82 FR 38859 - Simplifying Deposit Requirements for Certain Literary Works and Musical Compositions

LIBRARY OF CONGRESS
U.S. Copyright Office

Federal Register Volume 82, Issue 157 (August 16, 2017)

The United States Copyright Office is proposing to amend the regulations governing the deposit requirements for certain types of literary works and musical compositions. Specifically, the proposed rule will apply to certain types of ``literary monographs,'' which are defined, in part, as literary works published in one volume or a finite number of separate volumes. The proposed rule also applies to musical compositions that are published in the United States in print formats-- that is, compositions published as ``copies'' rather than solely as phonorecords, as referenced in the Copyright Act. Under the current regulations, two copies of the best edition are generally needed to register these types of works and to comply with the mandatory deposit requirement. Under the proposed rule, copyright owners will be able to satisfy both requirements for literary monographs by submitting one copy of the best edition of the work, although the Office will retain the right to demand a second copy under the mandatory deposit provision should the Library need it. Copyright owners will also be able to satisfy both requirements for certain musical compositions by submitting one copy of the best edition. As part of these changes, the proposed rule also clarifies the deposit requirements for musical compositions published both in print and phonorecord formats. For musical works (i.e., musical compositions) published in both formats, the Office will require the submission of the print version for purposes of copyright registration. If the musical composition is published only as a phonorecord, the applicant should submit the phonorecord. All of these changes will improve the efficiency of registration and mandatory deposit for both the Office and copyright owners alike, ensuring that the Office has an adequate registration record and continuing to make these works available to the Library of Congress when needed for use in its collections or other disposition. The Office invites public comment on this proposal.

[Federal Register Volume 82, Number 157 (Wednesday, August 16, 2017)]
[Proposed Rules]
[Pages 38859-38864]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-17194]


=======================================================================
-----------------------------------------------------------------------

LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 202

[Docket No. 2017-9]


Simplifying Deposit Requirements for Certain Literary Works and 
Musical Compositions

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

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The United States Copyright Office is proposing to amend the 
regulations governing the deposit requirements for certain types of 
literary works and musical compositions. Specifically, the proposed 
rule will apply to certain types of ``literary monographs,'' which are 
defined, in part, as literary works published in one volume or a finite 
number of separate volumes. The proposed rule also applies to musical 
compositions that are published in the United States in print formats--
that is, compositions published as ``copies'' rather than solely as 
phonorecords, as referenced in the Copyright Act. Under the current 
regulations, two copies of the best edition are generally needed to 
register these types of works and to comply with the mandatory deposit 
requirement. Under the proposed rule, copyright owners will be able to 
satisfy both requirements for literary monographs by submitting one 
copy of the best edition of the work, although the Office will retain 
the right to demand a second copy under the mandatory deposit provision 
should the Library need it. Copyright owners will also be able to 
satisfy both requirements for certain musical compositions by 
submitting one copy of the best edition. As part of these changes, the 
proposed rule also clarifies the deposit requirements for musical 
compositions published both in print and phonorecord formats. For 
musical works (i.e., musical compositions) published in both formats, 
the Office will require the submission of the print version for 
purposes of copyright registration. If the musical composition is 
published only as a phonorecord, the applicant should submit the 
phonorecord. All of these changes will improve the efficiency of 
registration and mandatory deposit for both the Office and copyright 
owners alike, ensuring that the Office has an adequate registration 
record and continuing to make these works available to the Library of 
Congress when needed for use in its collections or other disposition. 
The Office invites public comment on this proposal.

DATES: Comments on the proposed rule must be made in writing and must 
be received by the Copyright Office no later than October 2, 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 https://copyright.gov/rulemaking/singlecopy/. 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, by 
email at [email protected]; Erik Bertin, Deputy Director of Registration 
Policy and Practice, by email at [email protected]; or Cindy Abramson, 
Assistant General Counsel, by email at [email protected]. All can be reached 
by telephone by calling 202-707-8040.

