83 FR 52336 - Registration Modernization
LIBRARY OF CONGRESS
Copyright Office Federal Register Volume 83, Issue 201 (October 17, 2018)
Copyright Office
Federal Register Volume 83, Issue 201 (October 17, 2018)
| Page Range | 52336-52345 | |
| FR Document | 2018-22486 |
[Federal Register Volume 83, Number 201 (Wednesday, October 17, 2018)] [Proposed Rules] [Pages 52336-52345] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-22486] ======================================================================= ----------------------------------------------------------------------- LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201 and 202 [Docket No. 2018-9] Registration Modernization AGENCY: U.S. Copyright Office, Library of Congress. ACTION: Notification of inquiry. ----------------------------------------------------------------------- SUMMARY: The U.S. Copyright Office is building a new registration system to meet the demands of the digital age. As the Office develops a new technological infrastructure for this system, it is considering several legal and policy changes to improve user experience, increase Office efficiency, and decrease processing times. The Office is seeking public comment to inform its decisions on how to improve the regulations and practices related to the registration of copyright claims. DATES: Written comments must be received no later than 11:59 p.m. Eastern Time on January 15, 2019. 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/reg-modernization. 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: Regan A. Smith, General Counsel and Associate Register of Copyrights at [email protected]; Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice at [email protected]; Erik Bertin, Deputy Director of Registration Policy and Practice at [email protected]; Cindy Abramson, Assistant General Counsel at [email protected]; or Jalyce Mangum at [email protected]. All can be reached by telephone by calling 202-707-3000. SUPPLEMENTARY INFORMATION: I. Background The U.S. Copyright Office (the ``Office'') is statutorily responsible for administering the nation's copyright laws pursuant to the Copyright Act.\1\ One of the most significant responsibilities assigned to the Office is the registration of copyright claims. The Office's registration services are vital to creators and users of creative works of all types, including large and small businesses, individuals, and non-profit organizations. Copyright registration provides essential benefits for copyright owners. Before bringing a lawsuit for infringement of a U.S. work, registration of the claim must be made in accordance with the Copyright Act, or refused by the Office.\2\ A timely registration constitutes prima facie evidence of the validity of the copyright and the facts stated in the certificate of registration.\3\ Additionally, copyright owners must obtain a timely registration to seek statutory damages and attorney's fees in litigation.\4\ A registration also creates a public record that includes key facts relating to the authorship and ownership of the work, as well as information about the work itself, such as title, year of creation, and date of publication (if any). And an index of [[Page 52337]] each registration is published in the Online Public Record, the database posted on the Office's website containing indexes of records relating to registrations and document recordations issued after 1977.\5\ In fiscal year 2017, the Office received 539,662 claims to copyright and issued 452,122 registrations.\6\ And in fiscal year 2018, the Office processed more than 600,000 claims. It is therefore crucial that the Office have an innovative and modern copyright registration system that can meet the rapidly expanding needs of the highly diverse copyright community and the public at large. --------------------------------------------------------------------------- \1\ See 17 U.S.C. 701(a) (``All administrative functions and duties under this title . . . are the responsibility of the Register of Copyrights as director of the Copyright Office of the Library of Congress.''). \2\ 17 U.S.C. 411(a). The Supreme Court recently granted certiorari to resolve a conflict among the circuits concerning the interpretation of section 411(a), specifically, whether a copyright owner may commence an infringement suit after delivering the proper deposit, application, and fee to the Copyright Office, but before the Register of Copyrights has acted on the application for registration. In the government's view, the statute requires the copyright owner to receive either a registration or a refusal from the Copyright Office before instituting suit. See Br. for the U.S. as Amicus Curiae for Writ of Cert. at 12, Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 856 F.3d 1338 (11th Cir. 2017), (No. 17-571), available at https://www.copyright.gov/rulings-filings/briefs/fourth-estate-pub-ben-corp-v-wall-street-com-138-s-ct-720-2018.pdf. \3\ 17 U.S.C. 410(c). \4\ See 17 U.S.C. 412, 504, 505. \5\ Indexes of records related to earlier registrations and recordations, as well as the actual records, are available at the Copyright Office. \6\ See U.S. Copyright Office, Fiscal 2017 Annual Report 4-5 (2017), available at https://www.copyright.gov/reports/annual/2017/ar2017.pdf. During the same period, the Office rejected more than 17,000 claims for failure to comply with the statutory and/or regulatory requirements for registration, and closed more than 52,000 claims because the applicant failed to respond to a written communication from the Office. --------------------------------------------------------------------------- The Office is dedicated to modernizing its systems. Starting in 2011, the Office began a series of comprehensive and targeted efforts to understand and analyze its information technology (``IT'') needs. The Office issued its Priorities and Special Projects of the United States Copyright Office (October 2011-October 2013), which highlighted the need for technological upgrades. The Office then undertook a comprehensive study of its technological capabilities and needs, which included extensive stakeholder feedback. The resulting 2015 Report and Recommendations of the Technical Upgrades Special Project Team acknowledged challenges with the current user experience and access to the public record, and offered recommendations for improvement.\7\ Based on congressional direction, the Office followed its initial report with a more detailed plan, 2016's Provisional Information Technology Modernization Plan and Cost Analysis (``Provisional IT Plan'').\8\ And in 2017, the Office prepared a Modified U.S. Copyright Office Provisional IT Modernization Plan (``Modified IT Plan'') \9\ at the direction of the House Committee on Appropriations that includes ``potential opportunities for shared efficiencies and cost-savings as well as ways the [Library of Congress' (the ``Library's'') Office of the Chief Information Officer (``OCIO'')] can support the Copyright Office in its overall modernization efforts.'' \10\ --------------------------------------------------------------------------- \7\ See U.S. Copyright Office, Report and Recommendations of the Technical Upgrades Special Project Team (Feb. 18, 2015), available at https://www.copyright.gov/docs/technical_upgrades/usco-technicalupgrades.pdf. \8\ U.S. Copyright Office, Provisional Information Technology Modernization Plan and Cost Analysis (Feb. 29, 2016), available at http://www.copyright.gov/reports/itplan/technology-report.pdf. \9\ Library of Congress & U.S. Copyright Office, Modified U.S. Copyright Office Provisional IT Modernization Plan (Sept. 1, 2017), available at http://www.copyright.gov/reports/itplan/modified-modernization-plan.pdf. \10\ See 163 Cong Rec. H4033 (daily ed. May 3, 2017) (explanatory statement submitted by Rep. Rodney Frelinghuysen, Chairman of the H. Comm. on Appropriations), available at https://www.congress.gov/congressional-record/2017/5/3/house-section/article/H3949-2; see also Modified IT Plan at 1. --------------------------------------------------------------------------- A principal reason that the Office has prioritized modernization is to improve the Office's processing times for claims submitted for registration.\11\ Current processing times vary based on a number of factors, including delays in the receipt of the deposit, the number of examiners available to review pending claims, the complexity of the claim, whether there are errors or inconsistencies in the registration materials, and whether the Office needs to correspond with an applicant to resolve those issues. If the examiner sends an email or other correspondence, the applicant will be given 45 days to respond, and if the applicant responds in a timely manner, the examiner will review and respond within 30 days after the applicant's response has been received.\12\ --------------------------------------------------------------------------- \11\ The current processing times are posted on the Office's website with separate figures for claims submitted through the electronic registration system and claims filed on paper forms. See Registration Processing Times, Copyright.gov, https://www.copyright.gov/registration/docs/processing-times-faqs.pdf. \12\ U.S. Copyright Office, Compendium of U.S. Copyright Office Practices 605.6(B), (D) (3d ed. 2017) (``Compendium (Third)''). --------------------------------------------------------------------------- The Office intends to replace the current electronic system (known as ``eCO'') with a modern solution that meets the changing needs of individual creators, industry (including on the user side), copyright practitioners, and the general public. In the past year, the Office engaged stakeholders in targeted outreach efforts with the assistance of a third-party contractor. The contractor interviewed numerous examiners, supervisors, and managers from the Office's Registration Program to identify common problems faced by applicants and the Office. External user interviews were conducted in Washington DC, New York City, Nashville, and Los Angeles with companies, organizations, lawyers, and individual creators who engage with the copyright registration system. In addition, the Office analyzed eCO survey data as well as calls received by the Public Information Office (``PIO'') and eCO help desk, which included over 10,000 responses from individual applicants. Based on the information gathered during these outreach efforts, the Office is planning to develop several solutions to improve the registration system. These solutions will include a more powerful dashboard, which will allow users to track application progress; an integrated drag and drop submission option for electronic deposits; and an improved messaging system to confirm that a submission has been received and provide details on what to expect next. The Office also intends to improve the flow and usability of the user interface. For example, the Office plans to develop a mechanism that will allow users to view a draft version of the registration certificate before final submission to confirm that the correct information has been entered. The Office also plans to implement more automated validations to enhance the application. As the Office identifies the IT infrastructure needed to support the new registration system, we are considering a number of legal and policy changes to improve the efficiency of the system for both users and the Office. The Office invites public comment in three specific areas of reform: The administration and substance of the application for registration, the utility of the public record, and the deposit requirements for registration. While this document addresses a broad range of issues related to the national copyright registration system, the Office will continue to focus on additional topics in current and future rulemakings and notices of inquiry. For example, the Office has open rulemakings related to certain group registration options, and is preparing additional notices concerning group registration options for musical compositions and sound recordings, certain short online literary works, and websites.\13\ --------------------------------------------------------------------------- \13\ Information related to open rulemakings, including instructions for submitting public comments, can be found at https://www.copyright.gov/rulemaking/. --------------------------------------------------------------------------- II. Subjects of Inquiry A. The Application Process: How Users Engage With the Registration System 1. New Solutions for Delivering Application Assistance: How should the Office integrate in-application support and assistance to users of the electronic registration system? Through the data it has collected, the Office confirmed that users approach [[Page 52338]] the electronic registration system with varying levels of understanding of copyright law and technical experience. Infrequent users require more guidance than frequent users. Therefore, in-application assistance should be pointed and flexible. The Office is considering a multi-tier option that will offer different levels of support during the online application process. The first level, or Tier One, would provide the most elementary and basic support by placing an icon next to certain application terms that would expand to display one to two concise sentences of explanatory text. At Tier Two, users would receive in-depth substantive assistance through a help panel that would expand to provide comprehensive information and instructions on pertinent copyright concepts. The Office is also contemplating a live chat support feature to resolve common problems quickly and efficiently, subject to the availability of resources. The Office welcomes comment on these multi-tier support options and invites other ideas for improving in-application assistance and support. The Office also seeks comment on the potential value and benefit of a live chat service as well as the most common questions users have when filling out applications for registration. 2. Electronic Applications and Payments: Should the Office mandate the use of electronic applications and payments, and eliminate the paper application and payment options via check or money order? Section 409 of the Copyright Act authorizes the Register of Copyrights to prescribe forms for copyright registration. At present, the Office maintains three basic registration forms: The Standard and Single electronic applications, and the paper application. Paper applications, however, continue to be less efficient than electronic forms. The Office must scan each paper form into the registration system and input the relevant information by hand before an examiner even begins to review the claim. This is a cumbersome, labor-intensive process. Also, a significant portion of claims submitted on paper forms require correspondence or other action from the Office, which further increases pendency times and contributes to the overall backlog of pending claims.\14\ For example, applicants routinely fail to provide information expressly requested on paper forms, or add materially conflicting information. In many cases, the Office must contact the applicant to request additional information or permission to correct the application. As a result, paper applications are more costly to process than electronic applications, and the corresponding filing fee for a basic registration submitted on a paper form is $85 (compared to $55 for a basic registration submitted on an electronic form).\15\ --------------------------------------------------------------------------- \14\ The average time for the Office to resolve a paper application that requires correspondence is 20 months. By contrast, the average time for the Office to resolve an electronic application that requires correspondence is nine months. Registration Processing Times, Copyright.gov, https://www.copyright.gov/registration/docs/processing-times-faqs.pdf (last visited Oct. 4, 2018). \15\ The Office recently proposed to increase the filing fee for a basic registration submitted on a paper form to $125. Copyright Office Fees, 83 FR 24054, 24057 (May 24, 2018). --------------------------------------------------------------------------- Addressing common errors on paper applications imposes significant burdens on the Office's limited resources, and has had an adverse effect on the examination of claims submitted on electronic forms. Eliminating the paper application should mitigate many of these problems. Among other improvements, the new online application is expected to contain automated validations that would prevent applicants from submitting claims that fail to provide pertinent information. Also, the Office intends to develop a reliable system that is maintained to mitigate service interruptions and technical processing delays. For these reasons, the Office believes mandating electronic applications is necessary to improve the overall efficiency of the registration process. The Office is also contemplating requiring the designation of an email address for receiving correspondence concerning applications for registration, and eliminating physical correspondence and physical forms of payment such as checks and money orders. These changes would facilitate end-to-end electronic processing of applications, thereby improving efficiency, reducing processing errors, and decreasing pendency times.\16\ --------------------------------------------------------------------------- \16\ The U.S. Patent and Trademark Office (``USPTO'') recently issued a similar proposal that would eliminate paper applications for trademark claims and require trademark applicants ``to provide and maintain an email address for correspondence.'' See Changes to the Trademark Rules of Practice To Mandate Electronic Filing, 83 FR 24701, 24702 (May 30, 2018). --------------------------------------------------------------------------- The Office recognizes that public access to computers and internet technology continues to rise. Nearly every local library provides free public access to computers and the internet.\17\ In fiscal year 2017, 96% of basic registrations were submitted electronically, which reflects the pervasiveness of computer and internet access among the Office's users. --------------------------------------------------------------------------- \17\ Institute of Museum and Library Services, Public Libraries in the United States Survey Fiscal Year 2012 10 (Dec. 2014), available at https://www.imls.gov/assets/1/AssetManager/PLS_FY2012.pdf. --------------------------------------------------------------------------- At the same time, the Office is aware that certain communities do not have access to computer and internet technologies. A number of factors may contribute to a person's ability to access the Office's electronic system, including age, educational attainment, household income, and community type. Some of the most frequent users of paper applications include older adults and individuals who are incarcerated. Thus, to serve these populations and other individual needs, the Office is considering offering the paper application upon written request demonstrating sufficient need. The Office welcomes comment on the viability of the proposal to require electronic applications and payments and invites the submission of other proposals to improve the efficiency of the Office's registration processes for populations with limited access to computer and internet technology. 