83 FR 22902 - Group Registration of Newsletters

LIBRARY OF CONGRESS
Copyright Office

Federal Register Volume 83, Issue 96 (May 17, 2018)

Page Range		22902-22907
FR Document		2018-10420
The U.S. Copyright Office is proposing to update its regulation governing the group registration option for newsletters, which are defined in part as a class of serials that are published at least two days each week. The proposed rule would make a number of changes to reflect current Office practices, promote efficiency of the registration process, and encourage broader participation in the registration system by reducing the burden on applicants. Specifically, the proposed rule would require applicants to file an online application, rather than a paper application, and upload a complete digital copy of each issue through the electronic registration system instead of submitting them in physical form. The proposed rule would amend the definition of ``newsletter,'' and eliminate the requirement that each issue must be a work made for hire and the requirement that the applicants submit their claims within a certain period of time. In addition, the proposed rule would remove the requirement that the claimant provide the Library with complimentary subscriptions to or microfilm of the newsletter as a condition for using the group registration option. Under the proposed rule, however, newsletter publishers would remain subject to the mandatory deposit requirement. Specifically, if the newsletter is published in the United States in a physical format, the publisher must provide the Library with two complimentary subscriptions to the newsletter, unless it is informed that the newsletter is not needed for the Library's collections. Newsletters published only in electronic form would continue to be subject to the general, existing on-demand mandatory deposit regime for electronic serials. The Office invites public comment on these proposed changes.
Federal Register, Volume 83 Issue 96 (Thursday, May 17, 2018)
[Federal Register Volume 83, Number 96 (Thursday, May 17, 2018)]
[Proposed Rules]
[Pages 22902-22907]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-10420]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Parts 201, 202

[Docket No. 2018-3]


Group Registration of Newsletters

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Copyright Office is proposing to update its 
regulation governing the group registration option for newsletters, 
which are defined in part as a class of serials that are published at 
least two days each week. The proposed rule would make a number of 
changes to reflect current Office practices, promote efficiency of the 
registration process, and encourage broader participation in the 
registration system by reducing the burden on applicants. Specifically, 
the proposed rule would require applicants to file an online 
application, rather than a paper application, and upload a complete 
digital copy of each issue through the electronic registration system 
instead of submitting them in physical form. The proposed rule would 
amend the definition of ``newsletter,'' and eliminate the requirement 
that each issue must be a work made for hire and the requirement that 
the applicants submit their claims within a certain period of time. In 
addition, the proposed rule would remove the requirement that the 
claimant provide the Library with complimentary subscriptions to or 
microfilm of the newsletter as a condition for using the group 
registration option. Under the proposed rule, however, newsletter 
publishers would remain subject to the mandatory deposit requirement. 
Specifically, if the newsletter is published in the United States in a 
physical format, the publisher must provide the Library with two 
complimentary subscriptions to the newsletter, unless it is informed 
that the newsletter is not needed for the Library's collections. 
Newsletters published only in electronic form would continue to be 
subject to the general, existing on-demand mandatory deposit regime for 
electronic serials. The Office invites public comment on these proposed 
changes.

DATES: Comments must be made in writing and must be received in the 
U.S. Copyright Office no later than June 18, 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 therefore 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/group-newsletters/. If 
electronic submission of comments is not feasible due to lack of access 
to a computer and/or the internet, please contact the Office using the 
contact information below for special instructions.

FOR FURTHER INFORMATION CONTACT: Robert J. Kasunic, Associate Register 
of Copyrights and Director of Registration Policy and Practice, or Erik 
Bertin, Deputy Director of Registration Policy and Practice, by 
telephone at 202-707-8040, or by email at rkas@loc.gov or 
ebertin@loc.gov; or Cindy Paige Abramson, Assistant General Counsel, by 
telephone at 202-707-0676, or by email at ciab@loc.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    When Congress enacted the Copyright Act of 1976 (the ``Act''), it 
authorized the Register of Copyrights (the ``Register'') to specify by 
regulation the administrative classes of works for the purpose of 
seeking a registration and the nature of the deposits required for each 
such class. See 17 U.S.C. 408(c). In addition, Congress granted the 
Register the discretion to allow groups of related works to be 
registered with one application and one filing fee, a procedure known 
as ``group registration.'' See 17 U.S.C. 408(c)(1). Congress recognized 
that requiring applicants to submit separate applications for certain 
types of works may be so burdensome and expensive that authors and 
copyright owners may forgo registration altogether, since copyright 
registration is not a prerequisite to copyright protection. H.R. Rep. 
No. 94-1476, at 154 (1976); reprinted in 1976 U.S.C.C.A.N. 5659, 5770; 
S. Rep. No. 94-473, at 136 (1975). Pursuant to the authority granted by 
Congress, the Register has issued regulations permitting the U.S. 
Copyright Office (the ``Office'') to issue a group registration for 
limited categories of works, provided that certain conditions have been 
met. See generally 37 CFR 202.3(b)(5), (6), (9), 202.4.

