Among the key requirements of the option for published photographs and
after weighing the concerns expressed Proposed Rule are that all the works in the new option for unpublished
by photographers the Office decided to the group must be photographs, the photographs. Based on its experience
keep the fee for submitting an online group must contain no more than 750 with Form GR/PPh/CON, the Office has
application under the pilot program at photographs, and the applicant must determined that a limit of 750
$55 and the fee for submitting a paper specify the total number of photographs photographs strikes an appropriate
application at $65. The Office noted that that are included in the group. These balance between the interests of
photographers ‘‘expressed significant requirements must be satisfied, photographers and the administrative
concern about the impact of fees on regardless of whether the applicant uses capabilities of the Office.
their ability to protect their works,’’ the group option for published or To ensure that applicants do not
given ‘‘the number of works they unpublished photographs. attempt to circumvent the 750-
produce and must register in order to This represents a change in policy. photograph limit the Office proposes to
receive the full range of judicial Under the current regulation, applicants eliminate the pilot program that allows
remedies for infringement.’’ U.S. may register a group of published applicants to submit groups of
Copyright Office, Proposed Schedule photographs by submitting a paper published photographs with the
and Analysis of Copyright Fees To Go application on Form VA and may use standard online application.21 If an
Into Effect On Or About April 1, 2014, Form GR/PPh/CON to provide titles, applicant submits more than 750
at 15 (Nov. 14, 2013), available at http:// publication dates, and other pertinent photographs or fails to use the online
www.copyright.gov/docs/newfees/ information for each photograph. application designated for GRPPH, the
USCOFeeStudy-Nov13.pdf. Completing Form GR/PPh/CON is Office will ask the applicant to resubmit
optional, although it does provide the claim using the appropriate
Section 708(b) authorizes the Register
certain advantages. See Compendium application and will ask the applicant to
to adjust the fees that the Office charges
section 1116.2. When using Form GR/ limit the claim to no more than 750
for certain services (including the fee for
PPh/CON, the applicant may only photographs.
seeking a group registration), but before For the same reason, the Office will
doing so the Register must conduct a include up to 750 photographs in each
group. By contrast, if the applicant uses no longer register a group of
study of the costs incurred by the Office unpublished photographs as an
for registering claims, recording any other method for submitting a group
of published photographs—such as unpublished collection. If an applicant
documents, and providing other submits more than 750 photographs or
services. In conducting this study, the completing the standard online
application under the pilot program or fails to use the online application
Register must consider the timing of any designated for GRUPH, the Office will
fee adjustments and the Office’s submitting a paper application on Form
VA without completing Form GR/PPh/ ask the applicant to resubmit the claim
authority to use the fees consistent with using the appropriate application and
its budget. 17 U.S.C. 708(b)(1). Section CON—there is no limit on the number
of photographs that may be included in will ask the applicant to limit the
708(b) provides that the Register may number of photographs in the group.
adjust these fees no ‘‘more than that the group. Likewise, when an applicant
submits a number of photographs as an The limit on the number of
necessary to cover the reasonable costs photographs, in turn, will affect the
incurred by the Copyright Office for unpublished collection under
§ 202.3(b)(4)(i)(B), there is no limit on procedure for correcting or amplifying a
. . . [such services], plus a reasonable basic registration for a group of
inflation adjustment to account for any the number of photographs that may be
included in the claim (regardless of published photographs. As noted in
estimated increase in costs.’’ 17 U.S.C. Section III.A.2, the rule proposed in the
708(b)(2). It also provides that the Office whether the applicant submits the claim
through the electronic system or with a CA rulemaking will require applicants
must submit a proposed fee schedule to to file an online application in order to
Congress and that the Office may paper application).
The Office recognizes that seek a supplementary registration for a
implement the schedule 120 days group of photographs. If the basic
thereafter (unless Congress enacts a law photographers are prolific creators. A
photographer may take dozens or even registration covers 750 photographs or
stating that it does not approve the fewer, the applicant will be able to
schedule). 17 U.S.C. 708(b)(5). hundreds of copyrightable images in a
single session and thousands of images correct or amplify the registration record
Once the Proposed Rule has been over the course of a week, a month, or with a single supplementary registration
implemented, the Office will monitor a year. The Office created a group submitted through the online system.
the cost of processing groups of option for photographs, in part, because But if the basic registration was issued
published and unpublished it is unrealistic and cost-prohibitive to before the Proposed Rule goes into
photographs to determine if future fee expect photographers to register all of effect, and if that registration covers
adjustments may be warranted. The their images on an individual basis. At more than 750 photographs, multiple
Office will use this information in the same time, the Office recognizes that supplementary registrations may be
conducting its next fee study. an effective public record must provide needed to correct or amplify the record
sufficient information about each claim. for those works.