3. Electronic Certificates: Should the Office issue electronic certificates and offer paper certificates for an additional fee? The Copyright Act mandates the payment of a fee as one of the conditions for seeking a copyright registration.\18\ Section 708(a)(1) of the statute provides that fees shall be paid to the Register ``on filing each application . . . for registration of a copyright claim'' and for ``the issuance of a certificate of registration if registration is made.'' The cost of issuing a certificate is included in the filing fee for a basic registration, though the Office does charge an additional fee if extra copies of the certificate are needed.\19\ --------------------------------------------------------------------------- \18\ See 17 U.S.C. 408(a). \19\ See 37 CFR 201.3(c)(13). --------------------------------------------------------------------------- The Office has always issued certificates of registration on a special type of paper that confirms the authenticity of each document. The Office prints roughly 10,000 to 20,000 certificates in any given week. This requires a substantial amount of resources both in terms of employee compensation and the cost of maintaining printing equipment. Paper certificates are also subject to delays associated with mail delivery, and many certificates are returned to the Office as undeliverable due to errors or omissions in the mailing addresses provided by [[Page 52339]] applicants.\20\ To expedite the delivery of certificates, and to reduce the rate of returned mail, the Office is contemplating providing electronic certificates of registration with appropriate watermarks or other security measures needed to ensure authenticity (in lieu of issuing paper certificates). The cost of the electronic certificate would be included in the basic registration fee. But upon request, the Office would provide paper certificates for an additional fee. --------------------------------------------------------------------------- \20\ In July 2018 alone, the Office received 1,737 pieces of returned mail, most of which were undeliverable paper certificates. --------------------------------------------------------------------------- For copyright owners, defaulting to electronic certificates would facilitate speedier access to certificates. And it would allow the Office to reallocate resources used in printing and mailing paper certificates to other important tasks. The Office welcomes comment on this proposal. 4. Dynamic Pricing Models: Should the Office replace the Single, Standard, and group applications with a dynamic pricing model that scales fees based on the number and type of works submitted for registration? On May 24, 2018, the Office issued a Notice of Proposed Rulemaking and Fee Study proposing the adoption of a new fee schedule to account for inflationary increases and the expected cost of IT modernization over the next several years.\21\ The Fee Study was issued pursuant to the Office's routine adjustment of fees, which occurs every three to five years, so it did not address alternative models for calculating and collecting fees. --------------------------------------------------------------------------- \21\ 83 FR 24054 (May 24, 2018). --------------------------------------------------------------------------- As mentioned above, the Copyright Act requires the payment of fees ``on filing each application under section 408 for registration of a copyright claim or for a supplementary registration.'' \22\ Currently, the Office maintains three basic registration forms: (1) The Standard Application, (2) the Single Application, and (3) the paper application. And the Office recently proposed fees for nine types of group applications.\23\ Basic and group registrations account for the highest volume of the Office's fee generating services, and processing these registrations is the costliest activity the Office performs.\24\ This is due, in part, to the varying complexity posed by certain types of claims. For example, claims submitted on the Single Application tend to be straightforward, because they must be limited to one work by one author that is owned by that same individual. By contrast, claims submitted on the Standard Application tend to be more complex because they may involve works created by multiple authors, works with multiple owners, as well as works made for hire, derivative works, collective works, compilations, or other complicated issues. --------------------------------------------------------------------------- \22\ 17 U.S.C. 708(a)(1). \23\ 83 FR at 24057. \24\ See Booz Allen Hamilton, 2017 Fee Study Report 13 (Dec. 2017), available at https://www.copyright.gov/policy/feestudy2018. --------------------------------------------------------------------------- Setting fees that accurately account for difficult and/or divergent claims is important because the Office recovers approximately 60% of its costs through fees.\25\ To achieve a more precise pricing model, the Office is considering adopting a system that varies fees based upon the kind of work submitted for registration and/or the number of works included in each application. This approach may also address user concerns regarding the numerical limits that currently apply to the Office's existing group registration options. --------------------------------------------------------------------------- \25\ U.S. Copyright Office, Fiscal 2017 Annual Report 15 (2017), available at https://www.copyright.gov/reports/annual/2017/ar2017.pdf; see 83 FR 24054, 24057-58 (May 24, 2018) (explaining methodology for targeted cost of fee recovery). --------------------------------------------------------------------------- Under this approach, the fee for any particular application could be dynamic and vary based on information provided in the application. The Office could charge a base fee for registering an individual work, and an incrementally higher fee for each additional work that is added to the application (assuming the pertinent facts for each work remains the same). Or the Office could conceivably offer a subscription service that would let authors register a specific number of works over a designated period (assuming the pertinent facts for each work remain the same). Many commenters have expressed support for these ideas.\26\ The Office invites additional comment on this approach, as well as the submission of alternative methods for calculating fees that would sustain the Office, provide equity to users, and encourage registration. --------------------------------------------------------------------------- \26\ See, e.g., Coalition of Visual Artists, Comments Submitted in Response to the U.S. Copyright Office's December 1, 2016 Notice of Proposed Rulemaking at 17, 23-24, 59 (Jan. 30, 2017); Browning- Smith PC, Comments Submitted in Response to the U.S. Copyright Office's October 12, 2017 Notice of Proposed Rulemaking at 1-2 (Nov. 17, 2017); Copyright Alliance, Comments Submitted in Response to the U.S. Copyright Office's October 12, 2017 Notice of Proposed Rulemaking at 2 (Nov. 17, 2017). --------------------------------------------------------------------------- B. Application Information: The Information Requested on the Application for Registration 5. Authorship Statements and Administrative Classifications: Should the Office eliminate the Author Created and Nature of Authorship sections of the application, and instead, require the applicant to identify the work being submitted for registration, rather than the elements of authorship contained in the work? Section 409 of the Copyright Act enumerates nine items of information that should be requested on the application for registration. None of these provisions requires the applicant to identify the type of work or the type of authorship being registered, except in the case of a compilation or derivative work. But section 409(10) gives the Register discretion to request ``any other information regarded'' by her ``as bearing upon the preparation or identification of the work or the existence, ownership, or duration of the copyright.'' Pursuant to this section, the Office has required applicants to ``clearly identif[y] the copyrightable authorship that the applicant intends to register'' and ``assert a claim to copyright in that authorship.'' \27\ --------------------------------------------------------------------------- \27\ Compendium (Third) 618.1. This practice was a departure from the Office's practices under the 1909 Act. The prior statute enumerated 11 classes of works that were eligible for copyright protection, such as books, periodicals, lectures, and musical compositions, and the Office developed a specific registration application for each class. When completing these applications copyright owners were not asked to identify the authorship they intended to register, because this information could be deduced from the form itself. For example, a work submitted on Form K presumably contained two-dimensional artwork, because that form could only be used to register prints and pictorial illustrations. --------------------------------------------------------------------------- The statute also authorizes the Register to issue regulations specifying the ``administrative classes into which works are to be placed for purposes of deposit and registration'' and to develop the application forms that should be used to register each claim.\28\ Pursuant to this authority, the Office established five administrative classes for purposes of registration--namely, literary works, serials, works of the visual arts, works of the performing arts, and sound recordings--and developed a corresponding application for each class-- Forms TX, SE, VA, PA, and SR. --------------------------------------------------------------------------- \28\ 17 U.S.C. 408(c), 409. --------------------------------------------------------------------------- Because these forms can be used to register different types of works,\29\ the [[Page 52340]] Office added a space to each application that asked the applicant to identify the ``nature of authorship'' being registered. But the Office found that some applicants provided vague or ambiguous statements in this portion of the application, such as ``plot,'' ``character,'' ``story idea,'' ``beats,'' ``loops,'' or ``remastering.'' To address situations where it was unclear whether statements referred to copyrightable authorship or uncopyrightable material, the Office developed extensive practices for communicating with the applicant, amending the application, and/or annotating the certificate.\30\ --------------------------------------------------------------------------- \29\ For instance, Form SR is primarily intended for sound recordings, but it can be used to register a sound recording and the musical work, dramatic work, or literary embodied in that recording. Form SE is intended for registering a single issue of a serial publication, but it also can be used to register the individual articles, photographs, or other component works appearing within that issue. \30\ See, e.g.,Compendium (Third) 618.8(A)(1)-(11); U.S. Copyright Office, Compendium of U.S. Copyright Office Practices 619 (2d ed. 1988). --------------------------------------------------------------------------- When the Office introduced the eCO system, it included a series of checkboxes in the ``Author Created'' field, which were intended to minimize these problems.\31\ These boxes encourage applicants to provide an authorship statement that describes the work being registered. But many of the checkboxes focus on the individual elements of the work, such as ``text,'' ``music,'' or ``lyrics,'' rather than the work as a whole. --------------------------------------------------------------------------- \31\ This approach was inspired by Form VA, which contains a similar set of checkboxes. --------------------------------------------------------------------------- Collectively, this system can cause confusion for applicants and additional work for examiners. The Office is considering requiring applicants to identify the type of work being deposited. This approach has the benefit of ensuring that the work as a whole is considered by the examiner in addition to the individual elements of authorship. The Office is currently testing this approach with the new version of the Single Application, which was released on December 18, 2017. Instead of providing a blank space or a series of checkboxes that encourage applicants to assert claims in the individual elements of the work, the applicant is prompted to select an entry from a dropdown list that best describes the work as a whole. The Office intends to follow this same approach when it launches the new application for registering groups of unpublished works.\32\ --------------------------------------------------------------------------- \32\ See Group Registration of Unpublished Works, 82 FR 47415, 47418-19 (Oct. 12, 2017). --------------------------------------------------------------------------- The Office welcomes public comment on how this approach has been working. In addition, the Office welcomes public comment on the following proposals or other alternative suggestions for improving this portion of the application: (a) Should the Office eliminate the Author Created and Nature of Authorship sections in all of its applications, and instead, allow the applicant to provide a general statement that appropriately describes the work as a whole? (b) Should the Office eliminate the Author Created and Nature of Authorship sections in all of its applications, and instead, allow the examiner to add a statement that appropriately describes the work submitted for registration? (c) Should the Office eliminate the Author Created and Nature of Authorship sections in all of its applications, and instead, develop a searchable, crowdsourced list of terms that could be used to describe the work--similar to the USPTO's trademark ID manual for identifying and classifying goods and services? \33\ --------------------------------------------------------------------------- \33\ See Trademark ID Manual, USPTO.gov https://tmidm.uspto.gov/id-master-list-public.html. --------------------------------------------------------------------------- The Office also invites comment on its current administrative classifications. These classes are solely for administrative purposes and have no bearing on the subject matter or exclusive rights provided by copyright.\34\ Instead, they identify the application form used to register each type of work and determine how the Office assigns applications to examiners for processing. If the work is registered, the administrative class will be reflected in the registration number that is assigned to the certificate and the public record for that claim. Interested parties often use this information to search the Office's records for specific types of works or authors. --------------------------------------------------------------------------- \34\ 17 U.S.C. 408(c). --------------------------------------------------------------------------- The Office, however, recognizes that these classifications, and the corresponding application forms, may be confusing for some applicants. Many works do not fit neatly into a specific class. For example, a children's book could be classified as either a literary or visual arts work, depending on the amount of text versus artwork that appears within the deposit, and the Office will accept such a work regardless of whether it is submitted on Form TX or Form VA. This confusion could be alleviated by letting applicants provide a general statement describing the work as a whole. The Office could use that information to assign the work to the appropriate class for purposes of routing the application for examination and indexing the public record. The Office requests public comment on this idea. We also welcome comment on whether the Office should modify the current administrative classes or create additional or alternative class structures. 6. Derivative Works: Should the Office require users to explicitly identify whether a work submitted for registration is a derivative work? The Copyright Act defines a derivative work as ``a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.'' \35\ This category also includes ``[a] work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship.'' \36\ Thus, by definition, a derivative work contains at least two forms of authorship: (1) ``The authorship in the preexisting work(s) that have been recast, transformed, or adapted within the derivative work; and [(2)] the new authorship involved in recasting, transforming, or adapting the preexisting work(s).'' \37\ --------------------------------------------------------------------------- \35\ 17 U.S.C. 101 (definition of ``derivative work''). \36\ 17 U.S.C. 101 (definition of ``derivative work''). \37\ Compendium (Third) 618.5. --------------------------------------------------------------------------- To register a claim to copyright in a derivative work, the Copyright Act states that the application must include ``an identification of any preexisting work or works that it is based on or incorporates, and a brief, general statement of the additional material covered by the copyright claim being registered.'' \38\ The Office obtains this information on the current application in two steps. First, the Office requires the applicant to ``identify the new authorship that the applicant intends to register'' by checking ``one or more boxes that appear under the heading Author Created'' in the online application, or by providing a statement in the Nature of Authorship space on the paper application, ``that accurately describe[s] the new material that the applicant intends to register.'' \39\ Second, if the derivative work contains an appreciable amount of preexisting material that is previously published, previously registered, in the public domain, or owned by a third party, the applicant must identify that material ``by checking one or more boxes'' in the Material Excluded field of the online application or by providing a brief statement in the corresponding section [[Page 52341]] of the paper application. As with the Author Created section discussed above, these checkboxes encourage applicants to identify individual elements of the work that should be excluded from the claim, without identifying the preexisting work itself. In addition, the applicant must identify the elements of the work that should be ``included'' in the claim by completing another set of checkboxes in the online application or by providing a brief statement in the corresponding section of the paper application. --------------------------------------------------------------------------- \38\ 17 U.S.C. 409(9). \39\ Compendium (Third) 618.5. --------------------------------------------------------------------------- The Office is considering a different approach to streamline the way that applicants provide this type of information. As discussed above, applicants would be asked to identify the type of work the author created. Applicants would be given an opportunity to identify any elements that should be excluded from the claim using their own words, rather than a set of predetermined checkboxes. And the Office would eliminate the requirement to identify the new material that should be ``included'' in the claim and assume that the applicant intends to register all copyrightable aspects of the work that have not been expressly disclaimed.