II. The Existing Group Registration Option for Newsletters

    In 1995, the Office promulgated a rule offering a group 
registration option for newsletter publishers, concluding that it would 
further Congress's desire to promote registration of works that may be 
too burdensome and expensive to be registered separately.\1\ Under that 
rule, a ``newsletter'' is defined as a ``a serial published and 
distributed by mail or electronic media (online or telefacsimile), or 
in any medium,'' with publication occurring ``at least two days each 
week'' and ``contain[ing] news or information of interest chiefly to a 
special group (for example, trade and professional associations, 
corporate in-house groups, schools, colleges, or churches).'' 37 CFR 
202.3(b)(9)(i). In contrast, the option for group registration of 
serials is limited to less-frequently published serials--i.e., those 
published at intervals of one week or longer. Id. Sec.  202.3(b)(6)(i).
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    \1\ See 60 FR 15874 (Mar. 28, 1995). Before that rule, the 
Office had offered group registration options for serials and 
newspapers, but newsletters could not be registered under those 
options because they did not meet the relevant requirements, most 
notably the requirements related to frequency of publication. 57 FR 
39615 (Sept. 1, 1992); 55 FR 50556 (Dec. 7, 1990). The Office 
recently issued a final rule updating the procedures for group 
registration for newspapers, to similarly streamline the 
registration process, and intends to do the same for serials. See 83 
FR 4144 (Jan. 30, 2018).
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    The current group registration option for newsletters has a number 
of requirements. Specifically, the applicant must complete and submit a 
paper application using Form G/DN, include at least two newsletter 
issues in each group, and ``designate the first and last day that [the] 
issues in the group were published.'' 37 CFR 202.3(b)(9), (b)(9)(viii). 
In addition, the newsletter issues must be ``essentially all-new 
collective works or all-new issues that have not been published 
before,'' ``bear issue dates within a single calendar month under the 
same continuing title,'' be works made for hire, and have the

[[Page 22903]]

same person or organization as the author and claimant for all issues 
in the group. Id. Sec.  202.3(b)(9)(ii)-(v). Form G/DN also indicates 
that newsletters are customarily sold by subscription as opposed to on 
newsstands, although this requirement is not mentioned in the 
regulation itself. See 60 FR at 15875.
    To satisfy the registration deposit requirements for this group 
option, the applicant must submit one complete copy of each issue that 
is included in the group. 37 CFR 202.3(b)(9)(vi)(A). The current 
regulation also states that if the newsletter is one that has been 
selected for the Library's collections, the claimant is required to 
provide either ``as many as two complimentary subscriptions of the 
newsletter in the edition most suitable to the Library's needs,'' or 
``a single positive, 35 mm silver halide microfilm meeting the 
Library's best edition criteria that includes all issues published as 
final editions in the designated calendar month,'' whichever the 
Library prefers. Id. Sec.  202.3(b)(9)(vi)(B). This provision has been 
in effect for more than fifteen years, but relatively few newsletters 
have been selected for the Library's collection.
    Finally, the current regulation states that registration must be 
``sought within three months after the publication date of the last 
issue included in the group.'' Id. Sec.  202.3(b)(9)(vii). The deadline 
is intended to ensure that the Library receives these types of works in 
a timely manner. 64 FR 19522, 29523 (Jun. 1, 1999). If the claimant is 
unable to provide subscription copies or microfilm, or is unable to do 
so within three months after publication, the regulation states that 
each issue may be registered on an individual basis by submitting a 
paper application on Form SE or Short Form SE. 37 CFR 
202.3(b)(9)(vi)(C).

