83 FR 16269 - Mandatory Deposit of Electronic-Only Books
LIBRARY OF CONGRESS
Copyright Office Federal Register Volume 83, Issue 73 (April 16, 2018)
Copyright Office
Federal Register Volume 83, Issue 73 (April 16, 2018)
| Page Range | 16269-16276 | |
| FR Document | 2018-07484 |
[Federal Register Volume 83, Number 73 (Monday, April 16, 2018)] [Proposed Rules] [Pages 16269-16276] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-07484] ======================================================================= ----------------------------------------------------------------------- LIBRARY OF CONGRESS Copyright Office 37 CFR Part 202 [Docket No. 2016-03] Mandatory Deposit of Electronic-Only Books AGENCY: U.S. Copyright Office, Library of Congress. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: Section 407 of the Copyright Act requires the mandatory deposit with the Copyright Office (``Office'') of all works published in the United States, within three months of publication, for use by the Library of Congress (``Library''). The Office is allowed to exclude certain classes of works from this requirement. In a 2010 interim rule, the Office codified its longstanding practice of excluding from the mandatory deposit requirements all electronic works that are not otherwise available in a physical format (i.e., ``electronic works published in the United States and available only online.''). The 2010 interim rule created one exception to this general rule for electronic- only serials, which are subject to mandatory deposit, if they are published in the United States and if they are affirmatively demanded by the Office. On May 17, 2016, the Office published a Notice of Inquiry seeking public comment on potential regulatory changes that would make the interim rule final and would make electronic-only books and sound recordings subject to mandatory deposit requirements by way of the same demand process. Based on the responses to the NOI and input from the Library, the Office proposes revising its regulations to make the interim rule final, and to make electronic-only books published in the United States subject to the mandatory deposit requirements if they are affirmatively demanded by the Office. The proposed rule does not address mandatory deposit of electronic-only sound recordings. DATES: Written comments must be received no later than 11:59 p.m. Eastern Time on May 31, 2018. 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 to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office website at https://www.copyright.gov/rulemaking/ebookdeposit. 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: Cindy P. Abramson, Assistant General Counsel, by email at [email protected] or John R. Riley at [email protected]. Both can be reached by telephone at 202-707-8350. SUPPLEMENTARY INFORMATION: I. Background A. Mandatory Deposit Under the Copyright Act Generally The Copyright Act's ``mandatory deposit'' requirement, section 407 of title 17, provides that the owner of copyright or the exclusive right of publication in a work published in the United States must, within three months of publication, deposit two complete copies of the ``best edition'' of the work with the Copyright Office, or, in the case of sound recordings, two complete phonorecords of the best edition, together with any printed or other visually perceptible material published with the phonorecords.\1\ The Register may issue a written demand for works at any time after they have been published in the United States.\2\ Failure to make the required deposit after a written demand is made by the Register may subject such person on whom the demand was made to monetary liability.\3\ Compliance with this section is not a condition of copyright protection, but the Copyright Act provides that deposits made under section 407 may be used to satisfy the registration deposit provisions under [[Page 16270]] section 408, if all other registration conditions are met.\4\ --------------------------------------------------------------------------- \1\ 17 U.S.C. 407(a); see generally 37 CFR 202.19. \2\ 17 U.S.C. 407(d). \3\ See id. \4\ Id. at 408(b). Although section 408 states that copies deposited pursuant to the mandatory deposit provision in section 407 may be used to satisfy the registration deposit requirement in section 408, in practice the Office treats copies of works submitted for registration as satisfying the mandatory deposit requirement (assuming the deposit requirements are the same), and not vice versa. 37 CFR 202.19(f)(1), 202.20(e); see 43 FR 763, 768 (Jan. 4, 1978). --------------------------------------------------------------------------- Deposits made to satisfy section 407 are for the ``use or disposition of the Library of Congress'' and must satisfy the ``best edition'' requirement. That is, such deposits must be of 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.'' \5\ These requirements are governed by section 202.19 and Appendix B of part 202 of the Office's regulations, which set forth rules and criteria, respectively, for the different types of works subject to the mandatory deposit requirement. --------------------------------------------------------------------------- \5\ 17 U.S.C. 101; see also 17 U.S.C. 407(b). --------------------------------------------------------------------------- Certain categories of works are not subject to mandatory deposit. By definition, mandatory deposit requirements do not apply to unpublished works and foreign works that have not been published in any form in the United States. In addition, under section 407(c) of the Copyright Act, the Register of Copyrights can, by regulation, exempt any categories of material from section 407's mandatory deposit requirements or demand only one copy or phonorecord to provide a ``satisfactory archival record of a work.'' With section 407, Congress balanced different, important interests, including the ``value of the copies or phonorecords to the collections of the Library of Congress'' and ``the burdens and costs to the copyright owner of providing [copies of the works].'' \6\ Under this authority, the Register has adopted a series of exemptions from the mandatory deposit requirement.\7\ --------------------------------------------------------------------------- \6\ H.R. Rep. No. 94-1476, at 151 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5767. \7\ See 37 CFR 202.19(c). --------------------------------------------------------------------------- B. Regulations Regarding Mandatory Deposit of Electronic-Only Materials In 2010, the Office codified its longstanding practice of excluding from mandatory deposit requirements all ``[e]lectronic works published in the United States and available only online.'' \8\ (The Office is now referring to this category of works as ``electronic-only'' works, to better distinguish it from works that are published in both electronic and physical formats. The Office is also proposing changes to the regulations to adopt this clearer nomenclature.) The Office, however, also adopted an exception to this exemption, putting in place a demand-based mandatory deposit provision for electronic-only serials.\9\ An electronic-only serial is ``an electronic work published in the United States and available only online, issued or intended to be issued on an established schedule in successive parts bearing numerical or chronological designations, without subsequent alterations, and intended to be continued indefinitely.'' This category includes ``periodicals, newspapers, annuals, and the journals, proceedings, transactions, and other publications of societies.'' \10\ The 2010 Interim Rule also stated that, any additional categories of electronic-only works would first be ``identified as being subject to demand'' through a rulemaking with notice and comment before the Office issues any actual demands for such works.\11\ --------------------------------------------------------------------------- \8\ 75 FR 3863, 3869 (Jan. 25, 2010) (``2010 Interim Rule''); 37 CFR 202.19(c)(5). \9\ 75 FR at 3865-66. \10\ 37 CFR 202.19(b)(4). ``Electronic works'' are themselves defined as ``works fixed and published solely in an electronic format.'' 37 CFR 202.24(c)(3). \11\ 75 FR at 3866. --------------------------------------------------------------------------- C. 2016 Notice of Inquiry Regarding Expansion of Demand-Based Deposit As described in-depth in this rulemaking's 2016 NOI,\12\ the Office is interested in finalizing the 2010 Interim Rule, as well as adding a new category of online works--electronic-only books--to the demand- based mandatory deposit scheme. Although the NOI included online sound recordings as a potential additional category of works that could be subject to the mandatory deposit requirement, the Office has not included electronic-only sound recordings within the rule proposed in this current rulemaking. The Copyright Office is postponing further consideration of this issue until after the conclusion of the present rulemaking. --------------------------------------------------------------------------- \12\ 81 FR 30505, 30506-08 (May 17, 2016). --------------------------------------------------------------------------- In the Office's NOI, it sought comments on four topics. First, the public was invited to opine on the efficacy of the 2010 Interim Rule, including whether it adequately serves the needs of the Library and other affected parties and whether it could serve as a good framework for adding additional categories of electronic works to the mandatory deposit system. Second, the NOI solicited comments on the Library's access policy as applied to both electronic-only serials and, potentially, to electronic-only books. The third topic asked about ``information technology, security, and/or other requirements'' that should apply to the receipt and storage of, and access to, electronic- only books. Fourth, the NOI requested comments on how the ``best edition'' requirements should be applied to the mandatory deposit of electronic-only books. The Copyright Office received fifteen comments on the proposed changes. While some of the comments praised the efforts to collect more works in the identified categories, others expressed reservations. D. 2018 Rule Regarding Public Access To Deposited Works In January 2018, the Office also issued a final rule updating its regulations governing the group registration and mandatory deposit of newspapers.\13\ Under that rule, newspaper publishers can submit groups of newspapers issues, in electronic format, pursuant to the group registration option.\14\ Copies of those newspaper issues are then delivered to the Library for its collections, and the rule specifies that those copies satisfy the mandatory deposit regulations.\15\ As part of that rule, the Office codified public access restrictions in a new section 202.18, specifying that access will be provided only to authorized users at Library of Congress premises and off-site to Library staff as part of their assigned duties via a secure connection.\16\ These access restrictions reflected informal restrictions that had been in place for electronic-only serials since 2010.\17\ In issuing the notice of proposed rulemaking, the Office emphasized that ``over time the Library would like to expand [section 202.18] to address public access to digital registration deposits for other types of digital works'' but that ``[b]efore expanding such access, . . . the Office will issue separate rulemakings to notify the public.'' \18\ --------------------------------------------------------------------------- \13\ 83 FR 4144 (Jan. 30, 2018). \14\ 37 CFR 202.4(e). \15\ Id. at 202.19(d)(2)(ix). \16\ Id. at 202.18. \17\ 82 FR 51369, 51377 (Nov. 6, 2017). \18\ Id. --------------------------------------------------------------------------- II. Discussion This Notice of Proposed Rulemaking addresses issues raised in response to the NOI as well as additional issues raised by commenting parties. This rule aims to respond to the increase in publication and marketing of works in electronic-only digital forms.\19\ The Library's collections comprise the world's most comprehensive record of human creativity and knowledge and support the Library's role as the [[Page 16271]] research arm of Congress. To help the Library continue to fulfill these responsibilities, the Copyright Office is proposing to amend the mandatory deposit rules and criteria to include electronic-only books. --------------------------------------------------------------------------- \19\ Libr. Copyright All. (``LCA'') Comments at 3; Nat'l Writers Union et al. Comments at 11; Univ. of Mich. Libr. Comments at 2; Univ. of Va. Libr. Comments at 2. --------------------------------------------------------------------------- Under this proposed rule, electronic-only books would be subject to mandatory deposit if a written demand is issued by the Copyright Office. The Office anticipates that, in some cases, rather than sending individual demands for each work, it will instead demand all of the published electronic-only works from particular publishers. Additionally, this proposal would make the 2010 Interim Rule concerning electronic-only works final, and amend the rule governing public access to electronic-only works to encompass electronic-only serials and electronic-only books received via mandatory deposit. Finally, with this rule the Office proposes specific ``best edition'' criteria for electronic-only books, and proposes amendments to the best edition criteria for electronic-only serials, modeled on the Library's Recommended Formats Statement.\20\ --------------------------------------------------------------------------- \20\ See Recommended Formats Statement, Libr. of Cong., https://www.loc.gov/preservation/resources/rfs/textmus.html (last visited Mar. 29, 2018). --------------------------------------------------------------------------- A. Electronic Deposit and the 2010 Interim Rule In its NOI, the Office asked for opinions on ``the efficacy of the 2010 Interim Rule, including whether it adequately addresses the digital collection and preservation needs of the Library of Congress, whether it has adequately addressed the concerns of affected parties, and whether it is a good framework for further developing section 407.'' \21\ This question was aimed, in part, at eliciting concerns that should be addressed before the 2010 Interim Rule is made final. Comments responding to this question raised two main concerns: The perceived overbreadth of the 2010 Interim Rule and the need for a comprehensive Library of Congress digital collections strategy. --------------------------------------------------------------------------- \21\ 81 FR at 30509. --------------------------------------------------------------------------- Those who voiced concerns over the broad scope of authority granted to demand electronic works suggested that expanding the Interim Rule to include electronic-only books has a potential ``to impose widespread and burdensome deposit requirements,'' especially on independent or self-publishers.