82 FR 45625 - Compendium of U.S. Copyright Office Practices

LIBRARY OF CONGRESS
U.S. Copyright Office

Federal Register Volume 82, Issue 188 (September 29, 2017)

The U.S. Copyright Office is announcing the release of an update to its administrative manual, the Compendium of U.S. Copyright Office Practices, Third Edition, which goes into effect as of September 29, 2017.

[Federal Register Volume 82, Number 188 (Friday, September 29, 2017)]
[Notices]
[Pages 45625-45628]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-21065]


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LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2017-14]


Compendium of U.S. Copyright Office Practices

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

ACTION: Update to Compendium of U.S. Copyright Office Practices, Third 
Edition.

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SUMMARY: The U.S. Copyright Office is announcing the release of an 
update to its administrative manual, the Compendium of U.S. Copyright 
Office Practices, Third Edition, which goes into effect as of September 
29, 2017.

DATES: The final updated version of the Compendium of U.S. Copyright 
Office Practices, Third Edition is available on the Office's Web site 
as of September 29, 2017.

FOR FURTHER INFORMATION CONTACT: Erik Bertin, Deputy Director for 
Registration Policy and Practice, Sarang Damle, General Counsel and 
Associate Register of Copyrights, Regan A. Smith, Deputy General 
Counsel, or Catherine Zaller Rowland, Senior Advisor to the Register of 
Copyrights, all by telephone at (202) 707-8350.

SUPPLEMENTARY INFORMATION: The Compendium of U.S. Copyright Office 
Practices, Third Edition (``Compendium'') is the administrative manual 
of the U.S. Copyright Office. It ``explains many of the practices and 
procedures concerning the Office's mandate and statutory duties under 
title 17 of the United States Code.'' 37 CFR 201.2(b)(7). ``It is both 
a technical manual for the Copyright Office's staff, as well as a 
guidebook for authors, copyright licensees, practitioners, scholars, 
the courts, and members of the general public.'' Id. While it has been 
a guiding manual for the Copyright Office for several decades, the 
Office conducted a comprehensive revision of the entire Compendium 
beginning in 2011, which was completed in December 2014 and resulted in 
the Third Edition. 79 FR 78911 (Dec. 31, 2014).
    To ensure that the Compendium remains up to date, the Office 
monitors the law and Office practices. After conducting this analysis 
with regard to the 2014 version, the Office released a draft revision 
to the Compendium on June 1, 2017 (the ``Public Draft''). The Office 
posted the Public Draft on its public Web site and invited comments 
until July 30, 2017. The draft included proposed revisions to the 
registration chapters that clarified, among other things: how and when 
the Office communicates with applicants; and how it handles duplicate 
claims, deposit requirements, and claims involving multiple works. The 
Public Draft also sought to provide preliminary guidance for claims 
involving useful articles based on the Supreme Court's recent decision 
in Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 
(2017). Revisions to the recordation chapter provided additional 
guidance for recording notices of termination, as well as information 
on the Office's new electronic system for designating agents for online 
service providers. 81 FR 75695 (Nov. 1, 2016). The Public Draft also 
explained recent regulatory changes that impact post-registration 
procedures, including the new ``mailbox rule'' for calculating dates in 
requests for reconsideration and new procedures for removing personally 
identifiable information. 81 FR 62373 (Sept. 9, 2016); 82 FR 9004 (Feb. 
2, 2017). The update also incorporated changes made by the recent 
technical amendments to the Office's regulations. 82 FR 12180 (Mar. 1, 
2017). An archived copy of the Public Draft is available on the 
Office's Web site.
    The Office received comments on the Public Draft from the Copyright 
Alliance, the Intellectual Property Owners Association (``IPO''), the 
Kernochan Center for Law, Media, and the Arts at Columbia Law School, 
as well as four individuals. After carefully reviewing these comments, 
the Office decided to further revise twenty-one sections of the Public 
Draft, resulting in a final update (the ``Final Version''), as 
discussed in more detail below. Additionally, the Final Version 
reflects rulemaking activity that post-dated the Public Draft, 
including the Office's final rules on supplementary registration and 
group registration for contributions to periodicals. 82 FR 27424 (June 
15, 2017); 82 FR 29410 (June 29, 2017).\1\ It includes a revised 
Chapter 1700 that reflects the Office's new practice for amending a 
claim during the course of a request for reconsideration. In addition, 
the Office will not adopt the position in the Public Draft that, when 
an application deposit consists of only one copy when two are required, 
the effective date of registration would be based on the date the 
second copy was received. This would have been a departure from the 
Office's current