C. Eligibility Requirements for GRPPH
Photographers who register their works
jstallworth on DSK7TPTVN1PROD with PROPOSALS
and GRUPH 2. Authorship and Ownership
in a timely manner may be entitled to
This section discusses the eligibility claim statutory damages in an Another key requirement is that all
requirements for the group option for infringement action and the granularity the photographs in the group must be
published photographs and the group of the public record is critical to that taken by the same photographer.
option for unpublished photographs. determination. 21 The Proposed Rule only eliminates the pilot
Applicants that fail to satisfy these Given resource limitations and the program for GRPPH. As discussed in Section III.A.1,
requirements will not be permitted to modest filing fee for this group option, the pilot program for photographic databases will
use these options. the Office must impose some limit on remain in effect for the time being.
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![86652 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules
Licensing Association (‘‘DMLA’’) the applicant will be required to pay an commenced or (ii) within three months
offered in a prior rulemaking.32 additional fee to search for the deposit after the first publication of that work.
The list must be contained in an and connect it with the application. If See 17 U.S.C. 412.
electronic file in Excel format (‘‘.xls’’), the deposit cannot be located, the In the case of unpublished
Portable Document Format (‘‘PDF’’), or applicant will be required to resubmit photographs, the Office strongly
other electronic format that may be the storage device, which may change encourages photographers to register
specifically approved by the Office. The the effective date of registration for the their works before sharing them with
file name for the list must include the claim. any other party. By doing so,
title of the group as a whole and the Packages that are delivered to the photographers preserve the ability to
eleven-digit case number that is Office by mail or by courier will be seek statutory damages and attorney’s
automatically assigned to the irradiated to destroy possible fees in subsequent infringement
application by the electronic system contaminants, such as anthrax. This disputes involving those works.
(e.g., ’’ [Title of Group] Case Number process may damage files stored on In the case of published photographs,
12345678910’’). The Office will provide electronic media. To avoid this result, the Office encourages photographers to
further guidance regarding the preferred applicants will be strongly encouraged submit their claims every three months
format and naming conventions for to send physical storage devices to the (instead of filing on an annual or semi-
these file names on its Web site and in Office in boxes rather than envelopes. annual basis), and in each case, to file
Chapter 1100 of the Compendium. Additional information concerning the the claim within three months after the
When completing the online recommended procedure for delivering earliest date of publication specified in
application, applicants will be asked to physical deposits by mail or by courier the application. For example, if a
provide the file name for this document will be provided in the Compendium. photographer first published his or her
in the application itself. This will help photographs on June 1, 2016, it would
2. Deposit Requirements for be advisable to submit a complete
the Office connect the numbered list Photographic Databases
with the relevant application, and to application, deposit, and filing fee on or
distinguish it from the files that contain The Proposed Rule will impose the before September 1, 2016. By doing so,
the digital photographs. same deposit requirements on a the photographer would preserve his or
database that consists predominantly of her ability to seek statutory damages
c. Procedure for Submitting the Digital photographs. Specifically, database and attorney’s fees for any
Photographs and the Numbered List of owners will be required to submit a infringements that began after the
Photographs digital copy of each photograph that is effective date of registration (i.e., after
Applicants will be required to submit included in the claim, and a separate September 1, 2016), as well as any
the files containing the digital document containing a sequentially infringements that occurred within
photographs together with the file that numbered list that identifies the title three months after the date of
contains the sequentially numbered list and file name—and in the case of publication (i.e., between June 1, 2016
of photographs. Applicants may upload published photographs, the month and and September 1, 2016).
