AGENCY:

U.S. Copyright Office, Library of Congress.

ACTION:

Final rule.

SUMMARY:

The U.S. Copyright Office is modernizing its practices and procedures to increase the efficiency and quality of the registration process. As part of this effort, this final rule establishes a new group registration option for a limited number of unpublished works, replacing the prior accommodation for “unpublished collections.” The new group registration option will allow the Office to examine each work for copyrightable authorship, create a more robust record of the claim, and improve the overall efficiency of the registration process. In addition, the final rule makes certain technical amendments to the regulations governing the group registration option for photographs.

DATES:

Effective March 15, 2019.

FOR FURTHER INFORMATION CONTACT:

Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice by email at rkas@copyright.gov; Erik Bertin, Deputy Director of Registration Policy and Practice by email at ebertin@copyright.gov; or Mark Gray, Attorney-Advisor, by email at mgray@copyright.gov; all can be reached by telephone at 202-707-8040.

SUPPLEMENTARY INFORMATION:

I. Background

The Copyright Act authorizes the Register of Copyrights to specify by regulation the administrative classes of works available for the purpose of seeking a registration and the nature of the deposits required for each class. The Register also has discretion to allow groups of related works to be registered with one application and one filing fee, a procedure known as “group registration.” ^[1] Pursuant to this authority, the Register has issued regulations permitting the Copyright Office to issue group registrations for certain limited categories of works, provided that certain conditions have been met.^[2]

On October 12, 2017, the Office issued a notice of proposed rulemaking (NPRM) proposing to create a new group registration option for unpublished works, labeled “GRUW,” to replace a longstanding registration accommodation known as the “unpublished collection” option.^[3] Applicants have been able to use the unpublished collection option to register an unlimited number of unpublished works with one application and filing fee.^[4] The regulation governing the existing option, however, was based on longstanding Office practices, and it was not specifically adopted under the Office's authority to issue group registrations under section 408(c)(1) of the Copyright Act.

The NPRM explained the rationale for replacing the unpublished collection option with a new group registration option and described key aspects of the proposal. First, applicants would be required to use a new online application specifically designed for registering groups of unpublished works, in lieu of the Standard Application or a paper application. Second, applicants would be required to upload an electronic copy or phonorecord of each work, in lieu of providing a physical deposit. Third, the filing fee for this option would be $55, the same fee that currently applies to individual works claims submitted on the Standard Application. Fourth, applicants could include no more than five works in each claim, with a limited exception to allow applicants to register up to five sound recordings together with the musical work, dramatic work, or literary work embodied in each recording. Fifth, the author and claimant for each work in the group must be the same. Sixth, the works must be registered in the same administrative class, and the authorship statement for each work must be exactly the same. Seventh, the proposed rule confirmed that a registration for a group of unpublished works will cover each work in the group and each one would be registered as a separate work. Finally, it clarified that applicants could not assert a claim in the selection, coordination, or arrangement of the works within the group, and that the group as a whole will not be considered a compilation, a collective work, or a derivative work.

The Office received 113 comments in response to the NPRM, discussed in more detail below. The majority of comments were submitted by individuals, including photographers, illustrators, graphic designers, and other visual artists. The Office also received comments from (1) Author Services, Inc., representing the literary, theatrical, and musical works of the late L. Ron Hubbard; (2) the law firm of Browning-Smith, which represents artists, sculptors, and illustrators; (3) the Copyright Alliance; (4) the Graphic Artists Guild, Inc.; (5) the Kernochan Center for Law, Media and the Arts at Columbia Law School (“Kernochan Center”); (6) Science Fiction and Fantasy Writers of America, Inc. (“SFWA”), American Society of Journalists and Authors (“ASJA”), and The National Writers Union (“NWU”) (collectively the “SFWA Commenters”); (7) NWU, ASJA, SFWA, and the Textbook & Academic Authors Association (collectively the “NWU Commenters”); and (8) The Authors Guild, Inc., SFWA, The Association of Garden Communicators, Society of Children's Book Writers and Illustrators, and Songwriters Guild of America, Inc. (collectively the “Authors Guild Commenters”).^[5]

While no commenter fully opposed the Office's proposal to eliminate the unpublished collections option, nearly all objected to the proposed limit on the number of works that may be included in each claim.^[6] Another common concern was the perceived difficulty of determining whether a particular work is published or unpublished, especially for works distributed online. Those concerns are discussed in more detail below.

