82 FR 26850 - Secure Tests
LIBRARY OF CONGRESS
Copyright Office Federal Register Volume 82, Issue 111 (June 12, 2017)
Copyright Office
Federal Register Volume 82, Issue 111 (June 12, 2017)
| Page Range | 26850-26854 | |
| FR Document | 2017-12021 |
[Federal Register Volume 82, Number 111 (Monday, June 12, 2017)] [Rules and Regulations] [Pages 26850-26854] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-12021] ======================================================================= ----------------------------------------------------------------------- LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201 and 202 [Docket No. 2017-8] Secure Tests AGENCY: U.S. Copyright Office, Library of Congress. ACTION: Interim rule with request for comments. ----------------------------------------------------------------------- SUMMARY: The U.S. Copyright Office is issuing an interim rule that memorializes its special procedure for examining secure tests. The interim rule also includes a new workflow that will increase the efficiency of these examinations. Going forward, applicants must submit an online application, upload a redacted copy of the entire test to the electronic registration system, and complete and submit a brief questionnaire about the test. If the work appears to be eligible for the secure test process, the Office will contact the applicant and schedule an appointment to deliver the test to the Office in person. On the appointed date, the applicant must bring a copy of the application and a complete unredacted copy of the actual test. In addition, the applicant must bring a copy of the redacted version of the test, and a signed declaration confirming that this copy is identical to the redacted copy that was uploaded to the electronic registration system. If the Office confirms that the work qualifies as a secure test, it will examine the test as a whole to determine if it contains sufficient copyrightable authorship. If the Office registers the secure test, the registration will be effective as of the date that the Office received the application, filing fee, and the redacted copy of the entire test in proper form through the electronic registration system. The Office welcomes public comment on the interim rule. DATES: Effective July 12, 2017. Comments on the interim rule must be made in writing and must be received by the U.S. Copyright Office no later than December 11, 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://copyright.gov/rulemaking/securetests/. If electronic submission of comments is not feasible due to lack of access to a computer and/or the internet, please contact the Office for special instructions using the contact information below. FOR FURTHER INFORMATION CONTACT: Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, Erik Bertin, Deputy Director of Registration Policy and Practice, or Abioye Mosheim, Attorney Advisor, by telephone at 202-707-8040 or by email at [email protected],[email protected] and [email protected]. SUPPLEMENTARY INFORMATION: I. Background A. The Current Regulation Section 408(c)(1) of the Copyright Act authorizes the Register of Copyrights (the ``Register'') to issue regulations establishing administrative classes for the purpose of registering works with the U.S. Copyright Office (the ``Office''). It authorizes the Register to issue regulations specifying the nature of the copies or phonorecords required for each class. And it states that the Register ``may require or permit, for particular classes, the deposit of identifying material instead of copies or phonorecords.'' 17 U.S.C. 408(c)(1). [[Page 26851]] The Office's current practice for examining a secure test provides special procedures to protect the confidential nature of these works.\1\ A ``secure test'' is ``a nonmarketed test administered under supervision at specified centers on specific dates, all copies of which are accounted for and either destroyed or returned to restricted locked storage following each administration. For these purposes a test is not marketed if copies are not sold but it is distributed and used in such a manner that ownership and control of copies remain with the test sponsor or publisher.'' 37 CFR 202.20(b)(4). With respect to the deposit requirement, the regulations state that ``[i]n the case of any secure test the Copyright Office will return the deposit to the applicant promptly after examination [, p]rovided, [t]hat sufficient portions, description[s], or the like are retained so as to constitute a sufficient archival record of the deposit.'' 37 CFR 202.20(c)(2)(vi). --------------------------------------------------------------------------- \1\ The Office developed this procedure in response to correspondence submitted by Educational Testing Service, which was supported by twenty-two other examining boards and councils, including the National Board of Medical Examiners, the Federation of State Medical Boards, and the National Conference of Bar Examiners. 42 FR 59302, 59304 n.2 (Nov. 16, 1977). --------------------------------------------------------------------------- B. Current Examination Practices Under the Office's current practices, ``special arrangements can be made for the examination of such material under strict conditions of security and in the presence of a representative of the copyright owner.'' 42 FR 59302, 59304 (Nov. 16, 1977). These practices are not, however, mentioned in the Office's regulations. Instead they are set forth in sections 720.1 through 720.5 of the Compendium of Copyright Office Practices, Third Edition (hereinafter ``Compendium'').\2\ Briefly stated, applicants submit an application and the appropriate filing fee. Then they call the Office to schedule an appointment with an examiner. On the appointed date they bring a copy of the completed application to the Office, along with a redacted and an unredacted copy of the actual test. The examiner reviews these materials with the applicant present, and then returns the unredacted copy to the applicant when the examination is complete. The redacted copy is retained by the Office. --------------------------------------------------------------------------- \2\ The Office also published these practices in Copyright Registration for Secure Tests (Circular 64). This circular has been revised to reflect the new procedures discussed in this interim rule. Similar changes will be made to the Compendium in the near future. --------------------------------------------------------------------------- This procedure has remained essentially unchanged for more than thirty years, and for the most part it has worked well for both the Office and applicants alike. Recently, however, the Office has identified several issues that warrant attention. First, the secure test procedure only applies to tests that satisfy the definition of a ``secure test'' as set forth in the regulation. 37 CFR 202.20(b)(4). Under the current process, test publishers do not submit an actual copy of the test when they initially file an application and pay the filing fee. As a result, the Office has no way of knowing whether a test is eligible for the secure test procedure until the applicant arrives at the Office. On several occasions, applicants have travelled to the Office--sometimes from a great distance and at great expense--only to discover that their works do not qualify as secure tests. This is inconvenient for applicants, and it also deprives them of an earlier effective date of registration.\3\ If they decide to register their works using the normal procedure for tests, rather than the special procedure for secure tests, applicants must submit a complete, unredacted copy of the work. In this situation the effective date of registration will be based on the date that the unredacted copy is received. See Compendium 720, 1509.1(G). --------------------------------------------------------------------------- \3\ The effective date of registration is the date the Office has received an application, an applicable filing fee, and the applicable deposit. 17 U.S.C. 410(d). --------------------------------------------------------------------------- Second, because secure test publishers do not submit a copy of their works until they meet with the examiner, they prefer to schedule their appointments as soon as possible, in order to establish the earliest possible effective date of registration. The Office has traditionally accommodated these requests. As a result, secure test publishers often effectively gain the benefits of expedited service without providing a justification for special handling and without paying the additional fee for this service. 