\22\ The Office appreciates these concerns, but believes that the approach of selective demand-based deposit requirements, as a way to fulfill the Library's digital collections, will not be as burdensome as some assume. While the Library's collection authority is relatively broad, it does not have the desire or the means to collect all electronic-only books. In the context of electronic-only serials, the Library has responsibly exercised its authority to demand such works, without significant issue. --------------------------------------------------------------------------- \22\ Nat'l Writers Union et al. Comments at 15; see also Authors Guild Comments at 4. --------------------------------------------------------------------------- Commenters also suggested that mandatory deposit for electronic- only books would be premature as the Library has not publicly communicated a cohesive strategy for electronic deposits, and therefore, any such strategy could not be evaluated.\23\ These commenters cited reports such as those by the United States Government Accountability Office and the Library's Office of the Inspector General which made recommendations regarding the Library's digital collections and information technology. Some also pointed out the Inspector General's criticism that the Library lacked quantifiable performance measures for its electronic deposit and collections projects.\24\ --------------------------------------------------------------------------- \23\ Copyright All. Comments at 2; Recording Indus. Ass'n of Am. (``RIAA'') Comments at 8; Software & Info. Indus. Ass'n (``SIIA'') Comments at 2. \24\ Copyright All. Comments at 2-3. --------------------------------------------------------------------------- In early 2017, the Library of Congress addressed some of these concerns. In February, the Library adopted strategic steps related to future acquisition of digital content, including confirming the Library's desire to expand the electronic deposit program to include electronic-only books.\25\ In March 2017, the Library issued an updated information technology strategic plan, outlining its goals and objectives to be accomplished over the next five years. The Library has also added performance measures to strengthen its plans and to help ensure it meets its collections and information technology development goals. Further, the Library formed a new ``eCollections Steering Group'' to coordinate the development of its digital collection strategies. While the Inspector General still believes the Library needs a comprehensive digital strategic plan, it has acknowledged these early efforts.\26\ --------------------------------------------------------------------------- \25\ Collecting Digital Content at the Library of Congress, Libr. of Cong., 1-2 (Feb. 2017), https://www.loc.gov/acq/devpol/CollectingDigitalContent.pdf. \26\ Office of the Inspector General Semiannual Report to the Congress, Libr. of Cong., 10 (Mar. 2017), https://www.loc.gov/portals/static/about/office-of-the-inspector-general/annual-reports/documents/March-2017-OIG-Semiannual-Report-to-Congress-5-17-17.pdf. --------------------------------------------------------------------------- While some of the Library's collection strategies will need to be further refined as time goes on, it is clear that the Library will rely on mandatory deposit of digital works as a core component of its overall strategy going forward. It is also clear that the existing mandatory deposit program for electronic-only serials has successfully furthered the Library's important goals and could readily serve as a model for electronic-only books. Indeed, the Office has been receiving copies of electronic books on a voluntary basis through special relief agreements for a number of years.\27\ While implementing mandatory deposit for electronic-only books would require an update to the Copyright Office's information technology systems, the regulatory framework needs to be in place by the time the Library is ready to demand and receive such works. --------------------------------------------------------------------------- \27\ Through special relief agreements, the Library has obtained free access to a number of publishers' online portals for use by patrons and received electronic copies of serials and books for archival purposes. These special relief agreements typically involve the deposit of electronic versions of works that are also published in print format, thereby saving publishers the burden and expense of having to send physical copies to satisfy mandatory deposit obligations. --------------------------------------------------------------------------- Some commenters suggested that voluntary agreements should be a preferred method of obtaining digital works.\28\ The Office notes that mandatory deposit does not preclude voluntary agreements, and the Interim Rule has not precluded the Library from negotiating such arrangements with regard to electronic-only serials. In fact, these voluntary arrangements came about only after the 2010 Interim Rule was implemented. Nor does the existence of these voluntary arrangements involving electronic-only serials preclude the Office from expanding mandatory deposit to include other categories of online works. --------------------------------------------------------------------------- \28\ Assoc. of Am. Pubs. (``AAP'') Comments at 10; SIIA Comments at 3-4. --------------------------------------------------------------------------- The University of Virginia asked the Office to reconsider the decision to limit the Office's ability to demand electronic-only serials to those issues published after the effective date of the Interim Rule.\29\ The Office declines this proposal as it would be burdensome for publishers to comply with such a retroactive regulation.\30\ --------------------------------------------------------------------------- \29\ Univ. of Va. Libr. Comments at 5. \30\ Indeed, it is not clear whether section 407 even grants the Office the authority to issue such retroactive rules. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (``[A] statutory grant of legislative rulemaking authority will not, as a general matter, be understood to encompass the power to promulgate retroactive rules unless that power is conveyed by Congress in express terms.''). --------------------------------------------------------------------------- Finally, one commenter asked whether the Library intends to expand its Surplus Books Program, a program where the Library donates physical books to qualifying educational [[Page 16272]] institutions, to its eCollections strategy.\31\ The Library has no plans to expand that program to electronic works, and will only be demanding electronic-only books that it wishes to keep in its collections. Indeed, section 202.18 would establish the outer limits of public access to electronic-only books and serials received through mandatory deposit. --------------------------------------------------------------------------- \31\ AAP Comments at 7-8. --------------------------------------------------------------------------- B. Application of the 2010 Interim Rule to Electronic-Only Books The Office's NOI also invited comments on whether the 2010 Interim Rule provided a useful framework for mandatory deposit of electronic- only books.\32\ The Office received several thoughtful responses to this question from interested parties. Those who supported, or did not oppose, expansion of the 2010 Interim Rule noted the rising importance of the Library being able to acquire electronic-only works. The Authors Guild cited reports indicating that nearly a half million self- published electronic books are published each year.\33\ The Library Copyright Alliance (``LCA'') pointed out that, ``[w]ithout mandatory deposit, works created in the digital age could be lost forever.'' \34\ --------------------------------------------------------------------------- \32\ 81 FR at 30509. \33\ Authors Guild Comments at 3 (discussing self-published books in the context of ``The Growing Online-Only Book Market''). \34\ LCA Comments at 2. --------------------------------------------------------------------------- Commenters with concerns about the Library's eCollections strategy and expanding the 2010 Interim Rule to electronic-only books expressed skepticism regarding how electronic-only books would be defined and whether the rule would apply to print-on-demand works. Further, these commenters asserted that the Office and the Library have not yet completed some planned actions outlined in the 2010 Interim Rule. These planned actions included, for example, examining the feasibility of allowing rightsholders to provide website links for the Office to download deposits or engaging in additional consultation with rightsholders, including on issues involving transmission standards and the potential of downloading or emailing copies of deposited electronic works.\35\ --------------------------------------------------------------------------- \35\ 75 FR at 3866, 3868; AAP Comments at 13. --------------------------------------------------------------------------- In considering how to define ``electronic-only books,'' the Office notes that the Copyright Act itself does not contain a definition of ``books,'' but refers to them as ``material objects'' that may embody a literary work.\36\ Similarly, the Office's regulations simply contemplate that books are a tangible medium of expression for literary works.\37\ The Office received several helpful considerations on this topic. Some commenters noted that a definition could be in reference to the file format or medium of the work, such as works published in PDF or HTML format.\38\ Others noted that an electronic-only book could be defined with reference to the content of the work.\39\ Others suggested that the definition of an electronic-only book should include consideration of how the work is transmitted. For example, the Association of American Publishers (``AAP'') recommended that electronic-only books would include downloaded works but not works available ``through online display, streaming, or apps.'' \40\ As the Authors Guild points out, ``[a] vast amount of text is `published' online today that might qualify as a `book,' depending how `book' is defined.'' \41\ --------------------------------------------------------------------------- \36\ 17 U.S.C. 101. \37\ See 37 CFR 202.16(b)(1)(iv) (describing a preregistration class of ``[l]iterary works being prepared for publication in book form''); see also Hadley v. Comm'r of Internal Revenue, 819 F.2d 359, 361 (2d Cir. 1987) (noting, for the purposes of the Tax Code, ``[t]here are many definitions of `book,' but a principal one relates to the tangible property consisting of a collection of written, printed, or blank pages fastened together along one edge, bound between covers into a volume''). \38\ Copyright All. Comments at 3. \39\ Nat'l Writers Union et al. Comments at 16. \40\ AAP Comments at 16. \41\ Authors Guild Comments at 2 (footnote omitted). --------------------------------------------------------------------------- As commenters correctly indicate, defining a book as the physical embodiment of a literary work does not translate neatly to the digital environment. It is clear to the Office that, through mandatory deposit, the Library wishes to acquire textual works that are marketed or presented as ``electronic books'' and other monographic works such as organizational reports and long-form essays; it does not intend to obtain blog posts, social media posts, and general web pages through that mechanism.\42\ The Office recently issued a rule governing deposits of ``literary monographs'' \43\ and adopted a definition of that category of works for those purposes.\44\ With minor modification, that definition can also be adopted to define the category of works subject to mandatory deposit in this proposed rule. Accordingly, the Office proposes that an ``electronic-only book'' should be defined broadly as an electronic literary work published in one volume or a finite number of volumes published in the United States and available only online, with specific exclusions for certain types of works, including serials, audiobooks, computer programs, websites, blogs, and emails. --------------------------------------------------------------------------- \42\ The Library currently obtains website material through means other than mandatory deposit, such its web archiving program. See generally Library of Congress, Web Archiving, https://www.loc.gov/webarchiving/ (last visited Apr. 6, 2018). \43\ 83 FR 2371 (Jan. 17, 2018). \44\ 37 CFR 202.19(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.'' (emphasis added)). --------------------------------------------------------------------------- For clarity's sake, the proposed definition specifies that electronic-only books would be subject to mandatory deposit only if they are available to the public as electronic copies--for example, through download. Electronic-only books accessed through online display or streaming would generally be excluded, unless they were ``published'' within the meaning of the Copyright Act.\45\ --------------------------------------------------------------------------- \45\ 17 U.S.C. 101 (```Publication' is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.''). --------------------------------------------------------------------------- The Office believes that its definition of an electronic-only book balances the concerns of copyright owners who expressed concern about giving the Library sweeping discretion to demand various types of electronic works with the Library's reasonable need to obtain electronic works for its collections. In its comments on the earlier NOI, AAP sought to confirm that ``the mandatory deposit exemption of `tests and answer material for tests when published separately from other literary works' is preserved even if the Interim Rule is expanded to ebooks available only online.'' \46\ To be clear, the existing exemption for tests and answer materials will continue to apply across the board, including tests and related material that are distributed solely online, but the Office does not believe that this exemption needs to be repeated in the regulatory language defining electronic-only books. --------------------------------------------------------------------------- \46\ AAP Comments at 16. --------------------------------------------------------------------------- Additional commenters noted potential issues that might arise with respect to works that are both available for download and print-on- demand.\47\ In particular, the concern appears to be that it will be difficult for publishers to determine whether such works are subject to the general exemption for electronic-only works (and the demand-based mandatory deposit scheme proposed here), or whether they are subject to affirmative mandatory deposit [[Page 16273]] requirements. As a potential solution, the Authors Guild recommended that ``books `initially' or `originally' published only online but also available in [print-on-demand] format'' be essentially treated as works published ``only'' online, regardless of whether the book has actually been printed.