AGENCY:

U.S. Copyright Office, Library of Congress.

ACTION:

Final rule.

SUMMARY:

The U.S. Copyright Office is amending its regulations to establish a new group registration option for short online literary works. This final rule largely adopts the eligibility requirements set forth in the Office's December 2018 notice of proposed rulemaking, with certain updates. To qualify for this option, each work must contain at least 50 but no more than 17,500 words. The works must be created by the same individual, or jointly by the same individuals, and each creator must be named as the copyright claimant or claimants for each work. The works must all be published online within a three-calendar-month period. If these requirements have been met, the applicant may submit up to 50 works with one application and one filing fee. The applicant must complete an online application designated for a group of “Short Online Literary Works” and upload a .ZIP file containing a separate digital file for each work. The Office will examine each work to determine if it contains a sufficient amount of creative authorship, and if the Office registers the claim, the registration will cover each work as a separate work of authorship.

DATES:

Effective August 17, 2020.

FOR FURTHER INFORMATION CONTACT:

Regan A. Smith, General Counsel and Associate Register of Copyrights; Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice; Kevin R. Amer, Deputy General Counsel; or Erik Bertin, Deputy Director of Registration Policy and Practice, by telephone at 202-707-3000, or by email at regans@copyright.gov, rkas@copright.gov, kamer@copyright.gov, or ebertin@copyright.gov.

SUPPLEMENTARY INFORMATION:

I. Background

The Copyright Act authorizes the Register of Copyrights to specify by regulation the administrative classes of works for the purpose of seeking a registration and the deposit required for each class.^[1] The Act also gives the Register the discretion to allow groups of related works to be registered with one application and one filing fee.^[2] This procedure is known as group registration.^[3]

This rulemaking was initiated in response to a petition jointly submitted by the National Writers Union (“NWU”), the American Society of Journalists and Authors, the Science Fiction and Fantasy Writers of America, Inc. (“SFWA”), and the Horror Writers Association, requesting a rulemaking to create a new group registration option to accommodate works distributed online by individual writers, that would not qualify as contributions to periodicals.^[4] The petition requested that the Office create a new group registration procedure for “short-form works” which would allow individual writers to submit one “application and fee every three months.” ^[5] The Authors Guild, the Association of Garden Communicators, the Society of Children's Book Authors and Illustrators, the Songwriters Guild of America, and the Textbook & Academic Authors Association endorsed this petition.^[6] They stated that writers “urgently need a group registration [option] for short pieces, especially those disseminated online,” including “blogs, public Facebook posts . . ., short articles, and even copyrightable tweets.” ^[7]

On December 21, 2018, the Office published a notice of proposed rulemaking (“NPRM”) to establish a new group registration option for “short online literary works,” to be known as “GRTX.” ^[8] The NPRM proposed allowing an applicant to register up to 50 literary works with one application and one filing fee using the online Standard Application designated for a “Literary Work.” Each work would have to contain at least 100 words but no more than 17,500 words. The works would have to be created by the same individual, and that individual must be named as the copyright claimant for each work. The works would have to be published on a website or online platform within a three-calendar-month period.

In response to the NPRM, the Office received comments from SFWA, the Copyright Alliance, the Authors Guild, the Association of American Publishers (“AAP”), NWU and National Press Photographers Association (“NWU/NPPA”), Patrice A. Lyons, Marcos Arias, and Joseph Savage. The comments were broadly favorable to the new group registration option, but also requested various modifications to the proposed rule. In general, commenters were interested in expanding eligibility for this option to greater numbers of works. Proposals included broadening the word-count range for eligible works, increasing the number of works that may be included in the group, and extending eligibility to joint works and works made for hire.

Having carefully considered each of the comments, the Office now issues a final rule that closely follows the proposed rule, with certain modifications. First, the final rule lowers the minimum number of words each work must contain from 100 to 50 words. Second, the final rule allows group registration of joint works, provided that all works within the application are jointly authored and the joint authors are identical for each work. Third, the rule requires claims under this option to be submitted using a new online application specifically for GRTX filings, rather than on the Standard Application, and makes certain technical amendments in accordance with that change. Finally, the rule provides that works in the group should be uploaded to the electronic registration system in a .ZIP file containing a separate file for each work, rather than uploaded individually.