these files through the electronic year of publication—for each F. The Scope of a Group Registration
system. Alternatively, they may save photograph.33 Database owners will be
required to submit digital copies, The Proposed Rule memorializes the
them onto a physical storage device, Office’s longstanding position regarding
such as a flash drive or a CD–R or DVD– regardless of whether they intend to file
an online application under the pilot the scope of a registration for a group of
R, and send it to the Office by mail, by published photographs, and it confirms
courier, or by hand delivery together program (in which case the photographs
that the Office will take the same
with the required shipping slip. and the numbered list may be uploaded
position regarding the group option for
When submitting files through the to the electronic system or submitted on
unpublished photographs.
electronic system, applicants will be a physical storage device with the
When the Office issues a group
strongly encouraged to save them in a required shipping slip) or a paper
registration, it prepares one certificate of
.zip file and then upload the .zip file to application (in which case the
registration for the entire group and
the system. In all cases, the size of each photographs and the numbered list may
assigns one registration number to that
uploaded file must not exceed 500 be submitted on a physical storage
certificate. The Proposed Rule clarifies
megabytes, although the applicant may device together with Form VA).34
that a registration for a group of
digitally compress the photographs to E. When should a group registration be published or unpublished photographs
comply with this limitation. filed? covers each photograph in the group,
When submitting files on a flash drive and that each photograph is registered
or other storage device, applicants must An application for a group registration
may be filed at any time. However, a as a separate ‘‘work.’’ This
send that device in the same package understanding is consistent with the
with the shipping slip that is generated photograph must be registered in a
timely manner to seek statutory statutory scheme. The legislative history
by the electronic system. If the applicant makes clear that group registration was
fails to include the required shipping damages and attorney’s fees in an
infringement action. Specifically, a ‘‘a needed and important liberalization
slip, the Office may be unable to of the law [then] in effect,’’ which to
connect the storage device with the copyright owner typically may seek
these remedies if a photograph was that point had required ‘‘separate
appropriate application. In such cases, registrations where related works or
jstallworth on DSK7TPTVN1PROD with PROPOSALS
registered (i) before the infringement
32 DMLA was previously known as the Picture
parts of a work are published
Archive Council of America (‘‘PACA’’). In a prior 33 As discussed in Section III.D.1.b, the Office separately.’’ H.R. Rep. No. 94–1476, at
rulemaking, it stated that works deposited with the will provide a standard template that may be used 154 (1976). In particular, Congress noted
Office should be accessible upon request so that to prepare the numbered list of photographs. that ‘‘the technical necessity for separate
parties can easily determine whether a particular 34 When submitting an online application the
applications and fees has caused
photograph is covered by a particular registration. storage device must be accompanied by the
PACA at 1, available at http://copyright.gov/ shipping slip that is generated by the electronic
copyright owners to forego copyright
rulemaking/databases/comments/picture-archive- system. When submitting a paper application, the altogether.’’ Id. Given that context, it
council-of-america.pdf. device must be accompanied by Form VA. would be anomalous for works
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![Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules 86653
registered as part of a group registration photographs as an unpublished 2. Group Registration of Published
application to be given less protection collection. Once the Proposed Rule goes Photographs vs. Group Registration for
than if they had been registered through into effect, the Office will no longer Contributions to Periodicals
separate applications. accept an application to register
For similar reasons, the Proposed The group option for published
photographs under § 202.3(b)(4)(i)(B) of
Rule also clarifies that when a group of photographs is not intended to alter or
the regulations, regardless of whether replace the group option for
photographs is registered under GRPPH the photographs are submitted with a
or GRUPH, the group as a whole is not contributions to periodicals.
standard application or a paper Photographers may continue to register
considered a compilation or a collective
application (although the Office will their works as a group of published
work under sections 101, 103(b), or
continue to accept applications to photographs or a group of contributions
504(c)(1) of the Copyright Act. The
group is merely an administrative register other types of works under this to periodicals, as long as they satisfy the
classification created solely for the provision). relevant requirements for each option.
purpose of registering multiple As explained, the GRUPH option There are some notable differences
photographs with one application and provides a more efficient mechanism for between these registration options.