\40\ --------------------------------------------------------------------------- \40\ The Office is currently employing this approach with the new version of the Single Application, and it intends to follow this same approach when it launches the new application for registering groups of unpublished works. See Group Registration of Unpublished Works, 82 FR 47415, 47419 (Oct. 12, 2017). --------------------------------------------------------------------------- In addition, the Office is considering asking applicants to affirmatively state whether the work submitted for registration is a derivative work. The question would be accompanied by informational text to educate applicants on derivative work authorship. If the applicant identifies the work as a derivative work, the applicant would be asked to identify the preexisting work that the derivative work is based on or incorporates. The Office welcomes comment on these proposals. The Office also invites comment on whether the Office should take a similar approach with claims involving compilations and collective works. 7. Simplifying Transfer Statements: Should the Office restrict the transfer statement options to ``by written agreement,'' ``by inheritance,'' and ``by operation of law''? Copyright ownership in a work initially vests in the author or authors of that work.\41\ However, ``[t]he ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.'' \42\ If the individual or organization named as the claimant or co-claimant is not an author of the work, the applicant must provide ``a brief statement of how the claimant obtained ownership of the copyright.'' \43\ The Office refers to this as a transfer statement.\44\ --------------------------------------------------------------------------- \41\ 17 U.S.C. 201(a). \42\ 17 U.S.C. 201(d)(1). \43\ 17 U.S.C. 409(5). \44\ Compendium (Third) 620.2. --------------------------------------------------------------------------- The transfer statement should confirm that the copyright was transferred to the claimant by written agreement, by inheritance, or by operation of law.\45\ In the current online application, the applicant may provide this information by selecting one of the options listed in a dropdown menu.\46\ The options include ``By written agreement'' (which is the most common response provided) and ``By inheritance.'' If these options do not fully describe the transfer, the applicant may provide a more specific transfer statement in a blank space marked ``Transfer Statement Other.'' \47\ This option has created inefficiencies for the Office. Providing conflicting information in the ``Other'' field is one of the most common reasons that the Office must correspond with applicants, which delays the resolution of claims and increases pendency times. --------------------------------------------------------------------------- \45\ See 17 U.S.C. 201(d)(1), 204(a). \46\ Compendium (Third) 620.9(A). \47\ Compendium (Third) 620.9(A). --------------------------------------------------------------------------- Because the only acceptable means of transferring a copyright are ``by written agreement,'' ``by inheritance,'' or ``by operation of law,'' the Office is considering whether to add ``by operation of law'' to the list of acceptable transfer statements and remove the ``Other'' space. In addition, the Office plans to include automated validations that would prevent an applicant from submitting an application without a transfer statement in cases where the names provided in the author and claimant fields do not match. The Office welcomes comment on these proposals. 8. In-Process Corrections: Should the Office permit applicants to make in-process edits to open cases prior to the examination of the application materials? Currently the Office does not permit an applicant to make manual corrections or edits to an application once it has been received by the Office. To make a correction or edit, an applicant must contact PIO and ask the Office to make the revision on the applicant's behalf. To improve efficiency, the Office is considering allowing applicants to make changes to pending applications at any point before an examiner opens the application for review. To implement this proposal, the Office must be able to assign an appropriate Effective Date of Registration (``EDR''). The EDR is the day on which an acceptable application, complete deposit copy, and filing fee--which are later determined by the Register of Copyrights or a court of competent jurisdiction to be acceptable for registration-- have all been received in the Office in proper form.\48\ ``Where the three necessary elements are received at different times the date of receipt of the last of them is controlling, regardless of when the Copyright Office acts on the claim.'' \49\ Certain in-process changes can affect the EDR assigned to a registered work. For example, the EDR may change if the applicant replaces the deposit copy that accompanies an application for registration or submits an insufficient or uncollectible filing fee.\50\ By contrast, replacing or updating the title of the work would not change the EDR.\51\ --------------------------------------------------------------------------- \48\ 17 U.S.C. 410(d). \49\ H.R. Rep. No. 94-1476, at 157 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5773. \50\ Compendium (Third) 625.2. \51\ Compendium (Third) 625.1. --------------------------------------------------------------------------- The Office invites comment on this proposal. 9. The Rights and Permissions Field: Should the Office allow authorized users to make changes to the Rights and Permission field in a completed registration? In completing an online application for registration, an ``applicant may provide the name, address, and other contact information for the person and/or organization that should be contacted for permission to use the work.'' \52\ This is known as Rights and Permissions information. Providing this information is optional and applicants may include as little information as they prefer. The application also cautions that any information provided in this portion of the application will appear in the Online Public Record for the work.\53\ --------------------------------------------------------------------------- \52\ Compendium (Third) 622.1. There is no corresponding space for providing Rights and Permissions information in a paper application. \53\ Compendium (Third) 622.1. --------------------------------------------------------------------------- Once a certificate of registration has been issued, the Office may remove certain personally identifiable information from the Online Public Record and replace it with substitute information. To do so, the author, claimant, or an authorized representative must submit ``a written [[Page 52342]] request in the form of an affidavit, and must pay the appropriate fee for this service.'' \54\ Alternatively, an author, claimant, or other interested party may update Rights and Permissions information by submitting an application for a supplementary registration and paying the appropriate fee for that service.\55\ If the application is approved, the Office will issue a separate certificate containing the updated information, and cross-reference the records for the initial registration and the supplementary registration. However, the Office will not remove or replace the Rights and Permissions information that appears on the original certificate or record. --------------------------------------------------------------------------- \54\ 37 CFR 201.2(e)(1); Compendium (Third) 622.1. See generally Removal of Personally Identifiable Information from Registration Records, 82 FR 9004 (Feb. 2, 2017). \55\ 37 CFR 202.6(d), (e); Compendium (Third) 1802. --------------------------------------------------------------------------- The Office is considering building a user interface that will let users update Rights and Permissions information, as necessary, without having to submit a formal written removal request and fee and without having to seek a supplementary registration. This proposal is aligned with the Office's general goal to empower users to engage with the Online Public Record. The Office also believes that this change would improve the accuracy of Rights and Permissions information for persons who may be interested in licensing particular works. The Office welcomes comment on this proposal, specifically addressing how it may affect the user's decision to provide Rights and Permissions information in an application for registration and how self-service changes may improve the quality of the Online Public Record. The Office also requests comment on whether this option should be limited to the party that submitted the initial application or the account associated with that submission to prevent third parties from making unauthorized changes to the record. 10. Additional Data: What additional data should the Office collect on applications for registration? For example, should ISBNs or other unique identifiers be mandatory? Should the Office accept other optional data? The utility of the Office's Online Public Record is affected by the search capability of the electronic system (currently, the Voyager system), but it is also affected by the data contained within the record itself. The Office seeks input from members of the public that use and search the Online Public Record to determine whether additional data could be included in the online record to enhance the functionality of the system. For instance, the number of page numbers in a book might assist in matching a particular publication with the edition of a work that was registered. Low-resolution images or sound clips could help identify a work for potential licensing. The Office welcomes comments on any additional data that should be included in the registration record to enhance the value of the public registry. In particular, should the Office allow applicants to voluntarily upload low-resolution images or sound bites of their works to appear in the Online Public Record? As another example, the current system allows the applicant to include certain unique identifiers in the application, including an International Standard Book Number (``ISBN''), International Standard Recording Code (``ISRC''), International Standard Serial Number (``ISSN''), International Standard Audiovisual Number (``ISAN''), International Standard Music Number (``ISMN''), International Standard Musical Work Code (``ISWC''), International Standard Text Code (``ISTC''), or Entertainment Identifier Registry number (``EIDR'').\56\ If these numbers are provided in the appropriate fields, they will appear on the certificate and in the Online Public Record. These unique identifiers may assist ``in the identification of a work and may facilitate licensing,'' particularly in the digital environment.\57\ --------------------------------------------------------------------------- \56\ Compendium (Third) 612.6(C); see U.S. Copyright Office, U.S. Copyright Office Adds Unique Identifiers to the Electronic Registration System, Issue No. 706 (Feb. 5, 2018), https://www.copyright.gov/newsnet/2018/706.html. \57\ Compendium (Third) 612.6(C). --------------------------------------------------------------------------- The Office is considering making it mandatory for applicants to provide unique identifiers for published works if a number or code has been assigned when the claim is submitted. Alternatively, the applicant could be required to add an identifier to the record if it appears in or on the deposit copy submitted with the application for registration. The Office believes this would improve the utility of the public record because users would be able to search the Online Public Record using those unique identifiers. The Office has noted, ``reliable, up-to-date information about copyrighted works is a critical prerequisite for efficient licensing.'' \58\ As such, consistent with the in-process correction process noted above, the Office would allow applicants to add unique identifiers to pending cases as long as the changes are made before the case has been opened by the examiner. In addition, the Office is considering establishing a procedure for adding unique identifiers to completed registration records, potentially at no cost, which would be similar to the proposed procedure for updating Rights and Permissions information. --------------------------------------------------------------------------- \58\ U.S. Copyright Office, Copyright and the Music Marketplace 59-62 (2015) (discussing data standards in music industry); see Compendium (Third) 612.6(C) (noting that unique identifiers assist ``in the identification of a work and may facilitate licensing''). --------------------------------------------------------------------------- Finally, the Office appreciates that standard identifiers are not a static universe. Therefore, it is considering accepting additional identifiers in the new system, such as the Interested Parties Information (``IPI''), International Standard Name Identifier (``ISNI''), and the Plus Registry. The Office welcomes comment on these proposals. We also invite the public to identify other types of data that could be included in the registration application--either on an optional or mandatory basis--to improve the quality and utility of the public record. The Office encourages commenters to identify any special considerations for particular categories of copyrighted works. 11. Application Programming Interfaces (``APIs''): What considerations should the Office take into account in developing APIs for the electronic registration system? The Office is exploring the use of standard application programming interfaces (``APIs'') as part of the new electronic registration system. APIs offer opportunities for automated advancements. They could be used by companies to build a registration workflow into their normal business processes, or by third parties to create customized user interfaces for particular types of creators or industries, such as photographers, songwriters, book publishers, or recording artists. APIs could facilitate batch submissions of applications for registration. They could also be used to import and autofill work information, such as the title, author name(s), and date of publication from other databases when an author provides a unique identifier on an online application. In addition to making the application easier to complete, APIs could improve the accuracy of information provided on the application by minimizing errors from manual input, thereby increasing efficiency and decreasing processing times. Post-registration, APIs could also facilitate the export of data from the Office's Online Public Record, allowing the record to be augmented by private [[Page 52343]] entities to provide potentially useful facts about the work that may not be captured in the Online Public Record, such as additional information about the deposited works. This could foster efficient licensing transactions in registered works, and help detect the infringement of registered works. That said, the Office is committed to providing the public with accurate information about copyright and does not want the introduction of third-party API access to enable consumer confusion or facilitate business models that charge excessive premiums or otherwise prey upon individual authors who may be less sophisticated about the copyright system. The Office invites comment on how it should utilize APIs to integrate external data into the official registry or export internal data from the Office's registry to facilitate enhanced services offered by private entities. What factors should the Office consider? Should the Office limit API access to verified entities to minimize spam submissions and deter predatory behavior? Should the Office initiate API access through a pilot program, similar to past initiatives? \59\ --------------------------------------------------------------------------- \59\ See, e.g., Pilot Program for Bulk Submission of Claims to Copyright, 82 FR 21551 (May 9, 2017). --------------------------------------------------------------------------- C. Public Record: How Users Engage and Manage Copyright Office Records 12. The Online Registration Record: Should the Office expand the Online Public Record to include refusals, closures, correspondence, and appeals? Because the Copyright Office is primarily an office of public record,\60\ all ``public records, indexes, and deposits'' are available for public inspection pursuant to section 705(c) of the Copyright Act. In addition, with the exception of deposited articles retained by the Office,\61\ section 706(a) of the Copyright Act makes the Office's records available for copying by the public. To that end, registration application materials that the Office receives, including any associated correspondence between the Office and an applicant, create public records that the Office maintains in full form within the Office and in condensed form in the Online Public Record. --------------------------------------------------------------------------- \60\ See generally 17 U.S.C. 705. \61\ Only authorized persons may receive copies of deposited articles. Persons authorized to receive copies of deposited articles include the copyright claimant of record or his or her designated agent, or an attorney representing the plaintiff or defendant in litigation, actual or prospective, involving the deposit materials. 17 U.S.C. 706(b); see also 37 CFR 201.2(d)(2). --------------------------------------------------------------------------- Full records of approved, closed, or refused registration applications, and pending applications, including any associated correspondence, are available in the Office for public inspection and copying, under certain circumstances, and for a fee.\62\ Condensed indexes of approved post-1977 registration applications are available on the Office's website for free via the Online Public Record.\63\ The Office maintains the Online Public Record pursuant to section 707(a) of the Act, which provides that the Register ``shall compile and publish at periodic intervals catalogs of all copyright registrations.'' This provision also gives the Register the discretion to ``determine, on the basis of practicability and usefulness, the form'' of publication of these records.\64\ --------------------------------------------------------------------------- \62\ See 37 CFR 201.2(b). \63\ Public Catalog, Cocatalog.loc.gov, https://cocatalog.loc.gov. The Copyright Office currently publishes the registration of vessel hull designs in a separate database on its website, listing all registrations in reverse chronological order. See Registration of Vessel Designs, Copyright.gov, https://www.copyright.gov/vessels/. \64\ 17 U.S.C. 707(a). --------------------------------------------------------------------------- Due to considerations of feasibility and current technological limitations, the Online Public Record does not contain all of the information that is contained in the Office's full registration records. In particular, it does not include a copy of any correspondence between the Office and the applicant. It does not include information concerning claims that have been refused, claims that have been voluntarily withdrawn, or claims that have been closed for failure to respond to a written communication from the Office. Likewise, it does not contain information concerning first or second requests for reconsideration (although recent decisions that have been issued by the Review Board are available on the Office's website).