AGENCY:

U.S. Copyright Office, Library of Congress.

ACTION:

Final rule.

SUMMARY:

The U.S. Copyright Office is amending its regulations pertaining to the registration of architectural works. To improve the efficiency of the registration process, and encourage broader participation in the registration system, the final rule will require applicants to submit their claims using an online application, rather than a paper application. Applicants will be required to provide a date of construction, but only if the work was embodied in unpublished plans or drawings on or before December 1, 1990 and if the work was constructed before January 1, 2003. And, applicants will be encouraged—but not required—to upload a digital copy of their architectural works through the electronic registration system, instead of submitting a physical copy.

DATES:

Effective May 23, 2019.

FOR FURTHER INFORMATION CONTACT:

Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice; Erik Bertin, Deputy Director of Registration Policy and Practice; Jordana Rubel, Assistant General Counsel by telephone at 202-707-8040 or by email at rkas@copyright.gov, ebertin@copyright.gov, and jrubel@copyright.gov.

SUPPLEMENTARY INFORMATION:

On December 26, 2018, the Copyright Office published a notice of proposed rule rulemaking (“NPRM”) setting forth proposed amendments to the regulations governing the registration of architectural works. 83 FR 66182 (Dec. 26, 2018). The Office received comments from three individuals who generally supported the proposal.^[1] Having reviewed and carefully considered these comments, the Office is issuing a final rule that is identical to the rule proposed in the NPRM.

The final rule requires applicants to submit their claims through the electronic registration system using the Standard Application, in lieu of a paper form.^[2] The rule states that applicants must provide a date of construction, but only if the architectural work was embodied in unpublished plans created prior to December 1, 1990 and if the building was constructed before January 1, 2003. The rule amends the deposit requirements by allowing applicants to submit drawings and photographs of an architectural work in any form that allows the Office to access, perceive, and examine the entire copyrightable content of the work, including by uploading the deposit through the electronic registration system in an acceptable file format. Finally, the rule confirms that architectural works are classified as “works of the visual arts” for purposes of registration, and it makes some technical amendments that will improve the organization and readability of the regulations.

The commenters generally supported the online filing requirement and agreed that it will improve the efficiency of the registration process. One individual expressed concern that applicants may be accustomed to using paper forms and may need time to adapt to this change. Another noted that some applicants may not have access to computers, and encouraged the Office to “allow certain exceptions” for such persons.^[3]

The final rule provides the requested flexibility. When the rule goes into effect, applicants will be required to use the online application to register an architectural work. Paper applications submitted on Form VA will not be accepted. However, the Office will have the authority to waive the online filing requirement in “an exceptional case” and “subject to such conditions as the Associate Register and Director of the Office of Registration Policy and Practice may impose on the applicant.” Applicants who do not have a computer or internet access may contact the Office, and the Office will review the specific details of their situation to determine if a waiver is warranted.

The commenters generally supported the proposal to allow for digital uploads in lieu of physical copies, though one individual suggested that digital submissions should be mandatory rather than permissive. Sections 407 and 408 of the Copyright Act give the Register of Copyrights broad authority to issue regulations concerning the specific nature of the copies that must be submitted for purposes of registration and mandatory deposit.^[4] Architectural works are typically created with computer software, and as noted in the NPRM, the Office expects that most applicants will submit their deposits in electronic form. That said, the Office recognizes that architectural works may be created electronically and then published in a physical form. And the Office recognizes that some digital files may be so big that it may not be possible to upload them to the electronic registration system.^[5]

For these reasons, the final rule gives architects the option to register their works either by uploading a digital deposit to the electronic system or by filing an electronic application and mailing the deposit to the Office in a physical form. But if the applicant chooses to submit a digital deposit, that file will be accepted solely for the purpose of registering the architectural work under section 408. Digital deposits will not satisfy the mandatory deposit requirement under section 407. In other words, if an architectural work has been registered with a digital deposit, the Office may issue a demand for a copy of “the most finished form of presentation drawings” if that work has been published in the United States and if the Library of Congress determines that the published work is needed for its collections.^[6]

List of Subjects in 37 CFR Part 202

• Copyright

Final Regulations

For the reasons set forth in the preamble, the Copyright Office is amending 37 CFR part 202 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(f), 702.

2. In § 202.3, add a sentence at the end of paragraph (b)(1)(iii) to read as follows:

3. Amend § 202.11 as follows:

a. Revise paragraphs (a) and (b)(1) and (2);

b. Remove paragraph (c)(2) and redesignate paragraph (c)(5) as paragraph (c)(2);

c. Revise paragraphs (c)(3) and (4); and

d. Add new paragraph (c)(5).

The revisions and additions read as follows:

4. Amend § 202.20 as follows:

a. Add paragraph (c)(2)(i)(M); and

b. Remove and reserve paragraph (c)(2)(xviii).

The addition reads as follows:

Footnotes