37 CFR 201.3(d)(7). Moreover, publishers do not always know which test or how many tests they will bring to the appointment. Therefore, the Office may not have a sufficient number of examiners on hand to conduct the examination. Third, the applicant must bring a redacted and an unredacted copy of the secure test for the examiner's review. Compendium 720.2. While the unredacted copy must contain a complete copy of the entire test so that the Office can examine it for copyrightable authorship, under the Office's current practices, the redacted copy will be accepted even if it contains a fraction of the test material, rather than the complete test. Id. 720.4. Finally, under the Office's current practices the applicant may register a secure test and a computer program used to administer that test by filing one application and one filing fee, if the works are owned by the same party and if the applicant submits an appropriate deposit for both the test and the program. Id. 720.5. As discussed below, however, the Office does not examine the computer program under secure conditions, because computer programs are not secure tests. C. Issues With Current Practices Although the Office's secure test registration practices have worked reasonably well, they currently do not produce an optimal record of the actual tests submitted for registration. Under current practice, as mentioned above, the applicant must bring a copy of the completed application to the Office, along with a redacted and an unredacted copy of the actual test. When the examiner completes his or her review of a secure test, he or she will stamp the date of the appointment on the unredacted copy and return it to the applicant. What remains in the Office is a redacted copy of the test which, in most cases, only includes portions of the first and last pages of the test. Even in the case of a test administered in machine readable format or a test that contains questions taken from a database, the redacted copy deposited with the Office includes another 50 pages from the test but no more. Thus, under the current practice, the deposit that is maintained by the Copyright Office provides, at best, imperfect evidence of the complete test examined and registered by the Office. This may adversely affect, for instance, the ability of a plaintiff to show that it registered the test with the Copyright Office prior to bringing an infringement suit. The Office's practices with respect to tests administered using databases and/or computer programs raise other concerns. A database may contain a selection of questions that can be used to create many different tests. A computer program can be used to measure and record the answers given in response to a particular set of test questions. But the actual database and the actual program are not ``tests'' that are administered to test takers ``under supervision at specified centers on specific dates.'' 37 CFR 202.20(b)(4). As such, they cannot be considered a ``secure test'' within the meaning of the regulation, and using the secure test application process for such works is inconsistent with that regulation. In addition, databases and secure tests have distinct deposit requirements. An [[Page 26852]] applicant may register a database by submitting a mere fraction of the content that appears within that work. 37 CFR 202.20(c)(2)(vii)(D)(3) through (5). On the contrary, to register a secure test, applicants must submit ``one complete copy'' of the work, which will be returned to the applicant when the examination is complete. 37 CFR 202.20(c)(2)(vi). Finally, allowing an applicant to register a secure test together with a computer program used to administer the test, is inconsistent with the Office's general policy of requiring a separate application and filing fee for each distinct copyrightable work. See 17 U.S.C. 408(a), 409 (authorizing the Office to register a single ``work''); Compendium 511 (stating that ``an applicant should prepare a separate application, filing fee, and deposit for each work that is submitted for registration''). II. The Interim Rule The interim rule codifies the Office's longstanding practices for examining secure tests, while addressing several of the issues identified in the current practices described above. A. Submitting the Claim To register a secure test under the interim rule, applicants must complete and submit an application through the electronic registration system using the Standard Application, and they must pay the $55 filing fee for this application. Paper applications will no longer be accepted. Prior to making an examination appointment, applicants must complete and submit through the electronic registration system a brief questionnaire about the test, which may be obtained from the Office's Web site at https://copyright.gov/forms/securetest-questionnaire.pdf, and they must submit a redacted copy of the entire test. These steps are designed to identify works that are not eligible for the secure test procedure before the applicant invests the time and expense-- perhaps mistakenly--in scheduling an appointment and travelling to the Office. Applicants must file a separate application, pay a separate fee, and upload a separate questionnaire for each secure test or when registering multiple versions of the same secure test. The Office will not register multiple secure tests together as an unpublished collection, a unit of publication, or a group of updates or revisions to a database. In addition, for the reasons given above, a particular secure test cannot be registered together with a database that has been used to create the test or a computer program that is used to administer the test. To register a database or a computer program, applicants must submit a separate application, pay a separate fee, and submit the appropriate deposit for each work. Under no circumstances will the Office examine a database or a computer program under the special procedure for secure tests. When completing the application, applicants should state ``secure test'' as part of the title of the work, so that the Office can assign the claim to an appropriate member of the Registration Program. Upon request, the examiner will remove this statement from the title field before the claim is approved. Applicants may assert a claim in this type of work by stating ``text,'' or ``compilation of test questions'' in the application. To register a revised version of a preexisting test, applicants may state ``revised secure test.'' The redacted copy of the test should contain an unredacted copy of the title page for the test (if any), and a redacted copy of each page of questions. The number that has been assigned to each question (if any), and the page number that appears on each page of the test (if any) should be completely visible. Most of the content that appears on each page may be blocked out, provided that the applicant leaves a narrow vertical or diagonal strip of visible content. An example of an appropriate method for preparing a redacted copy has been provided in the new circular for secure tests. See Copyright Registration for Secure Tests (Circular 64). Applicants must upload the questionnaire and the redacted copy of the test to the electronic registration system; each item must be uploaded as a separate file. The file name for the questionnaire should include the term ``Questionnaire'' and the case number assigned to the claim. This eleven-digit number is automatically generated by the electronic registration system and it appears near the top of each screen of the online application. The file name for the redacted copy should match the title provided in response to questions 1 and 9 of the questionnaire. B. Scheduling the Appointment Once the application, filing fee, questionnaire, and the redacted copy have been received, the Office will assign the claim to a Literary Division examiner. The examiner will review these items to determine if the work appears to be eligible for the secure test procedure, based on the following criteria: First and foremost, the work must be a ``test.'' Questions that are stored in--or randomly pulled from--an electronic database or a test bank cannot be registered as a secure test if the database or test bank is simply a medium for storing questions and does not represent an actual test. Second, under the longstanding regulatory definition, the test also must be administered under supervision at specified centers on scheduled dates. See 37 CFR 202.20(b)(4).