[[Page 45626]]

practice, and the Office has decided to maintain its current practice 
(described in Chapters 600 and 1500 of the 2014 version). A complete 
list of all sections that have been added, amended, revised, or removed 
is available on the Office's Web site at https://www.copyright.gov/comp3/revisions.html, along with redlines that provide a direct 
comparison between the Final Version and the 2014 version of the 
Compendium.
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    \1\ The Final Version does not include the Office's recent 
interim rule on secure tests, because the deadline for submitting 
comments in that proceeding does not expire until December 11, 2017. 
82 FR 26850 (June 12, 2017).
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    Revisions to the Public Draft reflected in the Final Version are as 
follows:

Applicability of the 2017 Update to the Compendium

    In response to a suggestion from IPO, the Office amended the 
Introduction to confirm that applications and documents registered or 
recorded on or after September 29, 2017, will be governed by the Final 
Version. The Introduction also confirms that registrations and 
recordations that are issued by the Office before that date will 
generally be governed by the 2014 version of the Compendium, except in 
cases where that version had been superseded by an amendment to the 
regulations, intervening case law, or previously announced changes in 
practice.

Email Communication With the Office

    If an applicant provides an email address in the application, the 
Office will use that address as the primary means for communicating 
with the applicant, even if the applicant also provides a telephone 
number or other contact information. As the Copyright Alliance noted, 
applicants do not need to provide a personal email address or designate 
a specific person to receive emails from the Office. The Office will 
accept communications from a general email address that may be used by 
multiple people within the same organization, such as 
``[email protected].'' See Final Version, section 
605.2.

Best Edition Requirement

    Sections 1504.2 and 1509.2(B)(3) of the Final Version clarify that 
an applicant may submit a digital copy of a work if it was published 
solely in a digital form in the United States--even if that work was 
published in another country in a physical form. This responds to the 
Copyright Alliance's concern that it may be too burdensome to obtain 
physical copies from an overseas distributor, especially if a digital 
copy is readily available in this country.

Disclaiming Preexisting Material

    When an applicant submits a work that contains previously published 
material, the applicant is generally expected to exclude that material 
from the claim.\2\ The Public Draft summarized the legal and policy 
justifications for this longstanding practice. It also explained that 
this practice applies regardless of whether the previously published 
material was authored by the copyright claimant or a third party. See 
Public Draft sections 503.5, 507.2.
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    \2\ In particular, applicants should add a disclaimer if the 
work contains an ``appreciable'' amount of previously published 
material. This requirement was stated throughout the 2014 version of 
the Compendium. See, e.g., Compendium, sections 311.2, 507.2, 508.2, 
618.2, 618.5, 618.6, 618.7, 621, 621.1--621.9 (3d ed. 2014). But in 
a few places the Office inadvertently used the word ``substantial'' 
in place of the word ``appreciable.'' See id. sections 712.3, 715.3, 
717, 717.2, 718, 721.9(G), 727.3(D). The Public Draft corrected 
these oversights, and contrary to IPO's suggestion, these 
corrections do not represent a change in the Office's current 
policy.
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    IPO contended that these revisions are inconsistent with the weight 
of legal authority holding that a registration for a derivative work 
may be used to enforce the copyright in a preexisting version of the 
same work, even if the preexisting version has been previously 
published and has not been separately registered with the Office. IPO 
also contended that the revisions to these sections will increase the 
complexity of registering and enforcing the copyright in derivative 
computer programs, and will discourage software companies from 
registering their works.
    After considering the IPO's comments, the Office agrees that this 
issue warrants further study. Therefore, the changes proposed in 
sections 503.5 and 507.2 of the Public Draft will not be adopted at 
this time. The Office also removed the phrase ``the version that is 
being registered'' from sections 1509.1(C)(2) and 1509.1(C)(4)(b) of 
the Public Draft.\3\
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    \3\ The language appearing in the corresponding sections of the 
2014 version will be retained for the time being. But to be clear, 
the Office retained some minor changes made in these sections, such 
as those discussed in footnote 2, and changes in section 721.8 that 
do not involve the prior-publication issue.
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    The Office intends to revisit this issue in the future through a 
formal notice of inquiry. Until the Office has concluded that public 
process, the Office will maintain its current practices for examining 
these types of claims. In the meantime, applicants should continue to 
add a disclaimer if a work contains an appreciable amount of previously 
published material, and if applicants do not exclude this type of 
material, the Office will continue to communicate when an appropriate 
disclaimer is needed.