SUPPLEMENTARY INFORMATION: 

Background

    Under section 407 of the Copyright Act, when a work is published in 
the United States, the copyright owner or the owner of the exclusive 
right of publication is generally required to deposit two complete 
copies of the best edition of that work with the U.S. Copyright Office 
within three months after publication. 17 U.S.C. 407. ``The `best 
edition' of a work'' is defined as ``the edition, published in the 
United States at any time before the date of deposit, that the Library 
of Congress determines to be most suitable for its purposes.'' 17 
U.S.C. 101. The Act provides that copies deposited with the Office 
under section 407 are ``for the use or disposition of the Library of 
Congress.'' 17 U.S.C. 407(b). This is known as the ``mandatory 
deposit'' requirement.
    Separately, the Copyright Act's provision governing copyright 
registration, section 408, specifies that, in the case of published 
works, an application for registration must be accompanied by ``two 
complete copies or phonorecords of the best edition.'' 17 U.S.C. 
408(b)(2). To avoid duplication of deposits, section 408 specifies that 
copies or phonorecords deposited under section 407 ``may be used to 
satisfy the deposit provisions'' of section 408 if they ``are 
accompanied by the prescribed application and fee.'' 17 U.S.C. 408(b).
    Because the same copies can potentially be used for both 
registration and mandatory deposit, the deposit requirements set forth 
in sections 407 and 408 are generally the same. Compare 17 U.S.C. 
407(a)(1)-(2) (requiring two complete copies of the best edition of the 
work for purposes of mandatory deposit) with 17 U.S.C. 408(b)(2) 
(requiring two complete copies of the best edition for the purpose of 
registering a published work).
    Sections 407 and 408 both give the Register of Copyrights (the 
``Register'') broad authority to issue regulations concerning the 
specific nature of the copies that must be deposited, including the 
ability to exempt works from these statutory requirements. As relevant 
here, section 408 gives the Register authority to ``require or permit, 
for particular classes [of works], . . . the deposit of only one copy . 
. . where two would normally be required'' for copyright registration. 
17 U.S.C. 408(c)(1). Similarly, section 407 gives the Register 
authority to issue regulations that ``require [the] deposit of only one 
copy'' for the purpose of mandatory deposit. 17 U.S.C. 407(c).
    The legislative history confirms that Congress intended the 
Register to exercise this authority when needed to improve efficiencies 
within the Copyright Office. In explaining the Register's authority 
under section 407, Congress expressed the desire ``to make the deposit 
requirements as flexible as possible, so that there will be no 
obligation to make deposits where it serves no purpose, so that only 
one copy or phonorecord may be deposited where two are not needed, and 
so that reasonable adjustments can be made to meet practical needs in 
special cases.'' H.R. Rep. No. 94-1476, at 151 (1976). Similarly, the 
legislative history for section 408 explains that the ``[d]eposit of 
one copy . . . rather than two would probably be justifiable . . . in 
any case where the Library of Congress has no need for the deposit'' or 
where the copies ``are bulky, unwieldy . . . or otherwise impractical 
to file and retain as records identifying the work registered.'' Id. at 
154.

[[Page 38860]]

    The Office has exercised this authority on many occasions. It 
created exceptions allowing applicants to deposit one copy for purposes 
of mandatory deposit for some works. See 37 CFR 202.19(d)(2)(i)-(ii), 
(v)-(vi) (covering three-dimensional cartographic representations of 
area, such as globes; published motion pictures; musical compositions 
where the only publication took place by rental, lease, or lending; and 
published multi-media kits). The Office also created corresponding 
exceptions to the deposit requirements for registration. See 37 CFR 
202.20(c)(2)(i)(A)-(K). The proposed rule will expand the exception 
that currently applies to registration deposits of musical 
compositions, and create a new exception for ``literary monographs.'' 
In both cases, one copy of the best edition of the work will satisfy 
the deposit requirement for registration and mandatory deposit. As 
noted below, however, the rule excludes legal publications and also 
allows a second copy to be demanded by the Copyright Office on behalf 
of the Library under mandatory deposit provisions.