one filing fee. See 17 U.S.C. 408(c)(1) capturing information about While a group of published photographs
(‘‘Th[e] administrative classification of photographs, and incorporating that may include no more than 750 images,
works has no significance with respect information into the public record. there is no limit on the number of
to the subject matter of copyright or the Requiring applicants to use this option photographs that may be included
exclusive rights provided by this title.’’). may also provide photographers with within a group of contributions to
Although an applicant may exercise certain legal benefits. periodicals. Moreover, a group of
some judgment in selecting the published photographs may include
photographs that are included within a When an applicant submits
photographs that were published during
particular group, that decision does not photographs via the unpublished
the same calendar year, while a group
necessarily constitute copyrightable collection option, and asserts a claim in of contributions to periodicals may
authorship. Instead, the selection is both the individual photographs as well include photographs that were
based on the regulatory requirements for as the selection and arrangement of the published over a twelve-month period—
these group options, and any collection as whole, the Office will even if that period extends from one
coordination or arrangement of the register the claim as an unpublished calendar year to the next (e.g.,
photographs is merely an administrative collective work, rather than an September 1, 2015 through August 31,
formality that facilitates the unpublished collection. A collective 2016). In addition, to be eligible for
examination of the works. work is—by definition—a form of GRPPH, the photographs may be
Likewise, the Proposed Rule clarifies compilation. 17 U.S.C. 101 (‘‘The term published in any manner, but there is
that the group is not considered a ‘compilation’ includes collective no need to specify the medium of
derivative work under sections 101, works.’’). Section 504(c)(1) of the publication and no need to submit the
103(b), or 504(c)(1) of the Copyright Act. Copyright Act states that a copyright photographs in the specific form in
When a group of photographs is owner may be entitled to recover ‘‘an which they were first published. To be
compiled for the purpose of facilitating award of statutory damages for all eligible for GRCP, the photographs must
registration, those works are not ‘‘recast, infringements involved in [an be first published in a periodical (e.g.,
transformed, or adapted’’ in any way, a newspaper, a magazine, etc.), the
infringement] action, with respect to
and the group as a whole is not ‘‘a work applicant must provide pertinent
any one work,’’ but ‘‘[f]or the purposes
based upon one or more preexisting information about each periodical (e.g.,
of this subsection, all the parts of a
works’’ because there is no title, issue number, publication date,
copyrightable authorship in simply compilation . . . constitute one work.’’
17 U.S.C. 504(c)(1). In other words, etc.), and the applicant must submit a
following the administrative copy of the photographs as they
requirements for GRPPH or GRUPH. 17 when a number of photographs are
registered as an unpublished collective appeared in each publication (e.g., a
U.S.C. 101 (definition of ‘‘derivative copy of the entire periodical, a copy of
work’’). work, the copyright owner would be
an entire section from a newspaper,
entitled to seek only one award of
G. Group Registration of Published and etc.).
statutory damages in an infringement
Unpublished Photographs Distinguished action, rather than a separate award for The Office generally encourages
From Other Registration Options each photograph. applicants to use GRPPH, in part,
This section discusses the key because the deposit requirements for
In contrast, as noted above in Section published photographs are more flexible
differences between the options for III.F, when a number of photographs are
registering a group of published or than the deposit requirements for GRCP.
registered under the GRUPH option, Regardless of whether the applicant
unpublished photographs as compared
each photograph is registered as a uses GRPPH or GRCP, the registration
to the options for registering an
separate work. For purposes of will cover all the photographs that are
unpublished collection, a group of
registration, the group as a whole is not included within the group.
contributions to periodicals, a
considered a collective work or
photographic database, or a collective 3. Group Registration of Photographs vs.
compilation, and thus, the individual
jstallworth on DSK7TPTVN1PROD with PROPOSALS
work. Group Registration for Photographic
photographs within the group would
1. Group Registration of Unpublished not be subject to the limitation on Databases
Photographs vs. Unpublished statutory damages set forth in section As noted above, the Proposed Rule
Collections 504(c)(1). Instead, a registration for a makes certain modifications to the
The group option for unpublished group of unpublished photographs is deposit requirement for databases that
photographs is intended to replace the treated as a separate registration for each predominantly consist of photographs.