\48\ --------------------------------------------------------------------------- \47\ See, e.g., Nat'l Writers Union et al. Comments at 17. \48\ Authors Guild Comments at 5. --------------------------------------------------------------------------- The issue defies easy resolution. It may be that a book is available to print on demand, but has not been actually printed by anyone, in which case it would be strange to conclude that the book has nonetheless been published in physical format. But it would be equally strange for a book to be subject to one mandatory regime or another depending on whether a consumer has actually obtained a printed copy on demand. Indeed, some print-on-demand copies may be printed privately, in consumers' homes, or at kiosks at brick-and-mortar bookstores, in which case it would be difficult to determine whether a physical copy has been made. The Office is aware that the same issue arises with some frequency with respect to electronic-only serials, many of which are available for print on demand. This issue potentially arises for other types of works as well.\49\ Accordingly, the growing availability of print-on-demand type services for works that are otherwise available online may cause broader uncertainty regarding the scope of the general exemption for electronic-only works. --------------------------------------------------------------------------- \49\ Eliot Van Buskirk, Tunecore, Amazon Set to Unveil On-Demand CD Sales, Wired (May 21, 2009), https://www.wired.com/2009/05/amazon-to-unveil-on-demand-cd-printing-service-with-tunecore/. --------------------------------------------------------------------------- On balance, the Office believes that the Authors Guild's approach is the most administrable for the Office and for publishers. The Proposed Rule thus provides--for all electronic-only works--that a work shall be deemed to be ``available only online'' even if physical copies or phonorecords have been made available on demand for individual consumers, so long as the work is otherwise available only online. In other words, if the work is only available online or if the work is only available in physical format to individual consumers on demand, it will be subject to the general exemption for online only works in section 202.19(c)(5). Electronic-only books and serials that meet those qualifications will only be subject to the on demand mandatory deposit scheme in section 202.24, not the affirmative mandatory deposit requirements in 202.19. C. Library Access Policies In its NOI, the Office also asked for opinions on the Library's access policy as applied to both electronic-only serials and, potentially, to electronic-only books.\50\ --------------------------------------------------------------------------- \50\ 81 FR at 30509. --------------------------------------------------------------------------- Commenters representing libraries and user groups generally supported increased access and found the Library's existing access policies for eserials too restrictive. They also noted that limiting access to two users is ``not in accord with current practices in the library community'' and that ``[increased] access is an essential component of the Library's mission.'' \51\ Those representing creators voiced concerns that increased access, particularly to digital works, would bring increased risks of piracy or potential market substitution.\52\ Significantly, these commenters protested that the Library's access policy has not been codified in the regulations.\53\ --------------------------------------------------------------------------- \51\ LCA Comments at 4; see also Univ. of Va. Libr. Comments at 5-6. \52\ Authors Guild Comments at 6. \53\ RIAA Comments at 11-12. --------------------------------------------------------------------------- As discussed above, in January 2018, the Office issued a rule that codified the rules \54\ governing access to electronic copies of newspaper issues that are made part of the Library's collection through the group registration process.\55\ That rule aims to provide access to electronic works as similar as possible to the access provided to analog works, with some modifications to address the unique nature of digital works. The proposed rule modifies section 202.18 to apply the same access restrictions to electronic material obtained through mandatory deposit. --------------------------------------------------------------------------- \54\ 37 CFR 202.18. \55\ 83 FR at 4146. --------------------------------------------------------------------------- A number of comments expressed concern regarding the extent to which the Library informs patrons about copyright limitations.\56\ While the NOI pointed to ``a set of fair use criteria in a short training manual'' in the Library's Microform & Electronic Resources Center, meant to guide users when accessing electronic serials, commenters noted that such a manual could not be located.\57\ The Office confirmed with the Library that the manual was not a fair use training manual, but a short notice warning that Library patrons are personally liable for any copyright infringement. The Library has stated that it is fully committed to taking steps to prevent infringement of the material in its collections. At the same time, the Library believes that patrons must have sufficient access to the Library's collections to engage in legislative work, research, or activities protected by fair use. The proposed access policies balance these goals. --------------------------------------------------------------------------- \56\ Authors Guild Comments at 6; Nat'l Writers Union et al. Comments at 21-22. \57\ 81 FR at 30508; AAP Comments at 12-13; Copyright All. Comments at 4. --------------------------------------------------------------------------- The University of Michigan Library suggested that the depositor should be asked whether any public licenses apply to the deposited works, to give the Library ``more flexibility in providing access to the deposited copy of the work.'' \58\ The Office understands that this idea may be helpful as the Library's develops its overall eCollections strategy, but at this time, the Office believes collecting such information in the context of this rule will only impose administrative burdens on the collection of electronic works. The National Writers Union, Western Writers of America, and American Society of Journalists and Authors voiced concerns over whether the access rules had a provision to protect confidential information or trade secrets.\59\ The Office appreciates this concern, but notes that only published works will be subject to the demand requirements. --------------------------------------------------------------------------- \58\ Univ. of Mich. Libr. Comments at 4. \59\ Nat'l Writers Union et al. Comments at 16. --------------------------------------------------------------------------- D. Information Technology, Security, and Related Requirements The Office asked parties to ``comment on the information technology, security, and/or other requirements that should apply to the Library's receipt and storage of, and public access to, any online- only books . . . collected under section 407.'' \60\ Some commenters suggested that the Library's information technology infrastructure and planning were not ready to accept electronic-only books, based on the status of the Library's security infrastructure in 2015.\61\ --------------------------------------------------------------------------- \60\ 81 FR at 30509. \61\ See AAP Comments at 14-15. --------------------------------------------------------------------------- Since that time, the Library has taken major steps to address its information technology needs. The Librarian has appointed a permanent Chief Information Officer, who is responsible for information technology operations, strategy, and alignment with the Library's mission. The Library's aforementioned information technology strategic plan includes strategies to protect the Library's information technology systems, including following best practices for consistent security measures based on the National Institute of Standards and Technology's (``NIST's'') Risk Management Framework. The Library has implemented that Risk Management Framework and has developed a new [[Page 16274]] Information Technology Contingency Plan template addressing NIST guidance and Library policy. It has also implemented an updated overarching System Security Plan policy, has updated existing System Security Plans, and continues comprehensive and effective security testing for all systems. While no security plan is flawless, the Library is encouraged that the existing system protecting electronic-only serials subject to mandatory deposit has not encountered security threats. The Library's efforts to improve information technology, including systems security, are ongoing and commenters will continue to be helpful to the Library in implementing its information technology plans going forward.\62\ The Office is reasonably relying on the Library's assurances regarding information technology security in moving this rulemaking forward. --------------------------------------------------------------------------- \62\ See, for example, Portico's detailed comments regarding issues such as server room temperature, staff access, and preferred file transfer and synchronization tools. Portico Comments at 3. --------------------------------------------------------------------------- E. ``Best Edition'' Requirements for Electronic-Only Serials and Electronic-Only Books The final question the Office asked in its NOI was how the ``best edition'' requirements should be applied to mandatory deposit of electronic-only books, including ``whether and how the `best edition' criteria for electronic serials . . . or the guidelines from the Library's Recommended Formats Statement, might or might not be adapted [for the Best Edition Statement].'' \63\ The Library's Recommended Formats Statement encompasses the formats and related criteria which the Library prefers for the purposes of ensuring the preservation and long-term access of its collection; the Library uses the Recommended Formats Statement for its collection efforts outside of the Copyright Act. The Library's Recommended Formats Statement identifies six criteria for the works it covers, including: technical characteristics, formats, rarity and special features, completeness, metadata, and technological measures.\64\ In many instances the Best Edition Statement tracks, but does not mirror exactly, the Recommended Formats Statement. While the best edition of a work should be the edition published in the United States that the Library of Congress determines to be most suitable for its purposes, as with other aspects of any deposit requirement, deposit of such editions should not be overly burdensome to copyright owners. Thus, the goal in creating best edition criteria is to make depositing works as simple and inexpensive as possible while ensuring that the Library fulfills its role in acquiring and preserving the creative output of the nation. --------------------------------------------------------------------------- \63\ 81 FR at 30509. \64\ Recommended Formats Statement, Libr. of Cong., https://www.loc.gov/preservation/resources/rfs/textmus.html (last visited Mar. 29, 2018). --------------------------------------------------------------------------- As an initial matter, commenters voiced concerns that the best edition of electronic-only books would differ from the publication version of the electronic-only book.\65\ The statute, however, requires the deposit only of the best published edition of a work.\66\ It does not require the publisher or producer to create a special preservation copy simply for the benefit of the Library of Congress. --------------------------------------------------------------------------- \65\ See AAP Comments at 16-17; Portico Comments at 4; SIIA Comments at 2. \66\ 17 U.S.C. 101 (``The `best edition' of a work is 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.'' (emphasis added)). --------------------------------------------------------------------------- Relatedly, the Office does not agree with AAP's suggestion that books created solely in proprietary formats should be automatically exempt from the mandatory deposit requirements.\67\ To begin with, the Library doubts this will be an issue with respect to the kinds of works that it wishes to include in the Library's collections. But in the unlikely event that the Library seeks to acquire a work that is only published in a proprietary format that cannot be viewed by the Library, the Office will work with the publisher to identify a means to access the work. --------------------------------------------------------------------------- \67\ AAP Comments at 16-17. --------------------------------------------------------------------------- In responding to this inquiry, a few commenters addressed the viability of the Library's Recommended Formats Statement as an appropriate basis for the Best Edition Statement for electronic-only books.\68\ While the University of Michigan Library voiced general support for use of the Recommended Formats Statement,\69\ others offered input on that Statement's ``formats'' and ``metadata'' requirements as well as the ``completeness'' components. For instance, Portico suggested that several of the format and metadata standards found in the Recommended Formats Statement were acceptable, including XML-based markup formats (including BITS-, JATS-, and EPUB-compliant formats) and PDFs.\70\ AAP voiced concerns, however, that the desired metadata identified by the Recommended Formats Statement included more fields, including ``creation date,'' ``place of publication,'' and ``contact information,'' than are required by the ONIX for Books standard (``ONIX''), which they prefer.