Computer Programs

    IPO expressed concern that a change made in the Public Draft would 
require applicants to expressly claim ``non-executing comments'' in the 
application in order to register that aspect of a work. See Public 
Draft sections 721.7, 721.9(F). IPO stated that software developers 
consider non-executing comments to be an integral part of a computer 
program.
    The Final Version confirms that the term ``computer program'' may 
be used to assert a claim in both the executable code and non-executing 
comments within a computer program. It also confirms that applicants 
may register both elements by checking the box marked ``computer 
program,'' or by checking that box and expressly stating ``non-
executing comments'' in the application.\4\ See Final Version sections 
618.4(C), 721.7, 721.9(F).
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    \4\ At IPO's suggestion, the Final Version discourages 
applicants from using the term ``text'' to describe non-executing 
comments, because that term is potentially ambiguous.
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    IPO also expressed concern that the Office may cancel a 
registration if ``a court determines that an applicant submitted 
redacted source code or object code that does not contain trade secret 
material.'' Public Draft, section 1509.1(C)(4)(b). The regulations 
state that an applicant may only submit redacted source code or object 
code if the program contains trade secret material. See 37 CFR 
202.20(c)(2)(vii)(A), (B). The regulations also state that the Office 
may cancel a registration if it ``becomes aware that . . . [the] 
correct deposit material has not been deposited.'' 37 CFR 201.7(c)(4). 
However, the Final Version confirms that before doing so, the Office 
will ask the claimant to resubmit an appropriate deposit. It also 
clarifies that the Office will cancel a registration only if the Office 
does not receive a response within 30 days, or if the claimant's 
response does not resolve the problem.\5\ See Final Version section 
1509.1(C)(4)(b).
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    \5\ At IPO's suggestion, the Office retained language from the 
2014 version of the Compendium stating that ``[t]he applicant should 
not block out any portions of the source code that do not contain 
trade secret material.'' Final Version section 1509.1(C)(4)(b) 
(emphasis added).
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Choreographic Works and Pantomimes

    In response to comments submitted by the Kernochan Center,\6\ the 
Office

[[Page 45627]]

removed ``competitive ice skating,'' ``synchronized swimming,'' 
``parades,'' ``marching band routines,'' ``magic acts,'' ``circus 
acts,'' and ``juggling'' from the examples of physical activities that 
cannot be registered as a pantomime or a choreographic work. If the 
Office receives claims involving these types of activities in the 
future, they will be evaluated on a case-by-case basis. See Final 
Version sections 805.5(B)(3), 806.5(B)(5).\7\
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    \6\ At the Kernochan Center's suggestion, the Office also 
revised one of the examples in section 906.4 of the Public Draft to 
clarify that calligraphy is a stylized typeface and that typeface is 
not copyrightable.
    \7\ The Office also removed some of the other activities listed 
in these sections, such as runway modeling and wrestling matches. 
The Kernochan Center did not mention these activities in its 
comments. The Office decided to remove them for stylistic reasons 
and to streamline the discussion of these issues.
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Notices of Termination Under Section 203 of the Copyright Act