Literary Monographs

    For purposes of registration and mandatory deposit, a ``literary 
monograph'' will be defined, in part, as ``a literary work published in 
one volume or a finite number of volumes.'' Examples of works that fit 
within this category include fiction, nonfiction, poetry, short 
stories, memoirs, manuscripts, textbooks, and other types of 
nondramatic literary works.
    The rule draws a distinction between ``monographs'' and 
``serials,'' which are defined elsewhere in the regulations as 
``work[s] issued or intended to be issued in successive parts bearing 
numerical or chronological designations and intended to be continued 
indefinitely.'' 37 CFR 202.3(b)(1)(v). Examples of works that may 
qualify as a serial include periodicals, newspapers, newsletters, and 
annuals. These types of works are typically published in successive 
issues and they are usually distributed on an established schedule. 
Each issue is published under the same continuing title, and they 
generally bear numerical or chronological designations that distinguish 
one issue from the next.
    By contrast, most monographs are published as a single volume, 
rather than a series of successive issues. Some monographs are 
published in separate volumes with each volume bearing the same title 
and successive numerical designations (as in the case of a multi-volume 
encyclopedia). But typically the entire work is published in a limited 
number of volumes that, taken together, constitute the work as a whole.
    The proposed rule will allow copyright owners to register a 
published monograph and satisfy the mandatory deposit requirement by 
submitting one complete copy of the best edition of that work. There 
are several reasons for creating this exception.
    The Library of Congress's need for copies of works submitted 
through copyright registration has diminished over time. In many cases, 
the Library receives additional copies of published monographs through 
programs such as the Cataloging In Publication (``CIP'') program--a 
program that is entirely separate from the mandatory deposit and 
copyright registration deposit provisions of the Copyright Act. The CIP 
program creates a uniform cataloging record for the benefit of the 
nation's libraries. Publishers that participate in the program submit 
an application to the Library before they publish their works. The 
Library then creates an appropriate bibliographic record and sends that 
information to the publisher. The publisher prints this information on 
the copyright page when the work is published, and distributes this 
same information in electronic form to libraries, vendors, and other 
interested parties. In exchange, the publisher then sends a 
complimentary copy of the published work to the CIP program. A member 
of the Library's staff confirms that the CIP record matches the 
published work, and if necessary, the electronic cataloging record is 
updated to reflect the actual content of the published work. All copies 
submitted through the CIP program are made available to the Library for 
use in its collections. Because ``CIP copies'' are submitted soon after 
a work is published, they often enter the Library's collections before 
the Copyright Office has examined any additional copies that have been 
submitted for purposes of registration or mandatory deposit.\1\
---------------------------------------------------------------------------

    \1\ See generally Library of Congress, Cataloging in Publication 
Program, https://www.loc.gov/publish/cip/ (last visited Jun. 12, 
2017).
---------------------------------------------------------------------------

    In addition, the Library recently revised its acquisition policies 
and practices for published monographs. Previously, when the Library 
selected a work for its collections from the copies received through 
copyright registration or mandatory deposit, it would often take both 
copies and permanently retain them in the Library's collections. In 
2013, Library Services \2\ estimated that the Library had at least 
1,950,000 ``second copies'' in its permanent collections, and predicted 
that the Library could achieve substantial savings in its long-term 
storage and preservation costs by reducing the number of additional 
service copies in its collections.
---------------------------------------------------------------------------

    \2\ Library Services is one of the main components of the 
Library of Congress, and is the entity that is principally 
responsible for developing and maintaining the Library of Congress's 
collections. See Library of Congress, About the Library, https://www.loc.gov/about/.
---------------------------------------------------------------------------

    Accordingly, under the revised policy, when the Library selects a 
work, it still takes both copies that were deposited with the Copyright 
Office, but (with some exceptions) \3\ it only keeps one for itself, 
and delivers the other one to the Library's Surplus Books program,\4\ 
Duplicate Materials Exchange Program,\5\ or other similar programs for 
donation or exchange to eligible organizations and institutions. And if 
it turns out that the Library previously received a copy through the 
CIP Program, both copies received from the Office are sent to Surplus 
Books or another program.\6\ Finally, if the Library does not select a 
work for the Library's collections, the Copyright Office sends one copy 
to Surplus Books, and sends the second copy to the Office's storage 
facility.\7\ Thus, as things stand now, at least one copy of every 
published monograph sent to the Copyright Office is treated as surplus.
---------------------------------------------------------------------------

    \3\ The Library's single-copy retention policy does not apply to 
legal publications, reference works, or publications about certain 
topics: United States history (including genealogy and heraldry), 
commerce and finance, political institutions and public 
administration, and libraries and information science.
    \4\ Surplus books that are not needed for the Library's own 
collections are made available to educational institutions, 
governmental agencies, and non-profit organizations or institutions 
located within the United States. See generally Library of Congress, 
Library of Congress Surplus Books Program, https://www.loc.gov/acq/surplus.html (last visited July 31, 2017).
    \5\ The Library of Congress exchanges library materials with 
approximately 4,000 partners around the world through its Duplicate 
Materials Exchange Program. See generally Library of Congress, 
Exchange of Library Materials,https://www.loc.gov/acq/exchange.html 
(last visited July 31, 2017).
    \6\ In addition, this policy has been applied retroactively to 
monographs held within the general collections. In cases where the 
Library received two copies from the Office and a third copy from 
the CIP program or another source, Library Services will remove the 
second and third copies from the shelves and offer them to another 
institution through the Surplus Books program or another program.
    \7\ Published works stored in this facility are kept for up to 
20 years unless the applicant requests full-term retention under 
Sec.  202.23 of the regulations.
---------------------------------------------------------------------------