\71\ Portico offered additional helpful comments, suggesting that the Library should be able to accept metadata, such as a MARC record, apart from ``rendition'' material and that the Library ``should encourage publishers to send ISBNs for all available formats of the book in the metadata record.'' \72\ --------------------------------------------------------------------------- \68\ Only Portico indirectly addressed the use of the electronic serials' best edition statement as the basis for a Best Edition Statement for electronic books, when it stated during its analysis of security-related concerns that ``academic electronic book content typically utilizes the same range of formats as electronic serial content.'' Portico Comments at 2. \69\ Univ. of Mich. Libr. Comments at 4. \70\ Portico Comments at 2-3. \71\ AAP Comments at 17; see also Univ. of Mich. Libr. Comments at 4 (noting support for accepting ONIX metadata as opposed to the Library's web forms). ONIX is a XML-based standard for communicating metadata, created in part by the Association of American Publishers, and includes information such as title, author, ISBN, BISAC Subject Codes, and more. See ONIX for Books, Book Indus. Study Grp., http://bisg.org/page/ONIXforBooks (last visited Mar. 29, 2018). \72\ Portico Comments at 2-3. --------------------------------------------------------------------------- Based on this record, the Office believes that the Recommended Formats Statement is a viable basis for the Best Edition Statement with regards to format and metadata standards. Moreover, for purposes of consistency, the Office proposes to incorporate more of the requirements of the Recommended Formats Statement into the Best Edition Statement, for both electronic-only books and electronic-only serials. Importantly, to address AAP's concern, submitting metadata will be required only if the metadata has been distributed together with the published copy of the electronic-only book, alleviating parties' concerns that widely-used standards, such as the ONIX standard, will fall short of the metadata requirements. Publishers do not need to gather or generate additional metadata that has not been published with the electronic-only serial or book to comply with the Best Edition Statement. The University of Michigan Library suggested that if the Recommended Formats Statement is used as a basis for the Best Edition Statement, the ``Completeness'' section should be clarified to explain what is meant by the requirement to provide ``[a]ll updates, supplements, releases, and supersessions published as part of the work and offered for sale or distribution . . . .'' \73\ The Office agrees with this suggestion and proposes adding clarifying language in the Best Edition Statement for both electronic-only books [[Page 16275]] and electronic-only serials indicating that all updates, supplements, releases, and supersessions to a previously demanded and delivered electronic-only book or serial must be submitted by the publisher to the Office. Finally, commenters discussed the value of requiring works to be deposited without technological measures that control access or use of the work, as is currently the case for electronic-only serials.\74\ While the Office agrees that such technological protection measures provide significant security assurances,\75\ it also believes that encumbering deposited copies with such protections would conflict with the Library's purposes of preserving the works.\76\ The Office proposes that the existing requirement to remove technological measures that control access to or use of the work should remain a deposit requirement for electronic-only serials and should be included in the new regulation for electronic-only books. --------------------------------------------------------------------------- \73\ Univ. of Mich. Libr. Comments at 4-5 (quoting Recommended Formats Statement, Libr. of Congress, https://www.loc.gov/preservation/resources/rfs/textmus.html (last visited Mar. 29, 2018)). \74\ 37 CFR pt. 202 app. B.IX.A.3. \75\ See Authors Guild Comments at 6. \76\ See Benetech Comments at 1; Univ. of Mich. Libr. Comments at 4; Univ. of Va. Libr. Comments at 6. --------------------------------------------------------------------------- III. Conclusion In summary, the proposed rule would chiefly do the following: (1) Create a new demand-based mandatory deposit scheme for electronic-only books, similar to that for electronic-only serials. (2) Define electronic-only books to be an electronic literary work published in one volume or a finite number of volumes published in the United States and available only online. (3) Create ``best edition'' requirements for electronic-only books, mirroring the Library's Recommended Formats Statement. (4) Specify for all electronic-only works that a work shall be deemed to be available only online even if physical copies can be produced for consumers on demand. (5) Clean up and clarify the existing rule on electronic-only serials, including the best edition requirements. The Copyright Office hereby seeks comment from the public on the amendments proposed in this Notice of Proposed Rulemaking. List of Subjects in 37 CFR Part 202 Copyright. Proposed Regulations For the reasons set forth in the preamble, the Copyright Office proposes amending 37 CFR part 202 as follows: PART 202--GENERAL PROVISIONS 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. 202.18 as follows: 0 a. In paragraph (a) add the words ``and Sec. 202.19, and transferred into the Library of Congress's collections,'' after ``under Sec. 202.4(e)'' in the first sentence. 0 b. In paragraph (b), add the words ``and Sec. 202.19'' after ``under Sec. 202.4(e)'' in the first sentence. 0 c. In paragraph (c), add the words ``and Sec. 202.19'' after ``under Sec. 202.4(e)'' in the first sentence. 0 d. Add paragraph (f) to read as follows: Sec. 202.18 Access to electronic works. * * * * * (f) Except as provided under special relief agreements entered into pursuant to Sec. 202.19(e) or Sec. 202.20(d), electronic works will be transferred to the Library of Congress for its collections and made available only under the conditions specified by this section. 0 3. Amend Sec. 202.19 as follows: 0 a. Revise paragraph (b)(4). 0 b. In paragraph (c)(5), add ``electronic-only books and'' after the phrase ``This exemption includes''. The additions and revisions read as follows: Sec. 202.19 Deposit of published copies or phonorecords for the Library of Congress. * * * * * (b) * * * (4) For purposes of paragraph (c)(5) of this section: (i) An electronic-only serial is serial as defined in Sec. 202.3(b)(1)(v) that is published in electronic form in the United States and available only online. (ii) An electronic-only book is an electronic literary work published in one volume or a finite number of volumes published in the United States and available only online. This class excludes literary works distributed solely in phonorecords (e.g., audiobooks), serials (as defined in Sec. 202.3(b)(1)(v)), computer programs, websites, blogs, and emails. (iii) A work shall be deemed to be available only online even if physical copies have been made on demand for individual consumers, so long as the work is otherwise available only online. * * * * * 0 4. Amend Sec. 202.24 as follows: 0 a. In paragraph (a)(2), remove ``works'' and add in its place ``electronic-only serials''. 0 b. Redesignate paragraphs (a)(3) and (4) as paragraphs (a)(4) and (5), respectively. 0 c. Add new paragraph (a)(3). 0 d. In paragraph (b), remove ``online-only'' and add in its place ``electronic-only''. 0 e. Revise paragraph (c)(3). The additions and revisions read as follows: Sec. 202.24 Deposit of published electronic works available only online. (a)* * * (3) Demands may be made only for electronic-only books published on or after EFFECTIVE DATE OF RULE. * * * * * (c) * * * (3) ``Electronic-only'' works are electronic works that are published and available only online. 0 6. Amend Appendix B to part 202 as follows: 0 a. Revise paragraph IX. The revision reads as follows: Appendix B to Part 202--``Best Edition'' of Published Copyrighted Works for the Collections of the Library of Congress * * * * * IX. Electronic-Only Works Published in the United States and Available Only Online For all deposits, technological measures that control access to or use of the work should be removed. In addition, the following encodings are listed in descending order of preference for all deposits in all categories below: 1. UTF-8. 2. UTF-16 (with BOM). 3. US-ASCII. 4. ISO 8859. 5. All other character encodings. A. Electronic-Only Serials: 1. Content Format: a. Serials-specific structured/markup format: (i) Content compliant with the NLM Journal Archiving (XML) Document Type Definition (DTD), with presentation stylesheet(s), rather than without NISO JATS: Journal Article Tag Suite (NISO Z39.96-201x) with XSD/XSL presentation stylesheet(s) and explicitly stated character encoding. (ii) Other widely used serials or journal XML DTDs/schemas, with presentation stylesheet(s), rather than without. (iii) Proprietary XML format for serials or journals (with documentation), with DTD/schema and presentation stylesheet(s), rather than without. b. Page-oriented rendition: (i) PDF/UA (Portable Document Format/Universal Accessibility; compliant with ISO 14289-1). (ii) PDF/A (Portable Document Format/Archival; compliant with ISO 19005). (iii) PDF (Portable Document Format, with searchable text, rather than without; highest quality available, with features such as searchable text, embedded fonts, lossless compression, high resolution images, device-independent specification of colorspace; [[Page 16276]] content tagging; includes document formats such as PDF/X). c. Other structured or markup formats: (i) Widely-used serials or journal non-proprietary XML-based DTDs/schemas with presentation stylesheet(s). (ii) Proprietary XML-based format for serials or journals (with documentation) with DTD/schema and presentation stylesheet(s). (iii) XHTML or HTML, with DOCTYPE declaration and presentation stylesheet(s). (iv) XML-based document formats (widely used and publicly documented). With presentation stylesheets, if applicable. Includes ODF (ISO/IEC 26300) and OOXML (ISO/IEC 29500). d. PDF (web-optimized with searchable text). e. Other formats: (i) Rich text format. (ii) Plain text. (iii) Widely-used proprietary word processing or page-layout formats. (iv) Other text formats not listed here. 2. Metadata Elements: If included with published version of work, descriptive data (metadata) as described below should accompany the deposited material: a. Title level metadata: Serial or journal title, ISSN, publisher, frequency, place of publication. b. Article level metadata, as relevant/or applicable: Volume(s), number(s), issue dates(s), article title(s), article author(s), article identifier (DOI, etc.). c. With other descriptive metadata (e.g., subject heading(s), descriptor(s), abstract(s)), rather than without. 3. Completeness: a. All elements considered integral to the publication and offered for sale or distribution must be deposited--e.g., articles, table(s) of contents, front matter, back matter, etc. Includes all associated external files and fonts considered integral to or necessary to view the work as published. b. All updates, supplements, releases, and supersessions published as part of the work and offered for sale or distribution must be deposited and received in a regular and timely manner for proper maintenance of the deposit. B. Electronic-Only Books: 1. Content Format: a. Book-specific structured/markup format, i.e., XML-based markup formats, with included or accessible DTD/schema, XSD/XSL presentation stylesheet(s), and explicitly stated character encoding: (i) BITS-compliant (NLM Book DTD). (ii) EPUB-compliant. (iii) Other widely-used book DTD/schemas (e.g., TEI, DocBook, etc.). b. Page-oriented rendition: (i) PDF/UA (Portable Document Format/Universal Accessibility; compliant with ISO 14289-1). (ii) PDF/A (Portable Document Format/Archival; compliant with ISO 19005). (iii) PDF (Portable Document Format; highest quality available, with features such as searchable text, embedded fonts, lossless compression, high resolution images, device-independent specification of colorspace; content tagging; includes document formats such as PDF/X). c. Other structured markup formats: (i) XHTML or HTML, with DOCTYPE declaration and presentation stylesheet(s). (ii) XML-based document formats (widely-used and publicly- documented), with presentation style sheet(s) if applicable. Includes ODF (ISO/IEC 26300) and OOXML (ISO/IEC 29500). (iii) SGML, with included or accessible DTD. (iv) Other XML-based non-proprietary formats, with presentation stylesheet(s). (v) XML-based formats that use proprietary DTDs or schemas, with presentation stylesheet(s). d. PDF (web-optimized with searchable text). e. Other formats: (i) Rich text format. (ii) Plain text. (iii) Widely-used proprietary word processing formats. (iv) Other text formats not listed here. 2. Metadata Elements: If included with published version of work, descriptive data (metadata) as described below should accompany the deposited material: a. As supported by format (e.g., standards-based formats such as ONIX, XMP, MODS, or MARCXML either embedded in or accompanying the digital item): Title, creator, creation date, place of publication, publisher/producer/distributor, ISBN, contact information. b. Include if part of published version of work: Language of work, other relevant identifiers (e.g., DOI, LCCN, etc.), edition, subject descriptors, abstracts. 3. Rarity and Special Features: a. Limited editions (including those with special features such as high resolution images.) b. Editions with the greatest number of unique features (such as additional content, multimedia, interactive elements.) 4. Completeness: a. For items published in a finite number of separate components, all elements published as part of the work and offered for sale or distribution must be deposited. Includes all associated external files and fonts considered integral to or necessary to view the work as published. b. All updates, supplements, releases, and supersessions published as part of the work and offered for sale or distribution must be submitted and received in a regular and timely manner for proper maintenance of the deposit. Dated: April 6, 2018. Sarang Vijay Damle, General Counsel and Associate Register of Copyrights. [FR Doc. 2018-07484 Filed 4-13-18; 8:45 am] BILLING CODE 1410-30-P
![Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Proposed Rules 16269
www.regulations.gov, contact the person by telephone at 409–719–5070. Those Office. The proposed rule does not
in the FOR FURTHER INFORMATION persons or vessels permitted to enter the address mandatory deposit of
CONTACT section of this document for safety zone must comply with all lawful electronic-only sound recordings.
alternate instructions. directions given by the COTP or a
We accept anonymous comments. All designated representative. DATES: Written comments must be
comments received will be posted (d) Enforcement date. This section received no later than 11:59 p.m.
without change to http:// will be enforced from June 1, 2018 Eastern Time on May 31, 2018.
www.regulations.gov and will include through January 31, 2023. ADDRESSES: For reasons of government
any personal information you have Dated: March 14, 2018. efficiency, the Copyright Office is using
provided. For more about privacy and Jacqueline Twomey, the regulations.gov system for the
the docket, visit http:// submission and posting of public
Captain, U.S. Coast Guard, Captain of the
www.regulations.gov/privacyNotice. Port Marine Safety Unit Port Arthur. comments in this proceeding. All
Documents mentioned in this NPRM comments are to be submitted
[FR Doc. 2018–07865 Filed 4–13–18; 8:45 am]
as being available in the docket, and all electronically through regulations.gov.