    Section 203(a)(3) of the Copyright Act provides that, if a grant 
``covers the right of publication of the work,'' the period for 
terminating that grant ``begins at the end of thirty-five years from 
the date of publication of the work under the grant or at the end of 
forty years from the date of execution of the grant, whichever term 
ends earlier.'' 17 U.S.C. 203(a)(3). The 2014 version of the Compendium 
took the position that the ``date of publication'' is the date the work 
is published ``under the grant,'' and acknowledged that the date of 
publication under a particular grant may or may not be the date the 
work was published for the first time. See Compendium sections 
2310.3(C), 2310.3(C)(2) (3d ed. 2014).
    The Public Draft amended these sections to reflect the approach 
adopted by a Second Circuit case, Baldwin v. EMI Feist Catalog, Inc., 
805 F.3d 18, 33 (2d Cir. 2015). Specifically, the draft stated that the 
phrase ``date of publication'' means the date the work was published 
for the first time. See Public Draft sections 2310.3(C), 2310.3(C)(1), 
2310.3(C)(2), 2310.3(D)(1), 2310.3(D)(1)(a). The Copyright Alliance 
contended that this interpretation is not supported by the statute or 
the legislative history, and urged the Office to retain the 
corresponding language from the 2014 version of the Compendium.
    After further consideration, the Office agrees that the 2014 
version represents the better reading of section 203(a)(3), and is not 
prepared to follow Baldwin in light of the limited jurisprudence on 
this matter. This reading is supported by both the language and 
structure of the statute. The terms ``first published'' and ``first 
publication'' are used in multiple sections of the Copyright Act, 
including sections 101, 104, 104A, 302, 401, 402, 406, 408, 409, 410, 
and 412. Presumably, Congress would have used the same terminology in 
section 203(a)(3) if that provision only applied to grants that convey 
the right to publish a work for the first time.
    Indeed, the termination provision in an early copyright reform bill 
did provide that ``if the grant covers the right of first publication 
of the work, the period begins at the end of 35 years from the date of 
first publication of the work.'' H.R. 4347, 89th Cong. (1965). But the 
word ``first'' was dropped from subsequent bills, see H.R. 2512, 91st 
Cong. (1967), and it is that version of the provision that was 
eventually enacted as part of the Copyright Act of 1976. The 
legislative history shows that this change was intentional. The 
relevant House Report explains that the provision was specifically 
amended so that the provision would ``apply to any publication 
contract, and not just to contracts involving first publication.'' H.R. 
Rep. No. 89-2237, at 122 (1966); see also H.R. Rep. No. 90-83, at 93 
(1967). Accordingly, the Final Version reverts to the Office's initial 
interpretation reflected in the 2014 version of the Compendium, with an 
additional discussion of this issue, as this interpretation is most 
consistent with the terms of the Copyright Act.

Section 115 Compulsory License

    One individual expressed concern that the Public Draft suggested 
that copyright owners must register their works as a condition for 
receiving royalties under the compulsory license set forth in section 
115(c)(1) of the Copyright Act. The Final Version confirms that 
copyright owners may be entitled to receive royalties under this 
section if they are identified ``in the registration or other public 
records of the Copyright Office.'' See Final Version section 202 
(quoting 17 U.S.C. 115(c)(1)).

Unit of Publication

    The 2014 version of the Compendium states that multiple works may 
be registered as a unit of publication if they are physically packaged 
or bundled together and distributed to the public in that form. It also 
contains a single sentence suggesting that a ``digital download'' could 
be considered a unit of publication. See Compendium, section 1107.1 (3d 
ed. 2014). The Public Draft removed this sentence because it is 
inconsistent with other provisions in the Compendium that clearly and 
repeatedly state that the unit of publication option may only be used 
to register works fixed and distributed in a physical format. The 
revision to the sentence in section 1107.1 does not represent a change 
in policy from the 2014 version of the Compendium; it simply corrects a 
minor inconsistency in that version.
    The Copyright Alliance and one individual asked the Office to 
expand the unit of publication definition to allow applicants to 
register separate works that are packaged and distributed in a digital 
form. The Office declines to adopt this suggestion. The unit of 
publication option was always intended to be a narrow accommodation to 
account for a particular scenario: where a physical product bundles 
together multiple types of works of authorship as a single ``unit,'' 
and those separate works are not published individually. The 
paradigmatic example is a board game with playing pieces, a game board, 
and instructions; each of those components may be a separate work of 
authorship--the playing pieces may be individual sculptural works, the 
game board may be a pictorial or graphic work, and the instructions may 
be a literary work. But it would make little sense--and would be 
administratively burdensome on the Office--to impose the general 
requirement of separate applications for each work of authorship in 
these cases. Among other things, imposition of that rule would result 
in deposits that are either duplicative (e.g., the applicant sends the 
entire board game with each application) or incomplete (e.g., the 
applicant sends each element of the board game separately).
    In the Office's view, the same concerns are not present with 
respect to digital products. To begin with, the problem with 
duplication of deposits is significantly diminished with respect to 
digital works. Moreover, while it may be relatively easy for applicants 
and the Copyright Office to assess whether a physical product qualifies 
as true ``unit of publication,'' the same cannot readily be said for 
digital products, which could be distributed in a single digital file 
or in multiple digital files, or could readily be published only as a 
bundle, or both in a bundle and individually. Thus, at least at this 
time, the Office believes that it is inappropriate to extend the unit 
of publication option to digital products.\8\
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    \8\ Another individual asked the Office to clarify that works 
fixed in the same medium of expression may be considered a unit of 
publication. The Office did not accept this suggestion. As a general 
rule, an applicant should prepare a separate application, filing 
fee, and deposit for each work that is submitted for registration. 
The unit of publication option is a narrow and limited exception to 
this rule. It provides a means for registering multiple works with 
one submission in cases where multiple submissions would otherwise 
be required and where no other statutory or regulatory accommodation 
exists. Often, when multiple items are fixed in the same medium of 
expression, they may be considered a derivative work, a compilation, 
or a collective work. If so, there is no need to rely on the unit of 
publication option, because the statute already provides a means for 
obtaining a registration. If applicants could register multiple 
works as a unit of publication whenever they happen to be fixed in 
the same medium of expression, the regulatory accommodation would 
displace the statutory scheme, and this narrow exception would 
become the default method for registering published works.

