2011-1332. Registration of Claims of Copyright

AGENCY:

Copyright Office, Library of Congress.

ACTION:

Interim rule.

SUMMARY:

The Copyright Office is adopting interim regulations governing the electronic submission of applications for registration of automated databases that predominantly consist of photographs, and applications for group registration of published photographs. This interim rule establishes a testing period and pilot program during which the Copyright Office will assess the desirability and feasibility of permanently allowing such applications to be submitted through the Copyright Office's electronic filing system (“eCO”). Persons wishing to submit electronic applications to register copyrights of such photographic databases or of groups of published photographs should contact the Visual Arts Division for permission and guidance on electronic registration. Notwithstanding the ordinary deposit requirements for group registration of automated databases, an electronic application for group registration of an automated database that consists predominantly of photographic authorship must include the image of each claimed photograph in the database. The interim regulations also allow applicants to use forms other than Form TX, as appropriate, when submitting paper applications to register group automated databases.

DATES:

Effective Date: January 24, 2011.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel, or Catherine Rowland, Attorney Advisor, Copyright Office, GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone: [phone]. Telefax: [phone].

SUPPLEMENTARY INFORMATION:

In order to advise the public of and align its regulations with its registration practices relating to certain kinds of group registrations involving photographic authorship, the Copyright Office is publishing this notice to establish a limited pilot program to allow online submission of copyright applications for photographs using the procedures for registration of (1) automated databases and (2) groups of published photographs.

For over three years, the Copyright Office has offered and encouraged the option of submitting applications for copyright registration online. See Online Registration of Claims to Copyright, 72 FR 36883 (July 6, 2007). However, although online registration has been available for basic registration claims, it has not yet been made generally available for group registrations. While the Office has proposed that online registration be required in the future for all group registrations, see Registration of Claims to Copyright, Group Registration Options, 73 FR 23390, 23392 (Apr. 30, 2008), that proposal has not yet been implemented because most of the group registration options require specialized applications that have not yet been integrated into the Office's eCO system.

The Copyright Office has long had in place provisions permitting photographers to register groups or collections of photographs. Since the enactment of the Copyright Act of 1976, the Copyright Office has permitted the registration of groups of unpublished photographs (or of any other unpublished works) as part of a single “collection” when certain requirements have been met. The most significant of those requirements are that the copyright claimant in each of the works, and in the collection as a whole, must be the same and that all the works must have at least one common author. See 37 CFR 202.3(b)(4)(i)(B). Similarly, for published works, registration as a single work has been permitted for “all copyrightable elements that are otherwise recognizable as self-contained works, that are included in a single unit of publication, and in which the copyright claimant is the same.” 37 CFR 202.3(b)(4)(i)(A).

In 2001, after an extensive rulemaking proceeding, the Office adopted a group registration procedure for published photographs that complemented the already existing unpublished collection procedure. See Registration of Claims to Copyright; Group Registration of Photographs, 66 FR 37142 (July 17, 2001). The result was a new group registration procedure permitting registration of a group of published photographs, all taken by the same photographer and published within the same calendar year, upon submission of an application for registration and a deposit consisting of each of the images covered by the registration. At the same time, the Office liberalized its requirements with respect to acceptable formats of deposits of photographs for registrations of unpublished collections, as well as for the new group registration of published photographs option. See 37 CFR 202.3(b)(10) and 202.20(c)(2)(xx). The 2001 regulations ensured that the registration record and the deposit would provide a sufficient record to inform the public of the existence and scope of the registered copyright claim.

However, some groups of photographs have also been registered by using another option permitting group registration of automated databases. The group database registration option was first announced in 1989. See Registration of Claims to Copyright Registration and Deposit of Databases, 54 FR 13177 (March 31, 1989). It has been used to register databases consisting predominantly of photographic images since at least 1997. See, e.g., Registration No. VA 863-785 (Corbis Digital Online Update Group, from March 18-June 30, 1997) (effective date Nov. 6, 1997). While a published database would be registerable under the “single unit of publication” rule of § 202.3(b)(4)(i)(A), the group database registration provisions permit the making of a single registration that covers up to three months' worth of updates and revisions to an automated database when all of the updates or other revisions (1) are owned by the same copyright claimant, (2) have the same general title, (3) are similar in their general content, including their subject, and (4) are similar in their organization. 37 CFR 202.3(b)(5). Using this provision, stock photography agencies have been able to obtain registrations covering all the photographs added to their databases within a three-month period when they have obtained copyright assignments from the photographers.

In the coming months, the Copyright Office is likely to initiate a review of the circumstances and conditions under which database registrations may be made and the extent to which, going forward, such registrations should continue to be deemed to cover not only the compilation authorship (i.e., the authorship involved in the selection, coordination and arrangement of the data and/or works assembled in a database) but also any or all of the works assembled in the database.

Accordingly, and in light of the longstanding availability of the option of registering unpublished collections and the lengthy and carefully considered rulemaking that established the procedures for group registration of published photographs, the Office prefers and urges claimants to use those two options when registering groups of photographs rather than using the provisions for registration of automated databases.

However, at least at this point in time, the Office is not prepared to impose new limits on the availability of group registration for automated databases when the content that is registered is primarily photographic in nature. In fact, the Visual Arts Division has accepted some online applications for registration of photographic databases and has adopted certain practices that are not currently reflected in the Office's regulations. The Register has concluded that it would be advantageous to the Office and applicants to conduct a pilot program to evaluate the conditions under which online registration of automated databases consisting predominantly of photographs can and should be made, and to clarify in the Office's regulations that online applications may be accepted for such databases.

Similarly, some applicants have already submitted online applications for registration under the Office's procedure for group registration of published photographs in recent months. Although the Office had not announced the availability of online applications for group registration of photographs, the Visual Arts Division has processed some online applications when all the required information has been included. In order to reconcile this practice with the Office's regulations and to determine what ultimately will be the specific requirements for online applications for group registration of published photographs, the Office is also offering a pilot program to assess online applications for group registration of photographs.

Issues with Respect to Registration of Automated Databases Consisting Predominantly of Photographs

1. Online Submission of Applications; Availability of the Appropriate Forms for Print Applications

Currently, the Office encourages the initial registration of an automated database to be submitted electronically through the Office's eCO system. However, the Office generally has not allowed group registrations, including group registrations of automated databases, to be submitted through the eCO system because eCO is not yet set up to take in the information required on the specialized application forms for many of the Office's group registration options. With respect to group registration of automated databases, the Office's existing regulation provides that “[a]n application for group registration of automated databases under section 408(c)(1) of title 17 and this subsection shall consist of * * * [a] Form TX” along with the filing fee and deposit. 37 CFR 202.3(b)(5)(ii)(A). Form TX is a paper application

Other information provided by the Copyright Office relating to group database registrations also appears to be inconsistent with the acceptance of online applications. Until very recently, Circular 65, Copyright Registration for Automated Databases, stated: “Group registrations cannot be submitted through eCO or fill-in Form CO. Instead, the Form TX must be completed and mailed to the Copyright Office with the appropriate fee and deposit.” See Copyright Office, Circular 65, Copyright Registration for Automated Databases 3 (2009) (currently undergoing revision). See also Copyright Office Form Letter 110, Group Registration for Automated Databases (Revised: 27-Jun-2008), available at http://www.copyright.gov/​fls/​fl110.html.

Unlike most of the other group registration options, group registration for automated databases does not require a special group form. As noted above, traditionally such registrations have been made using Form TX, the paper form used for all published and unpublished nondramatic literary works. The Copyright Office's online registration system, eCO, currently is capable of handling applications for group registration of automated databases. However questions remain about the capacity of the system to accommodate applications listing very large numbers of authors or titles, and large or complex electronic transfers of deposits may encounter issues related to file size or transmission speed.

Moreover, although the provisions for group registration of automated databases traditionally have been used primarily for registrations of databases consisting either of literary works or of data, the Office has also, for over a decade, accepted applications for group registration of automated databases when the works collected in a database have consisted predominantly of photographic authorship. Such applications have been made using Form VA, the paper form used for works of the visual arts.

Thus, to the extent that the existing regulation on group registration of automated databases requires the use of Form TX, it is inconsistent with existing practice in two respects: (1) Some applications have been made online using eCO, rather than using a paper form, and (2) even when a paper form is used, a form other than Form TX may be used depending on the subject matter of the works included in the database.

In order to reconcile the regulatory text with current practice, the Office is amending its regulations governing group registration of automated databases to clarify that, rather than being required to use Form TX, an applicant should use the form that best reflects the subject matter of the works included in the database.^[1] For example, when the works in a database consist predominantly of photographs, the print application should be made by submitting Form VA rather than Form TX. Moreover, the Office is formally announcing its pilot program allowing applicants to file online applications for automated databases consisting predominantly of photographs. Before filing such an online application, however, the applicant must first contact the Office's Visual Arts Division at 202-707-8202 to coordinate the filing and to obtain proper guidance concerning the information to be included in the application. Applicants will only be allowed to file online applications for automated databases consisting predominantly of photographs after obtaining authorization from the Visual Arts Division and following the Division's instructions. In order to utilize the online registration system's capacity to accept more information in an application covering a large number of works and thereby to create a clearer, more comprehensive public record, and in order to adapt to lessons learned as such applications are examined and processed, the Visual Arts Division will permit participation in the pilot program only by applicants who can utilize the online registration system consistent with those goals. For now, the online registration option for group database registrations will be limited to photographic databases.

2. Deposit Requirements

A significant respect in which the provisions governing registration of automated databases differ from the other provisions for registration of photographs discussed above lies in the relaxed deposit requirements for databases embodied in machine-readable copies (other than in a CD-ROM format). Section 202.20(c)(2)(vii)(D)(5) of the Copyright Office regulations provides that for group database registrations (as well as single database applications), the application need not be accompanied by a deposit of the entire work, but instead may be accompanied by identifying material consisting of fifty representative pages or data records marked to show the new material added on one representative day, along with some additional identifying information. As a result, the deposit accompanying a database registration application can consist of a fraction of the copyrightable material that is covered by the registration.

This is in stark contrast to the deposit requirements for registration of unpublished collections, for group registrations of published photographs, and for most other forms of copyright registration. Section 202.3(b)(10)(x), which governs the deposit for a group registration of photographs, provides that the deposit shall consist of “one copy of each photograph [to] be submitted in one of the formats set forth in Sec. 202.20(c)(2)(xx).” See also § 202.20(c)(1)(i) (“in the case of unpublished works, [the deposit shall consist of] one complete copy or phonorecord,” a provision that applies to registrations of unpublished collections as well as individual unpublished works). Section 202.20(c)(2)(xx) provides for a number of options with respect to the formats in which photographs may be submitted.

The Copyright Office believes that when registration is made for a database consisting predominantly of photographs and the copyright claim extends to the individual photographs themselves, each of those photographs should be included as part of the deposit accompanying the application. As the Office said when it announced its regulations on group registration of published photographs:

[T]he Office rejects the plea of at least one commenter to permit the use of descriptive identifying material in lieu of the actual images. Although the Office had previously expressed a willingness to consider such a proposal, the most recent notice of proposed rulemaking noted that `the Office is reluctant to implement a procedure that would permit the acceptance of deposits that do not meaningfully reveal the work for which copyright protection is claimed.' 65 FR at 26164. Deposit of the work being registered is one of the fundamental requirements of copyright registration, and it serves an important purpose. As the legislative history of the Copyright Act of 1976 recognizes, copies of registration deposits may be needed for identification of the copyrighted work in connection with litigation or for other purposes. See H.R. Rep. No. 94-1476, at 171 (1976). See also Seiler v. Lucasfilm, Inc., 808 F.2d 1316, 1322 (9th Cir. 1986) (noting that `possibilities for fraud would be limitless' if reconstructions of claimant's original work could be submitted as registration deposits); Tradescape.com v. Shiraram, 77 F.Supp.2d 408, 413-14 (S.D.N.Y. 1999) (noting that when deposit of redacted version of computer program is permitted, the result in infringement litigation is uncertainty as to whether allegedly infringed code actually is the subject of an existing registration). The ability of litigants to obtain a certified copy of a registered work that was deposited with the Office prior to the existence of the controversy that led to a lawsuit serves an important evidentiary purpose in establishing the identify and content of the plaintiff's work.

Registration of Claims to Copyright, Group Registration of Photographs, 66 FR 37142, 37147 (July 17, 2001).

Moreover, the actual practice with respect to online registrations of predominantly photographic databases has in fact been to include all of the photographs in the deposit. In order to conform to actual practice and the Office's determination of what a reasonable deposit requirement should include, the Office is amending its regulations to provide that when an online application is made for registration of an automated database consisting predominantly of photographs, the deposit shall include all of the photographs claimed to be part of the registration. Identifying material will not constitute a sufficient deposit. As noted above, this conforms with what has in fact already been the general practice with respect to online applications. The Office is separately publishing a notice of proposed rulemaking that would impose a similar requirement with respect to paper applications for registration of photographic databases.

The requirement that all photographs covered by a registration are to be included as part of the deposit is in addition to the existing deposit requirements for identifying material set forth in section 202.20(c)(2)(vii)(D).

Because of issues regarding limitations on the size of deposits that may be submitted online, applicants for group registrations of photographic databases must confer with the Visual Arts Division with respect to each application to determine whether to submit their deposits electronically, or whether to submit the deposits by mail using one of the approved formats set forth in 37 CFR 202(c)(2)(xx).

Issues with Respect to Group Registration of Published Photographs

As with group database registrations, up to now the Office has not formally announced that online registration is available for group registration of published photographs. However, a number of claimants have submitted applications for group registration of published photographs through eCO and the Visual Arts Division has in some cases processed those claims.

Because experience has shown that the requirements for group registration of published photographs can be satisfied by means of online applications, the Office has decided that it will undertake a pilot program to assess the online application process for these applications. This will enable the Office to determine whether the eCO system can successfully handle different applications for group registration of published photographs. Therefore, applicants wishing to obtain group registrations for published photographs will be allowed to apply for registration online during the pilot program. As with group registrations of photographic databases, before filing such an online application, the applicant must first contact the Office's Visual Arts Division at 202-707-8202 to coordinate the filing and to obtain guidance concerning the information to be included in the application. Applicants will only be allowed to file such online applications after obtaining authorization from the Visual Arts Division and following the Division's instructions. Additionally, applicants must confer with the Visual Arts Division with respect to each application in order to determine whether their deposits may be submitted electronically due to potential limitations on the size of electronically submitted deposits.

Technical Correction

The Office is also amending Section 202.20(c)(2)(xx) to correct three cross-references to other regulations.

Adoption of Interim Regulations

Section 553(b)(3)(A) of the Administrative Procedure Act states that general notice of proposed rulemaking is not required for rules of agency organization, procedure, or practice. Since the Office finds that the following interim regulations are rules of agency organization, procedure, or practice, no notice of proposed rulemaking is required. Additionally, the interim regulations are consistent with the Office's existing practices and relieve applicants from procedural restrictions. Pursuant to section 553(d) of the Administrative Procedure Act, these regulations may be effective immediately. Moreover, the Register finds that because these regulations provide additional options to applicants for registration of automated databases and for group registration of published photographs, good cause exists for making these interim rules effective immediately and without notice and comment. As the pilot program for online registration of these groups proceeds, the Office will learn from its experience and develop proposals for more comprehensive final regulations.

List of Subjects in 37 CFR Part 202

• Copyright

Interim Regulation

For the reasons set forth in the preamble, part 202 of Title 37 of the Code of Federal Regulations is amended to read as follows:

PART 202—PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

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

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

2. Amend § 202.3as follows:

a. By revising paragraph (b)(5)(ii)(A); and

b. By adding new paragraph (b)(10)(xi).

The revisions and additions to § 202.3 read as follows:

§ 202.3

Registration of copyright.

* * * * *

(b) * * *

(5) * * *

(ii) * * *

(A) A form that best reflects the subject matter of the material in the database as set forth in paragraph (b)(2) of this section, completed in accordance with the basic instructions on the form and the Special Instructions for Group Registration of an Automated Database and its Updates or Revisions, except that in the case of an application for group registration of an automated database consisting predominantly of photographs, after consultation and with the permission and under the direction of the Visual Arts Division, the application may be submitted electronically.

* * * * *

(10) * * *

(xi) Instead of using Form VA, an applicant may submit an electronic application for group registration of published photographs after consultation and with the permission and under the direction of the Visual Arts Division.

* * * * *

3. Amend § 202.20 as follows:

a. By amending (c)(2)(vii)(D)(5) to add “or in the case of electronically submitted applications for automated databases that predominantly consist of photographs, the claimant shall deposit identifying portions that comply with (D)(8) of this section; the claimant shall” after “if unpublished,” and deleting “and shall” before “also deposit”;

b. By adding new paragraph (c)(2)(vii)(D)(8);

c. By amending the introductory text in paragraph (c)(2)(xx) to add “and for automated databases that consist predominantly of photographs registered with an application submitted electronically under § 202.3(b)(5)(ii)(A)” after “(group registration of published photographs)”, by removing “202.3(b)(3)(i)(B)” and adding “202.3(b)(4)(i)(B)” in its place; and by removing “202.3(b)(9)” and adding “202.3(b)(10)” in its place; and

d. By amending paragraph (c)(2)(xx)(F) to add “or database” after “included in the group” and to remove “202.3(b)(9)” and add “202.3(b)(10)” in its place.

The revisions and additions to § 202.20 read as follows:

§ 202.20

Deposit of copies and phonorecords for copyright registration.

* * * * *

(c) * * *

(2) * * *

(vii) * * *

(D) * * *

(8) In the case of an application submitted electronically for registration of a database that consists predominantly of photographs (including a group registration for revised or updated versions of such a database), “identifying portions” shall instead consist of all individual photographs included in the claim either in one of the formats set forth in paragraph (c)(2)(xx) of this section or in an electronic format submitted along with the electronic application after consultation and with the permission and under the direction of the Visual Arts Division.

* * * * *

Dated: December 30, 2010.

Marybeth Peters,

Register of Copyrights.

Approved by:

James H. Billington,

The Librarian of Congress.

Footnotes

1.  With respect to paper forms, the existing practice appears to have related only to Form VA, but in principle there is no reason why Form PA or Form SR should not be used to register a database when the authorship consists predominantly of works of the performing arts or sound recordings, respectively.