BILLING CODE 9110–04–P
public comments, will be in our online Specific instructions for submitting
docket at http://www.regulations.gov comments are available on the
and can be viewed by following that Copyright Office website at https://
website’s instructions. Additionally, if LIBRARY OF CONGRESS
www.copyright.gov/rulemaking/
you go to the online docket and sign up
Copyright Office ebookdeposit. If electronic submission
for email alerts, you will be notified
of comments is not feasible due to lack
when comments are posted or a final
37 CFR Part 202 of access to a computer and/or the
rule is published.
[Docket No. 2016–03] internet, please contact the Office using
List of Subjects in 33 CFR Part 165 the contact information below for
Harbors, Marine safety, Navigation Mandatory Deposit of Electronic-Only special instructions.
(water), Reporting and recordkeeping Books
FOR FURTHER INFORMATION CONTACT:
requirements, Security measures, AGENCY: U.S. Copyright Office, Library Cindy P. Abramson, Assistant General
Waterways. of Congress. Counsel, by email at ciab@loc.gov or
For the reasons discussed in the John R. Riley at jril@loc.gov. Both can be
ACTION: Notice of proposed rulemaking.
preamble, the Coast Guard proposes to reached by telephone at 202–707–8350.
amend 33 CFR part 165 as follows: SUMMARY: Section 407 of the Copyright
SUPPLEMENTARY INFORMATION:
Act requires the mandatory deposit with
PART 165—REGULATED NAVIGATION
the Copyright Office (‘‘Office’’) of all I. Background
AREAS AND LIMITED ACCESS AREAS
works published in the United States,
within three months of publication, for A. Mandatory Deposit Under the
■ 1. The authority citation for part 165
use by the Library of Congress Copyright Act Generally
continues to read as follows:
(‘‘Library’’). The Office is allowed to
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; The Copyright Act’s ‘‘mandatory
exclude certain classes of works from
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; deposit’’ requirement, section 407 of
Department of Homeland Security Delegation
this requirement. In a 2010 interim rule,
the Office codified its longstanding title 17, provides that the owner of
No. 0170.2. copyright or the exclusive right of
■ 2. Add § 165.T08–0914 to read as practice of excluding from the
mandatory deposit requirements all publication in a work published in the
follows: United States must, within three months
electronic works that are not otherwise
§ 165.T08—0914 Safety Zone; Taylor available in a physical format (i.e., of publication, deposit two complete
Bayou Turning Basin, Port Arthur, TX ‘‘electronic works published in the copies of the ‘‘best edition’’ of the work
(a) Location. The following area is a United States and available only with the Copyright Office, or, in the case
safety zone: navigable waters of Taylor online.’’). The 2010 interim rule created of sound recordings, two complete
Bayou Turning Basin north of latitude one exception to this general rule for phonorecords of the best edition,
29°50′57.45″ N. These coordinates are electronic-only serials, which are together with any printed or other
based on WGS 84. subject to mandatory deposit, if they are visually perceptible material published
(b) Definition. As used in this section, published in the United States and if with the phonorecords.1 The Register
a designated representative means a they are affirmatively demanded by the may issue a written demand for works
Coast Guard coxswain, officer or petty Office. On May 17, 2016, the Office at any time after they have been
officer, or a federal, state or local officer published a Notice of Inquiry seeking published in the United States.2 Failure
designated by or assisting the Captain of public comment on potential regulatory to make the required deposit after a
the Port Port Arthur (COTP) in the changes that would make the interim written demand is made by the Register
enforcement of the safety zone. rule final and would make electronic- may subject such person on whom the
(c) Regulations. (1) Under the general only books and sound recordings demand was made to monetary
safety zone regulations in § 165.23 of subject to mandatory deposit liability.3 Compliance with this section
this part, you may not enter the safety requirements by way of the same is not a condition of copyright
daltland on DSKBBV9HB2PROD with PROPOSALS
zone described in paragraph (a) of this demand process. Based on the responses protection, but the Copyright Act
section unless authorized by the COTP to the NOI and input from the Library, provides that deposits made under
or a designated representative. the Office proposes revising its section 407 may be used to satisfy the
(2) To request permission to enter, regulations to make the interim rule registration deposit provisions under
contact COTP or a designated final, and to make electronic-only books
representative on VHF–FM channel 16, published in the United States subject to 1 17 U.S.C. 407(a); see generally 37 CFR 202.19.
or contact Vessel Traffic Service (VTS) the mandatory deposit requirements if 2 17 U.S.C. 407(d).
Port Arthur on VHF–FM channel 65A or they are affirmatively demanded by the 3 See id.
VerDate Sep<11>2014 16:32 Apr 13, 2018 Jkt 244001 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 E:\FR\FM\16APP1.SGM 16APP1](https://thefederalregister.org/doc/83_FR_16342/page/1.svg)
![16270 Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Proposed Rules
section 408, if all other registration regulations to adopt this clearer access to, electronic-only books. Fourth,
conditions are met.4 nomenclature.) The Office, however, the NOI requested comments on how
Deposits made to satisfy section 407 also adopted an exception to this the ‘‘best edition’’ requirements should
are for the ‘‘use or disposition of the exemption, putting in place a demand- be applied to the mandatory deposit of
Library of Congress’’ and must satisfy based mandatory deposit provision for electronic-only books. The Copyright
the ‘‘best edition’’ requirement. That is, electronic-only serials.9 An electronic- Office received fifteen comments on the
such deposits must be of the edition, only serial is ‘‘an electronic work proposed changes. While some of the
published in the United States at any published in the United States and comments praised the efforts to collect
time before the date of deposit, that the available only online, issued or more works in the identified categories,
‘‘Library of Congress determines to be intended to be issued on an established others expressed reservations.
most suitable for its purposes.’’ 5 These schedule in successive parts bearing
D. 2018 Rule Regarding Public Access
requirements are governed by section numerical or chronological
To Deposited Works
202.19 and Appendix B of part 202 of designations, without subsequent
the Office’s regulations, which set forth alterations, and intended to be In January 2018, the Office also issued
rules and criteria, respectively, for the continued indefinitely.’’ This category a final rule updating its regulations
different types of works subject to the includes ‘‘periodicals, newspapers, governing the group registration and
mandatory deposit requirement. annuals, and the journals, proceedings, mandatory deposit of newspapers.13
Certain categories of works are not transactions, and other publications of Under that rule, newspaper publishers
subject to mandatory deposit. By societies.’’ 10 The 2010 Interim Rule also can submit groups of newspapers issues,
definition, mandatory deposit stated that, any additional categories of in electronic format, pursuant to the
requirements do not apply to electronic-only works would first be group registration option.14 Copies of
unpublished works and foreign works ‘‘identified as being subject to demand’’ those newspaper issues are then
that have not been published in any through a rulemaking with notice and delivered to the Library for its
form in the United States. In addition, comment before the Office issues any collections, and the rule specifies that
under section 407(c) of the Copyright actual demands for such works.11 those copies satisfy the mandatory
Act, the Register of Copyrights can, by deposit regulations.15 As part of that
C. 2016 Notice of Inquiry Regarding rule, the Office codified public access
regulation, exempt any categories of Expansion of Demand-Based Deposit
material from section 407’s mandatory restrictions in a new section 202.18,
deposit requirements or demand only As described in-depth in this specifying that access will be provided
one copy or phonorecord to provide a rulemaking’s 2016 NOI,12 the Office is only to authorized users at Library of
‘‘satisfactory archival record of a work.’’ interested in finalizing the 2010 Interim Congress premises and off-site to
With section 407, Congress balanced Rule, as well as adding a new category Library staff as part of their assigned
different, important interests, including of online works—electronic-only duties via a secure connection.16 These
the ‘‘value of the copies or books—to the demand-based mandatory access restrictions reflected informal
phonorecords to the collections of the deposit scheme. Although the NOI restrictions that had been in place for
Library of Congress’’ and ‘‘the burdens included online sound recordings as a electronic-only serials since 2010.17 In
and costs to the copyright owner of potential additional category of works issuing the notice of proposed
providing [copies of the works].’’ 6 that could be subject to the mandatory rulemaking, the Office emphasized that
Under this authority, the Register has deposit requirement, the Office has not ‘‘over time the Library would like to
adopted a series of exemptions from the included electronic-only sound expand [section 202.18] to address
mandatory deposit requirement.7 recordings within the rule proposed in public access to digital registration
this current rulemaking. The Copyright deposits for other types of digital
B. Regulations Regarding Mandatory Office is postponing further works’’ but that ‘‘[b]efore expanding
Deposit of Electronic-Only Materials consideration of this issue until after the such access, . . . the Office will issue
In 2010, the Office codified its conclusion of the present rulemaking. separate rulemakings to notify the
longstanding practice of excluding from In the Office’s NOI, it sought public.’’ 18
mandatory deposit requirements all comments on four topics. First, the
public was invited to opine on the II. Discussion
‘‘[e]lectronic works published in the
United States and available only efficacy of the 2010 Interim Rule, This Notice of Proposed Rulemaking
online.’’ 8 (The Office is now referring to including whether it adequately serves addresses issues raised in response to
this category of works as ‘‘electronic- the needs of the Library and other the NOI as well as additional issues
only’’ works, to better distinguish it affected parties and whether it could raised by commenting parties. This rule
from works that are published in both serve as a good framework for adding aims to respond to the increase in
electronic and physical formats. The additional categories of electronic works publication and marketing of works in
Office is also proposing changes to the to the mandatory deposit system. electronic-only digital forms.19 The
Second, the NOI solicited comments on Library’s collections comprise the
4 Id. at 408(b). Although section 408 states that the Library’s access policy as applied to world’s most comprehensive record of
copies deposited pursuant to the mandatory deposit both electronic-only serials and, human creativity and knowledge and
provision in section 407 may be used to satisfy the potentially, to electronic-only books. support the Library’s role as the
registration deposit requirement in section 408, in The third topic asked about
practice the Office treats copies of works submitted
for registration as satisfying the mandatory deposit
‘‘information technology, security, and/ 13 83 FR 4144 (Jan. 30, 2018).
daltland on DSKBBV9HB2PROD with PROPOSALS
requirement (assuming the deposit requirements are or other requirements’’ that should 14 37 CFR 202.4(e).
the same), and not vice versa. 37 CFR 202.19(f)(1), apply to the receipt and storage of, and 15 Id. at 202.19(d)(2)(ix).
202.20(e); see 43 FR 763, 768 (Jan. 4, 1978). 16 Id. at 202.18.
5 17 U.S.C. 101; see also 17 U.S.C. 407(b). 9 75 FR at 3865–66. 17 82 FR 51369, 51377 (Nov. 6, 2017).