Having carefully considered each of the comments, the Office now issues a final rule that closely follows the proposed rule, with some modifications. First, the final rule increases the number of works that may be included in each submission from five to ten. The final rule also makes other minor adjustments, including clarifying that applicants must obtain guidance from the Office of Registration Policy & Practice before correcting or amplifying the information in a registration for a group of unpublished works and making several technical amendments to streamline group registration of photographs by removing some prior technical limitations.

II. The Final Rule

A. The Number of Works in the Group

The NPRM proposed to limit the number of works that may be included in each claim to five works. The Office acknowledged that this would be a significant change, given that applicants currently may register an unlimited number of works as an unpublished collection. The Office explained that limiting the number of works in the group would allow the Office to efficiently examine each work for copyrightable authorship and improve the quality of the public registration record.^[7]

A majority of commenters objected to this proposal. Only two organizations—the Kernochan Center ^[8] and Author Services—supported the five-work limit. While some of the commenters sympathized with the Office's rationale for limiting the number of works allowable in each claim, they contested the proposed limit. Several suggested that the proposal was unfair, given that photographers may register up to 750 unpublished photos with one application, while other creators would be limited to five.^[9] The Copyright Alliance, Graphic Artists Guild, and Authors Guild Commenters, and several individuals argued that it would be cost-prohibitive for authors who create a large volume of material to file multiple applications to register their works, and suggested the limit would discourage authors from seeking registration.^[10]

As an alternative, one commenter suggested a limit of 20 works would be appropriate for claims involving sound recordings and musical works, as the average compact disc can hold up to 20 songs.^[11] But the Authors Guild Commenters encouraged the Office to allow “at least several hundred in the case of text-based works, perhaps more depending on the nature of the work,” or preferably “all works created in a calendar quarter.” ^[12]

As an initial matter, the Office emphasizes that the general rule requires each individual work—whether unpublished or not—to be submitted with a separate registration application and a separate fee.^[13] The Standard and Single Applications can be used to register individual works. The Office has adopted certain narrow exceptions to this general rule, where it has determined that, absent the ability to file multiple works on one application with one filing fee, registration would not be made. In nearly every such circumstance, the Office has created a group registration option for a particular kind of work—e.g., serials, newspapers, photographs.^[14] But the existing unpublished collections option is not a group registration option,^[15] and is not limited to certain kinds of works. These features have “always made it an oddity in Copyright Office practice” ^[16] and complicated the Office's efforts to efficiently administer the registration system.

While the Office considered eliminating the unpublished collections option entirely, it ultimately determined that creating a group registration option for unpublished works would be beneficial for a particular class of copyright owners: “[i]ndividual creators or small businesses who might not otherwise use the more expensive standard registration application to register their unpublished works on an individual basis.” ^[17] The group registration option aims to do that, without undermining the general rule of “one work per registration.”

After carefully reviewing the comments and weighing the issues involved, the Office has decided to increase the limit on the number of works that can be included in the group from five to ten. As stated in the NPRM, the Office is committed to conducting a complete and thorough examination of each work that is submitted under this group registration option.^[18] To maintain reasonable fees for this service, this requires an appropriate limit on the number of works included in each claim. The final rule also provides a limited exception for sound recordings, allowing applicants to include up to ten sound recordings in each claim, together with the musical work, dramatic work, or literary work embodied in each recording.