\4\ A ``specified center'' is a place where test takers are physically assembled at the same time. For example, a ``test'' administered via a Web site to people located in their individual homes or offices would not be eligible for this procedure, both because a home or office would not qualify as a ``specified center'' and because the tests presumably would not be administered ``under supervision.'' In contrast, a test administered via computer to test takers gathered at the same time at proctor- monitored locations would qualify, even if the test is accessed through a secure Web site. In addition, the test must be administered ``under supervision,'' e.g., with test proctors or the like. These features are what, in the Office's estimation, most readily distinguish an ordinary test from a ``secure'' test that requires special registration procedures, including the acceptance of a redacted copy of the deposit. These features were common to all of the test publishers that originally requested this procedure as a matter of public policy, and these features continue to be employed in the administration of the secure tests that provided the foundation for this procedure. 42 FR 59304 & n.2 (citing ``tests used in connection with admission to educational institutions, high school equivalency, placement in or credit for undergraduate and graduate course work, awarding of scholarships, and professional certification''). --------------------------------------------------------------------------- \4\ The interim rule replaces the phrase ``specific dates'' in the current regulation with the more precise phrase ``scheduled dates.'' No substantive change is intended. --------------------------------------------------------------------------- If the test appears to be eligible for the secure test procedure, the examiner will contact the applicant and schedule an appointment to examine the test. But the fact that the examiner schedules an appointment does not necessarily mean that the work is eligible for the secure test procedure or that it will be registered. If at the time of the appointment, the examiner determines that the work does not meet the relevant legal and formal requirements, he or she will refuse to register the work as a secure test.\5\ --------------------------------------------------------------------------- \5\ If the work appears to be eligible for registration under the normal examination procedures for a test, the examiner will ask the applicant to upload a complete, unredacted copy of the work, and he or she will change the effective date of registration to match the date that the unredacted copy is received. --------------------------------------------------------------------------- [[Page 26853]] C. Processing Time Secure test claims will be reviewed in the order they are received, and will not be given priority over other claims with an earlier filing date. If an applicant would like to expedite the examination of a particular test or the scheduling of an appointment, the applicant must submit a request for special handling, demonstrate that there is a compelling reason for the request (such as litigation or publication deadlines), and pay the additional fee for expedited service. But regardless of whether the applicant requests special handling, the date that the Office received all the required elements in proper form through the electronic registration system will retroactively become the effective date of registration if the application is approved after examination. D. What To Bring to the Appointment On the day of the appointment, the applicant must bring the following materials to the Office: (i) A copy of the completed application. (ii) The nonrefundable secure test examination fee. This fee will be based on the amount of time that it takes to examine the test materials during the appointment, and it is in addition to the filing fee mentioned above. Both the filing fee and the examination fee are nonrefundable, regardless of whether the Office issues a certificate of registration for the test. (iii) A copy of the redacted version of the test that was uploaded to the electronic registration system. (iv) A signed declaration confirming that this redacted copy is identical to the redacted copy that was uploaded to the electronic registration system. Applicants may obtain a copy of this declaration from the Office's Web site at https://copyright.gov/forms/securetest-declaration.pdf. (v) An unredacted copy of the actual test that is administered to test takers at specified centers on scheduled dates. In all cases, applicants must bring a physical copy of the unredacted version of the test, and the content of the test must be completely visible so that it may be examined. The questions that appear in the unredacted copy should precisely match the questions that appear in the redacted copy. If the test is administered with test booklet(s), the applicant should bring one complete copy of those booklet(s).\6\ If it is administered at specified centers on scheduled dates with computers or other electronic devices, the applicant may bring one of the following items: --------------------------------------------------------------------------- \6\ As mentioned above, different versions of the same test cannot be registered together on one application. There is no group registration option for secure tests. --------------------------------------------------------------------------- (i) A printout containing a complete copy of the actual test; or (ii) An electronic file that contains a complete copy of the actual test. The file must be stored on a CD-ROM, DVD, flash drive, or other storage device. The applicant must bring a laptop or other electronic device that can be used to view the test materials. Providing access to an electronic copy available online or an electronic file stored solely on the applicant's device (rather than a separate storage device) is insufficient. In addition, the applicant should bring an appropriate container for the storage device, such as an envelope or jewel case. E. In-Person Examination of Secure Tests The examiner will review the redacted and unredacted copies in a secure location in the presence of the applicant or his/her representative.\7\ When the examination is complete, the examiner will stamp the date of the appointment on the redacted and unredacted copies and will return them to the applicant. If the applicant brought test booklet(s) or a printout of the test, the specialist will stamp the first page of the test materials. If the applicant brought an electronic file stored on a flash drive or other storage device, the examiner will place the device in its container, stamp the date of the appointment on a label, apply that label to the container, and seal the container with tamper-proof tape. The signed declaration and the redacted copy that was uploaded to the electronic system will be retained by the Office. --------------------------------------------------------------------------- \7\ If the test is lengthy or if the applicant is bringing multiple tests to the appointment, the Office may assign two or more examiners to handle the claims. The number of examiners assigned to each claim will be determined solely by the Office. In such cases, the applicant must pay a separate examination fee for each staff member who participates in the examination. --------------------------------------------------------------------------- If the examiner determines that the relevant legal and formal requirements have been met, he or she will register the claim(s) and will add an annotation to the certificate such as: ``Basis for registration: Secure test examined under 37 CFR 202.13.'' The registration will be effective as of the date that the Office received in proper form the application, filing fee, and the redacted copy that was uploaded to the electronic registration system. In this respect, the interim rule will provide test publishers with the benefit of an earlier effective date of registration as compared to the current procedure. III. Request for Comments The interim rule will go into effect 30 days after the publication of this notice in the Federal Register. Comments will be due 150 days thereafter. The Office decided to issue this rule without publishing an initial notice of proposed rulemaking for two reasons. First, this is a ``rule[ ] of agency organization, procedure, or practice.'' 5 U.S.C. 553(b)(3)(A). It does not ``alter the rights or interests of parties.'' JEM Broadcasting Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994). It merely ``alter[s] the manner in which the parties present themselves or their viewpoints to the agency.'' Id. Thus, notice and comment is not required under the Administrative Procedure Act. Second, the rule codifies many of the Office's existing procedures for examining secure tests. These procedures have been in place for more than thirty years, so interested parties should be familiar with them already. The rule does change the Office's current procedures in some respects, but there is good cause for making these changes effective on an interim basis: Doing so will give both the Office and interested parties an opportunity to see how the new procedures work in practice, and to consider whether these procedures should be modified in any respect before the Office issues a final rule. See 5 U.S.C. 553(b)(3)(B). * * * * * List of Subjects 37 CFR Part 201 Copyright, General provisions. 37 CFR Part 202 Copyright, Preregistration and Registration of Claims to Copyright. Interim Regulation In consideration of the foregoing, the U.S. Copyright Office amends 37 CFR parts 201 and 202 as follows: PART 201--GENERAL PROVISIONS 0 1. The authority citation for part 201 continues to read as follows: Authority: 17 U.S.C. 702. 0 2. In Sec. 201.3, revise paragraph (d)(5) to read as follows: [[Page 26854]] Sec. 201.3 Fees for registration, recordation, and related services, special services, and services performed by the Licensing Division. * * * * * (d) * * * ------------------------------------------------------------------------ ------------------------------------------------------------------------ (5) Secure test examining fee (per staff member per 250 hour).................................................. ------------------------------------------------------------------------ * * * * * 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. Add Sec. 202.13 to read as follows: Sec. 202.13 Secure tests. (a) General. This section prescribes rules pertaining to the registration of secure tests. (b) Definitions. For purposes of this section-- (1) A secure test is a nonmarketed test administered under supervision at specified centers on scheduled dates, all copies of which are accounted for and either destroyed or returned to restricted locked storage following each administration. (2) A test is nonmarketed if copies of the test are not sold, but instead are distributed and used in such a manner that the test sponsor or publisher retains ownership and control of the copies. (3) A test is administered under supervision if test proctors or the equivalent supervise the administration of the test. (4) A specified center is a place where test takers are physically assembled at the same time. (c) Deposit requirements. Pursuant to the authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has determined that a secure test may be registered with identifying material, if the following conditions are met: (1) The applicant must complete and submit a standard application. The application may be submitted by any of the parties listed in Sec. 202.3(c)(1). (2) 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. (3) The applicant must submit a redacted copy of the entire secure test. In addition, the applicant must complete and submit the questionnaire that is posted on the Copyright Office's Web site. The questionnaire and the redacted copy must be contained in separate electronic files, and each file must be uploaded to the electronic registration system in Portable Document Format (PDF). The Copyright Office will review these materials to determine if the work qualifies for the secure test procedure. If the work appears to be eligible, the Copyright Office will contact the applicant to schedule an appointment to examine an unredacted copy of the test under secure conditions. (4) On the appointed date, the applicant must bring the following materials to the Copyright Office: (i) A copy of the completed application. (ii) The appropriate examination fee, as required by Sec. 201.3(d) of this chapter. (iii) A copy of the redacted version of the secure test that was uploaded to the electronic registration system. (iv) A signed declaration confirming that the redacted copy specified in paragraph (c)(4)(iii) of this section is identical to the redacted copy that was uploaded to the electronic registration system. (v) An unredacted copy of the entire secure test. (5) The Copyright Office will examine the copies specified in paragraphs (c)(4)(iii) and (v) of this section in the applicant's presence. When the examination is complete, the Office will stamp the date of the appointment on the copies and will return them to the applicant. The Office will retain the signed declaration and the redacted copy that was uploaded to the electronic registration system. 0 5. Amend Sec. 202.20 as follows: 0 a. Revise paragraph (b)(3).; 0 b. Remove paragraph (b)(4); 0 c. Redesignate paragraphs (b)(5) and (6) as paragraphs (b)(4) and (5), respectively; 0 d. Remove ``, as amended by Pub. L. 94-553'' from newly redesignated paragraph (b)(4) and add a period in its place; and 0 e. Revise paragraph (c)(2)(vi). The revisions read as follows: Sec. 202.20 Deposit of copies and phonorecords for copyright registration. * * * * * (b) * * * (3) The term secure test has the meaning set forth in Sec. 202.13(b). * * * * * (c) * * * (2) * * * (vi) Tests. In the case of tests, and answer material for tests, published separately from other literary works, the deposit of one complete copy will suffice in lieu of two copies. In the case of any secure test the applicant may submit identifying material in lieu of one complete copy if the conditions set forth in Sec. 202.13(c) have been met. * * * * * Dated: May 19, 2017. Karyn Temple Claggett, Acting Register of Copyrights and Director of the U.S. Copyright Office. Approved by: Carla D. Hayden, Librarian of Congress. [FR Doc. 2017-12021 Filed 6-9-17; 8:45 am] BILLING CODE 1410-30-P
![26850 Federal Register / Vol. 82, No. 111 / Monday, June 12, 2017 / Rules and Regulations
170 yard radius of fireworks display or his designated representatives. All copy of the actual test. In addition, the
barge. It is categorically excluded from vessels underway within this safety applicant must bring a copy of the
further review under paragraph 34(g) of zone at the time it’s implemented are to redacted version of the test, and a
Figure 2–1 of the Commandant depart the zone immediately. The signed declaration confirming that this
Instruction. A preliminary Record of Captain of the Port, Hampton Roads or copy is identical to the redacted copy
Environmental Consideration (REC) representative can be contacted at that was uploaded to the electronic
supporting this determination is telephone number (757) 668–5555. The registration system. If the Office
available in the docket where indicated Coast Guard and designated security confirms that the work qualifies as a
under ADDRESSES. We seek any vessels enforcing the safety zone can be secure test, it will examine the test as a
comments or information that may lead contacted on VHF–FM marine band whole to determine if it contains
to the discovery of a significant radio channel 13 (165.65 MHz) and sufficient copyrightable authorship. If
environmental impact from this rule. channel 16 (156.8 MHz). the Office registers the secure test, the
(3) This section applies to all persons registration will be effective as of the
G. Protest Activities date that the Office received the
or vessels that intent to transit through
The Coast Guard respects the First the safety zone except participants and application, filing fee, and the redacted
Amendment rights of protesters. vessels that are engaged in the following copy of the entire test in proper form
Protesters are asked to contact the operations: through the electronic registration
person listed in the FOR FURTHER (i) Enforcing laws; system. The Office welcomes public
INFORMATION CONTACT section to (ii) Servicing aids to navigation, and comment on the interim rule.