III. The Current Rule Governing Mandatory Deposit of Newsletters

    Section 407 of the Copyright Act states that if a work is published 
in the United States, the owner of copyright or the owner of the 
exclusive right of publication must affirmatively deposit two copies of 
the ``best edition'' of that work with the Library within three months 
after publication. 17 U.S.C. 407(a)-(b). This is known as the 
``mandatory deposit'' requirement. As a general rule, publishers may 
satisfy this requirement by registering their works with the Office, or 
by sending copies to the Copyright Office's Copyright Acquisitions 
Division without seeking a registration. If a publisher fails to comply 
with the mandatory deposit requirement, the Office may issue a written 
demand for those works, and if the required copies are not received 
within three months thereafter, the copyright owner or owner of the 
exclusive right of publication in that work may be subject to fines or 
other monetary liability. Id. 407(d). The Office has the authority to 
establish regulations governing mandatory deposit, including 
regulations to exempt any categories of material from these 
requirements. See id. 407(c), 702.
    Newsletters published in a physical format (including works 
published both in physical and electronic formats) are subject to these 
affirmative mandatory deposit requirements. 37 CFR 202.19(c)(5). 
Electronic-only newsletters are subject to a separate mandatory deposit 
regime. Specifically, in 2010, the Office adopted an interim rule that 
established a different process for serials published solely in 
electronic form. (Newsletters, as a type of serial, are subject to 
these rules.) That interim rule established a general exemption for 
most ``[e]lectronic works published in the United States and available 
only online,'' except for serials published solely in electronic 
formats (i.e., ``online-only'' serials). Id. For online-only serials, 
there is no affirmative obligation to deposit works with the Copyright 
Office. Instead, if the Library desires a particular serial title for 
its collections, the Office will issue a written demand requiring the 
publisher to deposit copies of that serial. Id. 202.24.

IV. The Proposed Rule

    The existing regulations governing group registration of 
newsletters require updating, both to better account for current 
practice, and to allow the Office to streamline and modernize its 
registration procedures. Accordingly, the Office is proposing to amend 
the regulation governing the group option for newsletters to modify the 
eligibility requirements for this group option in several respects.
    To summarize, the proposed rule would do the following things:
    (1) The rule would clarify and expand the category of works 
eligible for the group registration option, including by eliminating 
the work-for-hire requirement, by making clear that newsletters need 
not be collective works, and by eliminating the three-month deadline 
for filing the registration application.
    (2) The rule would memorialize the Office's longstanding position 
regarding the scope of a registration for a group of newsletter 
issues--i.e., a registration for a group of newsletter issues covers 
each issue in the group, and if each issue constitutes a collective 
work, the articles, photographs, illustrations, or other contributions 
appearing within those issues--if they are fully owned by the copyright 
claimant and if they were first published in those issues.
    (3) The rule would require applicants to register their newsletters 
through the Office's electronic registration system, and would 
discontinue the existing paper application.
    (4) The rule would require applicants to upload their newsletters 
in digital form through the electronic registration system; the Office 
would no longer accept physical copies, such as a photocopy of each 
issue in the group, or digital copies that have been saved onto a flash 
drive, disc, or other physical storage medium that is delivered to the 
Office.
    (5) Newsletter publishers would no longer be required to provide 
either subscriptions or microfilm copies for the Library's collections 
as a condition for using the group registration option. But the rule 
would also make clear that electronic deposits submitted to the Office 
through the registration system would not satisfy the mandatory deposit 
requirements in section 407, and would amend the mandatory deposit 
regulations to provide guidance on fulfilling those requirements. 
Specifically, if a newsletter is published in the United States in a 
physical format, the publisher must provide the Library with two 
complimentary subscriptions to the newsletter, unless it is informed 
that the newsletter is not needed for the Library's collections. 
Newsletters published only in electronic form will continue to be 
subject to the existing on-demand mandatory deposit regime.
    The next sections discuss changes warranting more discussion.