In increasing the limit, the Office considered several factors. First, the rule must anticipate the amount of effort required to examine the wide-range of claims that may be included in this group. As noted, under the GRUW option, applicants may register nearly any type of work.^[19] But as the Authors Guild Commenters acknowledged, the amount of time needed to examine each work for copyrightable authorship, will vary depending on the “class and nature of the work.” ^[20] For example, sound recordings, musical works, audiovisual works, and choreographic works take significantly more time to examine than literary or photographic works, because each file must be opened, buffered, and played to determine if the work contains a sufficient amount of creative expression. An examiner can more easily review a large set of photographs for copyrightable authorship than a large quantity of software or other visual works. These important differences between claims involving unpublished photographs and other types of works justify differential treatment in registration.^[21] Because the GRUW registration option will not be limited in the categories of works that can be included, the GRUW option instead accommodates the full range of potential categories of works and resource demands on the Office.

Second, the Office must consider the impact of the group option on the overall registration scheme, in light of current staffing levels and the capabilities of the current registration system. In contrast to claims involving a single work, claims involving dozens, hundreds, or even thousands of unpublished works may require several hours or more to complete. Allowing more than ten works to be registered with one application and one basic filing fee would burden the Office's resources, and the additional workload associated with those claims would have an adverse effect on pendency times for other types of works throughout the Registration Program.

Third, and relatedly, the Office must account for the financial impact of permitting a greater number of works to be filed on one application with one filing fee. In seeking an increase in the number of works filed in a single GRUW application, commenters presumably request that the Office maintain the same fee. There is no fiscally responsible way to do that. If the Office increases the number of works permitted on one application, the Office's examination costs will increase commensurately. Indeed, as the Authors Guild Commenters acknowledged, the resources required to adequately examine an application involving many different works “cannot be supported with the fee for a single registration.” ^[22] Those costs must be covered in some fashion, likely by raising the fee for GRUW applications. But that result would discriminate against creators trying to register relatively few works, since the same fee would apply whether creators register 5, 10, 20, or 100 works. In light of these considerations, the Office has determined that limiting the GRUW application to ten copyrighted works strikes the appropriate balance.

The Office recognizes that applicants previously submitted dozens, hundreds, or even thousands of works through the unpublished collections option, and that going forward, some applicants will need to file multiple applications instead of registering all of their works with one submission. The Office takes seriously the additional cost and burden this may impose, especially on individual filers and small businesses. But the Office never intended unpublished collections claims to include such a large quantity of works, and this new limit is necessary to ensure that the Office can reasonably and efficiently fulfill its statutory obligations to ensure that each work constitutes copyrightable subject matter and meets the other legal and formal requirements for registration.

While the Office has determined that ten is the most appropriate limit for the GRUW option, it will continue exploring whether additional group options (or other accommodations) are necessary to ensure that the standard rule of one application per work does not drive certain creators to forgo registration altogether.^[23] For example, since the proposed GRUW option was published, the Office not only finalized its proposed rule regarding group registration of published and unpublished photographs, with a limit of up to 750 photographs per application, it also issued a separate NPRM proposing to create a group registration option for qualifying short online literary works; under that proposed rule, applicants may submit up to 50 works with the same application.^[24] The Office is also preparing a proposed group option for musical works and sound recordings included as part of a music album.^[25] These separate proposals should address some of the concerns raised by commenters about the limit for this unpublished option.^[26]

The Office similarly recognizes that visual artists other than photographers are often prolific, and the comments provided useful information about the needs of these artists and the volume of material they typically create.^[27] The comments suggest that—from an artist perspective—a group option for graphic and other visual art works could be limited to between 20-100 works, but the Office does not have currently sufficient information on the length of time that would be needed to examine these types of works if they were grouped together.^[28] Consequently, the Office will monitor the amount of time needed to examine visual art claims submitted under GRUW. The Office will use that information to determine whether it would be appropriate to create a separate group registration option for visual art works other than photographs.