coordinate protest activities so that your (iii) Emergency response vessels. DATES: Effective July 12, 2017.
message can be received without (4) The U.S. Coast Guard may be Comments on the interim rule must be
jeopardizing the safety or security of assisted in the patrol and enforcement made in writing and must be received
people, places or vessels. of the safety zone by Federal, State, and by the U.S. Copyright Office no later
List of Subjects in 33 CFR Part 165 local agencies. than December 11, 2017.
(d) Enforcement period. This section ADDRESSES: For reasons of government
Harbors, Marine safety, Navigation will be enforced from 9 p.m. through 10 efficiency, the Copyright Office is using
(water), Reporting and recordkeeping p.m. on July 4, 2017. the regulations.gov system for the
requirements, Security measures, submission and posting of public
Dated: June 6, 2017.
Waterways. comments in this proceeding. All
Richard J. Wester,
For the reasons discussed in the comments are therefore to be submitted
preamble, the Coast Guard amends 33 Captain, U.S. Coast Guard, Captain of the
Port, Hampton Road. electronically through regulations.gov.
CFR part 165 as follows: Specific instructions for submitting
[FR Doc. 2017–12083 Filed 6–9–17; 8:45 am]
comments are available on the
PART 165—REGULATED NAVIGATION BILLING CODE 9110–04–P
Copyright Office Web site at http://
AREAS AND LIMITED ACCESS AREAS copyright.gov/rulemaking/securetests/.
■ 1. The authority citation for part 165 If electronic submission of comments is
LIBRARY OF CONGRESS not feasible due to lack of access to a
continues to read as follows:
computer and/or the internet, please
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; Copyright Office
contact the Office for special
33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; instructions using the contact
Department of Homeland Security Delegation 37 CFR Parts 201 and 202 information below.
No. 0170.1.
[Docket No. 2017–8] FOR FURTHER INFORMATION CONTACT:
■ 2. Add § 165.T05–0075 to read as Robert J. Kasunic, Associate Register of
follows: Secure Tests Copyrights and Director of Registration
§ 165.T05–0075 Safety Zone, Mill Creek; AGENCY: U.S. Copyright Office, Library Policy and Practice, Erik Bertin, Deputy
Hampton, VA. of Congress. Director of Registration Policy and
(a) Definitions. For the purposes of Practice, or Abioye Mosheim, Attorney
ACTION: Interim rule with request for
this section, Captain of the Port means Advisor, by telephone at 202–707–8040
comments. or by email at rkas@loc.gov,ebertin@
the Commander, Sector Hampton Roads.
Representative means any Coast Guard SUMMARY: The U.S. Copyright Office is loc.gov and abmo@loc.gov.
commissioned, warrant or petty officer issuing an interim rule that SUPPLEMENTARY INFORMATION:
who has been authorized to act on the memorializes its special procedure for I. Background
behalf of the Captain of the Port. examining secure tests. The interim rule
Participants mean individuals and also includes a new workflow that will A. The Current Regulation
vessels involved in explosives training. increase the efficiency of these Section 408(c)(1) of the Copyright Act
(b) Locations. The following area is a examinations. Going forward, applicants authorizes the Register of Copyrights
safety zone: All waters of Mill Creek, must submit an online application, (the ‘‘Register’’) to issue regulations
within 170 yard radius of latitude upload a redacted copy of the entire test establishing administrative classes for
37°00′36″ N., longitude 076°18′26″ W. to the electronic registration system, and the purpose of registering works with
(NAD 1983). complete and submit a brief the U.S. Copyright Office (the ‘‘Office’’).
(c) Regulations. (1) All persons are questionnaire about the test. If the work It authorizes the Register to issue
pmangrum on DSK3GDR082PROD with RULES
required to comply with the general appears to be eligible for the secure test regulations specifying the nature of the
regulations governing safety zones in process, the Office will contact the copies or phonorecords required for
§ 165.23. applicant and schedule an appointment each class. And it states that the Register
(2) With the exception of participants, to deliver the test to the Office in ‘‘may require or permit, for particular
entry into or remaining in this safety person. On the appointed date, the classes, the deposit of identifying
zone is prohibited unless authorized by applicant must bring a copy of the material instead of copies or
the Captain of the Port, Hampton Roads application and a complete unredacted phonorecords.’’ 17 U.S.C. 408(c)(1).
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![Federal Register / Vol. 82, No. 111 / Monday, June 12, 2017 / Rules and Regulations 26851
The Office’s current practice for worked well for both the Office and Finally, under the Office’s current
examining a secure test provides special applicants alike. Recently, however, the practices the applicant may register a
procedures to protect the confidential Office has identified several issues that secure test and a computer program
nature of these works.1 A ‘‘secure test’’ warrant attention. used to administer that test by filing one
is ‘‘a nonmarketed test administered First, the secure test procedure only application and one filing fee, if the
under supervision at specified centers applies to tests that satisfy the definition works are owned by the same party and
on specific dates, all copies of which are of a ‘‘secure test’’ as set forth in the if the applicant submits an appropriate
accounted for and either destroyed or regulation. 37 CFR 202.20(b)(4). Under deposit for both the test and the
returned to restricted locked storage the current process, test publishers do program. Id. 720.5. As discussed below,
following each administration. For these not submit an actual copy of the test however, the Office does not examine
purposes a test is not marketed if copies when they initially file an application the computer program under secure
are not sold but it is distributed and and pay the filing fee. As a result, the conditions, because computer programs
used in such a manner that ownership Office has no way of knowing whether are not secure tests.
and control of copies remain with the a test is eligible for the secure test C. Issues With Current Practices
test sponsor or publisher.’’ 37 CFR procedure until the applicant arrives at
202.20(b)(4). With respect to the deposit the Office. On several occasions, Although the Office’s secure test
requirement, the regulations state that applicants have travelled to the Office— registration practices have worked
‘‘[i]n the case of any secure test the sometimes from a great distance and at reasonably well, they currently do not
Copyright Office will return the deposit great expense—only to discover that produce an optimal record of the actual
to the applicant promptly after their works do not qualify as secure tests submitted for registration. Under
examination [, p]rovided, [t]hat tests. This is inconvenient for current practice, as mentioned above,
sufficient portions, description[s], or the applicants, and it also deprives them of the applicant must bring a copy of the
like are retained so as to constitute a an earlier effective date of registration.3 completed application to the Office,
sufficient archival record of the If they decide to register their works along with a redacted and an
deposit.’’ 37 CFR 202.20(c)(2)(vi). using the normal procedure for tests, unredacted copy of the actual test.
rather than the special procedure for When the examiner completes his or her
B. Current Examination Practices review of a secure test, he or she will
secure tests, applicants must submit a
Under the Office’s current practices, complete, unredacted copy of the work. stamp the date of the appointment on
‘‘special arrangements can be made for In this situation the effective date of the unredacted copy and return it to the
the examination of such material under registration will be based on the date applicant. What remains in the Office is
strict conditions of security and in the that the unredacted copy is received. a redacted copy of the test which, in
presence of a representative of the See Compendium 720, 1509.1(G). most cases, only includes portions of
copyright owner.’’ 42 FR 59302, 59304 Second, because secure test the first and last pages of the test. Even
(Nov. 16, 1977). These practices are not, publishers do not submit a copy of their in the case of a test administered in
however, mentioned in the Office’s works until they meet with the machine readable format or a test that
regulations. Instead they are set forth in examiner, they prefer to schedule their contains questions taken from a
sections 720.1 through 720.5 of the appointments as soon as possible, in database, the redacted copy deposited
Compendium of Copyright Office order to establish the earliest possible with the Office includes another 50
Practices, Third Edition (hereinafter pages from the test but no more. Thus,
effective date of registration. The Office
‘‘Compendium’’).2 Briefly stated, under the current practice, the deposit
has traditionally accommodated these
applicants submit an application and that is maintained by the Copyright
requests. As a result, secure test
the appropriate filing fee. Then they call Office provides, at best, imperfect
publishers often effectively gain the
the Office to schedule an appointment evidence of the complete test examined
benefits of expedited service without
with an examiner. On the appointed and registered by the Office. This may
providing a justification for special
date they bring a copy of the completed adversely affect, for instance, the ability
handling and without paying the
application to the Office, along with a of a plaintiff to show that it registered
additional fee for this service. 37 CFR
the test with the Copyright Office prior
redacted and an unredacted copy of the 201.3(d)(7). Moreover, publishers do not
to bringing an infringement suit.
actual test. The examiner reviews these always know which test or how many The Office’s practices with respect to
materials with the applicant present, tests they will bring to the appointment. tests administered using databases and/
and then returns the unredacted copy to Therefore, the Office may not have a or computer programs raise other
the applicant when the examination is sufficient number of examiners on hand concerns. A database may contain a
complete. The redacted copy is retained to conduct the examination. selection of questions that can be used
by the Office. Third, the applicant must bring a to create many different tests. A
This procedure has remained redacted and an unredacted copy of the computer program can be used to
essentially unchanged for more than secure test for the examiner’s review. measure and record the answers given
thirty years, and for the most part it has Compendium 720.2. While the in response to a particular set of test
unredacted copy must contain a questions. But the actual database and
1 The Office developed this procedure in response
complete copy of the entire test so that the actual program are not ‘‘tests’’ that
to correspondence submitted by Educational
Testing Service, which was supported by twenty-
the Office can examine it for are administered to test takers ‘‘under
two other examining boards and councils, including copyrightable authorship, under the supervision at specified centers on
the National Board of Medical Examiners, the Office’s current practices, the redacted specific dates.’’ 37 CFR 202.20(b)(4). As
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Federation of State Medical Boards, and the copy will be accepted even if it contains
National Conference of Bar Examiners. 42 FR such, they cannot be considered a
59302, 59304 n.2 (Nov. 16, 1977).