II. The Final Rule

A. Eligibility Requirements

1. Works That May Be Included in the Group

The Copyright Act defines a “literary work” as a work “expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects . . . in which [it is] embodied.” ^[9] The NPRM provided that to qualify for the GRTX group registration option, an eligible literary work must contain a sufficient number of words and may not be comprised mainly of numbers or other verbal or numerical symbols or indicia. The Office noted that it would accept deposit copies that contain text combined with another form of authorship, but that claims in any form of authorship other than “text” would not be permitted on the application due to the additional time and effort necessary to examine works containing multiple forms of authorship. Commenters generally accepted these limitations. NWU/NPPA noted that some authors, such as bloggers, find it burdensome to register visual works separately from related literary works. However, NWU/NPPA did not request that the GRTX group option be expanded to include visual works, and for reasons of administrability, the Office is not prepared to do so with this group registration option.^[10] The final rule therefore retains the language defining an eligible literary work as one “consisting of text.”

With respect to the length of eligible works, the proposed rule defined a “short” online literary work as one that contains at least 100 words and no more than 17,500 words. The 100-word threshold was intended to exclude short phrases and slogans, which are ineligible for copyright protection,^[11] as well as other short forms of expression that contain less than a paragraph of text. The latter works are ill-suited to group registration, the Office noted, because assessing their copyrightability would require the Office to engage in a careful case-by-case analysis that could undermine the efficiency that this option is designed to promote. The 17,500-word upper limit was intended to exclude novels, novellas, or other longer works, which “are more likely to require significant time to create and do not lend themselves to a rapid and continuous publication schedule.” ^[12]

Several commenters proposed that the Office modify one or both of these word-count requirements. The Copyright Alliance, the Authors Guild, SFWA, and Joseph Savage requested that the Office lower the 100-word threshold, pointing to common types of short literary works that might be excluded by such a rule, including poems, blog and microblog entries, and “bite-sized fiction.” ^[13] The Copyright Alliance and the Authors Guild proposed a 50-word threshold, arguing that it would address the needs for efficient review and examination processes, while also accommodating a broader variety of short literary works.^[14]

The Office is persuaded by these commenters that a 100-word threshold might exclude many copyrightable literary works that otherwise would be eligible for group registration under this option. At the same time, as these commenters also recognized, some lower limit is necessary to avoid difficult and potentially time-consuming questions over whether extremely short works contain more than de minimis expression. Ultimately, the Office agrees with the Copyright Alliance and the Authors Guild that a 50-word threshold strikes an appropriate balance, and accordingly has incorporated this change into the final rule. This lower limit, of course, applies only to eligibility for the GRTX registration option; the Office is not purporting to define a word-count-based threshold to govern copyrightability determinations for literary works generally.

The Copyright Alliance, the Authors Guild, and SFWA also requested that the Office increase the proposed 17,500-word upper limit.^[15] The Copyright Alliance suggested a ceiling of at least 20,000 words, while the Authors Guild and SFWA proposed 40,000 words. The Authors Guild asserted that the 17,500 threshold is arbitrary and noted that freelance articles written for online publications are sometimes greater than 20,000 words. SFWA disagreed with the Office's decision to exclude novellas, arguing that they are “distinct from novels in both length and content,” and noting that they are “frequently published in the same venues and in the same manner as . . . other forms of short fiction.” ^[16]

The Office understands that defining a category of “short” literary works is inherently imprecise and that some online works of more than 17,500 words may share common features with shorter works. But the commenters advocating the inclusion of novellas and other longer-form works did not demonstrate a particular need for group registration of such works. They offered nothing to contradict the Office's conclusion that, in contrast to blog entries, social media posts, and the like, novellas and similar lengthy works typically are not created or updated on a rapid and continuing basis.^[17] Moreover, contrary to the Author's Guild's suggestion, the 17,500-word limit was not chosen arbitrarily. As discussed in the NPRM, it is based on classifications that appear to be widely established in the marketplace, as indicated by their use in connection with three well known literary awards.^[18] Therefore, the final rule retains the 17,500-word upper limit.