\65\ These types of records are maintained solely in the full registration record, which must be viewed at the Office.\66\ As a result, courts, litigants, and the public may not be aware of refused claims or communications between the Office and applicant that resulted in material modifications to the registration materials. --------------------------------------------------------------------------- \65\ Review Board Letters Online, Copyright.gov, https://www.copyright.gov/rulings-filings/review-board/. \66\ See 37 CFR 201.2(b)(1); 201.2(b)(5) (providing that, ``[i]n exceptional circumstances'' the Office ``may allow inspection of pending applications and open correspondence files by someone other than the copyright claimant, upon submission of a written request which is deemed by the Register to show good cause for such access and establishes that the person making the request is one properly and directly concerned.''). --------------------------------------------------------------------------- The Office is considering whether to expand the Online Public Record to include correspondence records between the Office and an applicant, and refused registration application records including any associated appeal records.\67\ The Office believes these additions would greatly improve the utility of the public record, and invites public comment on the type and scope of information that should be included in the Online Public Record. In particular, the Office invites comment on whether it should publish condensed or full versions of these records, and comment on how these changes to the public record would affect stakeholders in different industries. --------------------------------------------------------------------------- \67\ This proposal is made in consideration of the Removal of Personally Identifiable Information final rule codified at 37 CFR 201.2(e), (f). --------------------------------------------------------------------------- 13. Linking Registration and Recordation Records: What considerations should the Office take into account in expanding the Online Public Record to connect registration and recordation records and provide chain of title information? In addition to expanding the type of information included in the Online Public Record, the Office seeks to build improved search functionality, which will include enhancing the connection between its registration and recordation records. Currently, registration and recordation records are maintained as discrete data sets. A search for a name, title, or registration number pulls up the records for any registration or recordation that has been indexed with that information. And in some cases, there are hyperlinks within the registration record that allows the user to pull up any corresponding recordation records. But it is not possible to view all of the registration and recordation information on the same screen. This limits the functionality of the Online Public Record and makes it difficult to obtain chain of title information. The Office seeks to create a new version of the Online Public Record that would seamlessly link registration and recordation records and provide robust chain of title information. To inform its future activities concerning this endeavor, the Office invites comment on how it should link registration and recordation records in the Online Public Record, the level of detail and specificity that should be included within the chain of title, and the potential value of that information to copyright owners, users, and the general public. [[Page 52344]] 14. Unified Case Numbers: Should the Office issue one case number to track and identify a work or group of works through the registration and appeal process? The Office currently uses multiple identification numbers to keep track of applications, correspondence, and requests for reconsideration. The Office assigns a service request/case number to each application to keep track of the claim within the electronic registration system. A separate ``THREAD ID'' is assigned to each email communication sent by the Office. A separate ``Correspondence ID'' is assigned to each letter that is sent by the Office. And the Office assigns another ``Correspondence ID'' when it issues a response to a request for reconsideration. Administering and tracking disparate numbers for these types of records has created internal and external challenges for the Office and users alike. For instance, THREAD and Correspondence ID numbers have occasionally been attached to the wrong service request/case number. Examiners often catch these errors, but they must be fixed by hand to ensure that the correspondence materials are assigned to the appropriate case. To avoid these problems and improve the transparency of its records, the Office is proposing to unify its identification numbers to create a clear relationship between an application for registration, any correspondence, and any associated request for reconsideration. This would benefit users because they would only be tasked with monitoring one case number over the life cycle of a claim. The Office invites comment on this proposal. D. Deposit Requirements: The Deposit Requirements for Registration and Related Security Considerations 15. Digital First Strategy: Should the Office require only electronic and identifying material for all deposits for registration, thereby eliminating the need to submit physical deposits for purposes of registration? The Office is seeking comment on a new approach for registration deposits. Under this approach, applicants would be required to submit electronic deposit copies and phonorecords, or other identifying material, for the purpose of registering a work under section 408 of the Copyright Act. Copyright owners would only be expected to submit physical copies or phonorecords if they receive a written demand from the Office for that material pursuant to the mandatory deposit provisions set forth in section 407. In other words, the Library would continue to receive physical copies or phonorecords through mandatory deposit if they are needed for its collections, but only if the Office affirmatively issues a written demand for that material on the Library's behalf and provides adequate notice to the copyright owner.\68\ --------------------------------------------------------------------------- \68\ This approach would be similar to the demand-based mandatory deposit scheme that the Office established for electronic- only serials and recently proposed to expand to include electronic- only books. See 75 FR 3863, 3865-66 (Jan. 25, 2010); 83 FR 16269 (Apr. 16, 2018). --------------------------------------------------------------------------- The Office already administers two separate sets of deposit requirements as codified in the Copyright Act: The requirements for depositing a work for the Library pursuant to section 407 (the ``mandatory deposit requirement'') \69\ and the deposit requirements for registering a work with the Copyright Office pursuant to section 408 (the ``deposit requirements for registration'').\70\ It has been suggested that a digital approach to deposit requirements for registration would make clearer the discrete aims of the registration and mandatory deposit requirements, as the deposit needs for registration examination purposes in many cases can be fulfilled without receiving a physical copy of the work where identifying material is sufficient.\71\ --------------------------------------------------------------------------- \69\ See 17 U.S.C. 407. \70\ See 17 U.S.C. 408. \71\ See, e.g., 37 CFR 202.20(c)(2), 202.21. --------------------------------------------------------------------------- Both sections 407 and 408 give the Register broad authority to issue regulations dictating the specific nature of the copies and phonorecords that must be deposited, and in practice, the Register has traditionally exercised this authority in significant ways. Specifically, section 408(c)(1) authorizes the Register to ``specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration, and the nature of the copies or phonorecords to be deposited in the various classes specified.'' \72\ In addition, the Register may further ``require or permit, for particular classes, the deposit of identifying material instead of copies or phonorecords.'' \73\ Currently, a wide range of works may be registered with identifying material, including most pictorial and graphic works and computer programs.\74\ --------------------------------------------------------------------------- \72\ 17. U.S.C. 408(c)(1). \73\ 17. U.S.C. 408(c)(1). \74\ 37 CFR 202.20(c)(2) (iv), (v), (vii). --------------------------------------------------------------------------- In enacting 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].'' \75\ Thus, under section 407(c), the Register may exempt any categories of material from the mandatory deposit requirements, or demand only one copy or phonorecord if it provides a ``satisfactory archival record of a work.'' \76\ As both the Office and the Library acknowledge that the Library does not need every deposit submitted for registration in its collections, over the years the Register has adopted a series of exemptions from the mandatory deposit requirement, including exemptions for most electronic works that are available only online, musical works that are published solely on phonorecords, advertising material, scientific or technical diagrams, greeting cards, individual lectures or sermons, and most three-dimensional sculptural works.\77\ --------------------------------------------------------------------------- \75\ H.R. Rep. No. 94-1476, at 151 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5767. \76\ 17. U.S.C. 407(c). \77\ See 37 CFR 202.19(c). --------------------------------------------------------------------------- Considering a digital approach to deposit requirements for registration, the Office seeks comment on whether and how it should expand the classes of excepted works under section 408. Pursuant to its authority under section 408(c)(1), the Office is considering whether it should, for all classes of works, accept only, or preferentially, electronic copies or phonorecords and identifying material to satisfy the deposit requirement for registration.\78\ --------------------------------------------------------------------------- \78\ Where it is impractical or impossible to provide an electronic deposit, the Office would still accept a physical deposit. --------------------------------------------------------------------------- The Office takes seriously its responsibility to administer both the registration and mandatory deposit requirements. But the advent of a new registration system provides an opportunity to think innovatively about the best way to design a 21st century copyright registration system while serving the Library's collection needs. A digital approach to deposit requirements for registration would aim to (1) reduce the pendency time for processing applications, (2) reduce the number of physical deposit materials that the Office of Registration Policy & Practice (``RPP'') processes, and (3) simplify the deposit requirements for registration. Although pendency times have improved,\79\ this remains a crucial concern for the Office. On April 25, 2018, the House Subcommittee on [[Page 52345]] Legislative Branch Appropriations highlighted the need for the Office to decrease its processing times in its hearing on the Library of Congress's fiscal year 2019 budget request.\80\ While inquiring about the appropriate turnaround time for completing a copyright registration, Chairman Kevin Yoder emphasized that the aim is to make the registration system ``more efficient and quicker.'' \81\ It is believed that this proposal would further significantly decrease burdens on both copyright owners and the Copyright Office by simplifying registration requirements and the examination process, and subsequently decreasing pendency times. --------------------------------------------------------------------------- \79\ Between April 3, 2018, and October 2, 2018, the average processing time for all claims decreased from eight months to seven months. See Registration Processing Times, Copyright.gov, https://www.copyright.gov/registration/docs/processing-times-faqs.pdf (last visited Oct. 4, 2018). \80\ See Legislative Branch Appropriations for 2019, Hearings Before the Subcomm. on Legislative Branch of the H. Comm. on Appropriations, Part 2, 115th Cong., 2d Sess. 325, 357-359 (2018)(statement from Rep. Kevin Yoder, Chairman, Subcomm. on Legislative Branch concerning registration processing times, noting ``we really want the Copyright Office to be successful and [] efficient''), available at https://www.thefederalregister.org/fdsys/pkg/CHRG-115hhrg30357/pdf/CHRG-115hhrg30357.pdf. \81\ Legislative Branch Appropriations for 2019, Hearings Before the Subcomm. on Legislative Branch of the H. Comm. on Appropriations, Part 2, 115th Cong., 2d Sess. at 358 (2018). --------------------------------------------------------------------------- When an applicant sends a physical deposit with their application for registration, that deposit must be sent offsite to be screened and decontaminated for possible pathogens. Once the deposit is delivered to the Office, the Office's Receipt Analysis and Control Division (``RAC'') must manually match the physical deposit to its corresponding pending application and deliver the deposit to an examiner.\82\ This time consuming process can delay examination. And if the examiner later discovers that the applicant submitted an incorrect deposit, this process may be repeated, which would delay examination and re-set the EDR to the date that an acceptable deposit was received by the Office. Additionally, physical deposits are often heavy and unwieldy. The Office moves these deposits multiple times during the examination process, which increases the risk that they may be damaged, misplaced, mismatched, or lost. --------------------------------------------------------------------------- \82\ When an applicant submits an online application and sends the deposit through the mail, they are expected to print and attach a ``shipping slip'' to the deposit. This document contains a barcode generated by the electronic registration system that is used to connect the deposit with the appropriate registration application. Unfortunately, large quantities of deposits are submitted without a shipping slip. In such cases, RAC staff must correspond with the applicant to obtain the ten-digit case numbers that have been assigned to all of the applications submitted by that party, and then search for those applications in the electronic registration system. Before delivering the deposit to the examiner for a substantive review, RAC staff must match each application to its corresponding deposit by manually generating a new shipping slip with an identifying barcode. --------------------------------------------------------------------------- By contrast, when an applicant uploads a digital deposit to the electronic registration system, the Office receives the deposit as soon as the application is submitted. An examiner can immediately access the deposit when they open the application. Examiners do not need to move deposits around the Office. Electronic deposits allow examiners to process more claims per hour, thereby cutting processing times significantly. The Office is interested in hearing from copyright owners on how this digital approach may or may not incentivize the routine registration of copyrighted works and improve the efficiency of the registration system. The Office also seeks comments on how this approach may affect copyright owners with regard to their compliance with mandatory deposit. 16. Digital Deposit Security Any approach that increases the deposit of digital formats must be supported by a robust security system. Users have expressed concern regarding the capacity of the Office's current IT infrastructure to handle an increase in digital deposits, as well as the Office's mechanisms for securing these deposits. The Office currently utilizes a multi-level security design to ensure the confidentiality, integrity, and availability of the data within the eCO system. The system is certified to operate at the National Institute of Standards and Technology (``NIST'') Moderate security level.\83\ The entire eCO system operates on hardware and software dedicated to this system and it does not share any computer or storage resources. Strict access controls are in place throughout the system for public users, staff, and system administrators, enforcing the principle of least privilege, which means that users in each role may only access what is needed for their role. The system is also protected by multiple levels of network firewalls and other network- based security, such as anti-malware protection. Finally, the eCO system is under continuous monitoring, both operational and security, to ensure that these security controls are and remain effective. --------------------------------------------------------------------------- \83\ See National Institute of Standards and Technology, Minimum Security Requirements for Federal Information and Information Systems, FIPS PUB 200, available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.200.pdf; National Institute of Standards and Technology, Security and Privacy Controls for Information Systems and Organizations, SP 800-53, available at https://csrc.nist.gov/CSRC/media//Publications/sp/800-53/rev-5/draft/documents/sp800-53r5-draft.pdf. --------------------------------------------------------------------------- The Office, working with OCIO, plans to implement these same controls in the new online registration system. Additionally, the Office's IT infrastructure is being updated to support increased numbers of digital deposits. The Office welcomes comment on the current and future state of the Office's deposit security as well as any additional approaches to this issue. E. Additional Considerations The Office is dedicated to developing a robust and efficient registration system and invites comment on any additional considerations that it should take into account during its modernization process. Dated: October 11, 2018. Karyn Temple, Acting Register of Copyrights and Director of the U.S. Copyright Office. [FR Doc. 2018-22486 Filed 10-16-18; 8:45 am] BILLING CODE 1410-30-P
![52336 Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Proposed Rules
TABLE 1 TO § 100.911—Continued
Event
(l) Michigan Championships All waters of the Detroit River and Belle Isle Beach between the following two lines: One day in August or Sep-
Swimming Event Detroit, The first line is drawn directly across the channel from position 42°20.517′ N, tember.