option that currently allows an photograph that is included within the The Proposed Rule will not change any
applicant to register a number of group. of the other requirements for these types
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![86654 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules
of claims. See 37 CFR 202.3(b)(5); catalog, or other work does not qualify photographers (even if the
202.20(c)(2)(vii)(D)(8). as a database, the Office will refuse to photographers are not explicitly named
Although the Office will continue to register the work as a database or as a in the application), and there is no limit
accept these claims, the Office strongly group of updates or revisions to a on the number of photographs that may
encourages photographers, stock photographic database. be included within each claim. If the
photography companies, database Copyright owners also should claim is approved, the registration will
providers, and other interested parties consider the following issue before cover the authorship involved in
to register their works with the group registering their photographs as part of selecting, coordinating, and/or arranging
option for published or unpublished a photographic database. As noted the content of the collective work as a
photographs—rather than the database above in Section III.G.1, the Copyright whole. It also may cover the individual
option—for several reasons. Many Act states that a copyright owner may be photographs that appear in the
photography Web sites and catalogs do entitled to recover ‘‘an award of collective work if the claimant owns the
not qualify as a database, and therefore, statutory damages for all infringements copyright in those images and the
are not eligible for the group option for involved in [an infringement] action, collective work as a whole, and if the
photographic databases. For purposes of with respect to any one work,’’ but photographs have not been previously
registration, a database is defined ‘‘as a ‘‘[f]or the purposes of this subsection, published or registered.
compilation of digital information all the parts of a compilation . . . There are some drawbacks to
comprised of data, information, constitute one work.’’ 17 U.S.C. registering photographs as a collective
abstracts, images, maps, music, sound 504(c)(1). A database is—by definition— work. As discussed in Section III.G.1, a
recordings, video, other digitized a compilation. See Alaska Stock, LLC v. collective work is—by definition—a
material, or references to a particular Houghton Mifflin Harcourt Publishing compilation. As such, these types of
subject or subjects. In all cases, the Co., 747 F.3d 673, 676 (9th Cir. 2014) works are subject to the limitation set
content of a database must be arranged (concluding that a photographic forth in section 504(c)(1) of the
in a systematic manner, and it must be database is a collective work); see also Copyright Act. When a number of
accessed solely by means of an Compendium section 1117.1 (same). photographs are registered as part of a
integrated information retrieval program Consequently, when a group of collective work, the copyright owner
or system with the following photographs is registered as a database, may be entitled to receive only one
characteristics.’’ Compendium section the copyright owner may be entitled to award of statutory damages in an
1117.1. First, ‘‘a query function must be seek only one award of statutory infringement action, even if the
used to access the content.’’ Id. Second, damages for the database as a whole— defendant infringed all the photographs
‘‘[t]he information retrieval program or rather than a separate award for each that appear in that work (regardless of
system must yield a subset of the photograph—even if the defendant whether the collective work is
content, or it must organize the content infringed all the photographs that are published or unpublished). By contrast,
based on the parameters specified in covered by the registration. when a group of photographs are
each query.’’ Id. By contrast, when a copyright owner registered under GRPPH or GRUPH, the
Stock photography Web sites or registers a group of photographs under copyright owner would not be subject to
catalogs that merely display GRPPH or GRUPH, the registration the collective-work limitation in section
photographs do not satisfy these covers each photograph in the group, 504(c)(1). For this reason, photographers
requirements and therefore are not but the group itself is not a compilation may wish to register their photographs
considered databases for the purpose of within the meaning of the Copyright under GRPPH or GRUPH, even if those
registration. In most cases, users may Act. Therefore, any claim for works also may be eligible for
access all the content on a Web site or infringement would not be subject to the registration as part of a collective work.
in a catalog by scrolling or browsing limitation set forth in Section 504(c)(1)
through the individual images or H. Technical Amendments
of the Copyright Act. For these reasons,
categories of related images. Id. section the group options for published and The Proposed Rule will move the
1002.6. By contrast, users cannot access unpublished photographs provide regulation governing published
the content of a database in its entirety. significant benefits, while avoiding the photographs from § 202.3 to § 202.4.35
Id. Instead, they must use a query potential downside of registering a In the future, the Office intends to move
function to identify specific content number of works as part of a all regulations governing the various
within the database, and they must use photographic database. group options that have been
an information retrieval system to implemented under section 408(c) of the
extract the content that matches the 4. Group Registration of Photographs vs. Copyright Act to § 202.4. This change is
user’s search criteria. Id. While a user Collective Works intended to improve the readability of
may view the entire content of a Web The Proposed Rule will not change the existing regulations, but it does not
site or catalog, a user may view the the requirements for registering a represent a substantive change in
content of a database only to the extent number of photographs as part of a policy.