One commenter, Joseph Savage, requested that the Office clarify whether the GRTX option extends to written interactions an author may have with other parties in connection with an online work—for example, postings in a comments section in response to a work on a social media platform.^[19] To the extent this comment is asking whether an applicant may include comments authored by other persons within an application, the answer is no, as the rule requires that all works in the group be created by the same individual or (as discussed below) by the same joint authors. An author could, however, include his or own comments as separate works within a group, provided they satisfy the eligibility criteria.

2. Number of Works That May be Included in the Group

The NPRM proposed that an applicant be allowed to include up to 50 literary works in each submission. Several commenters requested modification of this requirement. Marcos Arias suggested that the limit be lowered to 10 works per application, arguing that a 50-work limit would lead to lengthy processing times and would not significantly improve efficiency.^[20] Other commenters sought to increase the proposed limit. SFWA suggested that a limit of 100 works would be more likely to represent the output of an average professional writer/blogger, based on an estimate of one post per day.^[21] The Copyright Alliance and the Authors Guild similarly argued that the limit should be designed to accommodate writers who publish on a daily basis.^[22] NWU/NPPA suggested a limit of up to 500 works to accommodate authors who frequently publish works on multiple platforms.^[23]

The Office understands commenters' desire to increase the number of works allowable within a single GRTX application to accommodate daily bloggers and other authors who create and publish a high volume of works. For the reasons discussed in the NPRM, however, the Office continues to believe that a limit of 50 works strikes an appropriate balance between authors' interests and the Office's administrative capabilities. The final rule therefore retains this limitation. The Office reiterates, however, that there is no limit to the number of applications that may be submitted. We are hopeful that that option will mitigate much of this concern.^[24]

3. Title Information

The NPRM provided that an applicant must provide a title for each work in the group and a title for the group as a whole. No commenters objected to these requirements, and therefore they are retained in the final rule. The NPRM also included a requirement that the applicant append the term “GRTX” to the beginning of the group title, so that the Office could differentiate these applications from others filed on the Standard Application. Because, as discussed below, the Office is implementing a new electronic application specifically for GRTX, this requirement is no longer necessary and is not included in the final rule. The final rule does, however, add a requirement that the application specify the total number of short online literary works that are included in the group.

4. Author and Claimant

Under the proposed rule, to be eligible for the GRTX option, the author must be named as the copyright claimant on the application, even if a different party actually owns the copyright in each work. The Copyright Alliance and AAP both questioned this requirement.^[25] While they acknowledged that this practice will advance the efficient examination of each application by allowing the Office to focus on each work's copyrightability, they expressed concern that it may make for an inaccurate public record of current ownership.^[26] The Office takes these concerns seriously but believes they are outweighed in this instance by the need to provide an efficient examination process. Where a copyright claimant is not the author of the work, the Copyright Act requires the application to include a statement of how claimant obtained ownership of the copyright.^[27] Examiners reviewing claims of this type would be required to verify that the application contained a legally sufficient statement to this effect—a process that could involve correspondence to resolve discrepancies. Moreover, as noted in the NPRM, requiring the author to be named as the claimant is consistent with the longstanding principle that an author may always be named as the copyright claimant, even if she does not own any of the exclusive rights when the claim is submitted.^[28]

Furthermore, with respect to the concern over potential inaccuracies in the public record, it should be noted that if someone other than the author has acquired all the rights in the works, a copyright registration is not necessarily the best way to add that information to the public record. In most cases, registration simply provides a “snapshot” of who owned the copyright as of the effective date of registration. Instead, a change in ownership can be added to the public record by recording the document that transferred the copyright with the Office.

The proposed rule also provided that the works submitted under the GRTX group option must be created by the same individual, thus excluding joint works from eligibility. SFWA contended that this requirement would be a problem for collaborations between two or more authors.^[29] It requested that joint authors be allowed to use GRTX, as long as the collaborators are listed in the copyright notice for each work.^[30]

The Office understands that there may be circumstances under which joint authors produce the types of short online literary works that may benefit from the GRTX option. Therefore, the final rule expands eligibility for the option to joint authors of literary works, in addition to individual authors. Under this option, all literary works within an application must be jointly authored, and the joint authors must be identical for each literary work. For example, a group consisting of ten literary works jointly authored by the same two individuals, and one additional literary work authored by those persons and a third co-author, would not be eligible. The Office intends to strictly enforce this requirement to ensure an efficient registration process. GRTX applications for joint works that do not comply will be refused without correspondence. To facilitate compliance, the Office will prepare public informational materials warning of this consequence. It also should be noted that any claim in individual or joint authorship under this option must be limited to “text” and cannot include other forms of authorship that can be claimed on a Standard Application for a literary work.

Finally, the proposed rule excluded works made for hire. As explained in the NPRM, the GRTX option “is intended to benefit individual writers who publish their works on the internet, but do not have the time or resources to register their works with the Office. This is less of a concern for corporate authors or authors who are hired to create a work for another party.” ^[31] Commenters generally accepted this rationale, but the Copyright Alliance and AAP encouraged the Office to consider expanding the GRTX option to include certain smaller business entities who may also face resource limitations.^[32]

The Office appreciates the needs of smaller entities who face similar economic challenges in registration as individual creators. However, the Office does not currently have a mechanism to differentiate those entities from larger corporate authors for purposes of registration. While the Office is open to considering possible avenues through which it could extend the GRTX option to certain corporate authors in the future, it does not have the tools necessary to do so at this time. The final rule accordingly retains the exclusion of works for hire.

5. Publication Information

Under the proposed rule, eligible works were required to be published as part of a website or online platform (such as an online newspaper, social media website, or social networking platform), and all had to be published within a three-month calendar period. The NPRM explained that a work would satisfy this requirement if it was first published online or simultaneously published online and in physical form. By contrast, a work would not be eligible for GRTX if it was published solely in physical form or if it was first published in physical form and then subsequently published online.^[33]

The Copyright Alliance and the Authors Guild argued that authors should be allowed to register their works under this option regardless of whether they are published or unpublished.^[34] The Copyright Alliance noted that many authors struggle with the complex legal distinctions between published an unpublished works.^[35] The Authors Guild asserted that the distinction serves no apparent need and exacerbates the potential for confusion. These and other organizations requested that the Office provide additional guidance on what constitutes publication in the online environment.^[36]

Commenters also argued that the facts relevant to publication may be unknown to certain authors. The Authors Guild, the Copyright Alliance, and NWU/NPPA commented that authors may have no control over whether a publisher distributes their works online or in physical form and that such authors may not know if their works were first published online, first published in physical form, or simultaneously published online and in print.^[37] NWU/NPPA accordingly requested that the Office remove the word “first” from the references to online publication.^[38] The Authors Guild requested that “simultaneous” publication be defined to mean “published within 30 days.” ^[39]

The Office understands that determinations regarding the fact and timing of publication may present difficult legal questions, especially in the online context. However, the statute requires that the registration application include, for published works, the date and nation of the work's first publication.^[40] In light of this requirement, as well as the technical constraints of the Office's current registration system, the Office believes that the inclusion of both categories of works in the GRTX option would undermine the efficiency of the examination process, and therefore the final rule retains the publication requirement.^[41] The Office notes, however, that under its registration practices, the Office “will accept the applicant's representation that website content is published or unpublished, unless that statement is implausible or is contradicted by information provided elsewhere in the registration materials or in the Office's records or by information that is known to the registration specialist.” ^[42] Further, the Office is currently exploring issues regarding publication more generally in an effort to provide greater guidance to registration applicants.^[43]

Commenters further argued that the rule should not be limited to works published online but should also provide for group registration of works published in physical form.^[44] NWU/NPPA specifically noted that the petition requested, in addition to a group option for works in electronic format, an option to register “multiple written works by the same creator first published on multiple dates, regardless of whether they were published as contributions to periodicals.” ^[45] The primary focus of the petition and supporting facts, however, was the need for an accommodation for works published in electronic format,^[46] and the GRTX option was tailored to address that demonstrated area of need. The final rule therefore remains limited to works published online.