    The deposit of unneeded material imposes significant burdens both 
on copyright owners and the Copyright Office. Copyright owners have to 
bear costs involved in producing extra copies of each work, and 
shipping both copies to the Office. Cumulatively, these costs

[[Page 38861]]

may discourage copyright owners from routinely registering their works.
    From the Office's perspective, literary monographs are 
significantly larger than the physical copies received by the other 
divisions within the Registration Program. They are heavy, unwieldy, 
and often include multi-volume sets of books. To distribute these 
materials to the staff, the copies must be strapped together, which 
doubles the size and weight of each submission. Sometimes the Literary 
Division does not have enough space to store the copies that it has on 
hand. The bulky nature of these physical copies also slows down the 
examination of each work. On average, the copies must be moved at least 
eight times or more during the examination process, which increases the 
risk that they may be damaged, misplaced, mismatched, or lost. 
Requiring two copies limits the amount of work that the examiner may 
keep at his or her desk at any given time. It also increases the amount 
of time that the examiners need to examine the claim, prepare the 
copies for dispatch, and retrieve his or her next assignment.
    Reducing the number of unneeded copies required will reduce this 
volume and significantly increase the amount of space available for 
storing incoming physical copies. This should increase productivity 
within the Literary Division and reduce the likelihood that copies may 
be lost or misplaced. For copyright owners, the proposed rule will 
reduce the cost of seeking a registration and complying with mandatory 
deposit by lowering the incremental cost of producing and delivering 
physical copies to the Office.
    Although, generally speaking, the provision of a single copy of a 
literary monograph will be sufficient to meet the Library's collection 
needs, in certain cases, the Library may need an additional copy--for 
example, if the original is in high demand by Congress, the 
Congressional Research Service, the Supreme Court, or researchers from 
the general public. The rule expressly carves out one category of works 
that are consistently in high demand--legal publications, which are 
defined in the rule as works ``published in one volume or a finite 
number of volumes that contain legislative enactments, judicial 
decisions, or other edicts of government.'' These types of works are 
collected either by the Library of Congress's Serials and Government 
Publications division (which is part of Library Services) or the Law 
Library.\8\ At the present time, these divisions still have an active 
need for the two copies received through copyright registration for 
their respective collections.
---------------------------------------------------------------------------

    \8\ The Law Library is a component of the Library of Congress 
that is separate from Library Services, and it is a primary source 
of legal materials for the U.S. Supreme Court. See Library of 
Congress, About the Library, https://www.loc.gov/about/; Library of 
Congress, Law Librarian's Welcome, http://www.loc.gov/law/about/welcome.php.
---------------------------------------------------------------------------

    With respect to other categories of works, if the Library 
determines that it does need a second copy, the proposed rule entitles 
it to demand the additional copy under the mandatory deposit 
provision.\9\ The copyright owner, however, will not be required to 
proactively deposit a second copy in order to be in compliance with 
either the mandatory deposit or registration deposit rules. And, a 
single copy will be deemed to satisfy mandatory deposit unless the 
Office issues a demand for an additional copy.
---------------------------------------------------------------------------

    \9\ Although the Library's single-copy retention policy does not 
apply to certain other categories of works, see n.3 supra, in many 
of those cases the Library already receives a second copy through 
the CIP program or other sources. In cases where the Library does 
need an additional copy, either because it was not received via the 
CIP program or otherwise, the Office will issue a demand to the 
publisher pursuant to the mandatory deposit provision.
---------------------------------------------------------------------------

    To be clear, the Library anticipates that it will often have a need 
for second copies for certain reference works, such as dictionaries, 
encyclopedias, gazetteers, bibliographies, and almanacs as well as 
publications about the following topics: United States history 
(including genealogy and heraldry),\10\ commerce and finance,\11\ 
political institutions and public administration,\12\ and libraries and 
information science.\13\ Thus, although the proposed rule does not 
specifically require the proactive deposit of two copies of such works 
for registration or mandatory deposit purposes, principally because of 
the difficulty of crafting a rule ex ante defining these additional 
categories of works, it is anticipated that many works falling within 
these categories will be subject to a later demand as part of the 
mandatory deposit process. Accordingly, publishers may nevertheless 
decide to submit two copies of works that might fall within these 
categories as part of the registration process if they wish to avoid 
the burden of subsequent production.
---------------------------------------------------------------------------