MI. 082°59.159′ W to 42°20.705′ N, 082°59.233′ W; the second line, to the north, is
drawn directly across the channel from position 42°20.754′ N, 082°58.681′ W to
42°20.997′ N, 082°58.846′ W.
(m) Bay City Tall Ships Pa- All waters throughout the federal navigational channel of Saginaw Bay from Light Tri-annually in July.
rade of Sail Bay City, MI. Buoy 11 at position 43°43.90′ N, 083°46.87′ W and Light 12 at position 43°43.93′
N, 083°46.95′ W to the Saginaw River, and on all waters of the Saginaw River
from its mouth to the Veterans Memorial Bridge in Bay City, MI at position
43°35.77′ N, 083°53.60′ W.
Event Marine Safety Unit Toledo Special Date
Local Regulations
(n) Frogtown Race Regatta All waters of the Maumee River, Toledo, OH, from the Martin Luther King Jr. Me- One day in September.
Toledo, OH. morial Bridge at River Mile 4.30 to the Michael DiSalle Bridge at River Mile 6.73.
(o) Dragon Boat Learning All waters of the Maumee River in Toledo, OH between the Martin Luther King Jr. One day in June or July.
Festival Toledo, OH. Memorial Bridge at river mile 4.30 and a line extending from a point at position
41°38.78′ N, 083°31.84′ W at International Park straight across the river to shore
near the mouth of Swan Creek at position 41°38.79′ N, 083°32.03′ W.
§§ 100.912 through 100.921, 100.927, and ADDRESSES: For reasons of government One of the most significant
100.928 [Removed] efficiency, the Copyright Office is using responsibilities assigned to the Office is
■ 3. Remove §§ 100.912, 100.913, the regulations.gov system for the the registration of copyright claims. The
100.914, 100.915, 100.916, 100.917, submission and posting of public Office’s registration services are vital to
100.918, 100.919, 100.920, 100.921, comments in this proceeding. All creators and users of creative works of
100.927, and 100.928. comments are therefore to be submitted all types, including large and small
Dated: October 11, 2018. electronically through regulations.gov. businesses, individuals, and non-profit
Specific instructions for submitting organizations. Copyright registration
Jeffrey W. Novak,
comments are available on the provides essential benefits for copyright
Captain, U.S. Coast Guard, Captain of the
Copyright Office website at https:// owners. Before bringing a lawsuit for
Port Detroit.
www.copyright.gov/rulemaking/reg- infringement of a U.S. work, registration
[FR Doc. 2018–22517 Filed 10–16–18; 8:45 am]
modernization. If electronic submission of the claim must be made in
BILLING CODE 9110–04–P accordance with the Copyright Act, or
of comments is not feasible due to lack
of access to a computer and/or the refused by the Office.2 A timely
internet, please contact the Office using registration constitutes prima facie
LIBRARY OF CONGRESS the contact information below for evidence of the validity of the copyright
special instructions. and the facts stated in the certificate of
Copyright Office FOR FURTHER INFORMATION CONTACT: registration.3 Additionally, copyright
Regan A. Smith, General Counsel and owners must obtain a timely registration
37 CFR Parts 201 and 202 Associate Register of Copyrights at to seek statutory damages and attorney’s
regans@copyright.gov; Robert J. Kasunic, fees in litigation.4 A registration also
[Docket No. 2018–9] creates a public record that includes key
Associate Register of Copyrights and
Director of Registration Policy and facts relating to the authorship and
Registration Modernization ownership of the work, as well as
Practice at rkas@copyright.gov; Erik
AGENCY: U.S. Copyright Office, Library Bertin, Deputy Director of Registration information about the work itself, such
of Congress. Policy and Practice at ebertin@ as title, year of creation, and date of
ACTION: Notification of inquiry. copyright.gov; Cindy Abramson, publication (if any). And an index of
Assistant General Counsel at ciab@
2 17 U.S.C. 411(a). The Supreme Court recently
SUMMARY: The U.S. Copyright Office is copyright.gov; or Jalyce Mangum at
granted certiorari to resolve a conflict among the
building a new registration system to jmang@copyright.gov. All can be circuits concerning the interpretation of section
meet the demands of the digital age. As reached by telephone by calling 202– 411(a), specifically, whether a copyright owner may
the Office develops a new technological 707–3000. commence an infringement suit after delivering the
infrastructure for this system, it is proper deposit, application, and fee to the
SUPPLEMENTARY INFORMATION: Copyright Office, but before the Register of
considering several legal and policy Copyrights has acted on the application for
changes to improve user experience, I. Background
registration. In the government’s view, the statute
increase Office efficiency, and decrease The U.S. Copyright Office (the requires the copyright owner to receive either a
daltland on DSKBBV9HB2PROD with PROPOSALS
processing times. The Office is seeking ‘‘Office’’) is statutorily responsible for registration or a refusal from the Copyright Office
before instituting suit. See Br. for the U.S. as
public comment to inform its decisions administering the nation’s copyright Amicus Curiae for Writ of Cert. at 12, Fourth Estate
on how to improve the regulations and laws pursuant to the Copyright Act.1 Pub. Ben. Corp. v. Wall-Street.com, LLC, 856 F.3d
practices related to the registration of 1338 (11th Cir. 2017), (No. 17–571), available at
copyright claims. 1 See 17 U.S.C. 701(a) (‘‘All administrative https://www.copyright.gov/rulings-filings/briefs/
functions and duties under this title . . . are the fourth-estate-pub-ben-corp-v-wall-street-com-138-s-
DATES: Written comments must be ct-720-2018.pdf.
responsibility of the Register of Copyrights as
received no later than 11:59 p.m. director of the Copyright Office of the Library of 3 17 U.S.C. 410(c).
Eastern Time on January 15, 2019. Congress.’’). 4 See 17 U.S.C. 412, 504, 505.
VerDate Sep<11>2014 17:34 Oct 16, 2018 Jkt 247001 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 E:\FR\FM\17OCP1.SGM 17OCP1](https://thefederalregister.org/doc/83_FR_52537/page/1.svg)
![Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Proposed Rules 52337
each registration is published in the direction of the House Committee on and eCO help desk, which included
Online Public Record, the database Appropriations that includes ‘‘potential over 10,000 responses from individual
posted on the Office’s website opportunities for shared efficiencies and applicants.
containing indexes of records relating to cost-savings as well as ways the [Library Based on the information gathered
registrations and document recordations of Congress’ (the ‘‘Library’s’’) Office of during these outreach efforts, the Office
issued after 1977.5 In fiscal year 2017, the Chief Information Officer (‘‘OCIO’’)] is planning to develop several solutions
the Office received 539,662 claims to can support the Copyright Office in its to improve the registration system.
copyright and issued 452,122 overall modernization efforts.’’ 10 These solutions will include a more
registrations.6 And in fiscal year 2018, A principal reason that the Office has powerful dashboard, which will allow
the Office processed more than 600,000 prioritized modernization is to improve users to track application progress; an
claims. It is therefore crucial that the the Office’s processing times for claims integrated drag and drop submission
Office have an innovative and modern submitted for registration.11 Current option for electronic deposits; and an
copyright registration system that can processing times vary based on a improved messaging system to confirm
meet the rapidly expanding needs of the number of factors, including delays in that a submission has been received and
highly diverse copyright community the receipt of the deposit, the number of provide details on what to expect next.
and the public at large. examiners available to review pending The Office also intends to improve the
The Office is dedicated to claims, the complexity of the claim, flow and usability of the user interface.
modernizing its systems. Starting in whether there are errors or For example, the Office plans to develop
2011, the Office began a series of inconsistencies in the registration a mechanism that will allow users to
comprehensive and targeted efforts to materials, and whether the Office needs view a draft version of the registration
understand and analyze its information to correspond with an applicant to certificate before final submission to
technology (‘‘IT’’) needs. The Office resolve those issues. If the examiner confirm that the correct information has
issued its Priorities and Special Projects sends an email or other correspondence, been entered. The Office also plans to
of the United States Copyright Office the applicant will be given 45 days to implement more automated validations
(October 2011–October 2013), which respond, and if the applicant responds to enhance the application.
highlighted the need for technological in a timely manner, the examiner will As the Office identifies the IT
upgrades. The Office then undertook a review and respond within 30 days after infrastructure needed to support the
comprehensive study of its the applicant’s response has been new registration system, we are
technological capabilities and needs, received.12 considering a number of legal and
which included extensive stakeholder The Office intends to replace the policy changes to improve the efficiency
feedback. The resulting 2015 Report and current electronic system (known as of the system for both users and the
Recommendations of the Technical ‘‘eCO’’) with a modern solution that Office. The Office invites public
Upgrades Special Project Team meets the changing needs of individual comment in three specific areas of
acknowledged challenges with the creators, industry (including on the user reform: The administration and
current user experience and access to side), copyright practitioners, and the substance of the application for
the public record, and offered general public. In the past year, the registration, the utility of the public
recommendations for improvement.7 Office engaged stakeholders in targeted record, and the deposit requirements for
Based on congressional direction, the outreach efforts with the assistance of a registration.
Office followed its initial report with a third-party contractor. The contractor While this document addresses a
more detailed plan, 2016’s Provisional interviewed numerous examiners, broad range of issues related to the
Information Technology Modernization supervisors, and managers from the national copyright registration system,
Plan and Cost Analysis (‘‘Provisional IT Office’s Registration Program to identify the Office will continue to focus on
Plan’’).8 And in 2017, the Office common problems faced by applicants additional topics in current and future
prepared a Modified U.S. Copyright and the Office. External user interviews rulemakings and notices of inquiry. For
Office Provisional IT Modernization were conducted in Washington DC, New example, the Office has open
Plan (‘‘Modified IT Plan’’) 9 at the York City, Nashville, and Los Angeles rulemakings related to certain group
with companies, organizations, lawyers, registration options, and is preparing
5 Indexes of records related to earlier registrations and individual creators who engage additional notices concerning group
and recordations, as well as the actual records, are with the copyright registration system. registration options for musical
available at the Copyright Office. In addition, the Office analyzed eCO
6 See U.S. Copyright Office, Fiscal 2017 Annual compositions and sound recordings,
survey data as well as calls received by certain short online literary works, and
Report 4–5 (2017), available at https://
www.copyright.gov/reports/annual/2017/ the Public Information Office (‘‘PIO’’) websites.13
ar2017.pdf. During the same period, the Office
rejected more than 17,000 claims for failure to http://www.copyright.gov/reports/itplan/modified- II. Subjects of Inquiry
comply with the statutory and/or regulatory modernization-plan.pdf.
requirements for registration, and closed more than 10 See 163 Cong Rec. H4033 (daily ed. May 3, A. The Application Process: How Users
52,000 claims because the applicant failed to 2017) (explanatory statement submitted by Rep. Engage With the Registration System
respond to a written communication from the Rodney Frelinghuysen, Chairman of the H. Comm.