B. Application Requirements

Under the rule as initially proposed, applicants would have been required to submit their claims using the online Standard Application designated for a “Literary Work.” Since the close of the comment period, however, the Office has worked with the Library of Congress's Office of the Chief Information Officer, and a new online application is being developed specifically for GRTX that applicants will be able to access and submit through the electronic registration system (“eCO”). The final rule accordingly has been updated to require applicants to submit claims using that application. The Office expects to prepare an online tutorial to provide guidance on using the new application and will include help text within the application itself. The Office also intends to update the sections of the Compendium of U.S. Copyright Office Practices that discuss the Office's procedures for group registration to address this new option.

The new application is expected to be implemented into the eCO system by August 2020. The Office has provided for the final rule to take effect that month and is publishing the rule now to give authors of eligible works sufficient advance notice of this new option, so that they may gather their data in anticipation of submitting applications. Nevertheless, the availability of the GRTX application is ultimately dependent on the completion of system development and may be affected by unanticipated delays in that process. The Office will issue a public announcement when implementation is complete and this option is available to applicants.

The proposed rule included language that would allow the Office to waive the electronic filing requirement upon written request in exceptional circumstances.^[47] This provision has been retained in the final rule. One commenter requested that the Office allow applicants to use paper forms without obtaining a waiver, suggesting that that option may be more efficient for some applicants.^[48] The Office concludes, however, that a general requirement of electronic filing best promotes the efficient use of examination resources, and that the waiver option adequately accommodates applicants unable to meet that requirement. As noted in the NPRM, the Office expects such cases to be rare given that creators of works eligible for this option typically will be capable of using the electronic registration system.^[49]

The proposed rule also required that the applicant submit a sequentially numbered list containing a title/file name for each work in the group, and that the list satisfy certain technical and formatting requirements.^[50] Some commenters urged the Office to provide detailed instructional materials to ensure that applicants are able to satisfy these and other provisions.^[51] The Office intends to provide such guidance in the online materials noted above.

C. Deposit Requirements

Under the proposed rule, applicants must submit one complete copy of each work in the group, the copies must be uploaded to the electronic registration system in a specified file format, and all of the files must be submitted in the same format. No commenters took issue with these requirements, which are reflected in the final rule.

The proposed rule also required copies to be submitted in an “orderly” manner, meaning that each work was to be uploaded in a separate digital file. The Authors Guild found this requirement “unduly laborious and unnecessary,” arguing that applicants should be allowed to submit their works in a single document with each work starting on a new page, or, alternatively, to provide a single upload using file compression.^[52] In light of this comment, and based on the Office's experience administering other recently adopted group registration options, the Office agrees that the regulatory language should be amended to provide for submission of works in a single upload. The final rule still requires that each work in the group be contained in a separate digital file, but it provides that they should be uploaded together in a .ZIP file. The final rule retains the requirement that the file name for each work match the corresponding title entered on the application.^[53]

D. Filing Fee

The NPRM provided that the filing fee for the GRTX option would be $55, the fee applicable to claims submitted on the Standard Application. It further noted that the Office had recently proposed to increase the Standard Application fee to $75 and that if that proposal were adopted, the new fee would apply to GRTX claims.^[54] Subsequently, the Office submitted a final proposed schedule and analysis of fees to Congress in which it reduced the proposed increase to $65.^[55] Based on the comments received in the fee study proceeding, and in light of the Office's inability under the current registration system to charge different prices for different types of works submitted on the Standard Application, the Office reiterated its recommendation that the GRTX fee be the same as the Standard Application fee.^[56]

Following the 120-day statutory period for congressional review,^[57] the Office promulgated a final rule implementing the proposed fee schedule.^[58] The rule noted the Office's expectation that GRTX registrations “would require a workflow similar to claims submitted on the Standard Application” and that commenters in the fee study proceeding generally supported linking the two fees.^[59] Nevertheless, to avoid potential confusion, the Office did not adopt the GRTX fee as part of that rule, noting that it instead would adopt the fee when it issued a final rule implementing the GRTX option.^[60]

Although the Office is now providing a standalone application for GRTX submissions, it continues to believe it is appropriate to charge the same fee as is charged for Standard Application filings. While the initial proposal was made in part due to an inability to adopt differential pricing for Standard Application claims, the Office believes that it is reasonable to set the GRTX fee, at least initially, at the same fee, given the similarities in expected workflow associated with examining these claims. The final rule therefore establishes a $65 fee. Given, however, that the Office now has greater flexibility to adjust fees specifically for this option, it will gather additional data to determine if this amount should be adjusted once this option is implemented, including aligning this fee to other group options such as that relevant to contributions to a periodical.

E. The Scope of a Group Registration

The NPRM provided that claims in the selection, coordination, or arrangement of the group as a whole will not be permitted on the application, and the group will not be considered a compilation or a collective work for purposes of sections 101, 103(b), or 504(c)(1) of the Copyright Act. No commenters took issue with this aspect of the NPRM.

F. Correspondence and Refusals

The NPRM stated that the Office may refuse the entire claim if it is defective on certain grounds, including, among other reasons, if the applicant submits a paper form; the applicant submits more than 50 works; a work falls outside the word-count parameters; the applicant asserts a claim in “text” and another form of authorship; works in the group were published more than three months apart; or the names provided in the author and claimant fields do not match. The Authors Guild and the Copyright Alliance advocated a more lenient review policy, urging the Office to correspond with applicants to correct errors of this type.^[61] The Office recognizes that rejecting applications for technical noncompliance can present burdens for applicants, some of whom may conclude that the cost of submitting a new application is not worth it. At the same time, the Office must ensure that its examination resources are used in a manner that maintains the efficiency of group registration. The Office therefore reserves the right to refuse any application that does not comply with the requirements set forth in the final rule, or modify the claim to become compliant without communicating with the applicant.

As noted, however, the Office intends to issue additional instructional materials to assist applicants in determining their eligibility for this option and in completing the application. More generally, the Office will continue to explore tools to assist applicants as it moves toward implementation of a next-generation electronic registration system. The Office is hopeful that these resources will provide useful guidance to authors interested in exercising this option and will minimize the need for correspondence.

G. Supplementary Registrations

A supplementary registration is a special type of registration that may be used “to correct an error in a copyright registration or to amplify the information given in a registration.” ^[62] The Office has created multiple versions of a form that may be used to correct or amplify information in registrations made under specified group registration options, but the Office has not yet created a version for a registration of a group of short online literary works. Therefore, the final rule clarifies that applicants should contact the Office of Registration Policy & Practice to obtain instructions before seeking a supplementary registration involving these types of claims.

This update constitutes a change to a “rule[] of agency . . . procedure[] or practice.” ^[63] It does not “alter the rights or interests of parties,” but merely “alter[s] the manner in which the parties present themselves or their viewpoints to the agency.” ^[64] It therefore is not subject to the notice and comment requirements of the Administrative Procedure Act.

List of Subjects

37 CFR Part 201

• Copyright
• General provisions

37 CFR Part 202

• Copyright
• Preregistration and registration of claims to copyright

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

PART 201—GENERAL PROVISIONS

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

Authority: 17 U.S.C. 702.

2. Amend § 201.3 in table 1 to paragraph (c) by redesignating paragraphs (c)(10) through (27) as paragraphs (c)(11) through (28), respectively, and adding new paragraph (c)(10).

The addition reads as follows:

PART 202—PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

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

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

4. Amend § 202.4 as follows:

a. Add paragraph (j).

b. In paragraph (n), in the first sentence, remove “paragraphs” and add in its place “paragraph” and in the second sentence, remove “paragraphs (c), (g), (h), (i), or (k)” and add in their place “paragraph (c), (g), (h), (i), (j), or (k)”.

The addition reads as follows:

5. Amend § 202.6 by adding “or for a group of short online literary works registered under § 202.4(j),” after “§ 202.4(c),” in paragraph (e)(2).

Footnotes