A. Works Eligible

    The proposed rule clarifies that newsletter issues can be, but do 
not have to be, collective works to qualify for the group registration 
option. Thus, for example, a newsletter that contains a single article 
and a single photograph would not be considered a collective work, 
because it does not contain a sufficient number of contributions--but 
nevertheless it would still be eligible for registration as part of the 
group, if the rest of the eligibility requirements have been met.\2\ In 
this respect, the proposed

[[Page 22904]]

rule differs from the corresponding group registration options for 
serials and newspapers. To register a group of serials or newspapers, 
each issue in the group must be a collective work. See 37 CFR 
202.3(b)(6)(i)(C)-(E), 202.4(e)(2). By contrast, under the proposed 
rule, publishers may register a group of newsletters whether or not 
each issue satisfies the statutory definition for a collective work.
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    \2\ See H.R. Rep. No. 94-1476, at 122 (1976) (stating that a 
work does not qualify as a collective work ``where relatively few 
separate elements have been brought together,'' as in the case of 
``a composition consisting of words and music, a work published with 
illustrations or front matter, or three one-act plays'').
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    The rule also clarifies that each newsletter issue in the group 
must be fixed and distributed as a discrete, self-contained work.\3\ An 
applicant may satisfy this requirement if the newsletter as a whole is 
fixed in a tangible medium of expression, and the content of each issue 
does not change once it has been distributed. For example, a publisher 
that mails a newsletter to its subscribers would satisfy this 
requirement, because the newsletter is clearly fixed and distributed in 
a physical format. A publisher that emails an electronic newsletter to 
its subscribers may satisfy this requirement if each issue contains a 
fixed selection of content, such as a PDF version of a physical 
publication. Similarly, a publisher that allows its subscribers to 
download a newsletter from its website may satisfy this requirement if 
each issue is distributed as a self-contained work and the content of 
each issue does not change once it has been downloaded.
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    \3\ Similar language has appeared in the Compendium of U.S. 
Copyright Office Practices, Third Edition since December 2014. See 
Copyright Office, Compendium of U.S. Copyright Office Practices sec. 
1113 (3d ed. 2017) (hereinafter the ``Compendium'').
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    The current regulation states that newsletter publishers must 
submit their claims within three months after the publication of the 
most recent issue in the group. 37 CFR 202.3(b)(9)(vii). The proposed 
rule eliminates this requirement, as it existed as a means of 
encouraging publishers to provide subscriptions or copies to the 
Library as early as possible. Since the proposed rule eliminates that 
requirement, the timeliness requirement can be eliminated as well, 
especially because the Copyright Act itself already contains a number 
of incentives for early registration.
    The proposed rule continues the existing requirement that the works 
be ``all new'' collective works or ``all new'' issues that have not 
been published before.\4\ In other words, the issues included in the 
group cannot be derivative versions of a previously published issue or 
a newsletter that is frequently modified, updated, or adapted.
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    \4\ The current rule states that the works must be ``essentially 
all new collective works or all new issues.'' 37 CFR 202.3(b)(9)(ii) 
(emphasis added). The proposed rule eliminates the word 
``essentially,'' as it is likely to cause confusion.
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    The proposed rule clarifies the scope of the group registration 
option in various respects, including by eliminating the existing 
reference to ``daily newsletters,'' 37 CFR 202.3(b)(9), which is 
inaccurate, and by clarifying that a group of newsletters must 
``usually'' be published at least two days a week, to account for 
occasional situations where the newsletter suspends publication (e.g., 
for a holiday).

B. Scope of Protection

    The proposed rule clarifies that a registration for a group of 
newsletters covers each issue in the group, and each issue would be 
registered as a separate work. In other words, the group registration 
is treated as the legal equivalent of a separate registration for each 
newsletter issue.
    If the newsletters qualify and are claimed as collective works, 
then those issues would be registered as separate collective works. As 
a general rule, a registration for a collective work covers the 
individual contributions contained within that work if they are fully 
owned by the copyright claimant and if they were first published in 
that work.\5\ A registration for a group of newsletter issues 
constituting collective works is effectively treated as a separate 
collective work registration for each issue in the group. Thus, in such 
cases, the group registration also covers the articles, photographs, 
illustrations, or other contributions appearing within those issues--if 
they are fully owned by the copyright claimant at the time the 
application was filed, and if they were first published in those 
issues. By contrast, if an issue constituting a collective work 
contains contributions that are not fully owned by the copyright 
claimant, and/or contributions that were previously published, the 
registration will not extend to those works. See Morris v. Business 
Concepts, Inc., 259 F.3d 65, 71 (2d Cir. 2001) (``Unless the copyright 
owner of a collective work also owns all the rights in a constituent 
part, a collective work registration will not extend to the constituent 
part.''), abrogated on other grounds by Reed Elsevier, Inc. v. 
Muchnick, 559 U.S. 154, 160 (2010).
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    \5\ See, e.g., Alaska Stock, LLC v. Houghton Mifflin Harcourt 
Pub. Co., 747 F.3d 673, 683 (9th Cir. 2014); Morris v. Bus. 
Concepts, Inc., 259 F.3d 65, 68 (2d Cir. 2001); Compendium secs. 
509.1, 509.2; see also 17 U.S.C. 201(c) (``Copyright in each 
separate contribution to a collective work is distinct from 
copyright in the collective work as a whole, and vests initially in 
the author of the contribution. In the absence of an express 
transfer of the copyright or of any rights under it, the owner of 
copyright in the collective work is presumed to have acquired only 
the privilege of reproducing and distributing the contribution as 
part of that particular collective work . . . .'').
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    With respect to the information collected as part of a group 
registration and examination practices, the Office must balance the 
public interest in creating a meaningful record (i.e., collecting 
information regarding each individual contribution within a newsletter 
issue) with the relative burden on applicants wishing to participate in 
the registration system. When an applicant submits multiple issues, it 
is difficult to collect granular information concerning the individual 
articles, photographs, and other component works within each issue. 
Requiring applicants to identify the author and title of each 
individual contribution would impose a significant burden both on 
applicants and the Office alike. This would discourage registration, 
which in turn, would diminish the value of the Office's public record. 
Imposing these burdens would also be contrary to the Congressional 
purpose of providing the Office with the authority to create group 
registration options: To ease the registration of certain works.
    Accordingly, the Office's application to register a group of 
newsletter issues does not contain spaces where the applicant can 
provide titles, authors, or other identifying information for each 
contribution, or identify component works created by a third party and 
transferred to the claimant by written agreement. But the Office 
foresees the future possibility of applicants submitting metadata for 
the component works appearing within each issue, and the possibility of 
the Office incorporating this information into the registration record. 
If this becomes feasible once the Office implements its next-generation 
registration system, it may require this type of information as a 
condition for using this group registration option.
    If each issue appears to be a collective work, the examiner will 
examine the issue as a whole to determine if it contains sufficient 
compilation authorship to warrant registration as a collective work. 
And the examiner will review the issue to determine whether it contains 
``a number of contributions'' constituting ``separate and independent 
works in themselves'' 17 U.S.C. 101 (definition of ``collective 
work''). When the Office issues a group registration, the certificate 
will identify the title,

[[Page 22905]]

author, and claimant for each newsletter issue in the group, but it 
will not identify the titles, authors, or claimants for the individual 
contributions appearing within those issues.
    The scope of protection for a group registration issued under the 
proposed rule will have several consequences in infringement actions. 
First, a group registration may be used to satisfy the statutory 
requirements for instituting an infringement action involving any of 
the newsletter issues that were included within the group.\6\ 17 U.S.C. 
411(a). Likewise, a group registration may be used to enforce the 
copyright in any of the individual contributions appearing within 
issues constituting collective works--provided that the claimant fully 
owned those contributions at the time the application for registration 
is submitted, and provided that the contributions were first published 
in one of those issues.
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    \6\ Alternatively, a plaintiff may satisfy this statutory 
requirement if the Office refused registration, provided that the 
plaintiff serves a copy of the complaint on the Register of 
Copyrights. 17 U.S.C. 411(a).
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    Second, the proposed rule clarifies that the group as a whole is 
not considered a compilation, a collective work, or a derivative work. 
Instead, the group is merely an administrative classification created 
solely for the purpose of registering multiple works with one 
application and one filing fee. The chronological selection, 
coordination, and arrangement of the issues within the group is 
entirely dictated by the regulatory requirements for this option. 
Likewise, when a group of newsletter issues are combined for the 
purpose of facilitating registration, those works are not ``recast, 
transformed, or adapted'' in any way, and the group as a whole is not 
``a work based upon one or more preexisting works'' because there is no 
copyrightable authorship in simply collecting a month of issues and 
arranging them in chronological order. 17 U.S.C. 101 (definition of 
``derivative work'').