that it matches a particular query that collective work, such as a book of In addition, the Proposed Rule
the user entered into the information photographs, a travel guide, or the like. incorporates the definitions of
retrieval system. Id. While some Web Applicants may continue to register ‘‘claimant’’ and ‘‘Class VA’’ that are set
sites may provide a search feature that these types of works with a standard forth in § 202.3, and it confirms that an
may be used to locate particular images application submitted through the application for a group of photographs
jstallworth on DSK7TPTVN1PROD with PROPOSALS
or categories of images, these types of electronic system or with a paper may be submitted by any of the parties
features do not qualify as an information application submitted on Form VA. listed in § 202.3(c)(1), namely (i) the
retrieval system nor do they transform Registration of photographs as part of author or copyright claimant of those
an ordinary Web site into a database, a collective work differs in many
35 The Office recently issued a notice of proposed
because these features are not the sole respects from group registration of
rulemaking that would remove the current text of
means for accessing the images posted photographs. A registration for a § 202.4 and reserve that section for later use. See
on the site. See id. If the Office collective work may include Copyright Office Technical Amendments, 81 FR
determines that a particular Web site, photographs taken by multiple 67940, 67942 (Oct. 3, 2016).
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![Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules 86655
works, (ii) the owner of any of the ■ a. In paragraph (b)(3) removing the (2) The group must include no more
exclusive rights in those works, or (iii) phrase ‘‘, subject to the limitations in than 750 photographs, and the
a duly authorized agent of any author, paragraph (b)(10)(v) of this section’’ . application must specify the total
claimant, or owner of exclusive rights. ■ b. Revising paragraph (b)(4)(ii). number of photographs that are
■ c. Removing and reserving paragraph included in the group.
IV. Conclusion (b)(10). (3) All the photographs must be
The Proposed Rule will allow broader ■ d. In the text of paragraph (c)(2), created by the same photographer.
participation in the registration system removing the reference to footnote ‘‘6’’ (4) The copyright claimant for all the
by expanding the class of works that and adding in its place a reference to photographs must be the same person or
may be registered as a group, increase footnote ‘‘5’’. organization.
the efficiency of the registration process, ■ e. In paragraph (c)(2), revising (5) The photographs may be registered
and create a more robust record of the footnote 5. as works made for hire if all the
claim. The Office invites public The revisions to read as follows: photographs are identified in the
comment on these proposed changes. application as such, if all the
§ 202.3 Registration of copyright. photographs were created by the same
List of Subjects * * * * * photographer for the same employer,
37 CFR Part 201 (b) * * * and if the application identifies both the
(4) * * * photographer and the employer in the
Copyright, General provisions. (ii) In the case of an application for name of author field (e.g., ‘‘ABC
37 CFR Part 202 registration made under paragraphs Corporation, employer for hire of John
Copyright, Preregistration and (b)(4) through (b)(10) of this section or Doe’’).
registration of claims to copyright. under § 202.4, the ‘‘year of creation,’’ (6) All the photographs must be
‘‘year of completion,’’ or ‘‘year in which unpublished.
Proposed Regulation creation of this work was completed,’’ (7) The applicant must provide a title
For the reasons set forth in the means the latest year in which the for the group as a whole.
preamble, the U.S. Copyright Office creation of any copyrightable element (8) The applicant must complete and
proposes amending 37 CFR parts 201 was completed. submit the online application
and 202, as follows: * * * * * designated for a group of unpublished
(c) * * * photographs. (The Office will not
PART 201—GENERAL PROVISIONS (2) * * * register a group of unpublished
5 In the case of an application to register a
photographs as an unpublished
■ 1. The authority citation for part 201 collection under § 202.3(b)(4)(i)(B).) The
group of newspapers, newsletters,
is amended to read as follows: application may be submitted by any of
contributions to periodicals, or photographs
Authority: 17 U.S.C. 702. under paragraphs (b)(7) or (9) of this section the parties listed in § 202.3(c)(1).
or under § 202.4, the deposit shall comply (9) The appropriate filing fee, as
■ 2. Amend § 201.3 by:
■ a. Redesignating paragraphs (c)(3) with the respective requirements specified in required by § 201.3(c) of this chapter,
through (18) as paragraphs (c)(4)
those paragraphs. must be included with the application
through (19), respectively. * * * * * or charged to an active deposit account.