B. Distinguishing Between Published and Unpublished Works

The final rule confirms that this group registration option may only be used to register unpublished works. The Office recognizes that applicants may struggle with determining whether a work is published or unpublished, and this determination can be less than straightforward in many instances. But “publication” is a statutorily defined term, and the Office is required under section 409 to ask for the publication status of works on the registration application.^[29] As noted in the Compendium and other publications, the applicant is responsible for determining whether a work is unpublished, and the Office generally accepts that determination unless it is contradicted by information contained within the registration materials.^[30]

Several commenters expressed concern about this requirement. The Copyright Alliance, Graphic Artists Guild, and Authors Guild Commenters noted that applicants find it difficult to determine whether a work is published or unpublished, especially for works distributed online.^[31] To that end, the Graphic Artists Guild requested that the Office issue further guidance “on what constitutes publication for online works.” ^[32] Similarly, the Authors Guild Commenters suggested that the “explanations of the meaning of `publication' and associated terms” in the Compendium “requires a knowledge of copyright law that few applicants” possess, particularly with respect to “works disseminated online.” <sup>[33]</sup> The Authors Guild Commenters acknowledged that the Office “cannot unilaterally amend the definition of `publication' ” because it is “embodied” in the Copyright Act.^[34] But they suggested that the Office could promulgate a regulatory definition for “online publication” through an administrative rulemaking, which would give interested parties the opportunity to “weigh in and ensure that all issues are properly vetted,” or perhaps replace the “published/unpublished distinction” with a “concept such as `disseminated to the public' or `made available to the public.' ” ^[35]

In light of section 409's statutory requirement, and the Office's longstanding existing guidance and practices regarding the need for applicants to specify whether their works are published or unpublished, the Office concludes that it is not necessary to delay implementation of the new group registration option due to any uncertainty regarding the definition of publication.^[36] Indeed, since this NPRM was published, the Office has adopted a final rule regarding group registration options for published and unpublished photographs that grappled with many of the same issues.^[37] But the Office appreciates that applicants have raised important questions about their challenges in applying the definition of publication, particularly in the context of works that are only made available online, and plans to issue a notice of inquiry to solicit comments regarding issues related to online publication, and ultimately to provide additional guidance for applicants. Meanwhile, the Office believes that prompt promulgation of this final rule will aid the Office in fulfilling its statutory obligations and administering the copyright registration system.

C. Filing Fee

The NPRM proposed a $55 filing fee for registering a group of unpublished works, the same fee that currently applies to clams submitted on the Standard Application.^[38] The Office stated that it would monitor the cost of examining these claims once the final rule had been implemented. Since the NPRM, the Office has conducted a fee study that proposed a filing fee of $85 for each GRUW submission, the same as the fee that currently applies to claims involving the group registration option for contributions to periodicals.^[39] Until the proposed fees in the fee study go into effect, the Office has adopted the noticed $55 fee for GRUW claims. In this regard, the Office notes that the GRUW option updates and replaces the unpublished collection option, which was also available for the same $55 fee pursuant to the Standard Application. Accordingly, the Office does not consider the availability of the GRUW option for the same rate as the Standard Application to constitute an “adjustment” of fees.^[40]

In response to the proposed $55 fee, several commenters encouraged the Office to develop alternate fee structure for unpublished works in order to expand the number of works that may be included in each claim. Browning-Smith and the Copyright Alliance urged the Office to offer a sliding fee schedule, where the amount of the fee would vary depending on the number of works submitted.^[41] The SFWA Commenters noted that the Office uses a similar sliding-fee structure for recordation, where remitters pay extra for each additional group of ten titles listed in the document.^[42] The Copyright Alliance also encouraged the Office to adopt a subscription-based fee that would allow applicants to pay a periodic fee for registering all the works they produce during a given timeframe.^[43] The Office welcomes these suggestions and will take them into account in developing the business requirements for its next generation registration system.^[44] The current registration system, however, does not permit the Office to adopt these types of alternative fee structures.