C. Online Registration Requirement

    On December 14, 2012, the Office made some modifications to its 
electronic registration system to allow newsletter publishers to submit 
their claims with the online application. Under the proposed rule, 
applicants would be required to use the electronic application 
designated for a group of newsletter issues as a condition for seeking 
a group registration. The Office would no longer accept groups of 
newsletter issues submitted for registration on paper using Form G/
DN.\7\ If, after the effective date of this rule, such paper 
applications are received, the Office will refuse registration. The 
Office invites comment on this proposal, including whether the Office 
should eliminate the paper application for newsletter issues, phase it 
out after a specified period of time, or continue to offer Form G/DN 
for applicants who prefer to use the paper-based system.
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    \7\ Because the Office is proposing to eliminate Form G/DN, and 
require applicants to submit their claims through the electronic 
registration system, the term G/DN will soon be obsolete. Going 
forward, the Office will refer to this option as ``GRNL,'' which 
stands for ``group newsletters.'' In addition, the Office recently 
issued a final rule that requires applicants to file an online 
application in order to correct or amplify the information set forth 
in a basic registration for any work capable of being registered 
through the electronic system, rather than filing a paper 
application. 82 FR 27424 (June 15, 2017). This online filing 
requirement will apply to supplementary registrations for groups of 
newsletter issues--even if the issues were originally registered 
using Form G/DN. See 37 CFR 202.6(e)(1); 81 FR 86656, 86657, n.3 
(Dec. 1, 2016).
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    The Office's decision to offer a group option is entirely 
discretionary, and Congress gave the Office broad authority to 
establish the requirements for these types of claims. 17 U.S.C. 
408(c)(1). Currently, the vast majority of the claims submitted on Form 
G/DN require correspondence or other action from the Office, which 
increases overall pendency and contributes to the Office's backlog of 
pending claims. Applicants routinely file claims that are not eligible 
for this group option, fail to provide information expressly requested 
on the form, or add extraneous information that is not requested. In 
each case, however, the Office must first scan these paper applications 
into the registration system and input the relevant information by hand 
before an examiner can reject the application as having been improperly 
filed. This is a cumbersome, labor-intensive process, and if it is done 
incorrectly, the information must be re-entered into the system. In 
many cases, the Office must contact the applicant to request additional 
information or permission to correct the application.
    Addressing these issues imposes significant burdens on the Office's 
limited resources, and has had an adverse effect on the examination of 
other types of works within the Literary Division of the Registration 
Program. Eliminating the paper application should mitigate many of 
these problems. Among other improvements, the online application 
contains automated validations that prevent applicants from submitting 
applications that fail to comply with the eligibility requirements for 
this group option, such as including too many issues in the group 
(i.e., more than one calendar month of issues).
    For these reasons, the Office believes that requiring applicants to 
submit online applications is necessary to improve the overall 
efficiency of the group registration process. Nonetheless, the Office 
invites comment on this aspect of the proposed rule.

D. Digital Registration Deposits

    As noted above, to register a group of newsletters under the 
proposed rule, applicants will be required to submit a complete digital 
copy of each issue in the group, regardless of whether the newsletter 
is published in a physical or electronic form and regardless of whether 
the newsletter is published in the United States or abroad. Requiring 
applicants to upload digital copies to the electronic system will 
increase the efficiency of the group registration process. The Office 
does not need physical copies to examine a newsletter for copyrightable 
authorship, or to determine whether the applicant satisfied the formal 
and legal requirements for this group option. See 17 U.S.C. 410(a) 
(providing that the Register of Copyrights must determine whether 
``material deposited [for registration] constitutes copyrightable 
subject matter''). Electronic submissions also take less time to 
process, and are easier to track and handle than physical copies. A 
registration specialist can examine a digital copy as soon as it has 
been uploaded to the electronic registration system. By contrast, when 
an applicant submits an online application and mails a physical deposit 
to the Office, it may take weeks to connect the application with the 
correct deposit. In addition, each copy must be moved multiple times 
during the examination process.
    Requiring digital uploads may also provide newsletter publishers 
with certain legal benefits. When the Office registers a group of 
newsletters and issues a certificate of registration, the effective 
date of registration is the date on which the Office received the 
application, filing fee, and deposit in proper form. When an applicant 
uploads a digital copy of the deposit to the electronic system, the 
Office typically receives the application, filing fee, and deposit on 
the same date. By contrast, when an applicant sends physical copies to 
the Office, the deposit may arrive long after the date that the 
application and filing fee were

