[Federal Register Volume 89, Number 2 (Wednesday, January 3, 2024)]
[Proposed Rules]
[Pages 311-318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28724]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Parts 201 and 202

[Docket No. 2023-8]


Group Registration of Updates to a News Website

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Copyright Office is proposing to create a new group 
registration option for frequently updated news websites. The rapid 
pace at which many web-based materials are created and updated presents 
a challenge for copyright registrants. This challenge is especially 
pronounced for frequently updated news websites. This option will 
enable online news publishers to register a group of updates to a news 
website as a collective work with a deposit composed of identifying 
material representing sufficient portions of the works, rather than the 
complete contents of the website. The Office invites comment on this 
proposal and the questions below.

DATES: Comments on the proposed rule must be made in writing and must 
be received by the U.S. Copyright Office no later than February 20, 
2024.

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://copyright.gov/rulemaking/newswebsite. 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: Rhea Efthimiadis, Assistant to the 
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#a5c8c0c3d1e599c485cdd7c0c398" http: copyright.gov">copyright.gov</a>">meft@copyright.gov</a> or by telephone at 202-
707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

    The U.S. Copyright Office (``Office'') is proposing to create a new 
group registration option for frequently updated news websites. When 
Congress enacted the Copyright Act of 1976 (``Copyright Act'' or 
``Act''), it authorized the Register of Copyrights (``Register'') to 
specify by regulation the administrative classes of works for the 
purpose of seeking registration and the nature of the deposit required 
for each such class.\1\ Congress afforded the Register discretion to 
permit registration of groups of related works with one application and 
one filing fee, known as ``group registration.'' \2\ As the legislative 
history explains, allowing ``a number of related works to be registered 
together as a group represent[ed] a needed and important liberalization 
of the law.'' \3\
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    \1\ See 17 U.S.C. 408(c)(1).
    \2\ Id.
    \3\ H.R. Rep. No. 94-1476, at 154 (1976), reprinted in 1976 
U.S.C.C.A.N. 5659, 5770; S. Rep. No. 94-473, at 136 (1975).
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    In providing the Register the discretion to provide for group 
registrations, Congress recognized that requiring applicants to submit 
separate applications for certain types of works may be so burdensome 
and expensive that authors and copyright owners may forgo registration 
altogether.\4\ Group registration options must be designed, however, in 
a manner that balances claimants' need for an efficient method to 
submit applications with the Office's need to examine applications and 
provide an adequate public record. Exercising this statutory 
discretion, Registers have over the years issued regulations providing 
for group registrations for certain categories of works and 
establishing eligibility requirements.
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    \4\ Copyright registration is not a prerequisite to copyright 
protection, although registration generally must be made before 
instituting a civil infringement action in Federal court. See 17 
U.S.C. 411(a); Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, 
LLC, 139 S. Ct. 881, 886 (2019).
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    The Copyright Act also gives the Register broad authority to issue 
regulations concerning the nature of the copies that must be deposited 
in support of registration. Section 408 provides that the Register may 
issue regulations establishing ``the nature of the copies . . . to be 
deposited'' in specific classes of works and to ``permit, for 
particular classes, the deposit of identifying material instead of 
copies or phonorecords.'' \5\ The legislative history indicates that 
Congress believed that a deposit of identifying material should be 
permitted in cases where the copies or phonorecords would be too 
``bulky, unwieldy, easily broken, or otherwise impractical [to serve] 
as records identifying the work registered.'' \6\ The Office has used 
this authority to require only identifying material in certain 
circumstances. For example, for computer programs, automated databases, 
or other literary works fixed or published solely in machine-readable 
copies, the Office permits the deposit of ``identifying portions'' of 
the specific version of the work the applicant intends to register.\7\
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    \5\ 17 U.S.C. 408(c)(1).
    \6\ H.R. Rep. No. 94-1476, at 154.
    \7\ See 37 CFR 202.20(c)(2)(vii). For example, with regards to 
deposit requirements for computer programs, the Office has defined 
``identifying portions'' as the first and last twenty-five pages of 
the work.
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    After receiving input from stakeholders and carefully considering 
the issue, the Office has concluded that there is a need for a new 
group registration accommodation for frequently updated news 
websites.\8\ The Office welcomes public comment on its proposal and 
subjects of inquiry set forth here.
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    \8\ The proposed regulations define a ``website'' as a web page 
or set of interconnected web pages that are accessed using a uniform 
resource locator (``URL'') organized under a particular domain name. 
See also U.S. Copyright Office, Compendium of U.S. Copyright Office 
Practices sec. 1002.1 (3d ed. 2021) (``Compendium (Third)''). For 
example, the Office's website is located at copyright.gov, and the 
Library of Congress's website is located at loc.gov.
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A. The Need for a New Group Registration Option

    This proposed rulemaking stems from the rapid development and 
predominance of news websites over print newspapers, and requests 
submitted by online publishers to the Office. Over the past two 
decades, the internet has become an increasingly common method for 
distributing, displaying, and performing copyrightable content. More 
than eight in ten Americans get news from digital devices, and, as of 
2021, more than half prefer digital platforms to access news.\9\ Thus, 
a significant amount of news content must be offered in an online 
environment to meet demand. The current state of the news media 
industry requires dynamism, ``with content constantly changing, 
updating, and refreshing in real time.'' \10\ Because of

[[Page 312]]

this, news publishers assert they face unique obstacles when it comes 
to registering their works and have encouraged the Office to develop 
practices for registering ``newspaper websites'' that are ``updated 
frequently.'' \11\
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    \9\ Elisa Shearer, More Than Eight-In-Ten Americans Get News 
from Digital Devices, Pew Research Center (Jan. 12, 2021), https://www.pewresearch.org/fact-tank/2021/01/12/more-than-eight-in-ten-americans-get-news-from-digital-devices/.
    \10\ MPA--The Association of Magazine Media Comments at 5, 
Submitted in Response to Nov. 9, 2021 Notice of Inquiry, Publishers' 
Protections Study, U.S. Copyright Office Dkt. No. 2021-5 (Jan. 5, 
2022), https://www.regulations.gov/comment/COLC-2021-0006-0044 
(``MPA--The Association of Magazine Media Comments'').
    \11\ Newspaper Association of America Comments at 12-18, 
Submitted in Response to July 15, 2009 Notice of Proposed 
Rulemaking, Mandatory Deposit of Published Electronic Works 
Available Only Online, U.S. Copyright Office Dkt. No. 2009-3 (Aug. 
31, 2009) (emphasis omitted) (seeking a group registration option 
for newspaper websites), https://www.copyright.gov/rulemaking/online-only/comments/naa.pdf (``Newspaper Association of America 
Comments'').
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B. The Office's Prior Studies

    The Office acknowledged the news publishers' concerns in previous 
statements and reports. In 2011, the Office released a paper titled 
Priorities and Special Projects of the United States Copyright Office 
(October 2011-October 2013), which acknowledged the challenges in 
registering websites and content published on websites.\12\ The paper 
noted that websites may contain ``a great number of contributions from 
many authors'' and changes may be made ``daily or even several times a 
day.'' \13\ It identified several issues to be addressed, such as the 
appropriate means for creating an accurate and informative record of 
copyright ownership and the appropriate form of the deposit. It also 
invited public input regarding whether ``a group registration scheme 
[should] be implemented that would permit a single registration to 
cover content disseminated over a period of many days or weeks.'' \14\
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    \12\ U.S. Copyright Office, Priorities and Special Projects of 
the United States Copyright Office October 2011-October 2013 (2011), 
https://www.copyright.gov/docs/priorities.pdf.
    \13\ Id. at 11.
    \14\ Id.
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    As the Office considered stakeholder input in response to the 
paper, it issued public guidance to address registration of online 
content. In 2014, the Office released the Compendium of U.S. Copyright 
Office Practices, Third Edition, which contains an entire chapter on 
websites and website content.\15\ In 2017, it released a circular that 
provides additional information on this topic.\16\ These resources 
explain how to identify the author(s) and owner(s) of websites, website 
content, and user-generated content. They identify factors that may 
determine whether a work has been published online; discuss the 
distinctions between copyrightable authorship and uncopyrightable 
material, and between a website and an online database; and provide 
step-by-step instructions for completing a registration application and 
preparing a deposit for an online work.
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    \15\ U.S. Copyright Office, Compendium of U.S. Copyright Office 
Practices ch. 1000 (3d ed. 2014). The Office published a new version 
of the Compendium (Third) in January 2021. The 2021 version cited in 
this notice is available at https://copyright.gov/comp3/.
    \16\ U.S. Copyright Office, Circular 66: Copyright Registration 
of websites and website Content (revised Mar. 2021), https://copyright.gov/circs/circ66.pdf.
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    Although these resources offer guidance for registering online 
content, news publishers have continued to express concern about the 
difficulty of registering frequently updated websites. As discussed in 
detail below, applicants who seek to register dynamic news websites are 
currently required to submit a separate application, deposit, and 
filing fee for each website update. This is particularly costly and 
time-consuming for news content, which can be added, modified, or 
removed on a daily or hourly basis.
    The Office also looked at some of these issues as part of its 2021 
study assessing press publishers' existing protections under U.S. 
copyright law. That study, and its resulting 2022 report, Copyright 
Protections for Press Publishers, was undertaken after a series of 
congressional hearings on reforms to digital copyright law, which 
considered what changes ``are needed to ensure the growth of creative 
industries without undermining incentives for digital platforms and 
technologies.'' \17\ As part of the study, the Office requested public 
input on the effectiveness of current copyright protections for press 
publishers. It received feedback from news publishers that registration 
challenges make registering frequently updated news content 
impracticable.\18\ They expressed frustration that ``[t]he inability to 
register dynamic and voluminous website content is a foundational 
enforcement shortcoming.'' \19\ They stated that, because ``[t]here is 
currently no feasible way to apply for a single group registration of 
the full contents of a dynamic news media website, on which articles 
are constantly being published and updated,'' \20\ it is ``beyond 
difficult for news publishers to acquire meaningful copyright 
protection for their output,'' \21\ and stated that, ``with no feasible 
means to access all of the statutory remedies for infringement of their 
online news content,'' infringers are left ``free to pick and choose 
from works among that content without fear of significant or immediate 
consequence.'' \22\
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    \17\ Letter from Senators Leahy, Tillis, Cornyn, Hirono, 
Klobuchar, and Coons to Shira Perlmutter, Register of Copyrights, at 
1 (May 3, 2021), https://www.copyright.gov/policy/publishersprotections/letter-to-the-copyright-office.pdf.
    \18\ See, e.g., News Corporation Comments at 10-11, Submitted in 
Response to Oct. 12, 2021 Notice of Inquiry, Publishers' Protections 
Study, U.S. Copyright Office Dkt. No. 2021-5 (Nov. 26, 2021), 
https://www.regulations.gov/comment/COLC-2021-0006-0016 (``News 
Corporation Comments'').
    \19\ News Media Alliance Comments at 19, Submitted in Response 
to Oct. 12, 2021 Notice of Inquiry, Publishers' Protections Study, 
U.S. Copyright Office Dkt. No. 2021-5 (Nov. 23, 2021), https://www.regulations.gov/comment/COLC-2021-0006-0020 (``News Media 
Alliance Comments'').
    \20\ News Corporation Comments at 10.
    \21\ Id. at 11.
    \22\ Id.
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C. Deposit-Related Challenges

    The Office is aware that one of the biggest challenges in 
registering a website is providing a deposit that displays the work in 
its entirety. Copyright registration of published works generally 
requires the submission of two complete copies of the best edition of 
the work.\23\ In addition to their use in the examination process, 
deposits serve as a record of the contents of a work. They can also 
serve an important evidentiary function if the copyright owner did not 
create or maintain an archive copy of a work before making updates. For 
example, a copyright owner who registered the updates to a website 
could use the deposits to confirm that a specific contribution was 
posted on a particular date and did not appear in earlier versions of 
the same website.\24\
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    \23\ 17 U.S.C. 408(b)(2). The Copyright Act authorizes the 
Register to promulgate regulations specifying the exceptions to this 
general rule. 17 U.S.C. 408(c)(1).
    \24\ One way that some litigants have attempted to show what was 
posted on a particular date is to use web archiving platforms like 
the internet Archive's Wayback Machine. Courts have taken different 
approaches on whether to admit these records into evidence. See 
United States v. Gasperini, 894 F.3d 482, 490 (2d Cir. 2018) 
(finding a sufficient basis to admit screenshots produced by the 
Wayback Machine into evidence where the office manager of the 
internet Archive ``explained how the Archive captures and preserves 
evidence of the contents of the internet at any given time'' and 
``testified that the screenshots were authentic and accurate copies 
of the Archive's records''). But see Ward v. Am. Airlines, Inc., No. 
4:20-cv-00371-O, 2020 U.S. Dist. LEXIS 205771 (N.D. Tex. Oct. 16, 
2020) (declining to take judicial notice of references from the 
Wayback Machine).
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    The deposit requirements for a website vary depending on the nature 
of the claim and the type and number of works being registered. If an 
applicant created one of the individual works on a website--such as an 
article, blog entry, or photograph--the applicant ordinarily should 
submit a complete copy of that work.\25\ If, however, the applicant

[[Page 313]]

selected, coordinated, and/or arranged the content on the website, and 
owns the copyright in some or all of the content, then it may register 
the collective work and the individual contributions it owns with the 
same submission.\26\ In this situation, the deposit should reflect the 
collective work authorship, by displaying the component works as they 
would appear when viewed on the website.\27\ Typically, this requires 
the applicant to include a complete copy of the entire website as 
published on a particular date.
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    \25\ 37 CFR 202.20(b)(2)(iii)(B) (``If the work is published 
solely in an electronic format,'' the deposit is considered 
``complete'' if it contains ``all elements constituting the work in 
its published form, i.e., the complete work as published, including 
metadata and authorship for which registration is not sought.'').
    \26\ As with any other claim, the registration will not cover 
``unclaimable material,'' which includes previously published or 
registered material, material that is in the public domain, 
copyrightable material that is owned by a third party, or material 
generated by artificial intelligence without human authorship. See 
Compendium (Third) sec. 509.2; 88 FR 16190, 16192 (Mar. 16, 2023).
    \27\ See 37 CFR 202.20(b)(2)(iii)(B) (``Publication in an 
electronic only format requires submission of the digital file(s) in 
exact first-publication form and content.''); see also Compendium 
(Third) sec. 1010.
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    The Office recognizes that submitting a complete copy of an entire 
dynamic website has been difficult for many applicants and causes 
problems for the Office as well.\28\ Perhaps the most common problem 
occurs when applicants submit individual folders containing hundreds or 
thousands of disaggregated files that do not show the organization of 
the website. Similar problems result from the submission of individual 
PDF (Portable Document Format) pages that display the website in a 
linear fashion without showing the coordination and/or arrangement of 
the web pages in relation to each other. In other cases, applicants 
attempt to register a website by submitting the hypertext markup 
language (HTML) establishing the format and layout of the content on 
the site rather than visually depicting it.
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    \28\ See, e.g., Newspaper Association of America Comments at 12-
18 (``The burden of requiring a separate registration for each 
publication date of a newspaper website, with a print-out or other 
physical copy, is a powerful disincentive, if not a virtual bar, to 
registration.''); News Media Alliance Comments at 19 (highlighting 
``[t]he inability to register . . . voluminous website content'' as 
a ``foundational enforcement shortcoming'').
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    Current technological means for fixing and normalizing website 
content for copyright deposit purposes are limited. The Office's 
current registration system only accepts certain file types that could 
display the image of a website, such as PDF, JPEG (Joint Photographic 
Experts Group), DWF (Autodesk Design), BMP (BitMap Image), GIF 
(Graphics Interchange Format), TIFF (Tagged Image File Format), and PUB 
(Microsoft Publisher).\29\ The Office is developing a new Enterprise 
Copyright System (``ECS'') that will include new capabilities for 
uploading large files and large numbers of files. The Office is also 
exploring the acceptance of new file formats, such as .epub, that may 
better enable the fixation of online content.\30\ But for the time 
being, the Office encourages applicants to submit website claims in a 
PDF package.\31\
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    \29\ The list of acceptable file formats is posted on the 
Office's website at https://www.copyright.gov/eco/help-file-types.html.
    \30\ See Modernization, U.S. Copyright Office, https://copyright.gov/copyright-modernization/ (last visited Dec. 21, 2023); 
85 FR 12704 (Mar. 3, 2020); 83 FR 52336 (Oct. 17, 2018).
    \31\ See Compendium (Third) sec. 1010.
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    When a website is fixed in a PDF package, the Office should be able 
to view the website as it existed on the date identified in the 
registration application, and to examine the compilation authorship 
involved in selecting, coordinating, and/or arranging the website as a 
whole. The Office recognizes that this is not a solution for all 
applicants. Some applicants are able to fix certain aspects of a 
website in a PDF package but find it difficult to fix it in a way that 
depicts the complete website. For large websites, such as news media 
websites, the resulting file may include hundreds or even thousands of 
pages, which makes it difficult for the Office to examine the 
selection, coordination, and arrangement of the website as a whole. 
Additionally, the organization and arrangement shown in a PDF package 
may vary depending on whether it depicts the website as it would appear 
on a desktop computer, a mobile phone, or other electronic device. 
Capturing the website by saving pages in PDF format may also include 
selection and arrangement that was not created by a human author, such 
as advertisements inserted into the website by an algorithm. Moreover, 
a PDF package only captures component works consisting of text, 
photographs, or pictorial or graphic material.

D. Existing Registration Options

    News website publishers have described to the Office the 
limitations of the existing registration options available to them. 
Specifically, they explain that registering each individual update to a 
website separately is not practical or feasible. The Office has 
reviewed its registration options and concludes that there is 
substantial need for a new option for online news websites that are 
frequently updated.
    Current group registration options are not sufficient because they 
require all works within the group to have the same author. For 
example, an applicant may register up to 750 photographs with the same 
application, if they were all created by the same author and are owned 
by the same claimant.\32\ Similarly, another group registration option 
allows registration of up to fifty blog entries, social media posts, 
and other short online literary works if the works were all created by 
the same individual and published within a three-month period.\33\ 
Because news websites are typically collective works that include the 
individual contributions of multiple authors, such an approach to group 
registrations is not a good fit for their publishers.
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    \32\ 37 CFR 202.4(h), (i).
    \33\ 85 FR 37341 (June 22, 2020).
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    Another existing registration option for a website including works 
authored by multiple authors is to register it as a collective work. 
Although collective works contain multiple works of authorship, they 
are considered ``one work'' for purposes of registration.\34\ A website 
can be a collective work if it contains ``a number of contributions'' 
that constitute ``separate and independent works in themselves,'' and 
if those contributions ``are assembled into a collective whole'' ``in 
such a way that the resulting work as a whole constitutes an original 
work of authorship.'' \35\ A registration for a collective work covers 
the authorship involved in selecting and arranging component works into 
a collective whole.\36\ In the case of a website, this typically 
involves selecting, coordinating, and arranging the various web pages 
that make up the site, as well as the selection, coordination, and 
arrangement of the separate and independent works on each individual 
web page.
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    \34\ Compare 17 U.S.C. 101 (defining a collective work as ``a 
work'' and recognizing that ``[t]he term `compilation' includes 
collective works'') with 17 U.S.C. 504(c)(1) (``all the parts of a 
compilation . . . constitute one work''). A collective work is a 
type of compilation. Therefore, a collective work must meet the same 
statutory requirement as a compilation; there must be a sufficiently 
creative selection, coordination, or arrangement of the component 
works.
    \35\ 17 U.S.C. 101 (definitions of ``compilation'' and 
``collective work'').
    \36\ See H.R. Rep. No. 94-1476, at 120 (noting that the ``key'' 
element in creating a collective work is the ``assemblage or 
gathering of `separate and independent works . . . into a collective 
whole' '').
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    A registration for a collective work may also cover the individual 
works that make up the collective work if certain requirements are met. 
The Copyright Act provides that the copyright in a collective work 
``extends

[[Page 314]]

only to the material contributed by the author of such work, as 
distinguished from the preexisting material employed in the work.'' 
\37\ The ``[c]opyright in each separate contribution to a collective 
work is distinct from copyright in the collective work as a whole, and 
vests initially in the author of the contribution.'' \38\ If the 
claimant fully owns the copyright in those contributions,\39\ however, 
courts have held that a collective work registration may also cover the 
contributions that make up the collective work.\40\ The Office has 
taken a similar position.\41\
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    \37\ 17 U.S.C. 103(b).
    \38\ Id. at 201(c). The Act further states that ``[i]n the 
absence of an express transfer of the copyright'' in a particular 
contribution, ``the owner of copyright in the collective work is 
presumed to have acquired only the privilege of reproducing and 
distributing the contribution as part of that particular collective 
work, any revision of that collective work, and any later collective 
work in the same series.'' Id.
    \39\ A contribution to a collective work is ``fully owned'' by 
the publisher if it owns all of the exclusive rights in that 
contribution. See, e.g., Morris v. Business Concepts, Inc., 259 F.3d 
65, 68 (2d Cir. 2001) (``Unless the copyright owner of a collective 
work also owns all the rights in a constituent part, a collective 
work registration will not extend to the constituent part.''), 
abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 
U.S. 154, 160 (2010); Compendium (Third) secs. 509.1, 509.2.
    \40\ See Sohm v. Scholastic Inc., 959 F.3d 39, 53 (2d Cir. 2020) 
(registration of a compilation of photographs by an applicant that 
owns the rights to the component works also registers the individual 
photographs even where the copyright application did not list the 
individual authors of the photographs); Metro. Reg'l Info. Sys., 
Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591, 598 (4th Cir. 
2013) (``[C]ollective work registrations [are] sufficient to permit 
an infringement action on behalf of component works, at least so 
long as the registrant owns the rights to the component works as 
well.''); Alaska Stock, LLC v. Houghton Mifflin Harcourt Publ'g Co., 
747 F.3d 673, 683, 685 (9th Cir. 2014) (a collective work 
registration ``extended registration to the component parts if the 
party registering the collective work owned the copyright to the 
component parts'').
    \41\ See 17 U.S.C. 103(b) (``The copyright in a compilation . . 
. extends only to the material contributed by the author of such 
work, as distinguished from the preexisting material employed in the 
work, and does not imply any exclusive right in the preexisting 
material.''); Compendium (Third) secs. 509, 509.1, 509.2.
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    Collective work registration, however, may not be a satisfactory 
option for website publishers. First, as discussed above, providing a 
complete deposit of a website is challenging. Second, even if the 
collective work registration extends to all the individual components 
of a specific website, the registration would extend only to the 
material in the deposit that was owned by the copyright claimant as of 
the effective date of registration. An applicant would need to prepare 
a new registration application for any subsequent changes made to that 
website, which would be as burdensome and expensive as other options. 
Third, a collective work registration would not provide protection for 
any individual works that have been previously published.\42\ Finally, 
when a website is registered as a compilation, the statute provides 
that the copyright owner may seek only one award of statutory damages 
for infringement of the compilation as a whole--rather than a separate 
award for each individual work that appears on the website--even if the 
defendant infringed all of the works covered by the registration.\43\
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    \42\ See Compendium (Third) sec. 509.2 (providing that a 
collective work registration does not cover contributions that were 
previously published or registered).
    \43\ 17 U.S.C. 504(c)(1) (``For the purposes of this subsection, 
all the parts of a compilation or derivative work constitute one 
work.'').
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    Alternatively, a website owner could choose to register a few 
individual works from the website, instead of the website as a whole. 
This alternative might appeal to a website owner who does not fully own 
the copyright in all of the component works that make up the website, 
struggles to create a deposit copy of the entire website, or wants to 
retain the possibility of collecting multiple statutory damages awards. 
If a website owner were concerned that the entire contents of the 
website could be copied or scraped by a third party, registering one or 
more of the component works on the website and providing deposit copies 
of only those component works should be sufficient to initiate a claim 
for infringement.\44\ And if more than one of the individual works were 
registered in a timely manner, these registrations may provide a means 
for seeking attorneys' fees and multiple statutory damages awards in an 
infringement action.\45\
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    \44\ See id. at 411(a).
    \45\ Id. at 504(c)(1).
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    This approach too has limitations. Registration of select works 
individually only protects the copyright owner if an infringer copies 
the specific works that were registered. It also does not offer 
protection for the selection, coordination, or arrangement of the 
website as a whole, which may be an important element of the authorship 
of the website.

II. A New Framework for Registering News Websites

    The Office proposes a new rule pursuant to which a news publisher 
will be able to register a news website as a collective work (including 
any individual component works it fully owns, such as literary works, 
photographs, and/or graphics) \46\ with a deposit composed of 
identifying material, rather than the complete contents of the website. 
The material may include representative examples of the updates 
published in a calendar month, provided that they represent sufficient 
portions of selection, coordination or arrangement authorship. The 
works must be created by the same entity, and that entity must be named 
as the copyright claimant for the collective work. Each of these 
requirements is discussed below.
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    \46\ For such applications, the Office will not examine each 
component work. Thus, the collective work claimant will bear the 
burden of proving that it owns the individual component works 
claimed in the submission.
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A. Eligibility Requirements

    Due to the potential number of updates in this group option, and to 
limit the accommodation that permits identifying material rather than 
complete copies, the Office will strictly apply all of the eligibility 
requirements. To facilitate compliance with the requirements, the 
Office will provide a checklist for applicants, as well as additional 
guidance through its publications.
1. Works That May Be Included in the Group
    The proposed rule will limit this registration option to ``news 
websites.'' A ``website'' will be defined as a web page or set of 
interconnected web pages that are accessed using a URL organized under 
a particular domain name. In addition, a ``website'' will include any 
web page whose URL incorporates the primary domain name for that site. 
For example, any web page that includes the URL ``copyright.gov/'' 
would be considered part of the Office's website, regardless of the 
length of the file name. By contrast, any web page that includes the 
URL ``loc.gov/'' would be considered a different website, even though 
copyright.gov and loc.gov are linked to each other, stored on the same 
servers, and emanate from the same agency.
    The Office proposes to model the definition of ``news website'' 
after the regulation defining a ``newspaper.'' \47\ This approach is 
consistent with the goal of this rulemaking--to address obstacles to 
registering online news content produced by news publishers, who often 
also publish newspapers. The Office's ``newspaper'' definition has been 
generally accepted by these publishers.\48\ A ``news website'' will be

[[Page 315]]

defined as a website that is mainly designed to be a primary source of 
written information on current events, either local, national, or 
international in scope, that contains a broad range of news on all 
subjects and activities and is not limited to any specific subject 
matter.
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    \47\ See 37 CFR 202.4(e)(1).
    \48\ See, e.g., News Media Alliance Comments at 2, Submitted in 
Response to Nov. 6, 2017 Notice of Proposed Rulemaking, Group 
Registration of Newspapers, U.S. Copyright Office Dkt. No. 2017-16 
(Dec. 6, 2017), https://www.regulations.gov/comment/COLC-2017-0010-0005 (``News Media Alliance--Group Registration of Newspapers 
Comments'').
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2. The Collective Work Requirement
    This new group registration option would cover a group of 
collective works, and the electronic registration system will 
automatically add the term ``collective work authorship'' to the group 
news websites application. As a type of compilation, each collective 
work must contain a sufficiently creative selection, coordination, or 
arrangement of the individual component works, such as articles, 
photographs, illustrations, or other content.\49\ Whether the content 
itself is entirely new is irrelevant to this determination. An update 
to a news website could be considered original if it contains a new 
selection, coordination, and arrangement of content, even if that 
individual content has been previously published on the website--such 
as articles appearing in previous updates.
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    \49\ A compilation is ``a work formed by the collection and 
assembling of preexisting materials or of data that are selected, 
coordinated, or arranged in such a way that the resulting work as a 
whole constitutes an original work of authorship.'' 17 U.S.C. 101.
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    A collective work will be eligible for this registration option if 
it was first published on a publicly accessible website, including news 
websites protected by paywalls. This option will also be available 
where the work was simultaneously published both on the internet and in 
a physical form. Each collective work within the group will be 
considered a separate work for purposes of section 504(c)(1).
    As a general rule, a registration under this group option will 
cover the individual contributions contained within the collective work 
if they are fully owned by the copyright claimant and if they were 
first published in that work. By contrast, if a collective work 
contains contributions that are not fully owned by the copyright 
claimant, and/or contributions that were previously published, the 
registration will not extend to those works.\50\
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    \50\ See Morris, 259 F.3d at 71 (``Unless the copyright owner of 
a collective work also owns all the rights in a constituent part, a 
collective work registration will not extend to the constituent 
part.'').
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3. One Month Limitation
    Under the proposed rule, an applicant can include updates published 
on the same website within the same calendar month. Applicants will be 
required to identify the earliest and latest date that updates were 
published on the website during the month specified in the application. 
Claims bearing dates outside of the single calendar month will be 
refused.\51\
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    \51\ See 37 CFR 202.4(p).
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    The Office proposes one calendar month as the appropriate limit for 
this option based on several considerations, including consultations 
with news media representatives and experience with the group 
registration option for print newspapers.\52\ As discussed below, 
applicants will be required to submit their claims through the current 
registration system. To minimize the need for additional development, 
the Office intends to use the application designated for group 
newspapers for this purpose. This form may be used to register up to 
one month of newspaper issues, and it contains technical validations 
that prevent applicants from entering publication dates that are more 
than one month apart. Because newspaper and news website claims will be 
submitted on the same form, it will be necessary to limit both claims 
to the same one-month time period.
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    \52\ See, e.g., News Media Alliance--Group Registration of 
Newspapers Comments at 2.
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    Permitting registration of one calendar month of daily updates to 
the same news website represents an appropriate balance between the 
interests of copyright owners and the administrative capabilities of 
the Office. The Office does not currently have the ability to charge 
differential prices based on the number of works in the group or the 
complexity of the claim. Given the technical limitations of the 
existing registration system and the modest filing fee that would be 
involved, a reasonable limit on the number of works included in each 
claim is necessary to manage the administrative burden. In the future, 
the Office may consider whether a different time range may be 
preferable once it has introduced its new enterprise copyright system.
4. Authorship, Ownership, and Work Made for Hire Requirements
    Each collective work in the group must have been created as a work 
made for hire, with the same person or entity named as the author and 
copyright claimant. Applicants may not submit groups of collective 
works created by different authors (such as twenty-five collective 
works by Online News, Inc. and twenty-five collective works by Sports 
Net, Inc.), even if those collective works appear on the same website.
5. Title and URL
    Applicants will be required to provide a title that identifies the 
news website. In all cases, the title must include the URL for the 
site. For example, if the applicant is registering the online version 
of the Grand Rapids Gazette, the Office would accept a title such as 
``grgazzette.michigannews'' or Grand Rapids Gazette 
(grgazette.michigannews).'' \53\
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    \53\ The Grand Rapids Gazette name and associated URL are 
fictitious and used merely to illustrate the proposed rule's 
operation.
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    A title for the group of collective works as a whole will be 
created automatically by the electronic registration system and will be 
used to identify the registration in the Office's online public record. 
The group title will include the website title and the publication 
dates provided in the application. For example, if the applicant 
provides the title ``grgazette.michigannews'' and states that the 
earliest collective work in the group was published on March 1, 2024, 
and the most recent one was published on March 31, 2024, the system 
will generate the following group title: ``grgazette.michigannews. 
[Published: 2024-03-01 to 2024-03-31. Issues: March 2024].'' In this 
respect, the group title will be similar to the format of the group 
title currently used for registration of a group of newspaper issues.
    Subject of Inquiry: The Office seeks public comments regarding 
whether it should give applicants the opportunity to provide additional 
information, such as individual article or photograph titles, as part 
of this group registration option. The Office will balance the public 
interest in creating a meaningful record (i.e., collecting information 
regarding each individual contribution within the collective work) with 
the relative burden on applicants. We welcome comments regarding the 
impact on news publishers if they were permitted to provide granular 
information concerning the individual articles, photographs, and other 
component works for each group of news websites.

B. Application Requirements

    The Office plans to create a new application form for this group 
registration option in its next-generation registration system.\54\ In 
the interim, it

[[Page 316]]

will use one of the current group registration application forms to 
process these claims in the registration system. As mentioned above, 
applicants will be required to submit their claims through the 
electronic registration system, and to use the application designated 
for a group of newspaper issues.\55\ Further instructions on how to 
complete this application will be provided by the Office through 
traditional avenues, including its website, circulars, or Chapter 1100 
of the Compendium of U.S. Copyright Office Practices.
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    \54\ See Modernization, U.S. Copyright Office, https://copyright.gov/copyright-modernization/ (last visited Dec. 21, 2023) 
(tracking the Office's work to develop and implement a new 
enterprise IT system, including a registration module).
    \55\ In appropriate circumstances, the Office may waive the 
online filing requirement, subject to the conditions the Associate 
Register of Copyrights and Director of the Office of Registration 
Policy and Practice may impose.
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    Recently, the Office finalized new regulations and amended other 
regulations to require other group registration claims to be filed 
electronically, and the rationales for requiring electronic submission 
set forth in those rulemakings would apply equally here.\56\ Publishers 
who create and publish these types of works will necessarily have 
access to the internet and will be capable of using the electronic 
registration system.\57\ Given that the Office has required newspaper 
publishers to use the electronic registration system to register groups 
of newspapers since March 1, 2018, it does not anticipate objection to 
this requirement.\58\
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    \56\ See, e.g., 86 FR 10820, 10822 (Feb. 23, 2022) (final rule 
for group registration of works on an album of music); 85 FR 37341, 
37345 (June 22, 2020) (final rule for group registration of short 
online literary works); 83 FR 61546, 61546-48 (Nov. 30, 2018) (final 
rule for group registration of newsletters and serials); 82 FR 
29410, 29410-11 (June 29, 2017) (final rule for group registration 
of contributions to periodicals).
    \57\ Likewise, the online-filing requirement will apply to the 
``supplementary registration'' procedure, which may be used to 
correct or amplify the information in an existing registration. The 
Office has announced that if it ``move[s] registrations for other 
classes of works into the electronic registration system,'' the 
procedure for correcting or amplifying those registrations would 
``be subject to this same [online filing] requirement.'' 81 FR 
86656, 86658 (Dec. 1, 2016). Thus, if an applicant needs to correct 
or amplify the information in a registration for a news website, 
that request will need to be submitted through the electronic 
registration system, instead of using a paper form. See 37 CFR 
202.6(e)(1) (requiring a supplementary registration for a group of 
related works to be made using the online application).
    \58\ 37 CFR 202.4(e)(5); see also 83 FR 4144, 4144 (Jan. 30, 
2018) (final rule for group registration of newspapers).
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C. Deposit Requirement

    The Office finds it necessary to modify the general complete-copy 
requirement to enable the registration of dynamic news websites. As 
noted above, Congress provided the Office with the authority to create 
group registration options and to allow flexibility in the content of 
the deposit to foster registrations that otherwise would be unduly 
burdensome. Requiring applicants to provide complete deposits of each 
news website imposes a significant and even unachievable burden on 
applicants, discouraging registration and making the news content 
increasingly vulnerable to infringement.\59\ While the Office is 
reluctant to depart from its general rule, which would require the 
entire contents of the website and each update, a different rule is 
appropriate here in a specific context where a need for flexibility in 
deposit requirements has been established. The proposed modification 
will also satisfy the public notice function of capturing, and making 
available for public inspection, a deposit that should be sufficient to 
identify the news website covered by the registration. To the extent 
the copyright owner may be required to prove to a court or to an 
alleged infringer the specific contents of a website at any particular 
point in time, it will need to preserve and maintain its own copy of 
the site and rely on its own recordkeeping to provide such proof.\60\
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    \59\ See MPA-The Association of Magazine Media Comments at 1, 4; 
News Corporation Comments at 4-7.
    \60\ To be clear, each PDF will contain a representative example 
of what the home page looked like at a particular point on a 
particular date. The PDFs, however, will not show how the home page 
looked at any other point in time. Nor will the PDFs contain any of 
the content that appeared elsewhere on the website.
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    Subject of Inquiry: To further satisfy the public record and assist 
in later potential litigation efforts, the applicant may provide in the 
``Note to Office'' field additional information regarding the contents 
of the work, such as archived URLs that capture the complete content of 
each collective work submitted for registration. Archived URLs preserve 
copies of web pages and display them as they appeared when captured. 
The Office seeks public comments on the availability and effectiveness 
of technological solutions for saving or archiving websites that could 
assist or supplement news websites' recordkeeping efforts while also 
informing the public of the contents of the website and/or any updates 
registered.
    Under the proposed rule, applicants will be required to submit a 
deposit that is sufficient to identify some of the updates that were 
made to the website. Specifically, applicants will need to submit 
separate PDF files that each contain a complete copy of the home page 
for the site. Each PDF must show how the home page appeared at a 
specific point during each day of the calendar month when new updates 
were published on the site.\61\ Up to thirty-one PDFs may be needed for 
each application since new updates could be published any day of the 
month. But each PDF would need to show only one of the updates that 
were published on those dates, not each and every update made.
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    \61\ Applicants would be required to submit their deposits to 
the Office in PDF and assembled in an orderly form. Each copy of the 
home page must be contained in a separate electronic file, and the 
size of each file must not exceed 500 megabytes. If necessary, 
applicants may save the files in a .zip folder and upload it to the 
system, provided that all of the files within the folder are 
acceptable file types.
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    In each case, the deposit must demonstrate that the home page 
contains a sufficient degree of selection, coordination, and/or 
arrangement to be registered as a collective work. If the Office 
determines that the home page does not contain sufficient collective 
work authorship, the examiner may request additional pages from the 
website.
    As noted above, all claims registered under this option would be 
limited to the collective work authorship based on the selection, 
coordination, and/or arrangement of the individual component works, and 
all parts of the collective work will constitute one work for purposes 
of 17 U.S.C. 504(c)(1). If the Office registers the claim, the 
registration may cover the individual component works that the claimant 
owns. The certificate, however, will include an annotation confirming 
that the Office examined the home page for collective work authorship, 
but did not review any of the component works that appear in the 
deposit to determine if they are copyrightable or if they are owned by 
the claimant.

D. Filing Fee

    The filing fee for this option will be $95, the same fee that 
currently applies to a claim in a group of newspapers.\62\ As mentioned 
above, the Office does not have the ability at this time to charge 
differential prices based on the number of works in the group or the 
complexity of the claim. At least initially, the Office believes it is 
reasonable to charge the same fee for this new group registration 
option as for the group newspaper option, given the similarities in 
expected workflow associated with

[[Page 317]]

examining these claims. With the benefit of additional data the Office 
will gather after this group registration option is launched, the 
Office will consider whether it would be appropriate to charge a 
different fee in its next-generation registration system.
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    \62\ See 37 CFR 201.3(c)(8) (listing registration fee for ``a 
group of newspapers or a group of newsletters'').
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III. Conclusion

    The Office anticipates that the proposed rule will lead to broader 
participation in the registration system by facilitating the 
registration process for news publishers who frequently update news 
content published on the internet. To better inform the path forward, 
the Office seeks public comment on the proposed rule generally and the 
specific subjects of inquiry highlighted above.

List of Subjects

37 CFR Part 201

    Copyright, General provisions.

37 CFR Part 202

    Copyright, Copyright claims, preregistration and registration.

Proposed Regulations

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

PART 201--GENERAL PROVISIONS

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

    Authority:  17 U.S.C. 702.
    Section 201.10 also issued under 17 U.S.C. 304.

0
2. In Sec.  201.3, amend table 1 to paragraph (c) by redesignating 
paragraphs (c)(12) through (c)(29) as (c)(13) through (c)(30), 
respectively, and adding a new paragraph (c)(12) to read as follows:


Sec.  201.3  Fees for registration, recordation, and related services, 
special services, and services performed by the Licensing Section and 
the Copyright Claims Board.

* * * * *
    (c) * * *

                        Table 1 to Paragraph (c)
------------------------------------------------------------------------
    Registration, recordation, and related services          Fees ($)
------------------------------------------------------------------------
 
                                * * * * *
(12) Registration of a group of updates to a news                    95
 website...............................................
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

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

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

0
4. Amend Sec.  202.4 by adding paragraph (m) and revising paragraph (r) 
to read as follows:


Sec.  202.4  Group registration.

* * * * *
    (m) Group registration of updates to a news website. Pursuant to 
the authority granted by 17 U.S.C. 408(c)(1), the Register of 
Copyrights has determined that a group of updates to a news website may 
be registered with one application, the required deposit, and the 
filing fee required by Sec.  201.3 of this chapter, with each update 
being registered as a collective work, if the following conditions are 
met:
    (1) Definitions. For the purposes of paragraph (m) of this section: 
(i) News website means a website that is designed to be a primary 
source of written information on current events, either local, 
national, or international in scope, that contains a broad range of 
news on all subjects and activities and is not limited to any specific 
subject matter.
    (ii) Website means a web page or set of interconnected web pages 
that are accessed using a uniform resource locator (``URL'') organized 
under a particular domain name.
    (2) Requirements for collective works. Each update to the website 
must be a collective work, and the claim must be limited to the 
collective work.
    (3) Author and claimant. Each collective work in the group must be 
a work made for hire, and the author and claimant for each collective 
work must be the same person or organization.
    (4) Updates must be from one news website; time period covered. 
Each collective work in the group must be published on the same news 
website under the same URL, and they must be published within the same 
calendar month. The applicant must identify the earliest and latest 
date that the collective works were published.
    (5) Application. The applicant must complete and submit the online 
application designated for a group of newspaper issues. The application 
may be submitted by any of the parties listed in Sec.  202.3(c)(1).
    (6) Deposit. (i) For each collective work within the group, the 
applicant must submit identifying material from the news website. For 
these purposes ``identifying material'' shall mean separate Portable 
Document Format (PDF) files that each contain a complete copy of the 
home page of the website. Each PDF must show how the home page appeared 
at a specific point during each day of the calendar month when new 
updates were published on the website.
    (ii) The identifying material must demonstrate that the home page 
contains sufficient selection, coordination, and arrangement authorship 
to be registered as a collective work If the home page does not 
demonstrate sufficient compilation authorship, the deposit should 
include as many additional pages as necessary to demonstrate that the 
updates to the news website can be registered as a collective work.
    (iii) The identifying material must be submitted through the 
electronic registration system, and all of the identifying material 
that was published on a particular date must be contained in the same 
electronic file. The files must be submitted in PDF format, they must 
be assembled in an orderly form, and each file must be uploaded to the 
electronic registration system as an individual electronic file (i.e., 
not .zip files). The file size for each uploaded file must not exceed 
500 megabytes, but files may be compressed to comply with this 
requirement.
    (7) Special relief. In an exceptional case, the Copyright Office 
may waive the online filing requirement set forth in paragraph (m)(5) 
of this section or may grant special relief from the deposit 
requirement under Sec.  202.20(d) of this chapter, subject to such 
conditions as the Associate Register of Copyrights and Director of the 
Office of Registration Policy and Practice may impose on the applicant.
* * * * *
    (r) The scope of a group registration. When the Office issues a 
group registration under paragraph (d), (e), or (f) of this section, 
the registration covers each issue in the group and each issue is 
registered as a separate work or a separate collective work (as the 
case may be). When the Office issues a group registration under 
paragraph (c), (g), (h), (i), (j), (k), or (o) of this section, the 
registration covers each work in the group and each work is registered 
as a separate work. When the Office issues a group registration under 
paragraph (m) of this section, the registration covers each update in 
the group, and each update is registered as a separate collective work. 
For purposes of

[[Page 318]]


registration, the group as a whole is not considered a compilation, a 
collective work, or a derivative work under section 101, 103(b), or 
504(c)(1) of title 17 of the United States Code.
* * * * *

    Dated: December 22, 2023.
Suzanne Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2023-28724 Filed 1-2-24; 8:45 am]
BILLING CODE 1410-30-P


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