a fraction of the test material, rather ‘‘secure test’’ within the meaning of the
2 The Office also published these practices in than the complete test. Id. 720.4. regulation, and using the secure test
Copyright Registration for Secure Tests (Circular application process for such works is
64). This circular has been revised to reflect the 3 The effective date of registration is the date the
new procedures discussed in this interim rule. Office has received an application, an applicable
inconsistent with that regulation. In
Similar changes will be made to the Compendium filing fee, and the applicable deposit. 17 U.S.C. addition, databases and secure tests
in the near future. 410(d). have distinct deposit requirements. An
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![Federal Register / Vol. 82, No. 111 / Monday, June 12, 2017 / Rules and Regulations 26853
C. Processing Time administered at specified centers on III. Request for Comments
Secure test claims will be reviewed in scheduled dates with computers or
other electronic devices, the applicant The interim rule will go into effect 30
the order they are received, and will not days after the publication of this notice
be given priority over other claims with may bring one of the following items:
in the Federal Register. Comments will
an earlier filing date. If an applicant (i) A printout containing a complete
be due 150 days thereafter. The Office
would like to expedite the examination copy of the actual test; or
decided to issue this rule without
of a particular test or the scheduling of (ii) An electronic file that contains a publishing an initial notice of proposed
an appointment, the applicant must complete copy of the actual test. The file rulemaking for two reasons.
submit a request for special handling, must be stored on a CD–ROM, DVD,
demonstrate that there is a compelling flash drive, or other storage device. The First, this is a ‘‘rule[ ] of agency
reason for the request (such as litigation applicant must bring a laptop or other organization, procedure, or practice.’’ 5
or publication deadlines), and pay the electronic device that can be used to U.S.C. 553(b)(3)(A). It does not ‘‘alter
additional fee for expedited service. But view the test materials. Providing access the rights or interests of parties.’’ JEM
regardless of whether the applicant to an electronic copy available online or Broadcasting Co. v. FCC, 22 F.3d 320,
requests special handling, the date that an electronic file stored solely on the 326 (D.C. Cir. 1994). It merely ‘‘alter[s]
the Office received all the required applicant’s device (rather than a the manner in which the parties present
elements in proper form through the separate storage device) is insufficient. themselves or their viewpoints to the
electronic registration system will In addition, the applicant should bring agency.’’ Id. Thus, notice and comment
retroactively become the effective date an appropriate container for the storage is not required under the Administrative
of registration if the application is device, such as an envelope or jewel Procedure Act.
approved after examination. case. Second, the rule codifies many of the
D. What To Bring to the Appointment E. In-Person Examination of Secure Office’s existing procedures for
On the day of the appointment, the Tests examining secure tests. These
applicant must bring the following procedures have been in place for more
The examiner will review the than thirty years, so interested parties
materials to the Office:
(i) A copy of the completed redacted and unredacted copies in a should be familiar with them already.
application. secure location in the presence of the The rule does change the Office’s
(ii) The nonrefundable secure test applicant or his/her representative.7 current procedures in some respects, but
examination fee. This fee will be based When the examination is complete, the there is good cause for making these
on the amount of time that it takes to examiner will stamp the date of the changes effective on an interim basis:
examine the test materials during the appointment on the redacted and Doing so will give both the Office and
appointment, and it is in addition to the unredacted copies and will return them interested parties an opportunity to see
filing fee mentioned above. Both the to the applicant. If the applicant brought how the new procedures work in
filing fee and the examination fee are test booklet(s) or a printout of the test, practice, and to consider whether these
nonrefundable, regardless of whether the specialist will stamp the first page procedures should be modified in any
the Office issues a certificate of of the test materials. If the applicant respect before the Office issues a final
registration for the test. brought an electronic file stored on a rule. See 5 U.S.C. 553(b)(3)(B).
(iii) A copy of the redacted version of flash drive or other storage device, the
examiner will place the device in its * * * * *
the test that was uploaded to the
electronic registration system. container, stamp the date of the List of Subjects
(iv) A signed declaration confirming appointment on a label, apply that label
to the container, and seal the container 37 CFR Part 201
that this redacted copy is identical to
the redacted copy that was uploaded to with tamper-proof tape. The signed
Copyright, General provisions.
the electronic registration system. declaration and the redacted copy that
Applicants may obtain a copy of this was uploaded to the electronic system 37 CFR Part 202
declaration from the Office’s Web site at will be retained by the Office.
Copyright, Preregistration and
https://copyright.gov/forms/securetest- If the examiner determines that the
Registration of Claims to Copyright.
declaration.pdf. relevant legal and formal requirements
(v) An unredacted copy of the actual have been met, he or she will register Interim Regulation
test that is administered to test takers at the claim(s) and will add an annotation
specified centers on scheduled dates. to the certificate such as: ‘‘Basis for In consideration of the foregoing, the
In all cases, applicants must bring a registration: Secure test examined under U.S. Copyright Office amends 37 CFR
physical copy of the unredacted version 37 CFR 202.13.’’ The registration will be parts 201 and 202 as follows:
of the test, and the content of the test effective as of the date that the Office
must be completely visible so that it received in proper form the application, PART 201—GENERAL PROVISIONS
may be examined. The questions that filing fee, and the redacted copy that
appear in the unredacted copy should was uploaded to the electronic ■ 1. The authority citation for part 201
precisely match the questions that registration system. In this respect, the continues to read as follows:
appear in the redacted copy. If the test interim rule will provide test publishers Authority: 17 U.S.C. 702.
is administered with test booklet(s), the with the benefit of an earlier effective
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applicant should bring one complete date of registration as compared to the ■ 2. In § 201.3, revise paragraph (d)(5) to
copy of those booklet(s).6 If it is current procedure. read as follows:
she will change the effective date of registration to application. There is no group registration option the claims. The number of examiners assigned to
match the date that the unredacted copy is received. for secure tests. each claim will be determined solely by the Office.
6 As mentioned above, different versions of the 7 If the test is lengthy or if the applicant is In such cases, the applicant must pay a separate
same test cannot be registered together on one bringing multiple tests to the appointment, the examination fee for each staff member who
Office may assign two or more examiners to handle participates in the examination.
