40268 Federal Register / Vol. 77, No. 131 / Monday, July 9, 2012 / Rules and Regulations 

7. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Though this rule 

will not result in such an expenditure, 

we do discuss the effects of this rule 

elsewhere in this preamble. 

8. Taking of Private Property 

This rule will not cause a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

9. Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

10. Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

11. Indian Tribal Governments 

This rule does not have tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

12. Energy Effects 

This action is not a ‘‘significant 

energy action’’ under Executive Order 

13211, Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use. 

13. Technical Standards 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

14. Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA)(42 U.S.C. 4321–4370f), and 

have determined that this action is one 

of a category of actions that do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded from further review, under 

paragraph (34)(g), of Figure 2–1 of the 

Commandant Instruction because it 

involves the establishment of a safety 

zone. A final environmental analysis 

checklist supporting this determination 

and a Categorical Exclusion 

Determination are available in the 

docket where indicated under 

ADDRESSES. 

We seek any comments or information 

that may lead to the discovery of a 

significant environmental impact from 

this rule. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for Part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1231; 46 U.S.C. 

Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add § 165.T09–0480 to read as 

follows: 

§ 165.T09–0480 Safety Zone; Conneaut 4th 

July Festival Fireworks, Lake Erie, 

Conneaut, OH. 

(a) Location. The safety zone will 

encompass all waters of Lake Erie, 

Conneaut, OH within an 840 foot radius 

of position 41°58′00.43′′ N and 

80°33′34.93′′ W (NAD 83). 

(b) Effective and Enforcement Period. 

This regulation is effective and will be 

enforced on July 8, 2012 from 9:45 p.m. 

until 11:05 p.m. 

(c) Regulations. (1) In accordance with 

the general regulations in § 165.23 of 

this part, entry into, transiting, or 

anchoring within this safety zone is 

prohibited unless authorized by the 

Captain of the Port Buffalo or his 

designated on-scene representative. 

(2) This safety zone is closed to all 

vessel traffic, except as may be 

permitted by the Captain of the Port 

Buffalo or his designated on-scene 

representative. 

(3) The ‘‘on-scene representative’’ of 

the Captain of the Port Buffalo is any 

Coast Guard commissioned, warrant or 

petty officer who has been designated 

by the Captain of the Port Buffalo to act 

on his behalf. 

(4) Vessel operators desiring to enter 

or operate within the safety zone shall 

contact the Captain of the Port Buffalo 

or his on-scene representative to obtain 

permission to do so. The Captain of the 

Port Buffalo or his on-scene 

representative may be contacted via 

VHF Channel 16. Vessel operators given 

permission to enter or operate in the 

safety zone must comply with all 

directions given to them by the Captain 

of the Port Buffalo, or his on-scene 

representative. 

Dated: June 18, 2012. 

S.M. Wischmann, 

Captain, U.S. Coast Guard, Captain of the 

Port Buffalo. 

[FR Doc. 2012–16619 Filed 7–6–12; 8:45 am] 

BILLING CODE 9110–04–P 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Part 202 

[Docket No. 2011–5] 

Deposit Requirements for Registration 

of Automated Databases That 

Predominantly Consist of Photographs 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Final rule. 

SUMMARY: The Copyright Office is 

amending its regulations governing the 

deposit requirements for applications 

for automated databases that consist 

predominantly of photographs. The 

amendments require that, in addition to 

providing material related to claimed 

compilation authorship, the deposits for 

such databases include the image of 

each photograph in which copyright is 

claimed. 

DATES: Effective Date: This rule shall 

take effect August 8, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Robert Kasunic, Deputy General 

Counsel, Copyright GC/I&R, P.O. Box 

70400, Washington, DC 20024–0400. 

Telephone (202) 707–8380; fax (202) 

707–8366. All prior Federal Register 

notices and public comments in this 

docket are available at http:// 

www.copyright.gov/docs/databases/. 

SUPPLEMENTARY INFORMATION: 


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Federal Register / Vol. 77, No. 131 / Monday, July 9, 2012 / Rules and Regulations 40269 

1Accordingly, 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. 

Background 

The Copyright Office has long 

allowed photographers to register 

groups or collections of photographs, 

including groups of either published or 

unpublished photographs when certain 

requirements are met. See 37 CFR 

202.3(b)(4)(i)(A) and (B). 

Moreover, in 2001, after an extensive 

rulemaking proceeding, the Office 

adopted a group registration procedure 

for published photographs that 

complemented the existing procedure 

for registering a collection of 

unpublished works in a single 

registration. See Registration of Claims 

to Copyright; Group Registration of 

Photographs, 66 FR 37142 (July 17, 

2001) (codified at 37 CFR 202.3(b)(10)). 

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)(1) and 202.20(c)(2)(xx). The 

2001 regulations ensured that together, 

the registration record and the deposit 

would provide a sufficient record to 

identify the individual photographic 

works contained in the registered 

copyright claim. 