Office. on Appropriations), available at https:// 1. New Solutions for Delivering
7 See U.S. Copyright Office, Report and www.congress.gov/congressional-record/2017/5/3/ Application Assistance: How should the
Recommendations of the Technical Upgrades house-section/article/H3949-2; see also Modified IT Office integrate in-application support
Special Project Team (Feb. 18, 2015), available at Plan at 1.
and assistance to users of the electronic
daltland on DSKBBV9HB2PROD with PROPOSALS
https://www.copyright.gov/docs/technical_ 11 The current processing times are posted on the
upgrades/usco-technicalupgrades.pdf. Office’s website with separate figures for claims registration system?
8 U.S. Copyright Office, Provisional Information submitted through the electronic registration system
Technology Modernization Plan and Cost Analysis and claims filed on paper forms. See Registration
Through the data it has collected, the
(Feb. 29, 2016), available at http:// Processing Times, Copyright.gov, https:// Office confirmed that users approach
www.copyright.gov/reports/itplan/technology- www.copyright.gov/registration/docs/processing-
report.pdf. times-faqs.pdf. 13 Information related to open rulemakings,
9 Library of Congress & U.S. Copyright Office, 12 U.S. Copyright Office, Compendium of U.S. including instructions for submitting public
Modified U.S. Copyright Office Provisional IT Copyright Office Practices 605.6(B), (D) (3d ed. comments, can be found at https://
Modernization Plan (Sept. 1, 2017), available at 2017) (‘‘Compendium (Third)’’). www.copyright.gov/rulemaking/.
VerDate Sep<11>2014 17:34 Oct 16, 2018 Jkt 247001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\17OCP1.SGM 17OCP1](https://thefederalregister.org/doc/83_FR_52537/page/2.svg)
![Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Proposed Rules 52339
applicants.20 To expedite the delivery of claims submitted on the Single B. Application Information: The
certificates, and to reduce the rate of Application tend to be straightforward, Information Requested on the
returned mail, the Office is because they must be limited to one Application for Registration
contemplating providing electronic work by one author that is owned by 5. Authorship Statements and
certificates of registration with that same individual. By contrast, Administrative Classifications: Should
appropriate watermarks or other claims submitted on the Standard the Office eliminate the Author Created
security measures needed to ensure Application tend to be more complex and Nature of Authorship sections of
authenticity (in lieu of issuing paper because they may involve works created the application, and instead, require the
certificates). The cost of the electronic by multiple authors, works with applicant to identify the work being
certificate would be included in the
multiple owners, as well as works made submitted for registration, rather than
basic registration fee. But upon request,
for hire, derivative works, collective the elements of authorship contained in
the Office would provide paper
works, compilations, or other the work?
certificates for an additional fee.
For copyright owners, defaulting to complicated issues. Section 409 of the Copyright Act
electronic certificates would facilitate Setting fees that accurately account enumerates nine items of information
speedier access to certificates. And it for difficult and/or divergent claims is that should be requested on the
would allow the Office to reallocate important because the Office recovers application for registration. None of
resources used in printing and mailing approximately 60% of its costs through these provisions requires the applicant
paper certificates to other important fees.25 To achieve a more precise pricing to identify the type of work or the type
tasks. model, the Office is considering of authorship being registered, except in
The Office welcomes comment on this adopting a system that varies fees based the case of a compilation or derivative
proposal. work. But section 409(10) gives the
upon the kind of work submitted for
Register discretion to request ‘‘any other
4. Dynamic Pricing Models: Should the registration and/or the number of works
information regarded’’ by her ‘‘as
Office replace the Single, Standard, and included in each application. This bearing upon the preparation or
group applications with a dynamic approach may also address user identification of the work or the
pricing model that scales fees based on concerns regarding the numerical limits existence, ownership, or duration of the
the number and type of works submitted that currently apply to the Office’s copyright.’’ Pursuant to this section, the
for registration? existing group registration options. Office has required applicants to
On May 24, 2018, the Office issued a Under this approach, the fee for any ‘‘clearly identif[y] the copyrightable
Notice of Proposed Rulemaking and Fee particular application could be dynamic authorship that the applicant intends to
Study proposing the adoption of a new and vary based on information provided register’’ and ‘‘assert a claim to
fee schedule to account for inflationary in the application. The Office could copyright in that authorship.’’ 27
increases and the expected cost of IT charge a base fee for registering an The statute also authorizes the
modernization over the next several individual work, and an incrementally Register to issue regulations specifying
years.21 The Fee Study was issued the ‘‘administrative classes into which
higher fee for each additional work that
pursuant to the Office’s routine works are to be placed for purposes of
is added to the application (assuming
adjustment of fees, which occurs every deposit and registration’’ and to develop
the pertinent facts for each work the application forms that should be
three to five years, so it did not address
remains the same). Or the Office could used to register each claim.28 Pursuant
alternative models for calculating and
conceivably offer a subscription service to this authority, the Office established
collecting fees.
As mentioned above, the Copyright that would let authors register a specific five administrative classes for purposes
Act requires the payment of fees ‘‘on number of works over a designated of registration—namely, literary works,
filing each application under section period (assuming the pertinent facts for serials, works of the visual arts, works
408 for registration of a copyright claim each work remain the same). of the performing arts, and sound
or for a supplementary registration.’’ 22 Many commenters have expressed recordings—and developed a
Currently, the Office maintains three support for these ideas.26 The Office corresponding application for each
basic registration forms: (1) The invites additional comment on this class—Forms TX, SE, VA, PA, and SR.
Standard Application, (2) the Single approach, as well as the submission of Because these forms can be used to
Application, and (3) the paper alternative methods for calculating fees register different types of works,29 the
application. And the Office recently that would sustain the Office, provide 27 Compendium (Third) 618.1. This practice was
proposed fees for nine types of group equity to users, and encourage a departure from the Office’s practices under the
applications.23 Basic and group registration. 1909 Act. The prior statute enumerated 11 classes
registrations account for the highest of works that were eligible for copyright protection,
volume of the Office’s fee generating 25 U.S. Copyright Office, Fiscal 2017 Annual
such as books, periodicals, lectures, and musical
services, and processing these compositions, and the Office developed a specific
Report 15 (2017), available at https:// registration application for each class. When
registrations is the costliest activity the www.copyright.gov/reports/annual/2017/ completing these applications copyright owners
Office performs.24 This is due, in part, ar2017.pdf; see 83 FR 24054, 24057–58 (May 24, were not asked to identify the authorship they
to the varying complexity posed by 2018) (explaining methodology for targeted cost of intended to register, because this information could
fee recovery). be deduced from the form itself. For example, a
certain types of claims. For example, 26 See, e.g., Coalition of Visual Artists, Comments work submitted on Form K presumably contained
daltland on DSKBBV9HB2PROD with PROPOSALS
Submitted in Response to the U.S. Copyright two-dimensional artwork, because that form could
20 In July 2018 alone, the Office received 1,737
Office’s December 1, 2016 Notice of Proposed only be used to register prints and pictorial
pieces of returned mail, most of which were Rulemaking at 17, 23–24, 59 (Jan. 30, 2017); illustrations.
undeliverable paper certificates. Browning-Smith PC, Comments Submitted in 28 17 U.S.C. 408(c), 409.
21 83 FR 24054 (May 24, 2018).
Response to the U.S. Copyright Office’s October 12, 29 For instance, Form SR is primarily intended for
22 17 U.S.C. 708(a)(1).
2017 Notice of Proposed Rulemaking at 1–2 (Nov. sound recordings, but it can be used to register a
23 83 FR at 24057. 17, 2017); Copyright Alliance, Comments Submitted sound recording and the musical work, dramatic
24 See Booz Allen Hamilton, 2017 Fee Study in Response to the U.S. Copyright Office’s October work, or literary embodied in that recording. Form
Report 13 (Dec. 2017), available at https:// 12, 2017 Notice of Proposed Rulemaking at 2 (Nov. SE is intended for registering a single issue of a
www.copyright.gov/policy/feestudy2018. 17, 2017). Continued
VerDate Sep<11>2014 17:34 Oct 16, 2018 Jkt 247001 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E:\FR\FM\17OCP1.SGM 17OCP1](https://thefederalregister.org/doc/83_FR_52537/page/4.svg)
![52340 Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Proposed Rules
Office added a space to each application (a) Should the Office eliminate the administrative classes or create
that asked the applicant to identify the Author Created and Nature of additional or alternative class
‘‘nature of authorship’’ being registered. Authorship sections in all of its structures.
But the Office found that some applications, and instead, allow the
6. Derivative Works: Should the Office
applicants provided vague or ambiguous applicant to provide a general statement
require users to explicitly identify
statements in this portion of the that appropriately describes the work as
whether a work submitted for
application, such as ‘‘plot,’’ ‘‘character,’’ a whole?
(b) Should the Office eliminate the registration is a derivative work?
‘‘story idea,’’ ‘‘beats,’’ ‘‘loops,’’ or
‘‘remastering.’’ To address situations Author Created and Nature of The Copyright Act defines a
where it was unclear whether Authorship sections in all of its derivative work as ‘‘a work based upon
statements referred to copyrightable applications, and instead, allow the one or more preexisting works, such as
authorship or uncopyrightable material, examiner to add a statement that a translation, musical arrangement,
the Office developed extensive practices appropriately describes the work dramatization, fictionalization, motion
for communicating with the applicant, submitted for registration? picture version, sound recording, art
amending the application, and/or (c) Should the Office eliminate the reproduction, abridgment,
annotating the certificate.30 Author Created and Nature of condensation, or any other form in
When the Office introduced the eCO Authorship sections in all of its which a work may be recast,
system, it included a series of applications, and instead, develop a transformed, or adapted.’’ 35 This
checkboxes in the ‘‘Author Created’’ searchable, crowdsourced list of terms category also includes ‘‘[a] work
field, which were intended to minimize that could be used to describe the consisting of editorial revisions,
these problems.31 These boxes work—similar to the USPTO’s annotations, elaborations, or other
encourage applicants to provide an trademark ID manual for identifying and modifications, which, as a whole,
authorship statement that describes the classifying goods and services? 33 represent an original work of
work being registered. But many of the The Office also invites comment on authorship.’’ 36 Thus, by definition, a
checkboxes focus on the individual its current administrative derivative work contains at least two
elements of the work, such as ‘‘text,’’ classifications. These classes are solely forms of authorship: (1) ‘‘The
‘‘music,’’ or ‘‘lyrics,’’ rather than the for administrative purposes and have no authorship in the preexisting work(s)
work as a whole. bearing on the subject matter or that have been recast, transformed, or
Collectively, this system can cause exclusive rights provided by adapted within the derivative work; and
confusion for applicants and additional copyright.34 Instead, they identify the [(2)] the new authorship involved in
work for examiners. The Office is application form used to register each recasting, transforming, or adapting the
considering requiring applicants to type of work and determine how the preexisting work(s).’’ 37
identify the type of work being Office assigns applications to examiners To register a claim to copyright in a
deposited. This approach has the benefit for processing. If the work is registered, derivative work, the Copyright Act
of ensuring that the work as a whole is the administrative class will be reflected states that the application must include
considered by the examiner in addition in the registration number that is ‘‘an identification of any preexisting
to the individual elements of assigned to the certificate and the public work or works that it is based on or
authorship. The Office is currently record for that claim. Interested parties incorporates, and a brief, general
testing this approach with the new often use this information to search the statement of the additional material
version of the Single Application, which Office’s records for specific types of covered by the copyright claim being
was released on December 18, 2017. works or authors. registered.’’ 38 The Office obtains this
Instead of providing a blank space or a The Office, however, recognizes that information on the current application
series of checkboxes that encourage these classifications, and the in two steps. First, the Office requires
applicants to assert claims in the corresponding application forms, may the applicant to ‘‘identify the new
individual elements of the work, the be confusing for some applicants. Many authorship that the applicant intends to
applicant is prompted to select an entry works do not fit neatly into a specific register’’ by checking ‘‘one or more
from a dropdown list that best describes class. For example, a children’s book boxes that appear under the heading
the work as a whole. The Office intends could be classified as either a literary or Author Created’’ in the online
to follow this same approach when it visual arts work, depending on the application, or by providing a statement
launches the new application for amount of text versus artwork that in the Nature of Authorship space on
registering groups of unpublished appears within the deposit, and the the paper application, ‘‘that accurately
works.32 Office will accept such a work describe[s] the new material that the
The Office welcomes public comment regardless of whether it is submitted on applicant intends to register.’’ 39
on how this approach has been working. Form TX or Form VA. Second, if the derivative work contains
In addition, the Office welcomes public This confusion could be alleviated by an appreciable amount of preexisting
comment on the following proposals or letting applicants provide a general material that is previously published,
other alternative suggestions for statement describing the work as a previously registered, in the public
improving this portion of the whole. The Office could use that domain, or owned by a third party, the
application: information to assign the work to the applicant must identify that material
appropriate class for purposes of routing ‘‘by checking one or more boxes’’ in the
the application for examination and Material Excluded field of the online
daltland on DSKBBV9HB2PROD with PROPOSALS
serial publication, but it also can be used to register
the individual articles, photographs, or other indexing the public record. The Office application or by providing a brief
component works appearing within that issue. requests public comment on this idea.
30 See, e.g.,Compendium (Third) 618.8(A)(1)–(11);
statement in the corresponding section
U.S. Copyright Office, Compendium of U.S.
We also welcome comment on whether
Copyright Office Practices 619 (2d ed. 1988). the Office should modify the current 35 17 U.S.C. 101 (definition of ‘‘derivative work’’).
31 This approach was inspired by Form VA, 36 17 U.S.C. 101 (definition of ‘‘derivative work’’).
37 Compendium (Third) 618.5.
which contains a similar set of checkboxes. 33 See Trademark ID Manual, USPTO.gov https://
32 See Group Registration of Unpublished Works, tmidm.uspto.gov/id-master-list-public.html. 38 17 U.S.C. 409(9).
82 FR 47415, 47418–19 (Oct. 12, 2017). 34 17 U.S.C. 408(c). 39 Compendium (Third) 618.5.
VerDate Sep<11>2014 17:34 Oct 16, 2018 Jkt 247001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\17OCP1.SGM 17OCP1](https://thefederalregister.org/doc/83_FR_52537/page/5.svg)
![Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Proposed Rules 52341
of the paper application. As with the pass as personal property by the efficiency, the Office is considering
Author Created section discussed above, applicable laws of intestate allowing applicants to make changes to
these checkboxes encourage applicants succession.’’ 42 If the individual or pending applications at any point before
to identify individual elements of the organization named as the claimant or an examiner opens the application for
work that should be excluded from the co-claimant is not an author of the work, review.
claim, without identifying the the applicant must provide ‘‘a brief To implement this proposal, the
preexisting work itself. In addition, the statement of how the claimant obtained Office must be able to assign an
applicant must identify the elements of ownership of the copyright.’’ 43 The appropriate Effective Date of
the work that should be ‘‘included’’ in Office refers to this as a transfer Registration (‘‘EDR’’). The EDR is the
the claim by completing another set of statement.44 day on which an acceptable application,
checkboxes in the online application or The transfer statement should confirm complete deposit copy, and filing fee—
by providing a brief statement in the that the copyright was transferred to the which are later determined by the
corresponding section of the paper claimant by written agreement, by Register of Copyrights or a court of
application. inheritance, or by operation of law.45 In competent jurisdiction to be acceptable
The Office is considering a different the current online application, the for registration—have all been received
approach to streamline the way that applicant may provide this information in the Office in proper form.48 ‘‘Where
applicants provide this type of by selecting one of the options listed in the three necessary elements are
information. As discussed above, a dropdown menu.46 The options received at different times the date of
applicants would be asked to identify include ‘‘By written agreement’’ (which receipt of the last of them is controlling,
the type of work the author created. is the most common response provided) regardless of when the Copyright Office
Applicants would be given an and ‘‘By inheritance.’’ If these options acts on the claim.’’ 49 Certain in-process
opportunity to identify any elements do not fully describe the transfer, the changes can affect the EDR assigned to
that should be excluded from the claim applicant may provide a more specific a registered work. For example, the EDR
using their own words, rather than a set transfer statement in a blank space may change if the applicant replaces the
of predetermined checkboxes. And the marked ‘‘Transfer Statement Other.’’ 47 deposit copy that accompanies an
Office would eliminate the requirement This option has created inefficiencies application for registration or submits
to identify the new material that should for the Office. Providing conflicting an insufficient or uncollectible filing
be ‘‘included’’ in the claim and assume information in the ‘‘Other’’ field is one fee.50 By contrast, replacing or updating
that the applicant intends to register all of the most common reasons that the the title of the work would not change
copyrightable aspects of the work that Office must correspond with applicants, the EDR.51
have not been expressly disclaimed.40 which delays the resolution of claims The Office invites comment on this
In addition, the Office is considering and increases pendency times. proposal.
asking applicants to affirmatively state Because the only acceptable means of 9. The Rights and Permissions Field:
whether the work submitted for transferring a copyright are ‘‘by written Should the Office allow authorized
registration is a derivative work. The agreement,’’ ‘‘by inheritance,’’ or ‘‘by users to make changes to the Rights and
question would be accompanied by operation of law,’’ the Office is Permission field in a completed
informational text to educate applicants considering whether to add ‘‘by registration?
on derivative work authorship. If the operation of law’’ to the list of
applicant identifies the work as a In completing an online application
acceptable transfer statements and
derivative work, the applicant would be for registration, an ‘‘applicant may
remove the ‘‘Other’’ space. In addition,
asked to identify the preexisting work provide the name, address, and other
the Office plans to include automated
that the derivative work is based on or contact information for the person and/
validations that would prevent an
incorporates. The Office welcomes or organization that should be contacted
applicant from submitting an
comment on these proposals. The Office for permission to use the work.’’ 52 This
application without a transfer statement
also invites comment on whether the is known as Rights and Permissions
in cases where the names provided in
Office should take a similar approach information. Providing this information
the author and claimant fields do not
with claims involving compilations and is optional and applicants may include
match. The Office welcomes comment
collective works. as little information as they prefer. The
on these proposals.
application also cautions that any
7. Simplifying Transfer Statements: 8. In-Process Corrections: Should the information provided in this portion of
Should the Office restrict the transfer Office permit applicants to make in- the application will appear in the
statement options to ‘‘by written process edits to open cases prior to the Online Public Record for the work.53
agreement,’’ ‘‘by inheritance,’’ and ‘‘by examination of the application Once a certificate of registration has
operation of law’’? materials? been issued, the Office may remove
Copyright ownership in a work Currently the Office does not permit certain personally identifiable
initially vests in the author or authors an applicant to make manual information from the Online Public
of that work.41 However, ‘‘[t]he corrections or edits to an application Record and replace it with substitute
ownership of a copyright may be once it has been received by the Office. information. To do so, the author,
transferred in whole or in part by any To make a correction or edit, an claimant, or an authorized
means of conveyance or by operation of applicant must contact PIO and ask the representative must submit ‘‘a written
law, and may be bequeathed by will or Office to make the revision on the
daltland on DSKBBV9HB2PROD with PROPOSALS
48 17U.S.C. 410(d).
applicant’s behalf. To improve 49 H.R.Rep. No. 94–1476, at 157 (1976), reprinted
40 The Office is currently employing this
approach with the new version of the Single in 1976 U.S.C.C.A.N. 5659, 5773.
42 17 U.S.C. 201(d)(1). 50 Compendium (Third) 625.2.
Application, and it intends to follow this same 43 17
approach when it launches the new application for U.S.C. 409(5). 51 Compendium (Third) 625.1.
44 Compendium (Third) 620.2.
registering groups of unpublished works. See Group 52 Compendium (Third) 622.1. There is no
45 See 17 U.S.C. 201(d)(1), 204(a).
Registration of Unpublished Works, 82 FR 47415, corresponding space for providing Rights and
47419 (Oct. 12, 2017). 46 Compendium (Third) 620.9(A). Permissions information in a paper application.
41 17 U.S.C. 201(a). 47 Compendium (Third) 620.9(A). 53 Compendium (Third) 622.1.
VerDate Sep<11>2014 17:34 Oct 16, 2018 Jkt 247001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\17OCP1.SGM 17OCP1](https://thefederalregister.org/doc/83_FR_52537/page/6.svg)
![Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Proposed Rules 52343
entities to provide potentially useful associated correspondence, are available between the Office and an applicant,
facts about the work that may not be in the Office for public inspection and and refused registration application
captured in the Online Public Record, copying, under certain circumstances, records including any associated appeal
such as additional information about the and for a fee.62 Condensed indexes of records.67 The Office believes these
deposited works. This could foster approved post-1977 registration additions would greatly improve the
efficient licensing transactions in applications are available on the Office’s utility of the public record, and invites
registered works, and help detect the website for free via the Online Public public comment on the type and scope
infringement of registered works. That Record.63 The Office maintains the of information that should be included
said, the Office is committed to Online Public Record pursuant to in the Online Public Record. In
providing the public with accurate section 707(a) of the Act, which particular, the Office invites comment
information about copyright and does provides that the Register ‘‘shall on whether it should publish condensed
not want the introduction of third-party compile and publish at periodic or full versions of these records, and
API access to enable consumer intervals catalogs of all copyright
confusion or facilitate business models comment on how these changes to the
registrations.’’ This provision also gives
that charge excessive premiums or public record would affect stakeholders
the Register the discretion to
otherwise prey upon individual authors ‘‘determine, on the basis of in different industries.
who may be less sophisticated about the practicability and usefulness, the form’’ 13. Linking Registration and
copyright system. of publication of these records.64 Recordation Records: What
The Office invites comment on how it Due to considerations of feasibility considerations should the Office take
should utilize APIs to integrate external and current technological limitations, into account in expanding the Online
data into the official registry or export the Online Public Record does not Public Record to connect registration
internal data from the Office’s registry to contain all of the information that is and recordation records and provide
facilitate enhanced services offered by contained in the Office’s full registration
chain of title information?
private entities. What factors should the records. In particular, it does not
Office consider? Should the Office limit include a copy of any correspondence In addition to expanding the type of
API access to verified entities to between the Office and the applicant. It information included in the Online
minimize spam submissions and deter does not include information Public Record, the Office seeks to build
predatory behavior? Should the Office concerning claims that have been improved search functionality, which
initiate API access through a pilot refused, claims that have been will include enhancing the connection
program, similar to past initiatives? 59 voluntarily withdrawn, or claims that between its registration and recordation
C. Public Record: How Users Engage have been closed for failure to respond records. Currently, registration and
and Manage Copyright Office Records to a written communication from the
recordation records are maintained as
Office. Likewise, it does not contain
12. The Online Registration Record: discrete data sets. A search for a name,
information concerning first or second
Should the Office expand the Online requests for reconsideration (although title, or registration number pulls up the
Public Record to include refusals, recent decisions that have been issued records for any registration or
closures, correspondence, and appeals? by the Review Board are available on recordation that has been indexed with
the Office’s website).65 These types of that information. And in some cases,
Because the Copyright Office is
records are maintained solely in the full there are hyperlinks within the
primarily an office of public record,60
registration record, which must be registration record that allows the user
all ‘‘public records, indexes, and
deposits’’ are available for public viewed at the Office.66 As a result, to pull up any corresponding
inspection pursuant to section 705(c) of courts, litigants, and the public may not recordation records. But it is not
the Copyright Act. In addition, with the be aware of refused claims or possible to view all of the registration
exception of deposited articles retained communications between the Office and and recordation information on the
by the Office,61 section 706(a) of the applicant that resulted in material same screen. This limits the
Copyright Act makes the Office’s modifications to the registration functionality of the Online Public
records available for copying by the materials. Record and makes it difficult to obtain
public. To that end, registration The Office is considering whether to chain of title information.
application materials that the Office expand the Online Public Record to
The Office seeks to create a new
receives, including any associated include correspondence records
version of the Online Public Record that
correspondence between the Office and would seamlessly link registration and
62 See 37 CFR 201.2(b).
an applicant, create public records that 63 Public recordation records and provide robust
Catalog, Cocatalog.loc.gov, https://
the Office maintains in full form within cocatalog.loc.gov. The Copyright Office currently chain of title information. To inform its
the Office and in condensed form in the publishes the registration of vessel hull designs in future activities concerning this
Online Public Record. a separate database on its website, listing all
endeavor, the Office invites comment on
Full records of approved, closed, or registrations in reverse chronological order. See
refused registration applications, and Registration of Vessel Designs, Copyright.gov, how it should link registration and
https://www.copyright.gov/vessels/. recordation records in the Online Public
pending applications, including any 64 17 U.S.C. 707(a).
65 Review Board Letters Online, Copyright.gov,
Record, the level of detail and
59 See, e.g., Pilot Program for Bulk Submission of
https://www.copyright.gov/rulings-filings/review-
specificity that should be included
within the chain of title, and the
daltland on DSKBBV9HB2PROD with PROPOSALS
Claims to Copyright, 82 FR 21551 (May 9, 2017). board/.
60 See generally 17 U.S.C. 705. 66 See 37 CFR 201.2(b)(1); 201.2(b)(5) (providing potential value of that information to
61 Only authorized persons may receive copies of that, ‘‘[i]n exceptional circumstances’’ the Office copyright owners, users, and the general
deposited articles. Persons authorized to receive ‘‘may allow inspection of pending applications and
copies of deposited articles include the copyright open correspondence files by someone other than public.
claimant of record or his or her designated agent, the copyright claimant, upon submission of a
or an attorney representing the plaintiff or written request which is deemed by the Register to
67 This proposal is made in consideration of the
defendant in litigation, actual or prospective, show good cause for such access and establishes
involving the deposit materials. 17 U.S.C. 706(b); that the person making the request is one properly Removal of Personally Identifiable Information final
see also 37 CFR 201.2(d)(2). and directly concerned.’’). rule codified at 37 CFR 201.2(e), (f).
VerDate Sep<11>2014 17:34 Oct 16, 2018 Jkt 247001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\17OCP1.SGM 17OCP1](https://thefederalregister.org/doc/83_FR_52537/page/8.svg)
![52344 Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Proposed Rules
14. Unified Case Numbers: Should the Library would continue to receive and costs to the copyright owner of
Office issue one case number to track physical copies or phonorecords providing [copies of the works].’’ 75
and identify a work or group of works through mandatory deposit if they are Thus, under section 407(c), the Register
through the registration and appeal needed for its collections, but only if the may exempt any categories of material
process? Office affirmatively issues a written from the mandatory deposit
The Office currently uses multiple demand for that material on the requirements, or demand only one copy
identification numbers to keep track of Library’s behalf and provides adequate or phonorecord if it provides a
applications, correspondence, and notice to the copyright owner.68 ‘‘satisfactory archival record of a
requests for reconsideration. The Office The Office already administers two work.’’ 76 As both the Office and the
assigns a service request/case number to separate sets of deposit requirements as Library acknowledge that the Library
each application to keep track of the codified in the Copyright Act: The does not need every deposit submitted
claim within the electronic registration requirements for depositing a work for for registration in its collections, over
system. A separate ‘‘THREAD ID’’ is the Library pursuant to section 407 (the the years the Register has adopted a
assigned to each email communication ‘‘mandatory deposit requirement’’) 69 series of exemptions from the
sent by the Office. A separate and the deposit requirements for mandatory deposit requirement,
‘‘Correspondence ID’’ is assigned to registering a work with the Copyright including exemptions for most
each letter that is sent by the Office. Office pursuant to section 408 (the electronic works that are available only
And the Office assigns another ‘‘deposit requirements for online, musical works that are
‘‘Correspondence ID’’ when it issues a registration’’).70 It has been suggested published solely on phonorecords,
response to a request for that a digital approach to deposit advertising material, scientific or
reconsideration. requirements for registration would technical diagrams, greeting cards,
Administering and tracking disparate make clearer the discrete aims of the individual lectures or sermons, and
numbers for these types of records has registration and mandatory deposit most three-dimensional sculptural
created internal and external challenges requirements, as the deposit needs for works.77
for the Office and users alike. For registration examination purposes in Considering a digital approach to
instance, THREAD and Correspondence many cases can be fulfilled without deposit requirements for registration,
ID numbers have occasionally been receiving a physical copy of the work the Office seeks comment on whether
attached to the wrong service request/ where identifying material is and how it should expand the classes of
case number. Examiners often catch sufficient.71 excepted works under section 408.
these errors, but they must be fixed by Both sections 407 and 408 give the Pursuant to its authority under section
hand to ensure that the correspondence Register broad authority to issue 408(c)(1), the Office is considering
materials are assigned to the appropriate regulations dictating the specific nature whether it should, for all classes of
case. To avoid these problems and of the copies and phonorecords that works, accept only, or preferentially,
improve the transparency of its records, must be deposited, and in practice, the electronic copies or phonorecords and
the Office is proposing to unify its Register has traditionally exercised this identifying material to satisfy the
identification numbers to create a clear authority in significant ways. deposit requirement for registration.78
relationship between an application for Specifically, section 408(c)(1) authorizes The Office takes seriously its
registration, any correspondence, and the Register to ‘‘specify by regulation responsibility to administer both the
any associated request for the administrative classes into which registration and mandatory deposit
reconsideration. This would benefit works are to be placed for purposes of requirements. But the advent of a new
deposit and registration, and the nature registration system provides an
users because they would only be tasked
of the copies or phonorecords to be opportunity to think innovatively about
with monitoring one case number over
the best way to design a 21st century
the life cycle of a claim. The Office deposited in the various classes
copyright registration system while
invites comment on this proposal. specified.’’ 72 In addition, the Register
serving the Library’s collection needs. A
may further ‘‘require or permit, for
D. Deposit Requirements: The Deposit digital approach to deposit requirements
particular classes, the deposit of
Requirements for Registration and for registration would aim to (1) reduce
identifying material instead of copies or
Related Security Considerations the pendency time for processing
phonorecords.’’ 73 Currently, a wide
applications, (2) reduce the number of
15. Digital First Strategy: Should the range of works may be registered with
physical deposit materials that the
Office require only electronic and identifying material, including most
Office of Registration Policy & Practice
identifying material for all deposits for pictorial and graphic works and
(‘‘RPP’’) processes, and (3) simplify the
registration, thereby eliminating the computer programs.74 deposit requirements for registration.
need to submit physical deposits for In enacting section 407, Congress Although pendency times have
purposes of registration? balanced different, important interests, improved,79 this remains a crucial
The Office is seeking comment on a including the ‘‘value of the copies or concern for the Office. On April 25,
new approach for registration deposits. phonorecords to the collections of the 2018, the House Subcommittee on
Under this approach, applicants would Library of Congress’’ and ‘‘the burdens
be required to submit electronic deposit 68 This
75 H.R. Rep. No. 94–1476, at 151 (1976), reprinted
approach would be similar to the demand- in 1976 U.S.C.C.A.N. 5659, 5767.
copies and phonorecords, or other based mandatory deposit scheme that the Office 76 17. U.S.C. 407(c).
identifying material, for the purpose of established for electronic-only serials and recently
daltland on DSKBBV9HB2PROD with PROPOSALS
77 See 37 CFR 202.19(c).
registering a work under section 408 of proposed to expand to include electronic-only 78 Where it is impractical or impossible to provide
the Copyright Act. Copyright owners books. See 75 FR 3863, 3865–66 (Jan. 25, 2010); 83
FR 16269 (Apr. 16, 2018). an electronic deposit, the Office would still accept
would only be expected to submit 69 See 17 U.S.C. 407. a physical deposit.
physical copies or phonorecords if they 70 See 17 U.S.C. 408.
79 Between April 3, 2018, and October 2, 2018,
receive a written demand from the 71 See, e.g., 37 CFR 202.20(c)(2), 202.21.
the average processing time for all claims decreased
from eight months to seven months. See
Office for that material pursuant to the 72 17. U.S.C. 408(c)(1).
Registration Processing Times, Copyright.gov,
mandatory deposit provisions set forth 73 17. U.S.C. 408(c)(1).
https://www.copyright.gov/registration/docs/
in section 407. In other words, the 74 37 CFR 202.20(c)(2) (iv), (v), (vii). processing-times-faqs.pdf (last visited Oct. 4, 2018).
VerDate Sep<11>2014 17:34 Oct 16, 2018 Jkt 247001 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\17OCP1.SGM 17OCP1](https://thefederalregister.org/doc/83_FR_52537/page/9.svg)
![Federal Register / Vol. 83, No. 201 / Wednesday, October 17, 2018 / Proposed Rules 52345
Legislative Branch Appropriations which increases the risk that they may these security controls are and remain
highlighted the need for the Office to be damaged, misplaced, mismatched, or effective.
decrease its processing times in its lost. The Office, working with OCIO, plans
hearing on the Library of Congress’s By contrast, when an applicant to implement these same controls in the
fiscal year 2019 budget request.80 While uploads a digital deposit to the new online registration system.
inquiring about the appropriate electronic registration system, the Office Additionally, the Office’s IT
turnaround time for completing a receives the deposit as soon as the infrastructure is being updated to
copyright registration, Chairman Kevin application is submitted. An examiner support increased numbers of digital
Yoder emphasized that the aim is to can immediately access the deposit deposits. The Office welcomes comment
make the registration system ‘‘more when they open the application. on the current and future state of the
efficient and quicker.’’ 81 It is believed Examiners do not need to move deposits Office’s deposit security as well as any
that this proposal would further around the Office. Electronic deposits additional approaches to this issue.
significantly decrease burdens on both allow examiners to process more claims
copyright owners and the Copyright E. Additional Considerations
per hour, thereby cutting processing
Office by simplifying registration times significantly. The Office is dedicated to developing
requirements and the examination The Office is interested in hearing a robust and efficient registration system
process, and subsequently decreasing from copyright owners on how this and invites comment on any additional
pendency times. digital approach may or may not considerations that it should take into
When an applicant sends a physical incentivize the routine registration of account during its modernization
deposit with their application for copyrighted works and improve the process.
registration, that deposit must be sent efficiency of the registration system. The Dated: October 11, 2018.
offsite to be screened and Office also seeks comments on how this Karyn Temple,
decontaminated for possible pathogens. approach may affect copyright owners
Once the deposit is delivered to the Acting Register of Copyrights and Director
with regard to their compliance with of the U.S. Copyright Office.
Office, the Office’s Receipt Analysis and mandatory deposit.
Control Division (‘‘RAC’’) must [FR Doc. 2018–22486 Filed 10–16–18; 8:45 am]
manually match the physical deposit to 16. Digital Deposit Security BILLING CODE 1410–30–P
its corresponding pending application Any approach that increases the
and deliver the deposit to an deposit of digital formats must be
examiner.82 This time consuming supported by a robust security system. DEPARTMENT OF VETERANS
process can delay examination. And if Users have expressed concern regarding AFFAIRS
the examiner later discovers that the the capacity of the Office’s current IT
applicant submitted an incorrect 38 CFR Part 17
infrastructure to handle an increase in
deposit, this process may be repeated, digital deposits, as well as the Office’s RIN 2900–AP64
which would delay examination and re- mechanisms for securing these deposits.
set the EDR to the date that an The Office currently utilizes a multi- Adopting Standards for Laboratory
acceptable deposit was received by the level security design to ensure the Requirements
Office. Additionally, physical deposits confidentiality, integrity, and
are often heavy and unwieldy. The AGENCY: Department of Veterans Affairs.
availability of the data within the eCO
Office moves these deposits multiple system. The system is certified to ACTION: Proposed rule.
times during the examination process, operate at the National Institute of SUMMARY: The Department of Veterans
80 See
Standards and Technology (‘‘NIST’’) Affairs (VA) proposes to amend its
Legislative Branch Appropriations for
2019, Hearings Before the Subcomm. on Legislative
Moderate security level.83 The entire medical regulations to establish
Branch of the H. Comm. on Appropriations, Part 2, eCO system operates on hardware and standards for VA clinical laboratories.
115th Cong., 2d Sess. 325, 357–359 software dedicated to this system and it The Department of Health and Human
(2018)(statement from Rep. Kevin Yoder, Chairman, does not share any computer or storage
Subcomm. on Legislative Branch concerning Services (HHS) has established
registration processing times, noting ‘‘we really resources. Strict access controls are in standards for the staffing, management,
want the Copyright Office to be successful and [] place throughout the system for public procedures, and oversight of clinical
efficient’’), available at https://www.gpo.gov/fdsys/ users, staff, and system administrators, laboratories that perform testing used
pkg/CHRG-115hhrg30357/pdf/CHRG- enforcing the principle of least
115hhrg30357.pdf. for the diagnosis, prevention, or
81 Legislative Branch Appropriations for 2019, privilege, which means that users in treatment of any disease or impairment
Hearings Before the Subcomm. on Legislative each role may only access what is of, or health assessment of, human
Branch of the H. Comm. on Appropriations, Part 2, needed for their role. The system is also beings. VA is required, in consultation
115th Cong., 2d Sess. at 358 (2018). protected by multiple levels of network
82 When an applicant submits an online with HHS, to establish standards equal
firewalls and other network-based to those applicable to other clinical
application and sends the deposit through the mail,
they are expected to print and attach a ‘‘shipping security, such as anti-malware laboratories. As a matter of policy and
slip’’ to the deposit. This document contains a protection. Finally, the eCO system is practice VA has applied HHS standards
barcode generated by the electronic registration under continuous monitoring, both to its VA laboratory operations, and this
system that is used to connect the deposit with the operational and security, to ensure that
appropriate registration application. Unfortunately, proposed rule would formalize this
large quantities of deposits are submitted without practice. The proposed rule would
daltland on DSKBBV9HB2PROD with PROPOSALS
a shipping slip. In such cases, RAC staff must 83 See National Institute of Standards and
establish quality standards for
correspond with the applicant to obtain the ten- Technology, Minimum Security Requirements for
digit case numbers that have been assigned to all Federal Information and Information Systems, FIPS
laboratory testing performed on
of the applications submitted by that party, and PUB 200, available at https://nvlpubs.nist.gov/ specimens from humans, such as blood,
then search for those applications in the electronic nistpubs/FIPS/NIST.FIPS.200.pdf; National body fluid and tissue, for the purpose of
registration system. Before delivering the deposit to Institute of Standards and Technology, Security and diagnosis, prevention, or treatment of
the examiner for a substantive review, RAC staff Privacy Controls for Information Systems and
must match each application to its corresponding Organizations, SP 800–53, available at https://
disease, or assessment of health.
deposit by manually generating a new shipping slip csrc.nist.gov/CSRC/media//Publications/sp/800-53/ Specifically, it would address how VA
with an identifying barcode. rev-5/draft/documents/sp800-53r5-draft.pdf. applies regulations as the controlling
VerDate Sep<11>2014 17:34 Oct 16, 2018 Jkt 247001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\17OCP1.SGM 17OCP1](https://thefederalregister.org/doc/83_FR_52537/page/10.svg)
Document Created: 2018-10-17 01:47:04
Document Modified: 2018-10-17 01:47:04
| 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 | Notification of inquiry. | |
| Dates | Written comments must be received no later than 11:59 p.m. Eastern Time on January 15, 2019. | |
| Contact | Regan A. Smith, General Counsel and Associate Register of Copyrights at [email protected]; Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice at [email protected]; Erik Bertin, Deputy Director of Registration Policy and Practice at [email protected]; Cindy Abramson, Assistant General Counsel at [email protected]; or Jalyce Mangum at [email protected] All can be reached by telephone by calling 202-707-3000. | |
| FR Citation | 83 FR 52336 | |
| CFR Citation | 37
CFR
201 37 CFR 202 |
2024 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR