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[Federal Register: January 24, 2011 (Volume 76, Number 15)]
[Rules and Regulations]               
[Page 4072-4076]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24ja11-7]                         

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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. RM 2010-6]

 
Registration of Claims of Copyright

AGENCY: Copyright Office, Library of Congress.

ACTION: Interim rule.

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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.

[[Page 4073]]

Telephone: (202) 707-8380. Telefax: (202) 707-8366.

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 Sec.  
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.

[[Page 4074]]

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.
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    \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.
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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 Sec.  
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

[[Page 4075]]

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

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

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

0
2. Amend Sec.  202.3as follows:
0
a. By revising paragraph (b)(5)(ii)(A); and
0
b. By adding new paragraph (b)(10)(xi).
    The revisions and additions to Sec.  202.3 read as follows:

Sec.  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) * * *

[[Page 4076]]

    (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.
* * * * *

0
3. Amend Sec.  202.20 as follows:
0
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'';
0
b. By adding new paragraph (c)(2)(vii)(D)(8);
0
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 Sec.  
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
0
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 Sec.  202.20 read as follows:

Sec.  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.
[FR Doc. 2011-1332 Filed 1-21-11; 8:45 am]
BILLING CODE 1410-30-P
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