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[[Page 45628]]

    That said, the Office has, over time, expanded its group 
registration options to accommodate the need to register multiple works 
with the same application. To the extent the concern expressed in the 
comments relates to the inability to register multiple musical works 
fixed and/or distributed on an album, the Office is planning to create 
a new group registration option to accommodate those situations.

Collective Works and Contributions to Collective Works

    The Copyright Alliance commented on the Public Draft's discussion 
of collective works. First, it asserted that more information should be 
included in applications for certain collective works. When registering 
an album together with the works on that album, the Copyright Alliance 
asserted that applicants should identify the complete content of the 
album. Specifically, the Copyright Alliance suggested that section 
618.7(B)(2) should be revised to state that titles of the individual 
works should be included in the ``Content Titles'' field, even if the 
applicant intends to exclude one or more of those works from the claim. 
The Copyright Alliance said this would provide a clear record of what 
the album contains and makes the titles accessible in the online public 
record.\9\
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    \9\ Similarly, one individual asked the Office to add a new 
space to Form TX where applicants may provide titles of the works 
appearing within a unit of publication. The Office declines to adopt 
this suggestion, because the Compendium already provides 
instructions for adding title information to a paper application. 
See Compendium section 1107.4(C).
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    The Office declines to adopt the Copyright Alliance's suggestion at 
this time. The Office encourages applicants to provide album 
information as suggested by the Copyright Alliance, but it will not 
require applicants for all collective works to submit all similar 
information. Requiring applicants to provide contents titles for an 
album may be feasible, but applying the same requirement to all types 
of collective works may be burdensome for some applicants. That said, 
the Office plans to revise the sections on collective works consisting 
of musical works and/or sound recordings in a future update to the 
Compendium, and will revisit the Copyright Alliance's suggestions in 
making those revisions.
    Additionally, the Copyright Alliance contended that the Office will 
not register a collective work unless it contains at least four 
independent works (citing Compendium sections 312.2, 618.7, and 
803.8(F)(4)). The Copyright Alliance said this is a problem for the 
recording industry, because extended play albums (``EPs'') often 
contain two or three tracks. In such cases, the individual tracks must 
be registered separately. It also said this creates a workflow problem 
for the record labels because, although EPs are a single product, they 
cannot be registered in a manner that reflects the way they are 
commercially distributed.
    The Office registers ``original works of authorship,'' as defined 
in sections 102 and 103 of the Copyright Act. A compilation may be 
registered if it contains a sufficient amount of creative expression in 
the selection, coordination, and/or arrangement of its component 
elements. These requirements are set forth in the statute, and the 
Office adheres to this standard when it examines an album or any other 
type of compilation. The vast majority of albums contain sufficient 
selection, coordination, or arrangement authorship to be considered a 
collective work, but some albums do not satisfy this requirement. The 
Office recognizes that in such cases, a separate application may be 
required for each individual track, and that this may increase the 
incremental cost and effort of seeking a registration. But, contrary to 
the Copyright Alliance's suggestion, the Office does not have a bright 
line rule regarding the number of tracks that must be present to 
qualify as a collective work; the Office will simply scrutinize 
collective work applications with fewer tracks more closely to ensure 
they pass the necessary threshold of creativity.

    Dated: September 27, 2017.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.
[FR Doc. 2017-21065 Filed 9-28-17; 8:45 am]
 BILLING CODE 1410-30-P