6 H.R. Rep. No. 94–1476, at 151 (1976), reprinted 10 37 CFR 202.19(b)(4). ‘‘Electronic works’’ are 18 Id.
in 1976 U.S.C.C.A.N. 5659, 5767. themselves defined as ‘‘works fixed and published 19 Libr. Copyright All. (‘‘LCA’’) Comments at 3;
7 See 37 CFR 202.19(c). solely in an electronic format.’’ 37 CFR 202.24(c)(3). Nat’l Writers Union et al. Comments at 11; Univ.
8 75 FR 3863, 3869 (Jan. 25, 2010) (‘‘2010 Interim 11 75 FR at 3866.
of Mich. Libr. Comments at 2; Univ. of Va. Libr.
Rule’’); 37 CFR 202.19(c)(5). 12 81 FR 30505, 30506–08 (May 17, 2016). Comments at 2.
VerDate Sep<11>2014 16:32 Apr 13, 2018 Jkt 244001 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\16APP1.SGM 16APP1](https://thefederalregister.org/doc/83_FR_16342/page/2.svg)
![Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Proposed Rules 16271
research arm of Congress. To help the collections, will not be as burdensome Library will rely on mandatory deposit
Library continue to fulfill these as some assume. While the Library’s of digital works as a core component of
responsibilities, the Copyright Office is collection authority is relatively broad, its overall strategy going forward. It is
proposing to amend the mandatory it does not have the desire or the means also clear that the existing mandatory
deposit rules and criteria to include to collect all electronic-only books. In deposit program for electronic-only
electronic-only books. the context of electronic-only serials, serials has successfully furthered the
Under this proposed rule, electronic- the Library has responsibly exercised its Library’s important goals and could
only books would be subject to authority to demand such works, readily serve as a model for electronic-
mandatory deposit if a written demand without significant issue. only books. Indeed, the Office has been
is issued by the Copyright Office. The Commenters also suggested that receiving copies of electronic books on
Office anticipates that, in some cases, mandatory deposit for electronic-only a voluntary basis through special relief
rather than sending individual demands books would be premature as the agreements for a number of years.27
for each work, it will instead demand all Library has not publicly communicated While implementing mandatory deposit
of the published electronic-only works a cohesive strategy for electronic for electronic-only books would require
from particular publishers. deposits, and therefore, any such an update to the Copyright Office’s
Additionally, this proposal would make strategy could not be evaluated.23 These information technology systems, the
the 2010 Interim Rule concerning commenters cited reports such as those regulatory framework needs to be in
electronic-only works final, and amend by the United States Government place by the time the Library is ready to
the rule governing public access to Accountability Office and the Library’s demand and receive such works.
electronic-only works to encompass Office of the Inspector General which Some commenters suggested that
electronic-only serials and electronic- made recommendations regarding the voluntary agreements should be a
only books received via mandatory Library’s digital collections and preferred method of obtaining digital
deposit. Finally, with this rule the information technology. Some also works.28 The Office notes that
Office proposes specific ‘‘best edition’’ pointed out the Inspector General’s mandatory deposit does not preclude
criteria for electronic-only books, and criticism that the Library lacked voluntary agreements, and the Interim
proposes amendments to the best quantifiable performance measures for Rule has not precluded the Library from
edition criteria for electronic-only its electronic deposit and collections negotiating such arrangements with
serials, modeled on the Library’s projects.24 regard to electronic-only serials. In fact,
Recommended Formats Statement.20 In early 2017, the Library of Congress these voluntary arrangements came
A. Electronic Deposit and the 2010 addressed some of these concerns. In about only after the 2010 Interim Rule
Interim Rule February, the Library adopted strategic was implemented. Nor does the
steps related to future acquisition of existence of these voluntary
In its NOI, the Office asked for digital content, including confirming
opinions on ‘‘the efficacy of the 2010 arrangements involving electronic-only
the Library’s desire to expand the serials preclude the Office from
Interim Rule, including whether it electronic deposit program to include
adequately addresses the digital expanding mandatory deposit to include
electronic-only books.25 In March 2017, other categories of online works.
collection and preservation needs of the the Library issued an updated
Library of Congress, whether it has The University of Virginia asked the
information technology strategic plan, Office to reconsider the decision to limit
adequately addressed the concerns of outlining its goals and objectives to be
affected parties, and whether it is a good the Office’s ability to demand
accomplished over the next five years. electronic-only serials to those issues
framework for further developing
The Library has also added performance published after the effective date of the
section 407.’’ 21 This question was
measures to strengthen its plans and to Interim Rule.29 The Office declines this
aimed, in part, at eliciting concerns that
help ensure it meets its collections and proposal as it would be burdensome for
should be addressed before the 2010
information technology development publishers to comply with such a
Interim Rule is made final. Comments
goals. Further, the Library formed a new retroactive regulation.30
responding to this question raised two
‘‘eCollections Steering Group’’ to Finally, one commenter asked
main concerns: The perceived
coordinate the development of its digital whether the Library intends to expand
overbreadth of the 2010 Interim Rule
collection strategies. While the its Surplus Books Program, a program
and the need for a comprehensive
Library of Congress digital collections Inspector General still believes the where the Library donates physical
strategy. Library needs a comprehensive digital books to qualifying educational
Those who voiced concerns over the strategic plan, it has acknowledged
broad scope of authority granted to these early efforts.26 27 Through special relief agreements, the Library
demand electronic works suggested that While some of the Library’s collection has obtained free access to a number of publishers’
strategies will need to be further refined online portals for use by patrons and received
expanding the Interim Rule to include electronic copies of serials and books for archival
electronic-only books has a potential ‘‘to as time goes on, it is clear that the purposes. These special relief agreements typically
impose widespread and burdensome involve the deposit of electronic versions of works
23 Copyright All. Comments at 2; Recording that are also published in print format, thereby
deposit requirements,’’ especially on Indus. Ass’n of Am. (‘‘RIAA’’) Comments at 8; saving publishers the burden and expense of having
independent or self-publishers.22 The Software & Info. Indus. Ass’n (‘‘SIIA’’) Comments at to send physical copies to satisfy mandatory deposit
Office appreciates these concerns, but 2. obligations.
believes that the approach of selective 24 Copyright All. Comments at 2–3. 28 Assoc. of Am. Pubs. (‘‘AAP’’) Comments at 10;
daltland on DSKBBV9HB2PROD with PROPOSALS
demand-based deposit requirements, as 25 Collecting Digital Content at the Library of SIIA Comments at 3–4.
Congress, Libr. of Cong., 1–2 (Feb. 2017), https:// 29 Univ. of Va. Libr. Comments at 5.
a way to fulfill the Library’s digital www.loc.gov/acq/devpol/ 30 Indeed, it is not clear whether section 407 even
CollectingDigitalContent.pdf. grants the Office the authority to issue such
20 See Recommended Formats Statement, Libr. of 26 Office of the Inspector General Semiannual retroactive rules. See Bowen v. Georgetown Univ.
Cong., https://www.loc.gov/preservation/resources/ Report to the Congress, Libr. of Cong., 10 (Mar. Hosp., 488 U.S. 204, 208 (1988) (‘‘[A] statutory grant
rfs/textmus.html (last visited Mar. 29, 2018). 2017), https://www.loc.gov/portals/static/about/ of legislative rulemaking authority will not, as a
21 81 FR at 30509.
office-of-the-inspector-general/annual-reports/ general matter, be understood to encompass the
22 Nat’l Writers Union et al. Comments at 15; see documents/March-2017-OIG-Semiannual-Report-to- power to promulgate retroactive rules unless that
also Authors Guild Comments at 4. Congress-5-17-17.pdf. power is conveyed by Congress in express terms.’’).
VerDate Sep<11>2014 16:32 Apr 13, 2018 Jkt 244001 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 E:\FR\FM\16APP1.SGM 16APP1](https://thefederalregister.org/doc/83_FR_16342/page/3.svg)
![16272 Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Proposed Rules
institutions, to its eCollections tangible medium of expression for subject to mandatory deposit in this
strategy.31 The Library has no plans to literary works.37 The Office received proposed rule. Accordingly, the Office
expand that program to electronic several helpful considerations on this proposes that an ‘‘electronic-only book’’
works, and will only be demanding topic. Some commenters noted that a should be defined broadly as an
electronic-only books that it wishes to definition could be in reference to the electronic literary work published in
keep in its collections. Indeed, section file format or medium of the work, such one volume or a finite number of
202.18 would establish the outer limits as works published in PDF or HTML volumes published in the United States
of public access to electronic-only books format.38 Others noted that an and available only online, with specific
and serials received through mandatory electronic-only book could be defined exclusions for certain types of works,
deposit. with reference to the content of the including serials, audiobooks, computer
work.39 Others suggested that the programs, websites, blogs, and emails.
B. Application of the 2010 Interim Rule For clarity’s sake, the proposed
definition of an electronic-only book
to Electronic-Only Books definition specifies that electronic-only
should include consideration of how the
The Office’s NOI also invited work is transmitted. For example, the books would be subject to mandatory
comments on whether the 2010 Interim Association of American Publishers deposit only if they are available to the
Rule provided a useful framework for (‘‘AAP’’) recommended that electronic- public as electronic copies—for
mandatory deposit of electronic-only only books would include downloaded example, through download. Electronic-
books.32 The Office received several works but not works available ‘‘through only books accessed through online
thoughtful responses to this question online display, streaming, or apps.’’ 40 display or streaming would generally be
from interested parties. Those who As the Authors Guild points out, ‘‘[a] excluded, unless they were ‘‘published’’
supported, or did not oppose, expansion vast amount of text is ‘published’ online within the meaning of the Copyright
of the 2010 Interim Rule noted the rising today that might qualify as a ‘book,’ Act.45
importance of the Library being able to depending how ‘book’ is defined.’’ 41 The Office believes that its definition
acquire electronic-only works. The As commenters correctly indicate, of an electronic-only book balances the
Authors Guild cited reports indicating defining a book as the physical concerns of copyright owners who
that nearly a half million self-published embodiment of a literary work does not expressed concern about giving the
electronic books are published each translate neatly to the digital Library sweeping discretion to demand
year.33 The Library Copyright Alliance environment. It is clear to the Office various types of electronic works with
(‘‘LCA’’) pointed out that, ‘‘[w]ithout that, through mandatory deposit, the the Library’s reasonable need to obtain
mandatory deposit, works created in the Library wishes to acquire textual works electronic works for its collections.
digital age could be lost forever.’’ 34 that are marketed or presented as In its comments on the earlier NOI,
Commenters with concerns about the ‘‘electronic books’’ and other AAP sought to confirm that ‘‘the
Library’s eCollections strategy and monographic works such as mandatory deposit exemption of ‘tests
expanding the 2010 Interim Rule to organizational reports and long-form and answer material for tests when
electronic-only books expressed essays; it does not intend to obtain blog published separately from other literary
skepticism regarding how electronic- posts, social media posts, and general works’ is preserved even if the Interim
only books would be defined and web pages through that mechanism.42 Rule is expanded to ebooks available
whether the rule would apply to print- The Office recently issued a rule only online.’’ 46 To be clear, the existing
on-demand works. Further, these governing deposits of ‘‘literary exemption for tests and answer
commenters asserted that the Office and monographs’’ 43 and adopted a materials will continue to apply across
the Library have not yet completed definition of that category of works for the board, including tests and related
some planned actions outlined in the those purposes.44 With minor material that are distributed solely
2010 Interim Rule. These planned modification, that definition can also be online, but the Office does not believe
actions included, for example, adopted to define the category of works that this exemption needs to be repeated
examining the feasibility of allowing in the regulatory language defining
rightsholders to provide website links 37 See 37 CFR 202.16(b)(1)(iv) (describing a electronic-only books.
for the Office to download deposits or preregistration class of ‘‘[l]iterary works being Additional commenters noted
engaging in additional consultation with prepared for publication in book form’’); see also potential issues that might arise with
Hadley v. Comm’r of Internal Revenue, 819 F.2d
rightsholders, including on issues 359, 361 (2d Cir. 1987) (noting, for the purposes of respect to works that are both available
involving transmission standards and the Tax Code, ‘‘[t]here are many definitions of for download and print-on-demand.47 In
the potential of downloading or ‘book,’ but a principal one relates to the tangible particular, the concern appears to be
property consisting of a collection of written,
emailing copies of deposited electronic printed, or blank pages fastened together along one
that it will be difficult for publishers to
works.35 edge, bound between covers into a volume’’). determine whether such works are
In considering how to define 38 Copyright All. Comments at 3. subject to the general exemption for
‘‘electronic-only books,’’ the Office 39 Nat’l Writers Union et al. Comments at 16. electronic-only works (and the demand-
notes that the Copyright Act itself does 40 AAP Comments at 16.
based mandatory deposit scheme
not contain a definition of ‘‘books,’’ but 41 Authors Guild Comments at 2 (footnote
proposed here), or whether they are
refers to them as ‘‘material objects’’ that omitted).