[[Page 22906]]

received--thereby establishing a later effective date of 
registration.\8\
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    \8\ The Office recognizes that some publishers may not have a 
digital copy of their issues or may find it difficult to create a 
digital copy for the purpose of seeking a group registration. The 
Office proposes to address these concerns on a case-by-case basis. 
If an applicant is unable to upload a particular newsletter to the 
electronic system, the applicant may request special relief from the 
deposit requirements under 37 CFR 202.20(d).
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E. Mandatory Deposit

    Although the proposed rule eliminates the requirement to provide 
subscriptions or microfilm as a condition of using the group 
registration option, newsletter publishers would still generally be 
subject to the mandatory deposit requirement under section 407.
    To assist publishers with complying with these mandatory deposit 
requirements, the proposed rule amends the Office's mandatory deposit 
regulations, 37 CFR 202.19, to provide specific rules for all serials 
(a definition that includes newsletters) that are published in the 
United States in a physical format or in both a physical and electronic 
format.\9\ Newsletter publishers will be expected to provide two 
complimentary subscriptions to such newsletters, unless they have been 
informed by CAD that the serial title is not needed for the Library's 
collections. If subscription copies are not received within three 
months after publication of each issue, the Copyright Acquisitions 
Division (``CAD'') may issue a written demand for ongoing subscriptions 
to that publication. The failure to provide subscription copies when 
demanded by the Office would subject the owner to penalties under 
section 407.
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    \9\ The same proposal is being made as part of the notice of 
proposed rulemaking relating to group registration of serials.
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    No change is being made to the mandatory deposit scheme for 
electronic-only serials; such serials will continue to be subject to 
the existing, demand-based mandatory deposit scheme.\10\
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    \10\ See 37 CFR 202.19(c)(5), 202.24(a).
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V. Conclusion

    The proposed rule, if adopted, will encourage broader participation 
in the registration system, and increase the efficiency of the process 
for both the Office and copyright owners alike, while providing the 
Library with a means for adding newsletters to its collections. The 
Office invites public comment on all these proposed changes.

List of Subjects

37 CFR Part 201

    Copyright, General Provisions.

37 CFR Part 202

    Copyright, Preregistration and registration of claims to copyright.

Proposed Regulation

    For the reasons set forth in the preamble, the Copyright Office 
proposes amending 37 CFR parts 201 and 202 as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

    Authority:  17 U.S.C. 702.

0
2. Amend Sec.  201.1 by revising paragraph (c)(6) to read as follows:


Sec.  201.1   Communication with the U.S. Copyright Office.

* * * * *
    (c) * * *
    (6) Mandatory Deposit Copies. Mandatory deposit copies of published 
works submitted for the Library of Congress under 17 U.S.C. 407 and 
Sec.  202.19 of this chapter (including complimentary subscriptions to 
serial publications), and newspaper microfilm copies submitted under 
Sec.  202.4(e) of this chapter, should be addressed to: Library of 
Congress, U.S. Copyright Office, Attn: 407 Deposits, 101 Independence 
Avenue SE, Washington, DC 20559-6600.
* * * * *

PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

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

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


Sec.  202.3   [Amended]

0
4. Amend Sec.  202.3 by removing and reserving paragraph (b)(9).
0
5. Amend Sec.  202.4 by adding paragraph (f) and a new sentence after 
the first sentence of paragraph (n) to read as follows.


Sec.  202.4   Group Registration.