D. Other Eligibility Requirements

While the remaining eligibility requirements sparked little or no opposition, the Office offers the following points of clarification:

The final rule provides that the works must be registered in the same administrative class, and the authorship statement for each work must be exactly the same. The Authors Guild Commenters and the Kernochan Center supported this idea, noting that it would eliminate the need to have examiners in different divisions review the same works.^[45] By contrast, the Graphic Artists Guild expressed concern that it would prevent visual artists from registering unpublished works that contain multiple forms of authorship, such as children's books, graphic novels, comics and cartoons, or illustrated short stories containing text and artwork.^[46]

To be clear, applicants will be able to register unpublished works that contain different types of authorship. When completing the application, applicants should select the administrative class that would be most appropriate for the predominant form of authorship in each work, and the authorship term that best describes the work as a whole. For example, when registering a group of comic strips that contain a substantial amount of artwork combined with some text, applicants should select the class for “visual arts works” and should use the term “unpublished pictorial or graphic works” to describe those works. When registering a group of illustrated short stories that contain a substantial amount of text combined with some illustrations, applicants should select the class for “literary works” and should use the term “unpublished literary works” to describe those works. If the types of authorship in each work are roughly equal—as is often the case with a children's book—applicants may select “literary works” or “visual arts works,” and depending on which class has been selected, they may use the term “unpublished literary works” or “unpublished pictorial or graphic works” to describe those works.

Perhaps because it represents an author who is deceased, Author Services said it would be unable to use the group registration option, because the author and claimant for each work must be the same person or organization.^[47] To be clear, an author may always be named as the copyright claimant for purposes of this group registration option, even if that individual has transferred their copyright or has died.^[48] But if Author Services prefers to list itself as the claimant, it would be ineligible for this group registration option and could instead register the works individually; as noted, entities to which copyrights have been transferred are not intended to be the primary beneficiary of this rule.

E. Supplementary Registration

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.” ^[49] The NPRM explained that if applicants need to correct or amplify the information appearing in a registration for a group of unpublished works, they will be required to use the online application for supplementary registration.^[50]

The Office created multiple versions of this form that may be used to correct or amplify the information in a registration for a group of photographs, serials, newspapers, newsletters, or contributions to periodicals. But the Office has not yet created a similar version for a registration for a group of unpublished 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.

F. Technical Amendments

The final rule makes a few technical changes intended to clarify the regulations, update cross-references, and simplify the registration of photographs by accepting more formats and material. Specifically, the final rule removes a superfluous sentence from § 202.4(h) which states that a group of unpublished photographs cannot be registered as an unpublished collection and removes a provision from § 202.4(h) and (i), and § 202.20(c), stating that photographers should not include any form of punctuation in the file names that they upload to the electronic registration system.^[51] The Office was concerned that punctuation in the file names might cause a technical error that could prevent the system from opening the files, but after testing the new applications the Office has confirmed that punctuation should not cause this type of problem.^[52] This represents a change in a “rule[] of agency organization, procedure, or practice,” ^[53] that does not “alter the rights or interests of parties” to require notice and comment ^[54] —if anything, it eases the requirements for applicants that use this option.

List of Subjects

37 CFR Part 201

• Copyright
• General provisions

37 CFR Part 202

• Copyright
• Preregistration and registration of claims to copyright

Final Regulations

For the reasons set forth in the preamble, the U.S. 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 by redesignating paragraphs (c)(8) though (22) as (c)(9) through (23) and adding a new paragraph (c)(8) to read 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 § 202.3 by revising paragraph (b)(4) and adding paragraph (c)(4) to read as follows:

5. Amend § 202.4 as follows:

a. Add paragraph (c).

b. In paragraph (h)(8), remove the second sentence, which is in parentheses.

c. In paragraph (h)(9), remove the second sentence.

d. In paragraph (i)(9), remove the second sentence.

e. In paragraph (n), remove “paragraph (g), (h), (i), or (k)” and add in its place “paragraphs (c), (g), (h), (i), or (k)”.

The addition reads as follows:

6. Amend § 202.6 as follows:

a. Redesignate paragraphs (e)(2) through (7) as paragraphs (e)(3) through (8).

b. In newly redesignated paragraph (e)(8), remove “paragraph (e)(1)” and add in its place “paragraph (e)(1) or (2)”.

c. Add new paragraph (e)(2).

The addition reads as follows:

7. Amend § 202.20(c)(2)(vii)(D)( 8) by removing the fourth sentence.

Footnotes