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![26854 Federal Register / Vol. 82, No. 111 / Monday, June 12, 2017 / Rules and Regulations
§ 201.3 Fees for registration, recordation, (d) * * *
and related services, special services, and
services performed by the Licensing
Division.
* * * * *
(5) Secure test examining fee (per staff member per hour) ............................................................................................................... 250
* * * * * Document Format (PDF). The Copyright (vi) Tests. In the case of tests, and
Office will review these materials to answer material for tests, published
PART 202—PREREGISTRATION AND determine if the work qualifies for the separately from other literary works, the
REGISTRATION OF CLAIMS TO secure test procedure. If the work deposit of one complete copy will
COPYRIGHT appears to be eligible, the Copyright suffice in lieu of two copies. In the case
Office will contact the applicant to of any secure test the applicant may
■ 3. The authority citation for part 202
schedule an appointment to examine an submit identifying material in lieu of
continues to read as follows:
unredacted copy of the test under secure one complete copy if the conditions set
Authority: 17 U.S.C. 408(f), 702. conditions. forth in § 202.13(c) have been met.
■ 4. Add § 202.13 to read as follows: (4) On the appointed date, the * * * * *
applicant must bring the following
§ 202.13 Secure tests. Dated: May 19, 2017.
materials to the Copyright Office:
(a) General. This section prescribes (i) A copy of the completed Karyn Temple Claggett,
rules pertaining to the registration of application. Acting Register of Copyrights and Director
secure tests. (ii) The appropriate examination fee, of the U.S. Copyright Office.
(b) Definitions. For purposes of this as required by § 201.3(d) of this chapter. Approved by:
section— (iii) A copy of the redacted version of Carla D. Hayden,
(1) A secure test is a nonmarketed test the secure test that was uploaded to the
administered under supervision at Librarian of Congress.
electronic registration system.
specified centers on scheduled dates, all (iv) A signed declaration confirming [FR Doc. 2017–12021 Filed 6–9–17; 8:45 am]
copies of which are accounted for and that the redacted copy specified in BILLING CODE 1410–30–P
either destroyed or returned to restricted paragraph (c)(4)(iii) of this section is
locked storage following each identical to the redacted copy that was
administration. uploaded to the electronic registration ENVIRONMENTAL PROTECTION
(2) A test is nonmarketed if copies of system. AGENCY
the test are not sold, but instead are (v) An unredacted copy of the entire
distributed and used in such a manner secure test. 40 CFR Part 52
that the test sponsor or publisher retains (5) The Copyright Office will examine [EPA–R09–OAR–2016–0244; FRL–9962–54–
ownership and control of the copies. the copies specified in paragraphs Region 9]
(3) A test is administered under (c)(4)(iii) and (v) of this section in the
supervision if test proctors or the applicant’s presence. When the Approval and Promulgation of
equivalent supervise the administration examination is complete, the Office will Implementation Plans; State of
of the test. stamp the date of the appointment on California; Coachella Valley;
(4) A specified center is a place where the copies and will return them to the Attainment Plan for 1997 8-Hour Ozone
test takers are physically assembled at applicant. The Office will retain the Standards
the same time. signed declaration and the redacted
(c) Deposit requirements. Pursuant to copy that was uploaded to the electronic AGENCY: Environmental Protection
the authority granted by 17 U.S.C. registration system. Agency (EPA).
408(c)(1), the Register of Copyrights has ■ 5. Amend § 202.20 as follows: ACTION: Final rule.
determined that a secure test may be ■ a. Revise paragraph (b)(3).;
registered with identifying material, if SUMMARY: The Environmental Protection
■ b. Remove paragraph (b)(4);
the following conditions are met: Agency (EPA) is approving state
■ c. Redesignate paragraphs (b)(5) and
(1) The applicant must complete and implementation plan (SIP) revisions
(6) as paragraphs (b)(4) and (5),
submit a standard application. The submitted by the State of California to
respectively;
application may be submitted by any of ■ d. Remove ‘‘, as amended by Pub. L.
provide for attainment of the 1997 8-
the parties listed in § 202.3(c)(1). 94–553’’ from newly redesignated hour ozone national ambient air quality
(2) The appropriate filing fee, as paragraph (b)(4) and add a period in its standards (NAAQS or ‘‘standards’’) in
required by § 201.3(c) of this chapter, place; and the Coachella Valley nonattainment
must be included with the application ■ e. Revise paragraph (c)(2)(vi).
area. The EPA finds the emissions
or charged to an active deposit account. The revisions read as follows: inventories to be acceptable and is
(3) The applicant must submit a approving the reasonably available
redacted copy of the entire secure test. § 202.20 Deposit of copies and control measures, transportation control
In addition, the applicant must phonorecords for copyright registration. strategies and measures, rate of progress
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complete and submit the questionnaire * * * * * and reasonable further progress
that is posted on the Copyright Office’s (b) * * * demonstrations, attainment
Web site. The questionnaire and the (3) The term secure test has the demonstration, and vehicle miles
redacted copy must be contained in meaning set forth in § 202.13(b). traveled offset demonstration. We have
separate electronic files, and each file * * * * * determined that motor vehicle
must be uploaded to the electronic (c) * * * emissions budgets are not required for
registration system in Portable (2) * * * the 1997 8-hour ozone standards so we
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Document Created: 2017-06-10 01:40:39
Document Modified: 2017-06-10 01:40:39
| 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 | Rules and Regulations | |
| Action | Interim rule with request for comments. | |
| Dates | Effective July 12, 2017. Comments on the interim rule must be made in writing and must be received by the U.S. Copyright Office no later than December 11, 2017. | |
| Contact | Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, Erik Bertin, Deputy Director of Registration Policy and Practice, or Abioye Mosheim, Attorney Advisor, by telephone at 202-707-8040 or by email at [email protected],[email protected] and [email protected] | |
| FR Citation | 82 FR 26850 | |
| 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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