42 The Library currently obtains website material
subject to affirmative mandatory deposit
may embody a literary work.36 through means other than mandatory deposit, such
Similarly, the Office’s regulations its web archiving program. See generally Library of 45 17 U.S.C. 101 (‘‘‘Publication’ is the distribution
simply contemplate that books are a Congress, Web Archiving, https://www.loc.gov/ of copies or phonorecords of a work to the public
daltland on DSKBBV9HB2PROD with PROPOSALS
webarchiving/ (last visited Apr. 6, 2018). by sale or other transfer of ownership, or by rental,
31 AAP
43 83 FR 2371 (Jan. 17, 2018). lease, or lending. The offering to distribute copies
Comments at 7–8. or phonorecords to a group of persons for purposes
44 37 CFR 202.19(b)(5) (‘‘The term literary
32 81 FR at 30509.
monograph means a literary work published in one of further distribution, public performance, or
33 Authors Guild Comments at 3 (discussing self-
volume or a finite number of volumes. This public display, constitutes publication. A public
published books in the context of ‘‘The Growing category does not include serials, nor does it performance or display of a work does not of itself
Online-Only Book Market’’). include legal publications that are published in one constitute publication.’’).
34 LCA Comments at 2. 46 AAP Comments at 16.
volume or a finite number of volumes that contain
35 75 FR at 3866, 3868; AAP Comments at 13. 47 See, e.g., Nat’l Writers Union et al. Comments
legislative enactments, judicial decisions, or other
36 17 U.S.C. 101. edicts of government.’’ (emphasis added)). at 17.
VerDate Sep<11>2014 16:32 Apr 13, 2018 Jkt 244001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\16APP1.SGM 16APP1](https://thefederalregister.org/doc/83_FR_16342/page/4.svg)
![Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Proposed Rules 16273
requirements. As a potential solution, C. Library Access Policies Library believes that patrons must have
the Authors Guild recommended that In its NOI, the Office also asked for sufficient access to the Library’s
‘‘books ‘initially’ or ‘originally’ opinions on the Library’s access policy collections to engage in legislative work,
published only online but also available as applied to both electronic-only serials research, or activities protected by fair
in [print-on-demand] format’’ be and, potentially, to electronic-only use. The proposed access policies
essentially treated as works published books.50 balance these goals.
‘‘only’’ online, regardless of whether the Commenters representing libraries The University of Michigan Library
book has actually been printed.48 and user groups generally supported suggested that the depositor should be
increased access and found the Library’s asked whether any public licenses apply
The issue defies easy resolution. It to the deposited works, to give the
may be that a book is available to print existing access policies for eserials too
restrictive. They also noted that limiting Library ‘‘more flexibility in providing
on demand, but has not been actually access to the deposited copy of the
access to two users is ‘‘not in accord
printed by anyone, in which case it work.’’ 58 The Office understands that
with current practices in the library
would be strange to conclude that the this idea may be helpful as the Library’s
community’’ and that ‘‘[increased]
book has nonetheless been published in access is an essential component of the develops its overall eCollections
physical format. But it would be equally Library’s mission.’’ 51 Those strategy, but at this time, the Office
strange for a book to be subject to one representing creators voiced concerns believes collecting such information in
mandatory regime or another depending that increased access, particularly to the context of this rule will only impose
on whether a consumer has actually digital works, would bring increased administrative burdens on the collection
obtained a printed copy on demand. risks of piracy or potential market of electronic works. The National
Indeed, some print-on-demand copies substitution.52 Significantly, these Writers Union, Western Writers of
may be printed privately, in consumers’ commenters protested that the Library’s America, and American Society of
homes, or at kiosks at brick-and-mortar access policy has not been codified in Journalists and Authors voiced concerns
bookstores, in which case it would be the regulations.53 over whether the access rules had a
difficult to determine whether a As discussed above, in January 2018, provision to protect confidential
physical copy has been made. The the Office issued a rule that codified the information or trade secrets.59 The
Office is aware that the same issue rules 54 governing access to electronic Office appreciates this concern, but
arises with some frequency with respect copies of newspaper issues that are notes that only published works will be
to electronic-only serials, many of made part of the Library’s collection subject to the demand requirements.
which are available for print on through the group registration process.55 D. Information Technology, Security,
demand. This issue potentially arises for That rule aims to provide access to and Related Requirements
other types of works as well.49 electronic works as similar as possible
to the access provided to analog works, The Office asked parties to ‘‘comment
Accordingly, the growing availability of
with some modifications to address the on the information technology, security,
print-on-demand type services for works
unique nature of digital works. The and/or other requirements that should
that are otherwise available online may
proposed rule modifies section 202.18 apply to the Library’s receipt and
cause broader uncertainty regarding the storage of, and public access to, any
scope of the general exemption for to apply the same access restrictions to
electronic material obtained through online-only books . . . collected under
electronic-only works. section 407.’’ 60 Some commenters
mandatory deposit.
On balance, the Office believes that A number of comments expressed suggested that the Library’s information
the Authors Guild’s approach is the concern regarding the extent to which technology infrastructure and planning
most administrable for the Office and the Library informs patrons about were not ready to accept electronic-only
for publishers. The Proposed Rule thus copyright limitations.56 While the NOI books, based on the status of the
provides—for all electronic-only pointed to ‘‘a set of fair use criteria in Library’s security infrastructure in
works—that a work shall be deemed to a short training manual’’ in the Library’s 2015.61
be ‘‘available only online’’ even if Microform & Electronic Resources Since that time, the Library has taken
physical copies or phonorecords have Center, meant to guide users when major steps to address its information
been made available on demand for accessing electronic serials, commenters technology needs. The Librarian has
individual consumers, so long as the noted that such a manual could not be appointed a permanent Chief
work is otherwise available only online. located.57 The Office confirmed with the Information Officer, who is responsible
In other words, if the work is only Library that the manual was not a fair for information technology operations,
available online or if the work is only use training manual, but a short notice strategy, and alignment with the
available in physical format to warning that Library patrons are Library’s mission. The Library’s
individual consumers on demand, it personally liable for any copyright aforementioned information technology
will be subject to the general exemption infringement. The Library has stated strategic plan includes strategies to
for online only works in section that it is fully committed to taking steps protect the Library’s information
202.19(c)(5). Electronic-only books and to prevent infringement of the material technology systems, including following
serials that meet those qualifications in its collections. At the same time, the best practices for consistent security
will only be subject to the on demand measures based on the National Institute
mandatory deposit scheme in section
50 81 FR at 30509. of Standards and Technology’s
51 LCA Comments at 4; see also Univ. of Va. Libr. (‘‘NIST’s’’) Risk Management
daltland on DSKBBV9HB2PROD with PROPOSALS
202.24, not the affirmative mandatory Comments at 5–6.
deposit requirements in 202.19. 52 Authors Guild Comments at 6.
Framework. The Library has
53 RIAA Comments at 11–12.
implemented that Risk Management
48 Authors 54 37 CFR 202.18. Framework and has developed a new
Guild Comments at 5.
49 Eliot 55 83 FR at 4146.
Van Buskirk, Tunecore, Amazon Set to 58 Univ.
Unveil On-Demand CD Sales, Wired (May 21, 56 Authors Guild Comments at 6; Nat’l Writers of Mich. Libr. Comments at 4.
59 Nat’lWriters Union et al. Comments at 16.
2009), https://www.wired.com/2009/05/amazon-to- Union et al. Comments at 21–22.
60 81 FR at 30509.
unveil-on-demand-cd-printing-service-with- 57 81 FR at 30508; AAP Comments at 12–13;
tunecore/. Copyright All. Comments at 4. 61 See AAP Comments at 14–15.
VerDate Sep<11>2014 16:32 Apr 13, 2018 Jkt 244001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\16APP1.SGM 16APP1](https://thefederalregister.org/doc/83_FR_16342/page/5.svg)
![16274 Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Proposed Rules
Information Technology Contingency such editions should not be overly metadata identified by the
Plan template addressing NIST guidance burdensome to copyright owners. Thus, Recommended Formats Statement
and Library policy. It has also the goal in creating best edition criteria included more fields, including
implemented an updated overarching is to make depositing works as simple ‘‘creation date,’’ ‘‘place of publication,’’
System Security Plan policy, has and inexpensive as possible while and ‘‘contact information,’’ than are
updated existing System Security Plans, ensuring that the Library fulfills its role required by the ONIX for Books
and continues comprehensive and in acquiring and preserving the creative standard (‘‘ONIX’’), which they prefer.71
effective security testing for all systems. output of the nation. Portico offered additional helpful
While no security plan is flawless, the As an initial matter, commenters comments, suggesting that the Library
Library is encouraged that the existing voiced concerns that the best edition of should be able to accept metadata, such
system protecting electronic-only serials electronic-only books would differ from as a MARC record, apart from
subject to mandatory deposit has not the publication version of the ‘‘rendition’’ material and that the
encountered security threats. The electronic-only book.65 The statute, Library ‘‘should encourage publishers to
Library’s efforts to improve information however, requires the deposit only of send ISBNs for all available formats of
technology, including systems security, the best published edition of a work.66 the book in the metadata record.’’ 72
are ongoing and commenters will It does not require the publisher or Based on this record, the Office
continue to be helpful to the Library in producer to create a special preservation believes that the Recommended Formats
implementing its information copy simply for the benefit of the Statement is a viable basis for the Best
technology plans going forward.62 The Library of Congress. Edition Statement with regards to
Office is reasonably relying on the Relatedly, the Office does not agree format and metadata standards.
Library’s assurances regarding with AAP’s suggestion that books Moreover, for purposes of consistency,
information technology security in created solely in proprietary formats the Office proposes to incorporate more
moving this rulemaking forward. should be automatically exempt from of the requirements of the
the mandatory deposit requirements.67 Recommended Formats Statement into
E. ‘‘Best Edition’’ Requirements for To begin with, the Library doubts this the Best Edition Statement, for both
Electronic-Only Serials and Electronic- will be an issue with respect to the electronic-only books and electronic-
Only Books kinds of works that it wishes to include only serials.