■ b. Adding new paragraph (c)(3). ■ 6. Revise § 202.4 to read as follows: (10) The applicant must submit one
■ c. Revising newly redesignated
copy of each photograph in one of the
paragraph (c)(4). § 202.4 Group Registration. following formats: JPEG, GIF, TIFF, or
The revisions and additions to read as (a) This section prescribes conditions PCD. The file name for a particular
follows: for issuing a registration for a group of photograph may consist of letters,
related works under section 408(c) of numbers, and spaces, but the file name
§ 201.3 Fees for registration, recordation, title 17 of the United States Code. should not contain any other form of
and related services, special services, and (b) Definitions. For purposes of this punctuation. The photographs may be
services performed by the Licensing uploaded to the electronic registration
Division.
section, the terms copy and work made
for hire have the meanings set forth in system together with the required
* * * * * section 101 of title 17 of the United numbered list, preferably in a .zip file
(c) * * * containing all the photographs. The file
States Code, and the terms claimant and
Class VA have the meanings set forth in size for each uploaded file must not
(3) Registration of a claim in a group of exceed 500 megabytes; the photographs
published photographs or a claim in a
§ 202.3(a)(3) and (b)(1)(iii).
(c) [Reserved] may be compressed to comply with this
group of unpublished photographs ..... 55
(4) Registration for a database that pre- (d) [Reserved] requirement. Alternatively, the
dominantly consists of photographs (e) [Reserved] photographs and the required numbered
and updates thereto:. (f) [Reserved] list may be saved on a physical storage
(i) Electronic filing ................................... 55 (g) [Reserved] device, such as a flash drive, CD–R, or
(ii) Paper filing ........................................ 65 (h) [Reserved] DVD–R, and delivered to the Copyright
(i) Group registration of unpublished Office together with the required
* * * * * photographs. Pursuant to the authority shipping slip generated by the
granted by 17 U.S.C. 408(c)(1), the electronic registration system.
jstallworth on DSK7TPTVN1PROD with PROPOSALS
PART 202—PREREGISTRATION AND Register of Copyrights has determined (11) The applicant must submit a
REGISTRATION OF CLAIMS TO that a group of unpublished sequentially numbered list containing a
COPYRIGHT photographs may be registered in Class title and file name for each photograph
■ 3. The authority citation for part 202 VA with one application, one filing fee, in the group (matching the
continues to read as follows: and the required deposit, if the corresponding file names for each
following conditions are met: photograph specified in paragraph
Authority: 17 U.S.C. 408(f), 702. (1) All the works in the group must be (i)(10)). The title and file name for a
■ 4. Amend § 202.3 by: photographs. particular photograph may be the same.
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![86656 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules
The numbered list must be contained in system together with the required digital form in one of the following
an electronic file in Excel format (.xls), numbered list, preferably in a .zip file formats: JPEG, GIF, TIFF, or PCD. In
Portable Document Format (PDF), or containing all the photographs. The file addition, the applicant must submit a
other electronic format approved by the size for each uploaded file must not sequentially numbered list containing
Office, and the file name for the list exceed 500 megabytes; the photographs the title and file name—and if the
must contain the title of the group and may be compressed to comply with this photographs have been published, the
the case number assigned to the requirement. Alternatively, the month and year of publication—for each
application by the electronic registration photographs and the required numbered photograph in the group. The title and
system (e.g., ‘‘Title Of Group Case list may be saved on a physical storage file name for a particular photograph
Number 16283927239.xls’’). device, such as a flash drive, CD–R, or may be the same and may consist of
(j) Group registration of published DVD–R, and delivered to the Copyright letters, numbers, and spaces, but the file
photographs. Pursuant to the authority Office together with the required name should not contain any other form
granted by 17 U.S.C. 408(c)(1), the shipping slip generated by the of punctuation. The numbered list must
Register of Copyrights has determined electronic registration system. be contained in an electronic file in
that a group of published photographs (11) The applicant must submit a Excel format (.xls), Portable Document
may be registered in Class VA with one sequentially numbered list containing Format (PDF), or other electronic format
application, one filing fee, and the the title, file name, and month and year approved by the Office. The file name
required deposit, if the following of publication for each photograph in for the list must contain the title of the
conditions are met: the group (matching the corresponding database, and the case number assigned
(1) All the works in the group must be file names for each photograph specified to the application by the electronic
photographs. in paragraph (j)(10)). The title and file registration system, if any (e.g., ‘‘Title Of
(2) The group must include no more name for a particular photograph may Database Case Number
than 750 photographs, and the be the same. The numbered list must be 162883927239.xls’’). The photographs
application must specify the total contained in an electronic file in Excel and the numbered list may be uploaded
number of photographs that are format (.xls), Portable Document Format to the electronic registration system
included in the group. (PDF), or other electronic format with the permission and under the
(3) All the photographs must be approved by the Office, and the file direction of the Visual Arts Division,
created by the same photographer. name for the list must contain the title preferably in a .zip file containing these
(4) The copyright claimant for all the of the group and the case number materials. The file size for each
photographs must be the same person or assigned to the application by the uploaded file must not exceed 500
organization. electronic registration system (e.g., megabytes; the photographs may be
(5) The photographs may be registered ‘‘Title Of Group Case Number compressed to comply with this
as works made for hire if all the 16283927239.xls’’). requirement. Alternatively, the
photographs are identified in the (k) [Reserved] photographs and the numbered list may
application as such, if all the (l) [Reserved] be saved on a physical storage device,
photographs were created by the same (m) [Reserved] such as a flash drive, CD–R, or DVD–R,
photographer for the same employer, (n) The scope of a group registration. and delivered to the Copyright Office
and if the application identifies both the When the Office issues a group together with the required shipping slip
photographer and the employer in the registration under paragraphs (i) or (j) of generated by the electronic registration
name of author field (e.g., ‘‘XYZ this section, the registration covers each system or with a paper application
Corporation, employer for hire of Jane work in the group and each work is submitted on Form VA.
Doe’’). registered as a separate work. For
(6) All the photographs must be * * * * *
purposes of registration, the group as a
published within the same nation and whole is not considered a compilation, Dated: November 22, 2016.
within the same calendar year, and the a collective work, or a derivative work Sarang V. Damle,
applicant must specify the earliest and under sections 101, 103(b), or 504(c)(1) General Counsel and Associate Register of
latest date that the photographs were of title 17 of the United States Code. Copyrights.
published during the year. ■ 7. Amend § 202.20 by: [FR Doc. 2016–28706 Filed 11–30–16; 8:45 am]
(7) The applicant must provide a title ■ a. Revising paragraph (c)(2)(vii)(D)(8); BILLING CODE 1410–30–P
for the group as a whole. and.
(8) The applicant must complete and ■ b. Removing paragraph (c)(2)(xx).
submit the online application The revision to read as follows: LIBRARY OF CONGRESS
designated for a group of published
photographs. The application may be § 202.20 Deposit of copies and Copyright Office
submitted by any of the parties listed in phonorecords for copyright registration.
§ 202.3(c)(1). * * * * * 37 CFR Parts 201, 202
(9) The appropriate filing fee, as (c) * * *
required by § 201.3(c) of this chapter, [Docket No. 2016–9]
(2) * * *
must be included with the application (vii) * * * Supplementary Registration
or charged to an active deposit account. (D) * * *
(10) The applicant must submit one (8) In the case of an application for AGENCY: U.S. Copyright Office, Library
jstallworth on DSK7TPTVN1PROD with PROPOSALS
copy of each photograph in one of the registration of a database that consists of Congress.
following formats: JPEG, GIF, TIFF, or predominantly of photographs ACTION: Notice of proposed rulemaking.
PCD. The file name for a particular (including a group registration for
photograph may consist of letters, revised or updated versions of such a SUMMARY: The U.S. Copyright Office is
numbers, and spaces, but the file name database), ‘‘identifying portions’’ shall proposing to amend the regulation
should not contain any other form of instead consist of all individual governing supplementary registration to
punctuation. The photographs may be photographs included in the claim. reflect certain technical upgrades that
uploaded to the electronic registration Photographs must be submitted in will soon be made to the electronic
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Document Created: 2018-02-14 09:00:27
Document Modified: 2018-02-14 09:00:27
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Comments on the proposed rule must be made in writing and must be received in the U.S. Copyright Office no later than January 3, 2017. | |
| Contact | Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, at 202- 707-8040. | |
| FR Citation | 81 FR 86643 | |
| CFR Citation | 37
CFR
201 37 CFR 202 | |
| CFR Associated | Copyright; General Provisions and Preregistration and Registration of Claims to Copyright |
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