* * * * *
    (f) Group registration of newsletters. Pursuant to the authority 
granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has 
determined that a group of newsletter issues may be registered with one 
application, one filing fee, the required deposit, and the filing fee 
required by Sec.  201.3(c) of this chapter, if the following conditions 
are met:
    (1) Eligible works.
    (A) All the issues in the group must be newsletters. For purposes 
of this section, a newsletter is a serial that is published and 
distributed by mail, electronic media, or other medium, including 
paper, email, or download. Publication must usually occur at least two 
days each week and the newsletter must contain news or information that 
is chiefly of interest to a special group, such as trade and 
professional associations, colleges, schools, or churches. Newsletters 
are typically distributed through subscriptions, but are not 
distributed through newsstands or other retail outlets.
    (B) The group must include at least two issues.
    (C) Each issue in the group must be an all-new issue or an all-new 
collective work that has not been previously published, and each issue 
must be fixed and distributed as a discrete, self-contained work.
    (D) The author and claimant for each issue must be the same person 
or organization.
    (E) All the issues in the group must be published under the same 
continuing title, they must be published within the same calendar month 
and bear issue dates within that month, and the applicant must identify 
the earliest and latest date that the issues were published during that 
month.
    (2) Application. The applicant must complete and submit the online 
application designated for a group of newsletter issues. The 
application may be submitted by any of the parties listed in Sec.  
202.3(c)(1).
    (3) Deposit. The applicant must submit one complete copy of each 
issue that is included in the group. The issues must be submitted in 
digital form, and each issue must be contained in a separate electronic 
file. The applicant must use the file-naming convention and submit 
digital files in accordance with instructions specified on the 
Copyright Office's website. The files must be submitted in Portable 
Document Format (PDF), they must be assembled in an orderly form, and 
they must be uploaded to the electronic registration system as 
individual electronic files (i.e., not .zip files). The files must be 
viewable and searchable, contain embedded fonts, and be free from any 
access restrictions (such as those implemented through digital rights 
management) that prevent the viewing and examination of the work. The 
file size for each uploaded file must not exceed 500 megabytes, but 
files may be compressed to comply with this requirement. Copies 
submitted under this paragraph will be considered solely for the 
purpose of registration under section 408 of title 17 of the United 
States Code, and will not satisfy the mandatory deposit requirement 
under

[[Page 22907]]

section 407 of title 17 of the United States Code.
* * * * *
    (n) The scope of a group registration. * * * When the Office issues 
a group registration under paragraph (f) of this section, the 
registration covers each issue in the group and each issue is 
registered as a separate work or a separate collective work (as the 
case may be). * * *
0
6. Amend Sec.  202.19 by adding paragraph (d)(2)(x) to read as follows:


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

* * * * *
    (d) * * *
    (2) * * *
    (x) In the case of serials (as defined in Sec.  202.3(b)(1)(v), but 
excluding newspapers) published in the United States in a physical 
format, or in both a physical and an electronic format, the copyright 
owner or the owner of the exclusive right of publication must provide 
the Library of Congress with two complimentary subscriptions to the 
serial, unless the Copyright Acquisitions Division informs the owner 
that the serial is not needed for the Library's collections. 
Subscription copies must be physically mailed to the Copyright Office, 
at the address for mandatory deposit copies specified in Sec.  201.1(c) 
of this chapter, promptly after the publication of each issue, and the 
subscription(s) must be maintained on an ongoing basis. The owner may 
cancel the subscription(s) if the serial is no longer published by the 
owner, if the serial is no longer published in the United States in a 
physical format, or if the Copyright Acquisitions Division informs the 
owner that the serial is no longer needed for the Library's 
collections. In addition, prior to commencing the subscriptions, the 
owner must send a letter to the Copyright Acquisitions Division at the 
address specified in Sec.  201.1(b) of this chapter confirming that the 
owner will provide the requested number of subscriptions for the 
Library of Congress. The letter must include the name of the publisher, 
the title of the newsletter, the International Standard Serial Number 
(``ISSN'') that has been assigned to the newsletter (if any), and the 
issue date and the numerical or chronological designations that appear 
on the first issue that will be provided under the subscriptions.

    Dated: May 11, 2018.
Sarang V. Damle,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2018-10420 Filed 5-16-18; 8:45 am]
 BILLING CODE 1410-30-P
Document Created: 2018-05-17 00:50:34
Document Modified: 2018-05-17 00:50:34
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Notice of proposed rulemaking.
Dates		Comments must be made in writing and must be received in the U.S. Copyright Office no later than June 18, 2018.
Contact		Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, by telephone at 202-707-8040, or by email at [email protected] or [email protected]; or Cindy Paige Abramson, Assistant General Counsel, by telephone at 202-707-0676, or by email at [email protected]
FR Citation		83 FR 22902
CFR Citation		37 CFR 201 37 CFR 202
CFR Associated		Copyright; General Provisions and Preregistration and Registration of Claims to Copyright
83 FR 22902 - Group Registration of Newsletters

LIBRARY OF CONGRESSCopyright Office

Federal Register Volume 83, Issue 96 (May 17, 2018)

LIBRARY OF CONGRESS
Copyright Office