    \10\ This includes, but is not limited to, works where the 
Library of Congress CIP data, as printed on the verso of the book's 
title page, indicates a Library of Congress Subject Heading of 
heraldry, genealogy, United States local history, United States 
history or has a Library of Congress Classification of CR, CS, F 
below 1000, or E.
    \11\ This includes, but is not limited to, works where the 
Library of Congress CIP data indicates a Library of Congress Subject 
Heading of Commerce, Finance, or Public Finance or has a Library of 
Congress Classification of HF, HG, or HJ.
    \12\ This includes, but is not limited to, works where the 
Library of Congress CIP data indicates a Library of Congress Subject 
Heading of Political Institutions and Public Administration (North 
America) or Political Institutions and Public Administration (United 
States) or has a Library of Congress Classification of JJ or JK.
    \13\ This includes works where the Library of Congress CIP data 
indicates a Library of Congress Subject Heading of Libraries, Books, 
Information Resources or Bibliography or has a Library of Congress 
Classification of Z.
---------------------------------------------------------------------------

    Moreover, the proposed rule creates a new exception only for 
``literary'' monographs, meaning nondramatic literary works that 
predominantly contain textual material. 37 CFR 202.3(b)(1)(i). 
Monographs that predominantly contain photographs, artwork, or other 
pictorial or graphic content would not be eligible for this exception. 
To register these types of works and to satisfy the mandatory deposit 
requirement, applicants would be required to submit two complete copies 
of the best edition, even if the applicant is seeking to register both 
the visual and textual aspects of the work. The Office is limiting this 
exception to literary monographs at this time, because they routinely 
account for the largest number of physical deposits received in the 
Literary Division. By contrast, pictorial or graphic monographs 
represent a relatively small portion of the claims received in the 
Visual Arts Division, and thus, have less impact on the division's 
workflow.

Musical Compositions Published in Print Formats

    The proposed rule also simplifies and rationalizes the deposit 
requirements for musical compositions published in print formats (i.e., 
as sheet music, musical scores or the like). Put another way using the 
Copyright Act's specific language, the proposed rule applies to 
compositions published in ``copies'' (including cases where a 
composition is published both in copies and in phonorecords).\14\ The 
proposed rule does not apply to compositions published only in 
phonorecords, or to unpublished musical compositions. Nor does the 
proposed rule apply to those seeking to register their copyright in a

[[Page 38862]]

sound recording, as opposed to the musical composition.\15\
---------------------------------------------------------------------------

    \14\ The Copyright Act draws a distinction between ``copies'' 
and ``phonorecords.'' ``Copies'' are defined as ``material objects, 
other than phonorecords, in which a work is fixed by any method now 
known or later developed, and from which the work can be perceived, 
reproduced, or otherwise communicated, either directly or with the 
aid of a machine or device.'' 17 U.S.C. 101. A ``phonorecord'' is a 
``material object[] in which sounds . . . are fixed . . . and from 
which the sounds can be perceived, reproduced, or otherwise 
communicated either directly or with the aid of a machine or 
device.'' Id. The definition includes ``a cassette tape, an LP vinyl 
disc, a compact disc, or other means of fixing sounds.'' Copyright 
Office, U.S. Copyright Office Definitions, https://www.copyright.gov/help/faq/definitions.html.
    \15\ When registering a sound recording, the applicant should 
submit a phonorecord that contains a complete copy of the work. 37 
CFR 202.20(c)(1)(i)-(iv), 202.20(c)(2)(viii)(D). The proposed rule 
also makes a technical change to the deposit requirement for musical 
compositions and sound recordings fixed or published in machine-
readable form. Specifically, the rule directs applicants to submit 
``a reproduction of the entire work on a phonorecord,'' rather than 
an ``audiocassette.'' 37 CFR 202.20(c)(2)(viii)(C)-(D).
---------------------------------------------------------------------------

    Under the current regulation, copyright owners generally are 
required to submit two copies of compositions published in print 
formats for purposes of mandatory deposit and copyright registration. 
There are narrow exceptions permitting the deposit of one copy rather 
than two where publication only took place by rental, lease, or 
lending, 37 CFR 202.19(d)(2)(v), 202.20(c)(2)(i)(E). These exceptions 
are intended to cover ``musical compositions published by rental of 
scores for performances,'' because ``only a limited number of [these] 
copies are available for distribution.'' 43 FR 763, 764 (Jan. 4, 1978).
    In the past, when the Office received a musical composition in 
print format it would send both copies to the Library. Since March 
2017, however, the Library of Congress's Music Division (which is a 
component of Library Services) has requested only one copy, and the 
Office has retained the second copy in its storage facility.\16\ Given 
this change in the Music Division's acquisition practice, the Office 
believes it is appropriate to expand the current exceptions for musical 
compositions. Under the proposed rule, applicants will be allowed to 
deposit a single copy of any musical composition that has been 
published in copies or in both copies and phonorecords. In other words, 
the exceptions will no longer be limited to musical compositions 
published solely by rental, lease, or lending.
---------------------------------------------------------------------------

    \16\ The Music Division collects musical compositions that are 
published in print formats, but it does not collect works that have 
been published in phonorecords. The Library's Motion Picture 
Broadcasting and Recorded Sound division collects phonorecords, but 
it does not collect musical compositions that have been published in 
printed form.
---------------------------------------------------------------------------

    The proposed rule makes one further clarification with respect to 
musical compositions. In cases where a musical composition was 
published in both copies and phonorecords, the proposed rule specifies 
that the copyright owner should submit a copy of the work--i.e., in 
print format--rather than a phonorecord. (For unpublished musical 
compositions, the applicant may submit either a copy or a phonorecord 
for purposes of copyright registration. See 37 CFR 202.20(c)(i).) There 
are three reasons for this change.
    First, the proposed rule harmonizes the deposit requirements for 
registration and mandatory deposit. In general, the Office has designed 
its regulations so that deposits submitted as part of copyright 
registration will also satisfy mandatory deposit requirements where 
those requirements apply. But the current regulations governing musical 
compositions depart from that approach. On the one hand, the mandatory 
deposit statute and implementing regulations require the submission of 
complete copies (not phonorecords) of the best edition of published 
musical compositions. 17 U.S.C. 407(a) (requiring deposit of two copies 
of the best edition of all works except sound recordings); 37 CFR 
202.19(d)(1)(i), (2)(v).\17\ On the other hand, the registration 
deposit regulations currently state that applicants may register a 
musical composition by submitting one complete copy or phonorecord of 
the best edition without further qualification. See id. Sec.  
202.20(c)(1)(iii), (c)(2)(i)(E) (emphasis added). This means that when 
a musical composition is published both as copies and as phonorecords, 
a copyright owner might submit phonorecords for purposes of 
registration, and unwittingly fail to satisfy the mandatory deposit 
requirement. The proposed rule fixes this discrepancy.
---------------------------------------------------------------------------

    \17\ Musical works compositions published only as phonorecords 
are not subject to mandatory deposit at all. See 42 FR 59302, 59304 
(Nov. 16, 1977) (explaining that under section 407 ``the mandatory 
deposit requirements extend only to `copies' of all types of works 
except sound recordings, and to `phonorecords' of sound recordings; 
they do not apply to `phonorecords' of literary, dramatic, or 
musical works'').
---------------------------------------------------------------------------

    Second, when a musical composition has been published in both 
copies and phonorecords, the Office considers the copies to be the best 
representation of the work. Visually perceptible formats typically 
contain a clear and precise representation of the music and lyrics that 
constitute the work. When a preexisting musical composition is 
published in a phonorecord, the sound recording is a separate work that 
recasts, transforms, or adapts the music and lyrics embodied in that 
recording. See 17 U.S.C. 101 (definition of ``derivative work''). And 
in cases where the music and sound recording are created 
simultaneously, it may be difficult to identify the author or co-
authors of the music and sound recording or the respective owners or 
co-owners of each work. (To be clear, when a musical composition is 
published solely in a phonorecord, the phonorecord constitutes the only 
representation of the work. In such cases, the copyright owner may 
submit the phonorecord for purposes of registration. There is no need 
to transcribe or notate the work in a visually perceptible form. See 42 
FR at 59304.)
    Third, the statute and the regulations indicate that copies should 
be given preference over phonorecords in cases where a musical 
composition has been published in both print and audio form. As 
mentioned above, copyright owners are required to submit the ``best 
edition'' of their works for purposes of mandatory deposit. ``The `best 
edition' of a work'' is defined, in part, as the edition ``that the 
Library of Congress determines to be most suitable for its purposes.'' 
17 U.S.C. 101. Section 407(a)(2) of the statute and Sec.  202.19(a) of 
the regulations state that phonorecords are subject to mandatory 
deposit. But this requirement only applies to the copyright owner of 
the sound recording or the owner of the exclusive right to publish that 
recording. 17 U.S.C. 407(a)(2); 37 CFR 202.19(c)(4). It does not apply 
to the owner of the musical composition that may be embodied in that 
recording. 37 CFR 202.19(c)(4).
    The Library's preference for copies rather than phonorecords of 
musical compositions is also reflected in the Best Edition Statement, 
which is set forth in Appendix B to Part 202 of the regulations. 
Section VI of this statement contains a hierarchical list of the 
preferred formats for musical compositions. All of the formats listed 
in this section are visually perceptible formats. See 37 CFR p. 202, 
app. B, secs. VI.A-C. Thus, allowing applicants to submit phonorecords 
in cases where a musical composition has been published in both visual 
and audio form is inconsistent with the Library's stated preferences. 
See 37 CFR p. 202, app. B, sec. b. (``In judging quality, the Library 
of Congress will adhere to the criteria set forth [in the Best Edition 
Statement] in all but exceptional circumstances.'').

Retention of Copyright Registration Deposits

    The proposed rule does not change current practices regarding what 
works the Office retains in its possession. Under these practices, when 
applicants submit a physical copy of a published literary monograph or 
a published musical composition, the Office will not retain a copy of 
that work in most

[[Page 38863]]

cases.\18\ After a work is registered, the Office will offer the copy 
to Library Services,\19\ and will generally retain the copy in its 
storage facility only if the copy has not been selected by Library for 
inclusion in its collections.\20\ If applicants want to ensure that the 
Office does retain a precise record of the particular published work 
that was submitted for registration, they should consider one of the 
following options.
---------------------------------------------------------------------------

    \18\ By contrast, when an applicant submits an unpublished work, 
the Office will retain the copy for the entire term of the 
copyright.
    \19\ See 17 U.S.C. 704(b) (``In the case of published works, all 
copies, phonorecords, and identifying material deposited are 
available to the Library of Congress for its collections, or for 
exchange or transfer to any other library.''). In exceptional cases, 
the Office may retain a registered work for a limited time if the 
applicant requested special handling and notified the Office that 
the registration is needed for pending or prospective litigation. If 
the Office refuses registration, or if the claim is closed because 
the applicant failed to respond to the examiner, the copy will be 
sent to the Office's storage facility. Under current record 
retention policies, claims that have been closed or refused are 
retained for up to 30 years.
    \20\ The Office's regulations provide that the Office will make 
a certified copy of a registered work if it is needed for litigation 
or other legitimate purposes, provided that the Office has retained 
a copy of that work. 37 CFR 201.2(d)(2). The Office cannot issue a 
certified copy of a work that has been transferred to the Library or 
another institution. See U.S. Copyright Office, Compendium of U.S. 
Copyright Office Practices secs. 2405.3, 2409.5 (3d ed. 2014). But 
the Office has no institutional memory of any case where a party has 
requested a certified copy of a published monograph or a musical 
composition in print format. This makes sense because, in 
infringement cases involving published works, the work alleged to 
have been copied has been made publicly available, and the fact that 
the work was registered is not typically a disputed issue.
---------------------------------------------------------------------------

    First, the applicant may request full-term retention. To do so, the 
applicant must submit a written request together with an additional 
copy of the work and the appropriate fee for this service.\21\ See 37 
CFR 202.23(b)(2), (c)(2), (e)(1). If the request is approved, the 
Office will retain the copy in its storage facility for 75 years from 
the date of publication.\22\ See id. at Sec.  202.23(g).
---------------------------------------------------------------------------

    \21\ Requests for full term retention may only be granted ``if 
at least one copy . . . is in the custody of the Copyright Office'' 
at the time of the request. 37 CFR 202.23(c)(2). Thus, to ensure 
that the Office has such a copy, the applicant must submit a 
complete request with the registration application. If the applicant 
submits two copies without requesting full-term retention or paying 
the appropriate fee, the second copy will be sent to Library 
Services before the claim has been assigned to a member of the 
Registration Program.
    \22\ The Office is planning to initiate a separate rulemaking 
that will extend the full-term retention period to 95 years to 
better correspond with the extended term established by the 
Copyright Term Extension Act for published works. See Public Law 
105-298, 112 Stat. 2827 (1998); accord 17 U.S.C. 302(a), (c) 
(ensuring copyright ``endures for a term consisting of the life of 
the author and 70 years after the author's death'' for works created 
after Jan. 1, 1978, and that ``copyright endures for a term of 95 
years from the year of . . . first publication'' for anonymous, 
pseudonymous, and works made for hire).
---------------------------------------------------------------------------

