[Federal Register Volume 65, Number 88 (Friday, May 5, 2000)]
[Proposed Rules]
[Pages 26162-26166]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-10986]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. RM 95-7B]


Registration of Claims to Copyright, Group Registration of 
Photographs

AGENCY: Copyright Office, Library of Congress.

ACTION: Proposed regulations with request for comments.

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SUMMARY: The Copyright Office of the Library of Congress is proposing 
regulations to facilitate group registration of published photographs. 
These proposed regulations differ significantly from regulations 
proposed earlier in this rulemaking proceeding, as they require the 
deposit of the actual photographic images, rather than merely written 
identifying descriptions, for registration purposes and as they pertain 
only to published photographs. This option for group registration of 
photographs is available only for registration of works by an 
individual photographer which are published within one calendar year. 
In addition, the Office also proposes to liberalize the deposit 
requirements for groups of unpublished photographs registered as 
unpublished collections. The Office is seeking comments only on these 
proposals.

DATES: Written comments on the proposed regulations should be received 
on or before June 19, 2000.

ADDRESSES: If sent BY MAIL, an original and 15 copies of written 
comments should be addressed to David O. Carson, General Counsel, 
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC 
20024. If delivered by hand, an original and 15 copies should be 
brought to: Office of the Copyright General Counsel, James Madison 
Memorial Building, Room LM-403, 101 Independence Avenue, SE., 
Washington, DC 20559.

FOR FURTHER INFORMATION CONTACT: David Carson, General Counsel, or 
Patricia L. Sinn, Senior Attorney Advisor, Telephone: (202) 707-8380. 
Fax: (202) 707-8366.

SUPPLEMENTARY INFORMATION:  

I. Background

    Registration of a copyright can be made at any time during the term 
of statutory protection; however, with the exception of a three-month 
grace period dating from first publication, the law prohibits the award 
of statutory damages or attorney's fees where a work has not been 
registered before infringement occurs. 17 U.S.C. 412.
    Under the 1976 Copyright Act, as amended, an applicant may register 
a claim in an original work of authorship with the Copyright Office by 
submitting a completed application, a fee, and a deposit of copies of 
the work to be registered. The nature of the copy to be deposited is 
set out in the statute in general terms, e.g., one complete copy or 
phonorecord of an unpublished work,

[[Page 26163]]

and two complete copies or phonorecords of the best edition of a 
published work if first published in the United States. 17 U.S.C. 
408(b). The Register of Copyrights may require or permit the deposit of 
identifying material instead of copies or phonorecords; and the 
Register may allow a single registration for a group of related works. 
17 U.S.C. 408(c).

A. Legislative Intent

    In explaining section 408(c), the House Judiciary Committee noted 
that it was intended to give the Register of Copyrights ``latitude in 
adjusting the type of material deposited to the needs of the 
registration system.'' H. R. Rep. No. 94-1476, at 153 (1976). It stated 
that ``Where the copies or phonorecords are bulky, unwieldy, easily 
broken, or otherwise impractical to file and retain as records 
identifying the work registered, the Register would be able to require 
or permit the substitute deposit of material that would better serve 
the purpose of identification. Cases of this sort might include, for 
example, billboard posters, toys and dolls, ceramics and glassware, 
costume jewelry, and a wide range of three-dimensional objects 
embodying copyrighted material. The Register's authority would also 
extend to rare or extremely valuable copies which would be burdensome 
or impossible to deposit.'' Id. at 154 (emphasis added).
    Finally, Congress noted that the provision empowering the Register 
to allow a number of related works to be registered together as a group 
``represents a needed and important liberalization of the law now in 
effect. At present the requirement for separate registrations where 
related works or parts of a work are published separately has created 
administrative problems and has resulted in unnecessary burdens and 
expense on authors and other copyright owners.'' Id. A group of 
photographs by one photographer was cited as one example where these 
results could be avoided by allowing a group registration.

B. Registration Concerns Expressed by Photographers

    For some time the Copyright Office has been working with 
photographers to devise a registration system that works more 
effectively for photographers who have said that they find it difficult 
to register the many images they create due to concerns of time, effort 
and expense. At the same time, the procedure adopted must meet the 
requirement that the deposit adequately identify the work registered. 
Photographers have urged that the nature of much photography, where 
thousands of images may be created, particularly by free-lance 
photographers, with only a few images, if any, being published, makes 
registration difficult. They assert that at the time registration may 
be sought, the photographer may not know which photographs, if any, 
will be or have been published. Often a photographer's film is turned 
over to another party which processes and uses the images, leaving the 
photographer with nothing to deposit with the Copyright Office for 
registration purposes.
    In an attempt to make registration easier for such photographers, 
the Office expanded its procedures regarding deposit materials for two 
and three dimensional works of the visual arts. For example, the Office 
accepts the deposit of a videotape or filmstrip as identifying material 
for collections of unpublished photographs. Despite the liberalization 
of deposit procedures, many photographers continued to urge that the 
requirement that they deposit a visual image of each photograph covered 
in the registration precludes them from registering. They claim that 
while they have been given a legal right by the copyright law, they 
have no effective remedy, thus leading to continued infringement of 
their works.
    During congressional hearings on the proposed Copyright Reform Act 
of 1993, photographers stated that they could not take advantage of the 
benefits of copyright registration because the Office's practices were 
too burdensome in terms of the time and cost required to submit a copy 
of each image included in a collection of photographs.\1\
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    \1\ See Copyright Reform Act of 1993: Hearings on H.R. 897 
Before the Subcomm. on Intellectual Property and Judicial 
Administration of the House Comm. on the Judiciary, 103d Cong., 1st 
Sess. 370-72 (1993). See also, Copyright Reform Act of 1993: Hearing 
on S. 373 Before the Subcomm. on Patents, Copyrights and Trademarks 
of the Senate Comm. on the Judiciary, 103d Cong., 1st Sess. 169 
(1993).
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    In June, 1993, the Librarian of Congress appointed an Advisory 
Committee on Copyright Registration and Deposit (ACCORD) to advise him 
``concerning the impact and implications of the [proposed] Copyright 
Reform Act of 1993. . .'' Library of Congress, Advisory Committee on 
Copyright Registration and Deposit, Report of the Co-Chairs, vii 
(1993). The Committee recommended that the Office expand ``the use of 
group registration and optional deposit to reduce the present burdens'' 
and ``consult more actively and frequently with present and potential 
registrants to hear their problems and to respond to them whenever 
possible.'' Id. at 20.

C. Office's Further Attempts to Address Photographer's Concerns.

    After the ACCORD report was issued, the Copyright Office met with 
photographers and their representatives and sought a workable solution 
for photographers which would not cause unforeseen problems for 
publishers, photofinishers, and other users of photographs. On December 
4, 1995, the Office initiated a rulemaking proceeding by publishing 
proposed regulations with a request for comments. 60 FR 61657 (Dec. 4, 
1995). The proposed regulations would have permitted individual 
photographers and photography businesses to make group registrations of 
mixed unpublished and published photographs with the deposit of 
identifying material consisting of written descriptions of the photos 
in a particular grouping rather than copies of individual photo images. 
The notice of proposed rulemaking also framed questions regarding 
possible consequences of adopting the proposed regulations which were 
much more liberal than anything the Office had previously proposed.
    The proposed regulations elicited a great deal of controversy. In 
an effort to reach consensus, the Office held a public hearing and 
provided for an additional comment period. See 61 FR 28829 (June 6, 
1996).\2\ Some respondents approved the proposed regulations, in whole 
or in part, as aiding photographers in their desire for access to legal 
remedies. Others raised a number of concerns, the most serious of which 
is the value of the copyright deposit as an identification of the work 
registered and the question of whether descriptive identifying material 
serves as well as the deposit of the complete image of a photograph for 
a court's purposes. Some respondents claimed that based on past 
experience, it was likely that the proposed regulations would promote 
frivolous litigation targeting parties who unknowingly reproduced 
copies of copyrighted photographs without the copyright owner's 
permission. In response to this concern, industry representatives 
presented a set of proposed guidelines that not only would be followed 
by industry members who had previously agreed to them, but also were 
proposed to be included in, or referenced by, the Office's final 
regulations.
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    \2\ All comments and the transcript of the June 26, 1996, public 
meeting are available for inspection in the Copyright Office Public 
Information Office.
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    Another controversial issue highlighted by commenters was whether 
registration claimants who decided to use proposed group registration

[[Page 26164]]

procedures would (or could), by making that choice, be forced by 
provisions of the industry agreement to waive rights to statutory 
damages and attorney's fees in innocent infringement determinations. 
Further comments concerned other registration requirements, identifying 
deposit information, effective date of registration, and consumer 
education about copyright law.
    Professor Peter Jaszi, a member of the ACCORD advisory committee, 
asserted that although some specific and limited suggestions about how 
to address photographers' concerns were incorporated in recommendations 
made by the Librarian of Congress' advisory group ACCORD in response to 
the proposed 1993 Copyright Reform Act, ``there is little if anything 
in the ACCORD record which lends support to such a far-reaching 
revision of registration and deposit practice'' as was contained in the 
Office's proposed group registration regulations. Jaszi reply comments 
in RM 95-7 at 1.

D. Further Reflection on the 1995 Proposal

    When the Office opened this rulemaking proceeding in 1995, its 
goals were to determine how to modify registration and deposit 
procedures to ensure deposit of works for the record, to register works 
to protect claimants, and ultimately to benefit the public by providing 
access to information on copyright status and ownership of photographic 
works. Its efforts to further liberalize deposit provisions for 
photographers led to what seemed insurmountable differences about the 
purpose of the copyright deposit which could not be resolved to the 
satisfaction of all interested parties. Although the rulemaking 
proceeding has remained open for a considerable period of time, the 
Office has continued to consider the issues raised in the proceeding 
and in other contexts (e.g., the adjustment of registration fees and 
other statutory fees). It has also determined that it should reexamine 
the purpose of the section 408 copyright deposit for all classes of 
works and expects to publish a Notice of Inquiry to begin the study 
this year. Meanwhile, 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.
    The Office has decided that it should move forward with a more 
modest proposal which would permit group registration of related 
published photographs. Since this rulemaking proceeding commenced in 
1995, there have been advances in the technology that permits the 
taking and/or preservation of photographs in digital form, and in the 
commercial availability of such technology. The Office expects that 
such advances over the next several years will make identification and 
imaging of photographs for registration purposes even easier so that 
registration will become more readily available for photographers.

II. Group Registration of Photographs Published in the Same 
Calendar Year

    Continued reflection on the issue suggested a possible alternative 
that would give many photographers a more flexible group registration 
procedure by permitting registration of multiple photographs created by 
one photographer which are published on different dates but in the same 
calendar year. The Office is now proposing regulations that would 
permit such an alternative. A.

A. Works Covered and Required Identification.

    Each submission for group registration must contain photographs by 
an individual photographer that were all published \3\ within the same 
calendar year. The claimant(s) for all photographs in the group must be 
the same. The date of publication for each photograph must be indicated 
either on the individual image or on the registration application or 
application continuation sheet in such a manner that for each 
photograph in the group, it is possible to ascertain the date of its 
publication. However, the Office will not catalog individual dates of 
publication; the Copyright Office catalog will include the single 
publication date or range of publication dates indicated on the Form 
VA. If the claimant uses a continuation sheet to provide details such 
as date of publication for each photograph, the certificate of 
registration will incorporate the continuation sheet, and copies of the 
certificate may be obtained from the Copyright Office and reviewed in 
the Office's Card Catalog room.
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    \3\ The definition of ``publication'' in the 1976 Copyright Act, 
as amended, is as follows: ``Publication'' is the distribution of 
copies or phonorecords of a work to the public by sale or other 
transfer of ownership, or by rental, lease, or lending. The offering 
to distribute copies or phonorecords to a group of persons for 
purposes of further distribution, public performance, or public 
display, constitutes publication. A public performance or display of 
a work does not of itself constitute publication. 17 U.S.C. 101.
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    The Office notes that although it will accept group registration 
claims for all photographs published within a calendar year, an 
applicant who wishes to ensure that he is eligible for statutory 
damages and attorney's fees must register within three months of 
publication. 17 U.S.C. 412. Applicants would be well-advised to submit 
a group registration claim within each three-month period in which any 
photographs in the group were published.
    The Office recognizes that some commenters have previously 
expressed the view that photographers sometimes have difficulty knowing 
exactly when--or even whether \4\--a particular photograph has been 
published. With respect to date of publication, it should be noted that 
the Office's longstanding practices permit the claimant some 
flexibility in determining the appropriate date. See, e.g., Compendium 
of Copyright Office Practices, Compendium II, Sec. 910.02 (1984) 
(Choice of a date of first publication).\5\
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    \4\ The Compendium of Copyright Office Practices, Compendium II, 
Sec. 904 states the Office's general practice with respect to 
publication, including that ``The Office will ordinarily not attempt 
to decide whether or not publication has occurred but will generally 
leave this decision to the applicant.''
    \5\ ``1) Where the applicant is uncertain as to which of several 
possible dates to choose, it is generally advisable to choose the 
earliest date, to avoid implication of an attempt to lengthen the 
copyright term, or any other period prescribed by the statute. ``2) 
When the exact date is not known, the best approximate date may be 
chosen. In such cases, qualifying language such as `approximately,' 
`on or about,' `circa,' `no later than,' and `no earlier than,' will 
generally not be questioned.''
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    Notwithstanding such concerns, the Office has concluded that it 
cannot establish a group registration procedure that permits claimants 
to include both published and unpublished photographs within a single 
group registration due to their inability to determine whether a 
particular photograph has been published. A procedure permitting 
inclusion of both published and unpublished works in a single 
registration would be unprecedented and would ignore critical 
distinctions between the copyright law's treatment of published works 
and its treatment of unpublished works. See, e.g., 1 Melville B. Nimmer 
and David Nimmer, Nimmer on Copyright Sec. 4.01[A] (1999). Moreover, an 
application for copyright registration must identify the date and 
nation of first publication for each published work. 17 U.S.C. 409(8). 
That statutory requirement would be inconsistent with a procedure that 
permitted claimants to refrain from identifying whether a particular 
photograph has been published.
    The Office also requests comments on whether applications for group 
registration of photographs should be permitted to state a range of 
dates of up to three months (e.g., January 1-March

[[Page 26165]]

31, 2001) in which all the photographs in the group were published, 
rather than stating specific dates of publication for each photograph. 
The Office would consider such an alternative only if it were persuaded 
that requiring specific dates of publication for each photograph would 
impose an unjustifiable and burdensome hardship on photographers, and 
that the advantages (to claimants and to the public record) of such an 
alternative would outweigh its disadvantages.
    The Office believes that it would be beneficial and would create a 
clearer public record if claimants are required to number the 
photographs in a group consecutively (e.g., from 1 to 500), and to 
indicate the number of each photograph on or affixed to the individual 
image of the photograph that is deposited. The Office requests comments 
on whether such a requirement would be desirable.

B. Use of the Appropriate Form, Deposit, and Fee

    To register qualified works as a group, an applicant should submit 
an application Form VA, with the appropriate fee and a deposit 
consisting of an image of each photograph included in the group. The 
statutory requirement of a deposit of two complete copies of the best 
edition of each published photograph is waived, and a claimant may 
submit a single copy of each image in any of the following formats: 
Iimages in digital form on CD-ROM or DVD-ROM; single images (prints, at 
least 3 inches by 3 inches and preferably archivally-processed on 
fiber-based paper); contact sheets (preferably archivally-processed on 
fiber-based paper); slides with single images; slides each containing 
up to 36 images; or multiple images on video tape. In addition, any or 
all of the photographs may be deposited in the format in which they 
were originally published, such as clippings from a newspaper or 
magazine. The Office seeks comment on whether there are other formats 
for deposit of full images of photographs that will minimize the burden 
on photographers while providing the Office and the public record with 
accessible and usable images. The Office also seeks comment on what 
file formats should be acceptable for photographs submitted on CD-ROM.
    The Office also seeks comments on whether it should provide an 
optional specialized continuation sheet, similar to Form GR/CP (the 
adjunct application form for group registration of contributions to 
periodicals), which could provide specific information (e.g., title or 
other description, date of publication) about each photograph included 
in the group.

C. How Many Photographs May Be Included in One Registration?

    Due to administrative and workload considerations, a maximum of 500 
photographs may be included in a single group registration. The 
approximate number of photographs in the group submitted must be 
indicated on the application.

D. Relationship of This New Procedure to Other Types of Registration of 
Photographs

    Registration and deposit requirements for unpublished photographs 
remain unchanged, and may be found in 17 U.S.C. 408(b)(1) and 37 CFR 
202.20(b)(1)(i), and (c)(4)(xix). Registration for individual 
photographs may still be made using a Form VA, submitted with a 
registration fee of $30.00 and a copy of the photograph which complies 
with the existing deposit requirements found at 37 CFR 202.20.
    Unpublished collections of photographs may be registered pursuant 
to the requirements set forth in 37 CFR 202.3(b)(3). The new 
liberalized deposit requirements of 37 CFR 202.20(c)(2)(xx), discussed 
above in section C for group registration of published photographs, 
shall also apply to deposit of unpublished collections of photographs. 
Thus, photographers will be able to register groups of unpublished 
photographs in much the same manner as that in which they can register 
groups of published photographs.

III. Public Comment

    The Copyright Office is seeking comment only on the rules proposed 
in this notice. Reargument of issues raised earlier in this rulemaking 
that have, at this point, been rejected by the Office (e.g., acceptance 
of descriptive identifying material as deposits in lieu of actual 
images) will not be productive. Following review of comments, the 
Office will adopt final regulations. Interested parties are invited to 
submit comments on the following points:
    1. Under the proposed regulations, a claimant must identify the 
date of publication of each image published within the same calendar 
year and submitted for registration. As deposit copies, the Office will 
accept images in digital form on CD-ROM or DVD-ROM; single images; 
contact sheets; slides with single images; slides each containing up to 
36 images; or multiple images on video tape. The Office will also 
accept copies of the photographs in the formats in which they were 
originally published (e.g., clippings from newspapers or magazines). 
The final regulation will specify how dates must be provided for each 
photograph in the group in such a way that for each photograph, one can 
ascertain its date of publication. Recommendations about the best 
methods for providing this information are invited now. In the proposed 
regulations, applicants will have the option of identifying each 
photograph and its date of publication separately on a continuation 
sheet or of indicating the date of publication on each photograph 
itself. For example, if separate photographic prints were deposited, 
the date of publication of each photograph could be written on the back 
of the print. However, for other formats (e.g., CD-ROM, slides 
containing up to 36 images, videotapes, contact sheets), other ways of 
indicating the date of publication for each image will be necessary.
    A. Comments are invited on how the date of publication of each 
photograph can be indicated on the deposit itself for deposits made in 
such formats, and how each date can be connected to the pertinent 
photograph.
    B. Comments are also invited on how the date of publication of each 
photograph can be indicated on a continuation sheet, and how each date 
of publication entry on the continuation sheet can be related to a 
particular photograph or photographs. For example, if the continuation 
sheet is used, should each photograph be numbered consecutively; and 
for each photograph, should that number be written or otherwise 
indicated on the corresponding copy of the photograph that is 
deposited?
    C. Comments are also invited on whether the Office's general 
continuation sheet, Form CON, should be used for this purpose or 
whether the Office should provide an optional specialized continuation 
sheet, similar to Form GR/CP (the adjunct application form for group 
registration of contributions to periodicals), which could provide 
specific information (e.g., title or other description, date of 
publication) about each photograph included in the group.
    2. Comments are invited on whether claimants should be required to 
number the photographs in a group consecutively (e.g., from 1 to 500), 
and to indicate the number of each photograph on or affixed to the 
individual image of the photograph that is deposited. Would such a 
numbering requirement assist in identifying dates of publication of 
each photograph when a continuation sheet is used, as

[[Page 26166]]

suggested in question 1.B. above? Would such a requirement assist in 
creating a clearer public record? How burdensome would such a 
requirement be?
    3. Should the Office accept deposits in formats other than those 
mentioned in item 1? If so, what other formats should be accepted? Each 
format must be capable of providing a complete image of each photograph 
in the group.
    4. For photographs submitted on CD-ROMs or in other electronic 
formats, what file formats (e.g., JPEG, GIF, etc.) should be accepted, 
and why?
    5. As an alternative to requiring a claimant to provide the date of 
publication of each photograph in the group, should the Office consider 
offering the alternative of providing a range of dates over a three-
month period (e.g., January 1-March 31, 2001)? What would be the 
advantages and disadvantages--to claimants and to the public record -of 
such an approach?

List of Subjects in 37 CFR Part 202

    Claims, Copyright.

Proposed Rule

    In consideration of the foregoing, the Copyright Office proposes to 
amend 37 CFR part 202 in the manner set forth below:

PART 202--REGISTRATION OF CLAIMS TO COPYRIGHT

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

    Authority: 17 U.S.C. 408, 702.

    2. In section 202.3, paragraph (b)(9) is redesignated as paragraph 
(b)(10), and a new paragraph (b)(9) is added to read as follows:


Sec. 202.3  Registration of copyright.

* * * * *
    (b) * * *
    (9) Group registration of published photographs. Pursuant to the 
authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights 
will accept a single application (on Form VA), deposit and filing fee 
for registration of a group of at least two and no more than 500 
photographic works if the following conditions are met:
    (i) The author of all the photographic works submitted for 
registration as part of the group must be the same person.
    (ii) The copyright claimant in all of the photographic works must 
be the same.
    (iii) The photographs in the group must have been published within 
the same calendar year.
    (iv) The date of publication of each work within the group must be 
identified either on the deposited image, on the application form, or 
on a continuation sheet, in such a manner that one may specifically 
identify the date of publication of any photograph in the group. If the 
photographs in a group were not all published on the same date, the 
range of dates of publication (e.g., January 1-March 31, 2001) should 
be provided in space 3b of the application.
    (v) The deposit(s) and application must be accompanied by the fee 
set forth in Sec. 201.3(c) of this chapter for a basic registration 
using Form VA.
    (vi) The applicant must note on the application Form VA the 
approximate number of photographs included in the group.
    (vii) As an alternative to the best edition of the work, one copy 
of each photographic work shall be submitted in one of the formats set 
forth in Sec. 202.20(c)(2)(xx).
* * * * *
    3. Section 202.20 is amended by adding a new paragraph (c)(2)(xx) 
to read as follows:


Sec. 202.20  Deposit of copies and phonorecords for copyright 
registration.

* * * * *
    (c) * * *
    (2) * * *
    (xx) Photographs: group registration. For groups of photographs 
registered with one application under Sec. 202.3(b)(3) or 
Sec. 202.3(b)(9), photographs must be deposited in one of the following 
formats (listed in the Library's order of preference):
    (A) Digital form on one or more CD-ROMs (including C-RW's) or DVD-
ROMs;
    (B) Unmounted prints measuring at least 3 inches by 3 inches (not 
to exceed 20 inches by 24 inches) submitted on fiber-based paper;
    (B) Contact sheets on fiber-based paper;
    (C) Slides, each with a single image;
    (E) The form in which each photograph was originally published 
(e.g., clippings from newspapers or magazines);
    (F) Slides, each containing up to 36 images; or
    (G) A videotape clearly depicting each photograph.
* * * * *

    Dated: April 25, 2000.
Marybeth Peters,
Register of Copyrights
    Approved By:
James H. Billington,
The Librarian of Congress.
[FR Doc. 00-10986 Filed 5-4-00; 8:45 am]
BILLING CODE 1410-30-P