Despite the availability of these 

options, however, some applicants have 

registered groups of photographs using 

the registration option for 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). A published 

database may be registered as a 

compilation, and the group database 

registration provisions permit a single 

registration that covers up to three 

months’ worth of updates and revisions 

to an automated database if 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 registered all the 

photographs added to their databases 

within a three-month period when they 

have obtained copyright assignments 

from the photographers. 

In the interim regulation establishing 

a pilot program for online applications 

for group registrations of databases 

consisting predominantly of 

photographic authorship, the Office 

included a requirement that the deposit 

accompanying such an online 

submission must include all individual 

photographs included in the claim. See 

Interim Rule, Registration of claims of 

copyright, 76 FR 4072–4076 (January 24, 

2011); 37 CFR 202.20(c)(vii)(D)(8). 

In addition to establishing the pilot 

program for online submissions, the 

interim rule announced that the Office 

would be reviewing 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 

individual works assembled in the 

database.1

In the interest of reconciling the 

deposit requirements for registrations 

consisting predominantly of 

photographs, on January 28, 2011, the 

Office published a notice of proposed 

rulemaking to extend the requirement of 

a deposit of all of the individual images 

included in a claim to cases in which 

paper applications are used for group 

registration of databases consisting 

predominantly of photographic 

authorship. 76 FR 5106. The 

amendment would provide that, for any 

registration of an automated database 

consisting predominantly of 

photographs (whether the application is 

made by paper application or online 

pursuant to the Interim Regulation), the 

deposit shall include, in addition to the 

descriptive statement currently required 

under § 202.20(c)(2)(vii)(D)(5), all of the 

photographs included in the copyright 

claim being registered. 76 FR 5106. 

Identifying material would not 

constitute a sufficient deposit. While 

most applications for group registration 

of databases consisting predominantly 

of photographic authorship typically 

provide all of the photographs in the 

deposit, some submissions that comply 

with the current requirements for this 

group registration option do not include 

all of the photographs. 

Public Comments 

The Copyright Office received three 

comments in response to the notice of 

proposed rulemaking. The comments 

generally supported the pilot program, 

the opportunity to register groups of 

published images by electronic 

submission, and the requirement of a 

more complete deposit. 

Comments submitted on behalf of the 

Picture Archive Council of America 

(PACA) and Public Knowledge both 

acknowledged that the proposed 

amendment would create a more 

complete public record. PACA 

specifically noted that a deposit of all 

photographs would ‘‘avoid unnecessary 

disputes over whether a particular 

photograph is within the scope of the 

registration.’’ Public Knowledge stated 

that the quick and accurate 

identification of a copyright owner is 

necessary for both the public and 

creators. It asserted that without this 

information, it is difficult to near 

impossible for the public to make use of 

the work, or for creators to be 

compensated for that use. Public 

Knowledge commented that the 

consequences of being unable to 

identify the owner of a work are 

‘‘vividly illustrated by the status of 

orphan works.’’ Orphan works are 

works that may be protected by 

copyright, but cannot be licensed by the 

public because there is no way to 

identify or locate the actual owner of the 

works or the owners of particular rights. 

Comments submitted on behalf of the 

Professional Photographers of America, 

the Society of Sport & Event 

Photographers, the Student 

Photographic Society, Evidence 

Photographers International Council, 

and the Stock Artists Alliance 

(hereinafter ‘‘PPA comments’’) 

supported the pilot program and 

electronic registration options for 

photographic works in general. 

However, their comments also 

expressed concern that the proposed 

regulation would create ‘‘double the 

effort’’ for professional photographers 

who may have ‘‘* * * already devised 

an automated system for cataloguing 

their creative work.’’ The comments 

stated that the new deposit 

requirements would not create an 

additional incentive to register a 

database of images, and that a 


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40270 Federal Register / Vol. 77, No. 131 / Monday, July 9, 2012 / Rules and Regulations 

2However, a very small number of applications 

are submitted with deposits consisting of only the 

bare minimum number of photographs required by 

the current regulations, resulting in a woefully 

inadequate deposit. 

photographer would be equally served 

to follow the existing process for 

registering groups of either published or 

unpublished work. 

Some comments proposed further 

clarification and/or procedures to 

improve the registration process in 

general, as well as improved online 

searching tools for copyright records. 

Discussion 

Based on the reasoning expressed in 

the Notice of Proposed Rulemaking, and 

upon consideration of the public 

comments received, the Copyright 

Office concludes that when a 

registration is made for a database 

consisting predominantly of 

photographs, and the copyright claim 

extends to the individual photographs 

themselves, each of those photographs 

must be included as part of the deposit 

accompanying the application. As the 

Office has previously stated: 

[T]he Office rejects the plea of at least one 

commenter to permit the use of descriptive 

identifying material in lieu of the actual 

images. Although the Office had previously 

expressed a willingness to consider such a 

proposal, the most recent notice of proposed 

rulemaking noted that ‘‘the Office is reluctant 

to implement a procedure that would permit 

the acceptance of deposits that do not 

meaningfully reveal the work for which 

copyright protection is claimed.’’ 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. 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 lead to a 

lawsuit serves an important evidentiary 

purpose in establishing the [identity] and 

content of the plaintiff’s work. 

Registration of Claims to Copyright, 

Group Registration of Photographs, 66 

FR 3712, 37147 (July 17, 2001) (citations 

omitted). Identifying portions and a 

descriptive statement will no longer 

constitute a sufficient deposit. 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 

(including a descriptive statement in the 

case of group registration for revised or 

updated versions of a database) set forth 

in § 202.20(c)(2)(vii)(D). 

While the Copyright Office recognizes 

that the proposed deposit requirements 

for automated databases consisting 

predominately of photographic 

authorship require the submission of 

additional material on the part of the 

photographer, the Office already 

requires this material for the all other 

registration options for published and 

unpublished photographs, as well as for 

online applications to register 

photographic databases. Moreover, the 

prevailing practice with respect to 

almost all registrations of 

predominantly photographic databases 

has been to include all of the 

photographs in the deposit.2 The 

regulation simply aligns the deposit 

requirements for paper applications to 

register automated databases that 

predominantly consist of photographs 

with the requirements already imposed 

for all other registration options for 

groups of photographs and with the 

prevailing industry practices. Moreover, 

it creates a better registration record by 

making it possible to determine which 

photographs are actually included in a 

particular group registration. 

Other Issues 

The Office notes the concerns 

expressed by commenters related to 

other registration and public record 

issues. Although they are outside the 

scope of the present rulemaking, the 

Office will take them into account as it 

endeavors to continue improving the 

copyright system for the benefit of 

creators and users of copyrighted works. 

Claimants submitting applications for 

group registration of photographic and 

other databases that select and arrange 

works protected by copyright and who 

intend to include claims in those 

component works within the scope of 

the registration are advised that it is in 

their interest to specifically identify (1) 

the author of each of the component 

works, and (2) for each author, the title 

of each of his or her component works 

on the application. A number of district 

courts have ruled that a certificate of 

registration that does not identify the 

author and title of a particular work 

does not cover that particular work. See, 

e.g., Alaska Stock, LLC v. Houghton 

Mifflin Harcourt Pub. Co. 2010 WL 

3785720, No. 3:09–CV–0061–HRH 

(D.Alaska,2010); Bean v. Houghton 

Mifflin Harcourt Publishing Co., 2010 

WL 3168624, No. CV10–8034–PCT– 

DGC, (D.Ariz.,2010); Muench 

Photography, Inc. v. Houghton Mifflin 

Harcout Publishing Company, 712 

F.Supp.2d 84 (S.D.N.Y.2010). The 

Copyright Office is optimistic that those 

decisions will be overturned on appeal, 

but applicants who do not specifically 

identify each author and title run the 

risk that their registrations will be 

considered not to extend to each work 

in the group. And regardless of the 

outcome of that litigation, specific 

identification of each author and title 

creates a more accurate and informative 

public record. Applicants seeking 

guidance as to how to identify each 

author and title on a paper or electronic 

application should contact the Visual 

Arts Division at (202) 707–8202. 

In the next year, the Office is likely to 

propose additional regulatory 

amendments relating to various group 

registration options, including group 

registrations of automated databases, in 

part to address some of the issues that 

have arisen in the recent litigation. 

List of Subjects in 37 CFR Part 202 

Copyright. 

Amended Regulation 

In consideration of the foregoing, Part 

202 of Title 37 of the Code of Federal 

Regulations is amended to read as 

follows: 

PART 202–PREREGISTRATION AND 

REGISTRATION OF CLAIMS TO 

COPYRIGHT 

■ 1. The authority citation for part 202 

continues to read as follows: 

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

■ 2. Amend § 202.20 as follows: 

■ a. In paragraph (c)(2)(vii)(D)(5) 

introductory text by removing 

‘‘electronically submitted’’ after ‘‘or in 

the case of’’; 

■ b. In paragraph (c)(2)(vii)(D)(8) by 

removing ‘‘submitted electronically’’ 

after ‘‘case of an application’’; and 

■ c. In paragraph (c)(2)(xx) introductory 

text remove ‘‘registered with an 

application submitted electronically’’ 

after ‘‘and for automated databases that 

consist predominantly of photographs’’. 

Dated: June 4, 2012. 

Maria A. Pallante, 

Register of Copyrights. 

Approved by: 

James H. Billington, 

The Librarian of Congress. 

[FR Doc. 2012–16723 Filed 7–6–12; 8:45 am] 

BILLING CODE 1410–30–P 


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