    Second, if an International Standard Book Number (``ISBN'') or 
International Standard Music Number (``ISMN'') number has been assigned 
to the work, the applicant is encouraged to include that information in 
the online application. If this number is provided in the appropriate 
field, it will appear on the certificate of registration, and in the 
case of an ISBN, it will also appear in the online public record for 
that work, and will serve as evidence of the work submitted for 
examination and registration. Note, however, that the examiner will not 
review the ISBN or ISMN to determine if it matches the number appearing 
on the copy. Therefore, applicants should confirm that this number has 
been entered correctly. See U.S. Copyright Office, Compendium of U.S. 
Copyright Office Practices sec. 612.6(C) (3d ed. 2014).
    Third, in addition to submitting a physical copy when it is 
required,\23\ the applicant may also upload a digital copy of the work 
to the electronic registration system. When doing so, the applicant 
should add a note in the ``Note Copyright Office'' field stating that 
the digital copy has been submitted for archival purposes and that a 
physical copy will be sent separately. The examiner will examine the 
claim when the physical deposit arrives and will only check any 
electronic upload to determine whether it represents the same work.
---------------------------------------------------------------------------

    \23\ See 37 CFR 202.20(b) (stating that ``if a work is first 
published in both hard copy, i.e., in a physically tangible format, 
and also in an electronic format, the current Library of Congress 
Best Edition Statement requirements pertaining to the hard copy 
format apply'' for purposes of copyright registration).
---------------------------------------------------------------------------

List of Subjects in 37 CFR Part 202

    Copyright, Preregistration and Registration of Claims to Copyright.

Proposed Regulations

    In consideration of the foregoing, the U.S. Copyright Office is 
proposing to amend 37 CFR part 202 as follows:

PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

0
1. The authority citation for part 202 continues to read as follows:

    Authority:  17 U.S.C. 408(f), 702.


0
2. Amend Sec.  202.19 as follows:
0
a. Add paragraph (b)(5).
0
b. Revise paragraph (d)(2)(v) by removing the words ``in copies only,'' 
and adding in its place ``solely in copies,'' and by removing the words 
``if the only publication of copies in the United States took place by 
rental, lease, or lending,''.
0
c. Add paragraph (d)(2)(ix).
    The revision and addition read as follows:


Sec.  202.19  Deposit of published copies or phonorecords for the 
Library of Congress.

* * * * *
    (b) * * *
    (5) The term literary monograph means a literary work published in 
one volume or a finite number of volumes. This category does not 
include serials, nor does it include legal publications that are 
published in one volume or a finite number of volumes that contain 
legislative enactments, judicial decisions, or other edicts of 
government.
* * * * *
    (d) * * *
    (2) * * *
    (ix) In the case of published literary monographs, the deposit of 
one complete copy of the best edition of the work will suffice in lieu 
of the two copies required by paragraph (d)(1) of this section, unless 
the Copyright Office issues a demand for a second copy pursuant to 17 
U.S.C. 407(d).
* * * * *

0
3. Amend Sec.  202.20 as follows:
0
a. Revise paragraph (b)(3).
0
b. Remove paragraph (b)(4).
0
c. Redesignate paragraph (b)(5) as paragraph (b)(4).
0
d. In paragraphs (c)(2)(i)(A) through (D), remove the semi-colon and 
add a period in its place at the end of each sentence.
0
e. Revise paragraph (c)(2)(i)(E).
0
f. In paragraphs (c)(2)(i)(F) through (I), remove the semi-colon and 
add a period in its place at the end of the sentence.
0
g. In paragraph (c)(2)(i)(J) remove ``; and'' and add a period in its 
place at the end of the sentence.
0
h. Add paragraph (c)(2)(i)(L).
0
i. In paragraphs (c)(2)(viii)(A) through (D) remove the semi-colon and 
add a period in its place at the end of the sentence.
0
j. In paragraphs (c)(2)(viii)(C) and (D) remove ``an audiocassette or 
other'' and add in its place ``a''.
    The revision and additions read as follows:


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

* * * * *
    (b) * * *
    (3) The terms secure test and literary monograph have the meanings 
set forth in Sec. Sec.  202.13(b) and 202.19(b)(5).
* * * * *
    (c) * * *

[[Page 38864]]

    (2) * * *
    (i) * * *
    (E) Musical compositions published solely in copies or in both 
copies and phonorecords, provided that one complete copy (rather than a 
phonorecord) is deposited;
    (L) Published literary monographs.
* * * * *

    Dated: August 10, 2017.
Sarang V. Damle,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2017-17194 Filed 8-15-17; 8:45 am]
 BILLING CODE 1410-30-P