The final question the Office asked in in the Library’s collections. But in the Importantly, to address AAP’s
its NOI was how the ‘‘best edition’’ unlikely event that the Library seeks to concern, submitting metadata will be
requirements should be applied to acquire a work that is only published in required only if the metadata has been
mandatory deposit of electronic-only a proprietary format that cannot be distributed together with the published
books, including ‘‘whether and how the viewed by the Library, the Office will copy of the electronic-only book,
‘best edition’ criteria for electronic work with the publisher to identify a alleviating parties’ concerns that
serials . . . or the guidelines from the means to access the work. widely-used standards, such as the
Library’s Recommended Formats In responding to this inquiry, a few ONIX standard, will fall short of the
Statement, might or might not be commenters addressed the viability of metadata requirements. Publishers do
adapted [for the Best Edition the Library’s Recommended Formats not need to gather or generate additional
Statement].’’ 63 The Library’s Statement as an appropriate basis for the metadata that has not been published
Recommended Formats Statement Best Edition Statement for electronic- with the electronic-only serial or book
encompasses the formats and related only books.68 While the University of to comply with the Best Edition
criteria which the Library prefers for the Michigan Library voiced general Statement.
purposes of ensuring the preservation support for use of the Recommended The University of Michigan Library
and long-term access of its collection; Formats Statement,69 others offered suggested that if the Recommended
the Library uses the Recommended input on that Statement’s ‘‘formats’’ and Formats Statement is used as a basis for
Formats Statement for its collection ‘‘metadata’’ requirements as well as the the Best Edition Statement, the
efforts outside of the Copyright Act. The ‘‘completeness’’ components. For ‘‘Completeness’’ section should be
Library’s Recommended Formats instance, Portico suggested that several clarified to explain what is meant by the
Statement identifies six criteria for the of the format and metadata standards requirement to provide ‘‘[a]ll updates,
works it covers, including: technical found in the Recommended Formats supplements, releases, and
characteristics, formats, rarity and Statement were acceptable, including supersessions published as part of the
special features, completeness, XML-based markup formats (including work and offered for sale or distribution
metadata, and technological measures.64 BITS-, JATS-, and EPUB-compliant . . . .’’ 73 The Office agrees with this
In many instances the Best Edition formats) and PDFs.70 AAP voiced suggestion and proposes adding
Statement tracks, but does not mirror concerns, however, that the desired clarifying language in the Best Edition
exactly, the Recommended Formats Statement for both electronic-only books
65 See AAP Comments at 16–17; Portico
Statement. While the best edition of a
Comments at 4; SIIA Comments at 2. 71 AAP Comments at 17; see also Univ. of Mich.
work should be the edition published in 66 17 U.S.C. 101 (‘‘The ‘best edition’ of a work is
Libr. Comments at 4 (noting support for accepting
the United States that the Library of the edition, published in the United States at any ONIX metadata as opposed to the Library’s web
Congress determines to be most suitable time before the date of deposit, that the Library of forms). ONIX is a XML-based standard for
for its purposes, as with other aspects of Congress determines to be most suitable for its communicating metadata, created in part by the
purposes.’’ (emphasis added)). Association of American Publishers, and includes
any deposit requirement, deposit of
daltland on DSKBBV9HB2PROD with PROPOSALS
67 AAP Comments at 16–17. information such as title, author, ISBN, BISAC
68 Only Portico indirectly addressed the use of the Subject Codes, and more. See ONIX for Books, Book
62 See, for example, Portico’s detailed comments
electronic serials’ best edition statement as the basis Indus. Study Grp., http://bisg.org/page/
regarding issues such as server room temperature, for a Best Edition Statement for electronic books, ONIXforBooks (last visited Mar. 29, 2018).
staff access, and preferred file transfer and when it stated during its analysis of security-related 72 Portico Comments at 2–3.
synchronization tools. Portico Comments at 3. concerns that ‘‘academic electronic book content 73 Univ. of Mich. Libr. Comments at 4–5 (quoting
63 81 FR at 30509. typically utilizes the same range of formats as Recommended Formats Statement, Libr. of
64 Recommended Formats Statement, Libr. of electronic serial content.’’ Portico Comments at 2. Congress, https://www.loc.gov/preservation/
69 Univ. of Mich. Libr. Comments at 4.
Cong., https://www.loc.gov/preservation/resources/ resources/rfs/textmus.html (last visited Mar. 29,
rfs/textmus.html (last visited Mar. 29, 2018). 70 Portico Comments at 2–3. 2018)).
VerDate Sep<11>2014 16:32 Apr 13, 2018 Jkt 244001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:\FR\FM\16APP1.SGM 16APP1](https://thefederalregister.org/doc/83_FR_16342/page/6.svg)
![16276 Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Proposed Rules
content tagging; includes document formats c. Other structured markup formats: ENVIRONMENTAL PROTECTION
such as PDF/X). (i) XHTML or HTML, with DOCTYPE AGENCY
c. Other structured or markup formats: declaration and presentation stylesheet(s).
(i) Widely-used serials or journal non- (ii) XML-based document formats (widely- 40 CFR Part 52
proprietary XML-based DTDs/schemas with used and publicly-documented), with
presentation stylesheet(s). [EPA–R04–OAR–2006–0651; FRL–9976–90–
presentation style sheet(s) if applicable.
(ii) Proprietary XML-based format for Region 4]
serials or journals (with documentation) with Includes ODF (ISO/IEC 26300) and OOXML
DTD/schema and presentation stylesheet(s). (ISO/IEC 29500). Air Plan Approval; GA; Permitting
(iii) XHTML or HTML, with DOCTYPE (iii) SGML, with included or accessible Revision
declaration and presentation stylesheet(s). DTD.
(iv) XML-based document formats (widely (iv) Other XML-based non-proprietary AGENCY: Environmental Protection
used and publicly documented). With formats, with presentation stylesheet(s). Agency.
presentation stylesheets, if applicable. (v) XML-based formats that use proprietary ACTION: Proposed rule.
Includes ODF (ISO/IEC 26300) and OOXML DTDs or schemas, with presentation
(ISO/IEC 29500). stylesheet(s). SUMMARY: The Environmental Protection
d. PDF (web-optimized with searchable
text).
d. PDF (web-optimized with searchable Agency (EPA) is proposing to approve
e. Other formats: text). changes to the Georgia State
(i) Rich text format. e. Other formats: Implementation Plan (SIP) submitted by
(ii) Plain text. (i) Rich text format. the State of Georgia, through the Georgia
(iii) Widely-used proprietary word (ii) Plain text. Environmental Protection Division (GA
processing or page-layout formats. (iii) Widely-used proprietary word EPD) of the Department of Natural
(iv) Other text formats not listed here. processing formats. Resources, on April 11, 2003. EPA is
2. Metadata Elements: If included with (iv) Other text formats not listed here. proposing to approve portions of a SIP
published version of work, descriptive data 2. Metadata Elements: If included with revision which includes changes to
(metadata) as described below should published version of work, descriptive data
accompany the deposited material: Georgia’s rules regarding emissions
(metadata) as described below should standards and permitting. This action is
a. Title level metadata: Serial or journal
accompany the deposited material: being proposed pursuant to the Clean
title, ISSN, publisher, frequency, place of
publication. a. As supported by format (e.g., standards- Air Act (CAA or Act) and its
b. Article level metadata, as relevant/or based formats such as ONIX, XMP, MODS, or implementing regulations.
applicable: Volume(s), number(s), issue MARCXML either embedded in or
DATES: Written comments must be
dates(s), article title(s), article author(s), accompanying the digital item): Title, creator,
received on or before May 16, 2018.
article identifier (DOI, etc.). creation date, place of publication, publisher/
c. With other descriptive metadata (e.g., producer/distributor, ISBN, contact ADDRESSES: Submit your comments,
subject heading(s), descriptor(s), abstract(s)), information. identified by Docket ID No. EPA–R04–
rather than without. b. Include if part of published version of OAR–2006–0651 at http://
3. Completeness: work: Language of work, other relevant www.regulations.gov. Follow the online
a. All elements considered integral to the identifiers (e.g., DOI, LCCN, etc.), edition, instructions for submitting comments.
publication and offered for sale or Once submitted, comments cannot be
subject descriptors, abstracts.
distribution must be deposited—e.g., articles,
3. Rarity and Special Features: edited or removed from Regulations.gov.
table(s) of contents, front matter, back matter,
etc. Includes all associated external files and a. Limited editions (including those with EPA may publish any comment received
fonts considered integral to or necessary to special features such as high resolution to its public docket. Do not submit
view the work as published. images.) electronically any information you
b. All updates, supplements, releases, and b. Editions with the greatest number of consider to be Confidential Business
supersessions published as part of the work unique features (such as additional content, Information (CBI) or other information
and offered for sale or distribution must be multimedia, interactive elements.) whose disclosure is restricted by statute.
deposited and received in a regular and 4. Completeness: Multimedia submissions (audio, video,
timely manner for proper maintenance of the a. For items published in a finite number etc.) must be accompanied by a written
deposit. of separate components, all elements comment. The written comment is
B. Electronic-Only Books:
1. Content Format:
published as part of the work and offered for considered the official comment and
a. Book-specific structured/markup format, sale or distribution must be deposited. should include discussion of all points
i.e., XML-based markup formats, with Includes all associated external files and you wish to make. EPA will generally
included or accessible DTD/schema, XSD/ fonts considered integral to or necessary to not consider comments or comment
XSL presentation stylesheet(s), and explicitly view the work as published. contents located outside of the primary
stated character encoding: b. All updates, supplements, releases, and submission (i.e., on the web, cloud, or
(i) BITS-compliant (NLM Book DTD). supersessions published as part of the work other file sharing system). For
(ii) EPUB-compliant. and offered for sale or distribution must be additional submission methods, the full
(iii) Other widely-used book DTD/schemas submitted and received in a regular and EPA public comment policy,
(e.g., TEI, DocBook, etc.). timely manner for proper maintenance of the
b. Page-oriented rendition: information about CBI or multimedia
deposit. submissions, and general guidance on
(i) PDF/UA (Portable Document Format/
Universal Accessibility; compliant with ISO Dated: April 6, 2018. making effective comments, please visit
14289–1). Sarang Vijay Damle, http://www2.epa.gov/dockets/
daltland on DSKBBV9HB2PROD with PROPOSALS
(ii) PDF/A (Portable Document Format/ General Counsel and Associate Register of commenting-epa-dockets.
Archival; compliant with ISO 19005). Copyrights. FOR FURTHER INFORMATION CONTACT:
(iii) PDF (Portable Document Format;
[FR Doc. 2018–07484 Filed 4–13–18; 8:45 am] Richard Wong, Air Regulatory
highest quality available, with features such
as searchable text, embedded fonts, lossless Management Section, Air Planning and
BILLING CODE 1410–30–P
compression, high resolution images, device- Implementation Branch, Air, Pesticides
independent specification of colorspace; and Toxics Management Division, U.S.
content tagging; includes document formats Environmental Protection Agency,
such as PDF/X). Region 4, 61 Forsyth Street SW, Atlanta,
VerDate Sep<11>2014 16:32 Apr 13, 2018 Jkt 244001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\16APP1.SGM 16APP1](https://thefederalregister.org/doc/83_FR_16342/page/8.svg)
Document Created: 2018-04-14 02:19:31
Document Modified: 2018-04-14 02:19:31
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Written comments must be received no later than 11:59 p.m. Eastern Time on May 31, 2018. | |
| Contact | Cindy P. Abramson, Assistant General Counsel, by email at [email protected] or John R. Riley at [email protected] Both can be reached by telephone at 202-707-8350. | |
| FR Citation | 83 FR 16269 |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR