Group Registration of Photographs, 86643-86656 [2016-28706]

Download as PDF jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules (h) Group registration of contributions to periodicals. Pursuant to the authority granted by 17 U.S.C. 408(c)(2), the Register of Copyrights has determined that a group of contributions to periodicals may be registered in Class TX or Class VA with one application, one filing fee, and the required deposit, if the following conditions are met: (1) All the contributions in the group must be created by the same individual. (2) The copyright claimant must be the same person or organization for all the contributions. (3) The contributions must not be works made for hire. (4) Each work must be first published as a contribution to a periodical, and all the contributions must be first published within a twelve-month period (e.g., January 1, 2015 through December 31, 2015; February 1, 2015 through January 31, 2016). For purposes of this section, a periodical is a collective work that is issued or intended to be issued on an established schedule in successive issues that are intended to be continued indefinitely. In most cases, each issue will bear the same title, as well as numerical or chronological designations. Examples include newspapers, magazines, newsletters, journals, bulletins, annuals, the proceedings of societies, and other similar works. (5) If any of the contributions were first published before March 1, 1989, those works must bear a separate copyright notice, the notice must contain the copyright owner’s name (or an abbreviation by which the name can be recognized, or a generally known alternative designation for the owner), and the name that appears in each notice must be the same. (6) The applicant must complete and submit the online application designated for a group of contributions to periodicals. The application must identify each contribution that is included in the group, including the date of publication for each contribution and the periodical in which it was first published. The application may be submitted by any of the parties listed in § 202.3(c)(1). The application should be filed in Class TX if a majority of the contributions predominantly consist of text, and the application should be filed in Class VA if a majority of the contributions predominantly consist of photographs, illustrations, artwork, or other works of the visual arts. (7) The appropriate filing fee, as required by § 201.3(c) of this chapter, must be included with the application or charged to an active deposit account. (8) The applicant must submit one copy of each contribution that is VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 included in the group, either by submitting the entire issue of the periodical where the contribution was first published, the entire section of the newspaper where it was first published, or the specific page(s) from the periodical where the contribution was first published. The contributions must be contained in separate electronic files that comply with § 202.20(b)(2)(iii). The files must be submitted in Portable Document Format (PDF) or other electronic format approved by the Office, and they must be uploaded to the electronic registration system, preferably in a .zip file containing all the files. The file size for each uploaded file must not exceed 500 megabytes; the files may be compressed to comply with this requirement. (i) [Reserved] (j) [Reserved] (k) [Reserved] (l) Refusal to register. The Copyright Office may refuse registration if the applicant fails to satisfy the requirements for registering a group of related works under this section or § 202.3(b)(5)–(7), (9), or (10). (m) Cancellation. If the Copyright Office issues a registration for a group of related works and subsequently determines that the requirements for that group option have not been met, and if the claimant fails to cure the deficiency after being notified by the Office, the registration may be cancelled in accordance with § 201.7 of this chapter. (n) The scope of a group registration. When the Office issues a group registration under paragraph (h) of this section, the registration covers each work in the group and each work is registered as a separate work. For purposes of registration, the group as a whole is not considered a compilation, a collective work, or a derivative work under sections 101, 103(b), or 504(c)(1) of title 17 of the United States Code. Dated: November 22, 2016. Sarang V. Damle, General Counsel and Associate Register of Copyrights. [FR Doc. 2016–28700 Filed 11–30–16; 8:45 am] BILLING CODE 1410–30–P LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201, 202 [Docket No. 2016–10] Group Registration of Photographs U.S. Copyright Office, Library of Congress. AGENCY: PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 ACTION: 86643 Notice of proposed rulemaking. The U.S. Copyright Office is proposing to update its regulations governing group registration options for photographers to encourage broader participation in the registration system, increase the efficiency of the registration process, and create a more robust record of the claim. First, the Office has created new online registration applications specifically designed for group registrations of published photographs and group registrations of unpublished photographs. The proposed rule would require applicants to use these online applications, in lieu of any existing paper application. Applicants will be allowed to include up to 750 photographs with each application. Second, the proposal would eliminate less-efficient forms of registering photographs that have been adopted over the years—namely, the pilot program permitting group registration of published photographs using the electronic application designed for registering a single work, and the option of registering a number of unpublished photographs as an ‘‘unpublished collection.’’ The pilot program for photographic databases will remain in effect. Third, the proposed rule will update the deposit requirement for group registrations of photographs and photographic databases by requiring applicants to submit their works in digital form. DATES: Comments on the proposed rule must be made in writing and must be received in the U.S. Copyright Office no later than January 3, 2017. 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 Web site at http:// www.copyright.gov/rulemaking/groupphotographs/. 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: Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, at 202–707–8040. SUPPLEMENTARY INFORMATION: The U.S. Copyright Office (the ‘‘Office’’) is proposing to amend the regulation that SUMMARY: E:\FR\FM\01DEP1.SGM 01DEP1 86644 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS governs the group registration option for published photographs. In addition, the Office is proposing to create a new group registration option for unpublished photographs. Finally, the Office is proposing to amend the deposit requirements for groups of published photographs and photographic databases, and is proposing to establish similar deposit requirements for the new group option for unpublished photographs. These proposals are discussed in more detail below. The Office invites public comment on each proposal. Last year the Office issued a notice of inquiry concerning the practical and legal challenges faced by photographers, graphic artists, and illustrators (referred to herein as the ‘‘Visual Works Inquiry’’ 1). See 80 FR 23054 (Apr. 24, 2015). The Office recognized that photographers, graphic artists, and illustrators have a broad impact on U.S. culture, but they face significant challenges in the digital age. To better understand these challenges, the Office requested written comments on how photographs, graphic artworks, and illustrations are monetized, licensed, registered, and enforced under the Copyright Act of 1976 (‘‘the Copyright Act’’). The Office sought information concerning the current marketplace for these types of works, as well as observations regarding the real or potential obstacles that these creators and their licensees or other representatives face when navigating the digital landscape. With respect to registration, the Office asked the public to identify the most significant challenges for photographers and other visual artists. 80 FR at 23056. The Office received 2,795 comments and 166 reply comments in response to the Visual Works Inquiry. The Office has not attempted to address these comments in this notice of proposed rulemaking.2 The rule proposed in this notice focuses solely on photographs, and it represents an interim improvement to the current electronic registration system. In the future, the Office may consider other options as it assesses the broader concerns of visual artists generally. 1 Information concerning the Visual Works Inquiry is available on the Office’s Web site at http://copyright.gov/policy/visualworks/. 2 In preparing this notice of proposed rulemaking the Office did consider comments submitted in a prior rulemaking concerning the deposit requirements for photographic databases, which was completed in July 2012. Information concerning that rulemaking is available on the Office’s Web site at http://copyright.gov/ rulemaking/databases/. VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 I. Background When Congress enacted the Copyright Act, it authorized the Register of Copyrights (the ‘‘Register’’) to specify by regulation the administrative classes of works for the purpose of seeking a registration and the nature of the deposit required for each such class. In addition, Congress gave the Register the discretion to allow groups of related works to be registered with one application and one filing fee, a procedure known as ‘‘group registration.’’ See 17 U.S.C. 408(c)(1). Pursuant to this authority, the Register issued regulations permitting the Office to issue group registrations for certain limited categories of works, provided that certain conditions have been met. See generally 37 CFR 202.3(b)(5)–(10). 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.’’ 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). 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, since copyright registration is not a prerequisite to copyright protection. Id. If copyright owners do not submit their works for registration under this permissive system, the public record will not contain any information concerning those works. This creates a void in the record that diminishes the value of the Office’s database. Congress cited ‘‘a group of photographs by one photographer’’ as an example of a ‘‘group of related works’’ that would be suitable for registration under section 408(c)(1). Id. At the same time, when large numbers of works are bundled together in one application, information about the individual works may not be adequately captured. Therefore, group registration options require careful balancing of the need for an accurate public record and the need for an efficient method of facilitating the registration of multiple photographs. II. Existing Registration Accommodations for Photographers Under the Copyright Office’s existing regulations and registration practice, photographers have several options for registering groups or collections of photographs with one application and one filing fee. These options are summarized below. PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 A. Group Registration of Published Photographs After conducting an extensive rulemaking, the Office issued a regulation in 2001 that allows applicants to register a group of published photographs with one application and one filing fee. See 66 FR 37142, 37149–50 (July 17, 2001). The Office refers to this procedure as the ‘‘group option for published photographs’’ or ‘‘GRPPH.’’ An applicant may register a group of photographs under this procedure if all the photographs were taken by the same photographer and were published within the same calendar year, and if the copyright claimant for all the photographs is the same person or organization. 37 CFR 202.3(b)(10)(i)– (iii). If the photographs were created as works made for hire, the application must provide both the name of the photographer and the name of the photographer’s employer or the party who specially ordered or commissioned the photographs (e.g., ‘‘ABC Corporation, employer for hire of John Doe’’). Id. § 202.3(b)(10)(ix). As a general rule, the applicant must provide a precise date of publication for each photograph in the group (i.e., month, day, and year), either by providing the date on the application, on a continuation sheet submitted on Form GR/PPh/CON,3 on a separate list submitted on paper or in a text file, or on the photographs themselves (e.g., writing the date on the back of each print, including the date in the file name for each image, etc.). Id. § 202.3(b)(10)(iv)(A)–(D). Alternatively, the applicant may provide a range of dates (e.g., February 25, 2015 through May 25, 2015), but only if the photographs were published within three months before the date that the application is received in the Office. Id. § 202.3(b)(10)(vi). If the applicant chooses to provide publication information on Form GR/PPh/CON, the applicant may include up to 750 photographs in the claim. Id. § 202.3(b)(10)(v). By contrast, if the applicant provides publication information using any other method, there is no limit on the number of photographs that may be submitted. Id. § 202.3(b)(10)(v), (viii). Initially, all applicants were required to file their claims using a paper application submitted on Form VA. As discussed below in Section III.A.1, the Office has established a pilot program 3 Form GR/PPh/CON is a continuation sheet for Form VA specifically designed for providing information for a group registration of published photographs. E:\FR\FM\01DEP1.SGM 01DEP1 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules that allows applicants to submit their claims through the electronic registration system. Id. § 202.3(b)(10)(xi). In all cases, the applicant must submit one copy of each photograph that is included in the group, and all the photographs must be submitted in the same format. Id. § 202.3(b)(10)(x). The applicant may submit the photographs in digital form by saving them on a CD– ROM or DVD–ROM in a JPEG, GIF, TIFF, or PCD format.4 Alternatively, the applicant may submit the photographs in a physical form, such as prints, contact sheets, slides, photocopies, or even videotape. Id. § 202.20(c)(2)(xx)(B)–(H). B. Other Registration Options In addition to the group option for published photographs, there are four other options for registering multiple photographs with the same application. These options are summarized below. jstallworth on DSK7TPTVN1PROD with PROPOSALS 1. Unpublished Collections Since 1978 the Office has allowed applicants to register a number of unpublished works with one application and one filing fee if the works qualify as an ‘‘unpublished collection.’’ To qualify for this option, the works must be unpublished, the works must have at least one common author, the copyright claimant for each work and the collection as a whole must be the same person or organization, the works must be assembled in an orderly form, and the applicant must provide a single title identifying the collection as a whole. Id. § 203.3(b)(4)(i)(B). Photographers may use this option to register their photographs if they satisfy these requirements, and at the present time there is no limit on the number of photographs that may be included within each collection. Under this option, the applicant may register the works using the electronic registration system or a paper application submitted on Form VA. Id. § 202.3(b)(2). In all cases, the applicant must submit one copy of each photograph that is included in the collection. The applicant may submit the photographs in digital form (e.g., uploading digital files to the electronic registration system or mailing them to the Office on a CD– ROM or DVD–ROM, etc.) or physical form (e.g., prints, slides, photocopies, etc.), but all of the photographs must be submitted in the same format. Id. § 202.20(c)(2)(xx). 4 The regulation that currently governs the deposit requirements for GRPPH does not mention other types of storage devices, such as flash drives. 37 CFR 202.20(c)(2)(xx)(A). VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 2. Group Registration for Contributions to Periodicals Without prejudice to the Register’s general authority to create group registration options under Section 408(c)(2) at the Register’s discretion, Congress also directed the Register to create a group option for works by the same individual author that were first published as a contribution to a periodical. 17 U.S.C. 408(c)(2). In response to this directive, the Office established a procedure known as the ‘‘group option for contributions to periodicals’’ or ‘‘GRCP.’’ See 43 FR 965, 966–67 (Jan. 5, 1978). Photographers may use this option to register their photographs if they satisfy the requirements set forth in the regulation. First, all the photographs must be taken by the same individual, and none of them can be a work made for hire. 37 CFR 202.3(b)(8)(i)(A)–(B). Second, all the photographs must be first published as a contribution to a periodical (e.g., a newspaper, a magazine, a journal, etc.) and they must be published within a twelve-month period (e.g., June 1, 2014 through May 31, 2015). Id. § 202.3(b)(8)(i)(C) & n.2. And, third, if the photographs were first published before March 1, 1989, each photograph must contain an appropriate copyright notice. Id. § 202.3(b)(8)(i)(D). Under the current regulation, there is no limit on the number of photographs that may be registered under GRCP. The applicant must complete a paper application using Form VA and Form GR/CP.5 Id. § 202.3(b)(8)(ii)(A)–(B). The applicant must submit the photographs in the precise form in which they were first published, and the copies must be submitted in physical—rather than digital—form. See id. § 202.3(b)(8)(i)(E). For example, the applicant may submit the entire issue of the periodical that contains the photograph, the entire section of the newspaper that contains the photograph, a photocopy of the entire page from the periodical that contains the photograph, among other formats.6 See id. 3. Group Registration for Photographic Databases In 1989, the Office created a procedure that allows database owners 5 Form GR/CP is an adjunct form specifically designed for providing information for a group registration of contributions to periodicals. 6 The Office is issuing a separate notice of proposed rulemaking (published elsewhere in this volume of the Federal Register, and referred to herein as the ‘‘GRCP Rulemaking’’) that invites comment on a proposed rule that will modify the group option for contributions to periodicals. To be clear, the Office is not proposing any changes to the GRCP regulation as part of this rulemaking on group registration of photographs. PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 86645 to register the updates and revisions to a database with one application and one filing fee. 37 CFR 202.3(b)(5); 54 FR 13177 (Mar. 31, 1989). The Office refers to this procedure as the ‘‘group database option.’’ In the late 1990s, some stock photography companies began using this option to register databases that contain large numbers of photographs. After consulting with representatives from the industry, the Office concluded that the database option could potentially be used to register a photographic database if certain requirements have been met. The Office noted this understanding in an earlier notice of proposed rulemaking that is discussed in Section III.A.1 below. See 76 FR 4072, 4075–76 (Jan. 24, 2011). The requirements for the database option are extremely complex.7 Briefly stated, an applicant may register the updates or revisions that were made to a database over a period of three months if the updates and revisions are owned by the same claimant and if the general content and organization of the updates and revisions are similar. 37 CFR 202.3(b)(5). The applicant must submit a detailed statement that describes the content and organization of the database, and in the case of a photographic database, the applicant must submit one copy of each photograph that is included in the group. The applicant may submit an online application or a paper application. The applicant may submit the photographs in digital or physical form, but all the photographs must be submitted in the same format. 37 CFR 202.20(c)(2)(xx). A registration for a photographic database covers the authorship involved in selecting, coordinating, and arranging the content of the database as a whole. It also may cover the individual photographs that are included within the database if the photographers transferred the exclusive rights in their respective works to the owner of the database, and if the selection, coordination, and/or arrangement of those photographs is sufficiently creative. See Compendium section 1117.2. That said, the Office has questioned whether this practice should be revised to limit the examination of a database to the authorship involved in creating the selection, coordination, and arrangement of the database as a whole and to exclude examination (and thus, the prima facie validity) of a claim in the component elements of the database. 7 For a detailed summary of these requirements, see section 1117 of the Compendium of U.S. Copyright Office Practices, Third Edition (hereinafter the ‘‘Compendium’’). E:\FR\FM\01DEP1.SGM 01DEP1 86646 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS See 77 FR 40268, 40269 (July 9, 2012); see also 76 FR at 4073. The Office generally discourages photographers from registering their works as part of a photographic database and instead encourages them to use one of the other options discussed in this section, in part, because they provide a better registration record for claims in the individual component works within a database, as opposed to a claim in the database itself as a compilation of data. See 77 FR at 40269 n.1; 76 FR at 4073. Moreover, registering photographs as part of a photographic database may limit the copyright owner’s ability to seek certain remedies in an infringement action. This issue is discussed in more detail in Section III.G.3 below. 4. Collective Works Applicants may register a number of photographs with one application and one filing fee if they are part of a collective work. The statute defines a collective work as ‘‘a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.’’ 17 U.S.C. 101. A collective work may consist entirely of photographs, such as a book of photographs, an exhibition catalog, or a retrospective book that contains photographs taken by a particular photographer. A collective work also may combine photographs with other types of authorship, such as a calendar, textbook, coffee table book, or similar types of works. Applicants may register a collective work with an online application or a paper application. The claim may include photographs taken by multiple photographers, but the applicant does not need to name each photographer in the application and there is no limit on the number of photographs that may be included within each claim. If the claim is approved, the registration will cover the authorship involved in selecting, coordinating, and arranging the content of the collective work as a whole. It also may cover the individual photographs that are included within the collective work if (i) the claimant owns the copyright in both the individual photographs and the collective work as a whole, and if (ii) the photographs have not previously been published or registered. Although a registration for a collective work may cover the individual photographs contained therein, this type of registration may limit the copyright owner’s ability to seek certain remedies in an infringement action. This issue is VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 discussed in more detail in Section III.G.4 below. III. The Proposed Rule The Proposed Rule does several things. First, the Office is proposing to amend the regulation that governs the group option for published photographs to reflect certain technical upgrades that will be made to the electronic registration system. Second, the Office is proposing to create, for the first time, an equivalent group registration option for unpublished photographs. This new procedure will be known as the ‘‘group option for unpublished photographs’’ or ‘‘GRUPH,’’ and it will replace the option that currently allows photographers to register their works as an unpublished collection. These first two amendments will increase the efficiency of the registration process for both published and unpublished photographs alike by requiring applicants to submit their claims through the electronic registration system. In addition, GRUPH will foster early registration, thereby eliminating complex questions that arise when published and unpublished photographs are commingled. Third, the Office is proposing to update the deposit requirements for the group options for published photographs and photographic databases by requiring applicants to submit a digital copy of each photograph that is included in the group, and a separate document containing a sequentially numbered list that provides the title and file name for each photograph in the group. Applicants may submit these items by uploading them through the electronic system or by sending them on a physical storage device. This same requirement will apply to the new group option for unpublished photographs. Finally, the Proposed Rule will memorialize the Office’s longstanding position regarding the scope of a group registration for photographs. Each of these proposals is discussed below.8 8 As mentioned above in footnote 6, the Office is issuing a separate notice of proposed rulemaking involving the group option for contributions to periodicals. The rule proposed in the GRCP Rulemaking states that the Office may refuse to issue a group registration or may cancel a group registration if it determines that the applicant failed to comply with the relevant requirements for a particular group option. These requirements will apply to any group option that the Office creates under section 408 of the Copyright Act, including GRCP, GRPPH, GRUPH, and the group option for photographic databases. PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 A. Application Requirements for Groups of Published Photographs (GRPPH) and Groups of Unpublished Photographs (GRUPH) 1. Online Registration In February 2015 the Office completed a comprehensive analysis of its electronic registration system with input from technical experts and stakeholders. This analysis will support the Office’s long-term goals of creating both a better interface and a better public record. See U.S. Copyright Office, Office of the Chief Information Officer, Report and Recommendations of the Technical Upgrades Special Project Team (February 2015), available at http://copyright.gov/docs/ technical_upgrades/uscotechnicalupgrades.pdf; see also Technological Upgrades to Registration and Recordation Functions, 78 FR 17722 (Mar. 22, 2013). In December 2015, the Register issued a strategic plan that sets forth the Office’s performance objectives for the next five years. The plan provides a roadmap for reenvisioning almost all of the services that the Office provides, including how applicants register claims, submit deposits, record documents, share data, and access expert resources. With respect to information technology, the plan calls for ‘‘a robust and flexible technology enterprise that is dedicated to the current and future needs of a modern copyright agency.’’ U.S. Copyright Office, Strategic Plan 2016– 2020: Positioning the United States Copyright Office for the Future, at 35 (Dec. 1, 2015), available at http:// copyright.gov/reports/strategic-plan/ USCO-strategic.pdf. At the direction of Congress,9 the Office also developed a detailed IT plan, and obtained public comments on specific strategies, costs, and timelines for technology objectives. U.S. Copyright Office, Provisional Information Technology Modernization Plan and Cost Analysis (Feb. 29, 2016), available at http://copyright.gov/ reports/itplan/. In the meantime, the Office has made some enhancements to the current electronic registration system that will benefit photographers, the Office, and the public at large. When the electronic registration system was introduced in 2007, it contained a ‘‘standard’’ application (referred to herein as the ‘‘standard online application’’). Applicants could use this application to register a single work; they also could use this application to register a number of works as an unpublished collection or as part of a collective work. See 72 9 H.R. E:\FR\FM\01DEP1.SGM Rep. No. 114–110, at 16–17 (2015). 01DEP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules FR 36883, 36885 (July 6, 2007). But the standard online application was not meant to be used to register groups of published photographs, photographic databases, or contributions to periodicals, because the system was not designed to take in the information required for a group claim. Instead, photographers were required to submit these types of claims using a paper application submitted on Form VA (either alone or together with Form GR/ PPh/CON or Form GR/CP). Photographers soon expressed interest in using the electronic system, and beginning in 2010, some applicants began submitting large numbers of photographs with the standard online application. Although this application was not designed to handle group registrations, the Visual Arts Division processed some of these claims in cases where the application contained all the information required for a group claim. Based on this experience, the Office issued an interim regulation in 2011 that established a pilot program allowing applicants to register groups of published photographs and photographic databases with the standard online application.10 76 FR at 4074, 4075. Applicants that participate in the pilot program may submit their claims through the electronic system (rather than submitting a paper application), provided that they obtain prior authorization from the Visual Arts Division and follow the instructions from that Division concerning the information that should be included in the application and the proper method for submitting the deposit. 37 CFR 202.3(b)(5)(ii)(A), (b)(10)(xi). The Office explained that, during the pilot, it would assess the desirability and feasibility of allowing applicants to submit groups of photographs through the electronic system on a permanent basis, and invited public comment on the issue. 76 FR 5106 (Jan. 28, 2011). The Professional Photographers of America (‘‘PPA’’) and other organizations that represent photographers supported the pilot program, predicting that the standard online application would require less time to complete than a paper application, and that applicants would receive their certificates in a more timely manner.11 10 The pilot program does not apply to the group option for contributions to periodicals. 11 PPA at 2, available at http://copyright.gov/ rulemaking/databases/comments/professionalphotographers-of-america.pdf. PPA jointly submitted its comments with Commercial Photographers International, the Society of Sport & Event Photographers, the Student Photographic VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 While the pilot program was wellintentioned, it has been extremely burdensome for both applicants and the Office. The standard online application was designed to handle claims involving one work or a limited number of works. Using the existing architecture to provide title and publication information for hundreds or even thousands of photographs is necessarily challenging for applicants who are unfamiliar with the system. Examining these types of claims also requires significantly more time. In some cases, registration specialists have spent an entire day processing a single claim, which has resulted in corresponding delays in issuing certificates of registration for such claims. Moreover, the increasing demand on the Office’s limited resources has had an adverse effect on the examination of other types of works within the Visual Arts Division. To address these concerns, the Office has decided to eliminate the pilot program for published photographs, and replace it with an online application specifically designed for groups of published photographs. (The pilot program for photographic databases will remain in effect for the time being, though as discussed in Sections D.2 and G.3, the deposit requirements for photographic databases will be modified in some respects.) In addition, the Office has created a new online application specifically designed for groups of unpublished photographs. Under the Proposed Rule, applicants will be required to use the online application designated for GRPPH or GRUPH as a condition for using either of these group options. To facilitate this transition, the Office will contact each applicant that has participated in the pilot program for published photographs and will notify them that the pilot program will be replaced with a new procedure. The Office will provide instructions on how to complete the new applications on its Web site and in chapter 1100 of the Compendium. In addition, the Office will make its staff available to groups or associations that are interested in producing webinars or other educational programs for their members. Once the Proposed Rule goes into effect, the Office will no longer accept groups of published photographs or groups of unpublished photographs that are submitted with a paper application on Form VA (either with or without Society, Evidence Photographers International Council, and the Stock Artists Alliance. Id. at 1. PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 86647 Form GR/PPh/CON).12 Likewise, the Office will no longer accept these types of claims if they are submitted with a standard online application, rather than the online application designated for GRPPH or GRUPH.13 In such cases the Office will ask the applicant to resubmit the photographs using the appropriate application, which may affect the effective date of registration that is assigned to the claim. The Office invites comment on this proposal, including whether it should eliminate the paper application for these group options, phase them out after a specified period of time, or continue to offer them for photographers who prefer to use the paper-based system. 2. Relationship to Supplementary Registration Rulemaking 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,’’ including a registration for a group of related works. 17 U.S.C. 408(d). Specifically, it identifies an error or omission in an existing registration (referred to herein as a ‘‘basic registration’’) and places the corrected information or additional information in the public record. The Office refers to this type of registration as a ‘‘CA,’’ which stands for ‘‘correction and amplification.’’ The Office is issuing a separate notice of proposed rulemaking (published elsewhere in this volume of the Federal Register, and referred to herein as the ‘‘CA Rulemaking’’) that will modify the regulation that governs this procedure. Under the rule proposed in the CA Rulemaking, applicants will be required to file an online application in order to correct or amplify the information set forth in a basic registration for any photograph that is capable of being registered through the electronic system—even if the work was originally registered with a paper application submitted on Form VA (either with or without Form GR/PPh/CON). 12 By contrast, Applicants may continue to use Form VA to register a photographic database if they meet the eligibility requirements for that option. Similarly, photographers may continue to use Form VA to register an individual photograph or a collective work, although the Office strongly encourages applicants to use the online application rather than the paper form. 13 By contrast, applicants may continue to use the standard online application to register a photographic database, as long as they comply with the requirements for the pilot program. Photographers may continue to use the standard application to register photographs as part of a collective work. Likewise, photographers may continue to use the standard online application to register an individual photograph. E:\FR\FM\01DEP1.SGM 01DEP1 86648 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules If the rules proposed in the CA Rulemaking and in this proceeding both go into effect, applicants will be required to file an online application in order to correct or amplify a basic registration for works registered under the GRPPH and GRUPH options. If an applicant attempts to use a paper application, the Office will ask the applicant to resubmit the claim using the online form. As discussed in Section III.C.1 below, if the basic registration encompasses more than 750 photographs, multiple applications may need to be submitted to correct or amplify that registration. Applicants will not need to contact the Visual Arts Division in order to correct or amplify a basic registration for a group of photographs registered under GRPPH or GRUPH. This online-filing requirement will also apply when correcting or amplifying a basic registration for works registered under the pilot program for group registration option for photographic databases.14 Applicants will need to contact the Visual Arts Division before filing an application to correct or amplify a basic registration for a photographic database. This is due to the fact a supplementary registration for a photographic database will have to be submitted under the pilot program. As discussed in Section III.A.1, the Visual Arts Division closely monitors claims submitted under this program to ensure that applicants complete the online application in an appropriate manner. Comments concerning this proposal should be submitted as part of the CA Rulemaking, and should not be submitted as part of this rulemaking on group registration of photographs. jstallworth on DSK7TPTVN1PROD with PROPOSALS 3. Policy Considerations Supporting Online-Only Registration A substantial majority of the U.S. population has access to the internet,15 and the Office expects that most photographers will be able to use the electronic system.16 That said, the 14 Under the rule proposed in the CA Rulemaking, the online filing requirement for supplementary registrations will also apply to basic registrations for a single photograph, a collection of unpublished photographs, or a collective work that contains photographs. 15 The Pew Research Center found that 84% of adults use the internet, including 85% of the people in urban and suburban communities and 78% of the people in rural communities. Pew Research Center, Americans’ Internet Access: 2000–2015, at 2, 10 (June 26, 2015), available at http:// www.pewinternet.org/files/2015/06/2015-0626_internet-usage-across-demographicsdiscover_FINAL.pdf. 16 Approximately 94% of the claims submitted in fiscal year 2015 were filed through the electronic system, while 6% of the claims were submitted on a paper application. VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 Office recognizes that millions of Americans do not have broadband service, and that the Proposed Rule may impose a burden on photographers who fall within this segment of the population.17 Nevertheless, the Office believes that the benefits of requiring applicants to use the online application designated for GRPPH or GRUPH outweigh the potential burden on photographers who do not have direct access to the internet. As discussed above, the PPA and other organizations that represent photographers expressed support for online registration in a prior rulemaking. They stated that ‘‘only a tiny fraction of photographers (1% according to PPA member surveys)’’ register their works with the Office, in part, because the paper application takes too much time to complete. PPA, supra note 11, at 1. Thus, requiring applicants to use the online application will encourage broader participation in the registration process. If a photographer does not have broadband at home, at the home of a relative, friend, or neighbor, or at her place of employment, there are other options for registering large numbers of published or unpublished photographs. If the copyright owner has a tablet or laptop, she could complete and submit the online application at a coffee shop, a bookstore, or any other place where wi-fi or cellular service is available.18 She could log onto the electronic system at a public library or other institution that provides computers with internet 17 The Federal Communications Commission (‘‘FCC’’) reported that 17% of the population does not have access to a broadband service with connection speeds of twenty-five megabits per second (‘‘mbps’’) for downloads and three mbps for uploads. This figure includes 8% of the people who live in urban areas, 53% of the people in rural areas, and 63% of the people in U.S. territories and Tribal lands. Federal Communications Commission, 2015 Broadband Progress Report at 4 (Jan. 29, 2015), available at https://apps.fcc.gov/edocs_public/ attachmatch/FCC-15-10A1.pdf. 18 When filing an application for a supplementary registration there is no need to upload a copy of the work that is covered by the basic registration. Thus, applicants will be able to submit these types of claims with a tablet or other wi-fi enabled device. In some cases, the registration specialist may need to compare the information provided in the application for supplementary registration with the copy of the work that was submitted with the application for the basic registration. For instance, this may be necessary if the supplementary registration changes the publication status of the work or adds additional authors to the registration record. If the Office does not have a copy of the work in its possession, the registration specialist may ask the applicant to submit a replacement copy. See Compendium section 1802.9(C). But in all cases, the replacement copy could be sent by first class mail, courier, or hand delivery; the copy does not need to be uploaded to the electronic system (though this would be an option if the applicant has broadband service). PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 access. Although the photographer would have to submit the application through the electronic system and pay the filing fee through a secure Web site (www.pay.gov), she would not necessarily have to submit her photographs over the internet. As discussed in Section III.D.1.c, the photographer could save her photographs onto a flash drive or other storage device and mail it to the Office with the required shipping slip that is generated by the electronic registration system. In the alternative, the photographer could hire an attorney to submit the application on her behalf, either by paying for the attorney’s services or by obtaining pro bono representation.19 The Office also notes that a number of companies will prepare an application and file it with the Office for a fee. These companies typically provide this service for copyright owners who wish to register a single work, but they could conceivably expand their offering to include groups of photographs. The Office’s decision to offer a group option for photographers is entirely discretionary, and Congress gave the Office broad authority to set the requirements for these types of claims. 17 U.S.C. 408(c)(1). For the foregoing reasons, the Office believes that requiring applicants to submit an online application as a condition for seeking a group registration for a group of photographs is a reasonable trade-off for improving the overall efficiency of the group registration process. Nonetheless, the Office invites comment on this aspect of the Proposed Rule. B. Filing Fee for GRPPH and GRUPH The filing fee for registering groups of published or unpublished photographs will be $55, which is the amount the Office currently charges for a group of published photographs submitted with an online application under the pilot program.20 37 CFR 201.3(c)(3)(i). In 2012 the Office conducted a study pursuant to section 708 of the Copyright Act, which authorizes the Register to establish, adjust, and recover fees for certain services that the Office provides 19 The Office does not require applications to be prepared or submitted by an attorney. In certain special cases the Office may suggest that the copyright owner consider seeking legal advice, but the Office does not furnish the names of copyright attorneys, publishers, agents, or other similar information. See 37 CFR 201.2(a)(2). 20 Likewise, the filing fee for registering a photographic database will remain unchanged. Applicants will continue to pay $55 if the claim is submitted with an online application under the pilot program, and will continue to pay $65 if the claim is submitted with a paper application on Form VA. 37 CFR 201.3(c)(3). E:\FR\FM\01DEP1.SGM 01DEP1 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS to the public. Initially, the Office proposed to increase the filing fee for a group of published photographs, but after weighing the concerns expressed by photographers the Office decided to keep the fee for submitting an online application under the pilot program at $55 and the fee for submitting a paper application at $65. The Office noted that photographers ‘‘expressed significant concern about the impact of fees on their ability to protect their works,’’ given ‘‘the number of works they produce and must register in order to receive the full range of judicial remedies for infringement.’’ U.S. Copyright Office, Proposed Schedule and Analysis of Copyright Fees To Go Into Effect On Or About April 1, 2014, at 15 (Nov. 14, 2013), available at http:// www.copyright.gov/docs/newfees/ USCOFeeStudy-Nov13.pdf. Section 708(b) authorizes the Register to adjust the fees that the Office charges for certain services (including the fee for seeking a group registration), but before doing so the Register must conduct a study of the costs incurred by the Office for registering claims, recording documents, and providing other services. In conducting this study, the Register must consider the timing of any fee adjustments and the Office’s authority to use the fees consistent with its budget. 17 U.S.C. 708(b)(1). Section 708(b) provides that the Register may adjust these fees no ‘‘more than that necessary to cover the reasonable costs incurred by the Copyright Office for . . . [such services], plus a reasonable inflation adjustment to account for any estimated increase in costs.’’ 17 U.S.C. 708(b)(2). It also provides that the Office must submit a proposed fee schedule to Congress and that the Office may implement the schedule 120 days thereafter (unless Congress enacts a law stating that it does not approve the schedule). 17 U.S.C. 708(b)(5). Once the Proposed Rule has been implemented, the Office will monitor the cost of processing groups of published and unpublished photographs to determine if future fee adjustments may be warranted. The Office will use this information in conducting its next fee study. C. Eligibility Requirements for GRPPH and GRUPH This section discusses the eligibility requirements for the group option for published photographs and the group option for unpublished photographs. Applicants that fail to satisfy these requirements will not be permitted to use these options. VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 1. Photographs That May Be Included in the Group Among the key requirements of the Proposed Rule are that all the works in the group must be photographs, the group must contain no more than 750 photographs, and the applicant must specify the total number of photographs that are included in the group. These requirements must be satisfied, regardless of whether the applicant uses the group option for published or unpublished photographs. This represents a change in policy. Under the current regulation, applicants may register a group of published photographs by submitting a paper application on Form VA and may use Form GR/PPh/CON to provide titles, publication dates, and other pertinent information for each photograph. Completing Form GR/PPh/CON is optional, although it does provide certain advantages. See Compendium section 1116.2. When using Form GR/ PPh/CON, the applicant may only include up to 750 photographs in each group. By contrast, if the applicant uses any other method for submitting a group of published photographs—such as completing the standard online application under the pilot program or submitting a paper application on Form VA without completing Form GR/PPh/ CON—there is no limit on the number of photographs that may be included in the group. Likewise, when an applicant submits a number of photographs as an unpublished collection under § 202.3(b)(4)(i)(B), there is no limit on the number of photographs that may be included in the claim (regardless of whether the applicant submits the claim through the electronic system or with a paper application). The Office recognizes that photographers are prolific creators. A photographer may take dozens or even hundreds of copyrightable images in a single session and thousands of images over the course of a week, a month, or a year. The Office created a group option for photographs, in part, because it is unrealistic and cost-prohibitive to expect photographers to register all of their images on an individual basis. At the same time, the Office recognizes that an effective public record must provide sufficient information about each claim. Photographers who register their works in a timely manner may be entitled to claim statutory damages in an infringement action and the granularity of the public record is critical to that determination. Given resource limitations and the modest filing fee for this group option, the Office must impose some limit on PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 86649 the total number of photographs that may be submitted under the group option for published photographs and the new option for unpublished photographs. Based on its experience with Form GR/PPh/CON, the Office has determined that a limit of 750 photographs strikes an appropriate balance between the interests of photographers and the administrative capabilities of the Office. To ensure that applicants do not attempt to circumvent the 750photograph limit the Office proposes to eliminate the pilot program that allows applicants to submit groups of published photographs with the standard online application.21 If an applicant submits more than 750 photographs or fails to use the online application designated for GRPPH, the Office will ask the applicant to resubmit the claim using the appropriate application and will ask the applicant to limit the claim to no more than 750 photographs. For the same reason, the Office will no longer register a group of unpublished photographs as an unpublished collection. If an applicant submits more than 750 photographs or fails to use the online application designated for GRUPH, the Office will ask the applicant to resubmit the claim using the appropriate application and will ask the applicant to limit the number of photographs in the group. The limit on the number of photographs, in turn, will affect the procedure for correcting or amplifying a basic registration for a group of published photographs. As noted in Section III.A.2, the rule proposed in the CA rulemaking will require applicants to file an online application in order to seek a supplementary registration for a group of photographs. If the basic registration covers 750 photographs or fewer, the applicant will be able to correct or amplify the registration record with a single supplementary registration submitted through the online system. But if the basic registration was issued before the Proposed Rule goes into effect, and if that registration covers more than 750 photographs, multiple supplementary registrations may be needed to correct or amplify the record for those works. 2. Authorship and Ownership Another key requirement is that all the photographs in the group must be taken by the same photographer. 21 The Proposed Rule only eliminates the pilot program for GRPPH. As discussed in Section III.A.1, the pilot program for photographic databases will remain in effect for the time being. E:\FR\FM\01DEP1.SGM 01DEP1 86650 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS Applicants will not be allowed to submit groups of photographs taken by different photographers (e.g., 300 photographs by Raul Martinez, 300 photographs by Jose Rodriguez, and 150 photographs by Diego Hernandez). Likewise, the Office will not accept applications claiming that two or more individuals jointly created each photograph in the group as a joint work.22 These requirements are consistent with the regulation that currently governs GRPPH. See 37 CFR 202.3(b)(10)(ii). In all cases, the claim will be limited to ‘‘photographs’’ and that term will be added automatically to the application by the electronic system. The system will not accept claims in ‘‘digital editing,’’ ‘‘compilation,’’ or any other form of authorship other than ‘‘photographs.’’ 23 Likewise, the Office will not allow applicants to add other forms of authorship to the claim during the examination process or with a supplementary registration. In all cases, the copyright claimant for each photograph must be the same person or organization.24 Specifically, the claimant must be the author of all the photographs in the group, or the copyright owner that owns all the exclusive rights in those photographs.25 Applicants will be allowed to register a group of photographs if the claimant obtained all the exclusive rights in those works through a transfer of ownership. Likewise, applicants will be allowed to register a group of photographs as works made for hire (i) if all the photographs are identified in the application as works made for hire, (ii) if all the photographs were created by the same 22 Joint authors will not be able to use GRPPH or GRUPH. The Office is willing to entertain these types of claims if the applicant submits a separate application for each individual photograph (i.e., not using the group option) and provides a sufficient basis for the claim of joint authorship. 23 To assert a claim in ‘‘digital editing’’ applicants may submit a separate application and a separate filing fee for each photograph (rather than submitting a group of photographs under GRPPH or GRUPH). In appropriate cases, applicants may assert a claim in a ‘‘compilation’’ of photographs by registering them as part of a collective work, such as a book of photographs, an exhibition catalog, a calendar, or the like. 24 This requirement appears in the current regulation governing groups of published photographs. 37 CFR 202.3(b)(10)(i). 25 The term ‘‘claimant’’ is defined in § 202.3(a)(3)(iii) of the regulations. That provision contains a footnote stating that a person or organization that has obtained ‘‘the contractual right to claim legal title to the copyright’’ may be named as claimant. 37 CFR 202.3(a)(3)(ii) n.1. The Office proposed to eliminate this footnote in a prior rulemaking. See Registration of Copyright: Definition of Claimant, 77 FR 29257, 29259 (May 17, 2012). The Office expects to issue a final rule in that proceeding before the new regulations governing GRPPH and GRUPH go into effect. VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 individual for the same employer, and (iii) if the photographer and the employer are both listed in the name of author field (e.g., ‘‘Advertising Agency LLC, employer for hire of John Smith’’).26 However, the Office will not allow applicants to combine works made for hire with works obtained through a transfer of ownership. Similarly, the electronic system will not allow works created by one photographer to be combined with works created by a different photographer (even if those works are owned by the same claimant). For example, if an advertising agency acquired a group of photographs from a particular photographer through an assignment of copyright and acquired another group of photographs taken by the same photographer through a work made for hire agreement, the agency could register those photographs under GRPPH or GRUPH only by separating the photographs into two groups and submit a separate application for each group (i.e., one application with the work made for hire question answered ‘‘yes’’ and the other with the question answered ‘‘no’’). Likewise, if the agency hired five freelancers to take photographs pursuant to a work made for hire agreement, the agency should separate the photographs into five separate groups (i.e., one group for each photographer) and submit a separate application for each group. 3. Publication and Titles The group options for published and unpublished photographs are designed to be mutually exclusive of each other. Under the Proposed Rule, an applicant will be allowed to register a group of unpublished photographs if all the photographs are unpublished, and will be allowed to register a group of published photographs if all the photographs are published. Applicants will not be allowed to combine published and unpublished photographs in the same claim. In addition, in the case of published photographs, all the works must be published within the same nation and within the same calendar year (e.g., January 1 through December 31, 2016).27 When completing the online application, applicants will be asked to verify this information by providing the earliest date and the most recent date 26 This requirement appears in the current regulation governing groups of published photographs. 37 CFR 202.3(b)(10)(ix). 27 The current regulation governing GRPPH states that the photographs must be published within the same calendar year, but does not indicate whether the photographs must be published within the same nation. 37 CFR 202.3(b)(10)(iii). PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 that photographs were published during the year. To register a group of published or unpublished photographs, applicants will be required to provide a title for the group as a whole, and will be required to include this information in the online application itself. For example, the applicant may provide a title that identifies the photographer and the month/year that the photographs were created, such as ‘‘Jack Jackson’s photos May through July 2016,’’ or one that identifies the subject matter of the photographs, such as ‘‘Tropical Images from Hawaii.’’ In addition to this basic information about the group of photographs, applicants will be required to submit a separate document in Excel format (‘‘.xls’’), Portable Document Format (‘‘PDF’’), or other electronic format that may be specifically approved by the Office that contains a sequentially numbered 28 list with a title, file name (matching the file name of the corresponding deposit copy), and in the case of GRPPH, the month and year of publication 29 (e.g., ‘‘January 2016,’’ ‘‘February 2016,’’ etc.) for each photograph in the group.30 This list must be submitted together with the copies of the photographs, by uploading them through the electronic system or by sending them on a physical storage device. The specific requirements of this list are discussed below. In addition, applicants will be encouraged—but not required—to provide title and publication information in the online application itself. The Office will provide instructions on its Web site that will explain how to copy this information from the numbered list into the appropriate fields in the online application. Although applicants will not be required to provide title and publication information in the online application, there are certain advantages to doing so. 28 Each entry on the list must be sequentially numbered (i.e., 1, 2, 3, etc.); these numbers can be entered automatically with most spreadsheet programs. The Office will use this information to count the number of photographs that are included in the deposit, and to ensure that it matches the number of photographs claimed in the application. 29 Applicants will not be required to provide a precise date of publication for each photograph in the group (i.e., month, day, and year). This represents a change in the current policy for registering a group of published photographs. Under the current regulation for GRPPH, applicants generally are required to provide a month, day, and year of publication for each photograph, although they may provide a range of dates if the application is received within three months after the first date of publication specified in the application. 30 The specific requirements for the numbered list are discussed below in Section III.D.1.b. E:\FR\FM\01DEP1.SGM 01DEP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules If the applicant includes the titles in the online application, they will appear on the certificate of registration and in the Office’s online database. This will improve the quality of the registration record by making the information more accessible to the public. If this information appears on the certificate, and if the certificate is issued within five years after the publication of a particular photograph, the certificate will create a legal presumption that the work was published in the month and year specified on the certificate. See 17 U.S.C. 410(c). By contrast, if the applicant provides title and publication information in the numbered list, but does not include that information in the online application itself, the titles and publication dates will not appear on the certificate of registration or the Office’s online database (although the Office will keep a copy of the numbered list in its files). In such cases, the Office will add an annotation to the record, such as ‘‘Regarding title: deposit contains complete list of titles that correspond to the individual photographs included in this group.’’ In comments regarding the Office’s pilot program for electronic registration of photographs, the PPA and other organizations stated that photographers struggle with the definition of ‘‘publication’’ and ‘‘the public,’’ and find it difficult to determine whether their works are published or unpublished, particularly when they are distributed in digital form. PPA, supra note 11, at 2–3. They explained that their members are reluctant to register their works, in part, because they worry about the possible consequences of classifying an unpublished photograph as a published work (or vice versa). They asked the Office to address this ‘‘barrier to registration’’ by providing clarification and guidance on these issues. Id. at 3. The new group option for unpublished photographs will help mitigate this problem by encouraging early registration. The Office strongly encourages photographers to register their works before they are published (i.e., before any distributions have occurred), because this avoids much of the confusion concerning publication and the treatment of published works. The new group option supports this objective by giving photographers a convenient and cost-effective means for registering their photographs before they are distributed to the public. In addition, the Office released a comprehensive revision of the Compendium in 2014, which sets forth and explains key administrative duties VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 of the Copyright Office under title 17 of the United States Code. See 79 FR 78911, 78911–12 (Dec. 31, 2014). Among other improvements, the Compendium contains an entire chapter on publication. This chapter provides a detailed discussion of the definition of ‘‘publication’’ and ‘‘the public’’ and specific examples of how the Office applies these definitions to photographs and other types of works. See generally Compendium, chapter 1900. The Compendium provides guidance on how to determine whether a work is published or unpublished when it is posted on the internet or distributed online. See id. section 1008.3. It also explains how to correct an error in a registration if the applicant mistakenly claims that the work was published or unpublished. See id. sections 1802.6(I), 1802.7(C). In the future, the Office intends to develop a portal on its Web site that will provide photographers with pertinent information on a wide range of copyright issues. In developing these resources it would be helpful to learn more about the specific methods that photographers use to distribute their works to their customers and the general public. The Office previously asked for written comments on this issue in the Visual Works Inquiry, and it welcomes additional input as part of this rulemaking. D. The Deposit Requirement The Proposed Rule will modify the deposit requirements for the group option for published photographs and the group option for photographic databases, and it will establish similar requirements for the new option for unpublished photographs. These requirements are summarized below.31 1. Deposit Requirements for GRPPH and GRUPH a. Digital Photographs Under the Proposed Rule, applicants will be required to submit a digital copy of each photograph that is included in a group of published photographs 31 The rule proposed in the GRCP Rulemaking will modify the deposit requirements for registering a group of contributions to periodicals in some respects. By contrast, the Office is not proposing to make any changes to the deposit requirements for an individual photograph or a collective work, such as a calendar or a book of photographs. To register an individual photograph, the applicant should submit two complete copies of the best edition if the photograph has been published in the United States or one complete copy if the photograph is unpublished. To register a collective work, the applicant should submit one complete copy of the collective work (if it is unpublished) or two complete copies of the best edition (if the work has been published in the United States). See generally Compendium, chapter 1500. PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 86651 (GRPPH) or a group of unpublished photographs (GRUPH). Applicants will be required to submit each photograph in one of the following formats: JPEG, GIF, TIFF, or PCD. The Office will no longer accept physical copies, such as prints, contact sheets, slides, photocopies, videotapes, or clippings from a newspaper, magazine, or other publication. This should not impose a significant burden on photographers because it appears that the vast majority of them use digital cameras. b. Numbered List of Photographs In addition, as noted above, applicants will be required to submit a separate document containing a sequentially numbered list that identifies the title and file name—and in the case of published photographs, the month and year of publication—for each photograph in the group. The Office will provide a template on its Web site that may be used to prepare this list. The title and file name for a particular photograph may be the same, and may consist solely of numbers, letters, and spaces that were automatically assigned by the camera or a unique identifier that has been assigned to the image by a third party, such as the PLUS Registry. As noted above, the file names specified in the list must match the corresponding file names in the deposit copy. However, the file name should not contain slashes or any other form of punctuation. Including punctuation marks in the file name (other than spaces) may cause a system error that may prevent the Office from viewing the photographs. The Office also discourages applicants from stating ‘‘Untitled,’’ ‘‘No Title,’’ or the like, because interested parties typically search for works by title and it may be impossible to locate a particular photograph unless a meaningful title has been provided. The Office will use the list to examine and document the claim, particularly in cases where the applicant does not provide title or publication information in the online application itself. In addition, the Office may use the list to locate and retrieve the deposit in the event it is needed for litigation or other legitimate purposes. For these reasons, the titles and file names specified in the list must correspond to the titles and files names for the actual photographs that are included in the deposit. In this respect, the Proposed Rule builds upon a suggestion that the Digital Media E:\FR\FM\01DEP1.SGM 01DEP1 86652 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules Licensing Association (‘‘DMLA’’) offered in a prior rulemaking.32 The list must be contained in an electronic file in Excel format (‘‘.xls’’), Portable Document Format (‘‘PDF’’), or other electronic format that may be specifically approved by the Office. The file name for the list must include the title of the group as a whole and the eleven-digit case number that is automatically assigned to the application by the electronic system (e.g., ’’ [Title of Group] Case Number 12345678910’’). The Office will provide further guidance regarding the preferred format and naming conventions for these file names on its Web site and in Chapter 1100 of the Compendium. When completing the online application, applicants will be asked to provide the file name for this document in the application itself. This will help the Office connect the numbered list with the relevant application, and to distinguish it from the files that contain the digital photographs. jstallworth on DSK7TPTVN1PROD with PROPOSALS c. Procedure for Submitting the Digital Photographs and the Numbered List of Photographs Applicants will be required to submit the files containing the digital photographs together with the file that contains the sequentially numbered list of photographs. Applicants may upload these files through the electronic system. Alternatively, they may save them onto a physical storage device, such as a flash drive or a CD–R or DVD– R, and send it to the Office by mail, by courier, or by hand delivery together with the required shipping slip. When submitting files through the electronic system, applicants will be strongly encouraged to save them in a .zip file and then upload the .zip file to the system. In all cases, the size of each uploaded file must not exceed 500 megabytes, although the applicant may digitally compress the photographs to comply with this limitation. When submitting files on a flash drive or other storage device, applicants must send that device in the same package with the shipping slip that is generated by the electronic system. If the applicant fails to include the required shipping slip, the Office may be unable to connect the storage device with the appropriate application. In such cases, 32 DMLA was previously known as the Picture Archive Council of America (‘‘PACA’’). In a prior rulemaking, it stated that works deposited with the Office should be accessible upon request so that parties can easily determine whether a particular photograph is covered by a particular registration. PACA at 1, available at http://copyright.gov/ rulemaking/databases/comments/picture-archivecouncil-of-america.pdf. VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 the applicant will be required to pay an additional fee to search for the deposit and connect it with the application. If the deposit cannot be located, the applicant will be required to resubmit the storage device, which may change the effective date of registration for the claim. Packages that are delivered to the Office by mail or by courier will be irradiated to destroy possible contaminants, such as anthrax. This process may damage files stored on electronic media. To avoid this result, applicants will be strongly encouraged to send physical storage devices to the Office in boxes rather than envelopes. Additional information concerning the recommended procedure for delivering physical deposits by mail or by courier will be provided in the Compendium. 2. Deposit Requirements for Photographic Databases The Proposed Rule will impose the same deposit requirements on a database that consists predominantly of photographs. Specifically, database owners will be required to submit a digital copy of each photograph that is included in the claim, and a separate document containing a sequentially numbered list that identifies the title and file name—and in the case of published photographs, the month and year of publication—for each photograph.33 Database owners will be required to submit digital copies, regardless of whether they intend to file an online application under the pilot program (in which case the photographs and the numbered list may be uploaded to the electronic system or submitted on a physical storage device with the required shipping slip) or a paper application (in which case the photographs and the numbered list may be submitted on a physical storage device together with Form VA).34 E. When should a group registration be filed? An application for a group registration may be filed at any time. However, a photograph must be registered in a timely manner to seek statutory damages and attorney’s fees in an infringement action. Specifically, a copyright owner typically may seek these remedies if a photograph was registered (i) before the infringement 33 As discussed in Section III.D.1.b, the Office will provide a standard template that may be used to prepare the numbered list of photographs. 34 When submitting an online application the storage device must be accompanied by the shipping slip that is generated by the electronic system. When submitting a paper application, the device must be accompanied by Form VA. PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 commenced or (ii) within three months after the first publication of that work. See 17 U.S.C. 412. In the case of unpublished photographs, the Office strongly encourages photographers to register their works before sharing them with any other party. By doing so, photographers preserve the ability to seek statutory damages and attorney’s fees in subsequent infringement disputes involving those works. In the case of published photographs, the Office encourages photographers to submit their claims every three months (instead of filing on an annual or semiannual basis), and in each case, to file the claim within three months after the earliest date of publication specified in the application. For example, if a photographer first published his or her photographs on June 1, 2016, it would be advisable to submit a complete application, deposit, and filing fee on or before September 1, 2016. By doing so, the photographer would preserve his or her ability to seek statutory damages and attorney’s fees for any infringements that began after the effective date of registration (i.e., after September 1, 2016), as well as any infringements that occurred within three months after the date of publication (i.e., between June 1, 2016 and September 1, 2016). F. The Scope of a Group Registration The Proposed Rule memorializes the Office’s longstanding position regarding the scope of a registration for a group of published photographs, and it confirms that the Office will take the same position regarding the group option for unpublished photographs. When the Office issues a group registration, it prepares one certificate of registration for the entire group and assigns one registration number to that certificate. The Proposed Rule clarifies that a registration for a group of published or unpublished photographs covers each photograph in the group, and that each photograph is registered as a separate ‘‘work.’’ This understanding is consistent with the statutory scheme. The legislative history makes clear that group registration was ‘‘a needed and important liberalization of the law [then] in effect,’’ which to that point had required ‘‘separate registrations where related works or parts of a work are published separately.’’ H.R. Rep. No. 94–1476, at 154 (1976). In particular, Congress noted that ‘‘the technical necessity for separate applications and fees has caused copyright owners to forego copyright altogether.’’ Id. Given that context, it would be anomalous for works E:\FR\FM\01DEP1.SGM 01DEP1 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules jstallworth on DSK7TPTVN1PROD with PROPOSALS registered as part of a group registration application to be given less protection than if they had been registered through separate applications. For similar reasons, the Proposed Rule also clarifies that when a group of photographs is registered under GRPPH or GRUPH, the group as a whole is not considered a compilation or a collective work under sections 101, 103(b), or 504(c)(1) of the Copyright Act. The group is merely an administrative classification created solely for the purpose of registering multiple photographs with one application and one filing fee. See 17 U.S.C. 408(c)(1) (‘‘Th[e] administrative classification of works has no significance with respect to the subject matter of copyright or the exclusive rights provided by this title.’’). Although an applicant may exercise some judgment in selecting the photographs that are included within a particular group, that decision does not necessarily constitute copyrightable authorship. Instead, the selection is based on the regulatory requirements for these group options, and any coordination or arrangement of the photographs is merely an administrative formality that facilitates the examination of the works. Likewise, the Proposed Rule clarifies that the group is not considered a derivative work under sections 101, 103(b), or 504(c)(1) of the Copyright Act. When a group of photographs is compiled for the purpose of facilitating registration, those works are not ‘‘recast, transformed, or adapted’’ in any way, and the group as a whole is not ‘‘a work based upon one or more preexisting works’’ because there is no copyrightable authorship in simply following the administrative requirements for GRPPH or GRUPH. 17 U.S.C. 101 (definition of ‘‘derivative work’’). G. Group Registration of Published and Unpublished Photographs Distinguished From Other Registration Options This section discusses the key differences between the options for registering a group of published or unpublished photographs as compared to the options for registering an unpublished collection, a group of contributions to periodicals, a photographic database, or a collective work. 1. Group Registration of Unpublished Photographs vs. Unpublished Collections The group option for unpublished photographs is intended to replace the option that currently allows an applicant to register a number of VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 photographs as an unpublished collection. Once the Proposed Rule goes into effect, the Office will no longer accept an application to register photographs under § 202.3(b)(4)(i)(B) of the regulations, regardless of whether the photographs are submitted with a standard application or a paper application (although the Office will continue to accept applications to register other types of works under this provision). As explained, the GRUPH option provides a more efficient mechanism for capturing information about photographs, and incorporating that information into the public record. Requiring applicants to use this option may also provide photographers with certain legal benefits. When an applicant submits photographs via the unpublished collection option, and asserts a claim in both the individual photographs as well as the selection and arrangement of the collection as whole, the Office will register the claim as an unpublished collective work, rather than an unpublished collection. A collective work is—by definition—a form of compilation. 17 U.S.C. 101 (‘‘The term ‘compilation’ includes collective works.’’). Section 504(c)(1) of the Copyright Act states that a copyright owner may be entitled to recover ‘‘an award of statutory damages for all infringements involved in [an infringement] action, with respect to any one work,’’ but ‘‘[f]or the purposes of this subsection, all the parts of a compilation . . . constitute one work.’’ 17 U.S.C. 504(c)(1). In other words, when a number of photographs are registered as an unpublished collective work, the copyright owner would be entitled to seek only one award of statutory damages in an infringement action, rather than a separate award for each photograph. In contrast, as noted above in Section III.F, when a number of photographs are registered under the GRUPH option, each photograph is registered as a separate work. For purposes of registration, the group as a whole is not considered a collective work or compilation, and thus, the individual photographs within the group would not be subject to the limitation on statutory damages set forth in section 504(c)(1). Instead, a registration for a group of unpublished photographs is treated as a separate registration for each photograph that is included within the group. PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 86653 2. Group Registration of Published Photographs vs. Group Registration for Contributions to Periodicals The group option for published photographs is not intended to alter or replace the group option for contributions to periodicals. Photographers may continue to register their works as a group of published photographs or a group of contributions to periodicals, as long as they satisfy the relevant requirements for each option. There are some notable differences between these registration options. While a group of published photographs may include no more than 750 images, there is no limit on the number of photographs that may be included within a group of contributions to periodicals. Moreover, a group of published photographs may include photographs that were published during the same calendar year, while a group of contributions to periodicals may include photographs that were published over a twelve-month period— even if that period extends from one calendar year to the next (e.g., September 1, 2015 through August 31, 2016). In addition, to be eligible for GRPPH, the photographs may be published in any manner, but there is no need to specify the medium of publication and no need to submit the photographs in the specific form in which they were first published. To be eligible for GRCP, the photographs must be first published in a periodical (e.g., a newspaper, a magazine, etc.), the applicant must provide pertinent information about each periodical (e.g., title, issue number, publication date, etc.), and the applicant must submit a copy of the photographs as they appeared in each publication (e.g., a copy of the entire periodical, a copy of an entire section from a newspaper, etc.). The Office generally encourages applicants to use GRPPH, in part, because the deposit requirements for published photographs are more flexible than the deposit requirements for GRCP. Regardless of whether the applicant uses GRPPH or GRCP, the registration will cover all the photographs that are included within the group. 3. Group Registration of Photographs vs. Group Registration for Photographic Databases As noted above, the Proposed Rule makes certain modifications to the deposit requirement for databases that predominantly consist of photographs. The Proposed Rule will not change any of the other requirements for these types E:\FR\FM\01DEP1.SGM 01DEP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS 86654 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules of claims. See 37 CFR 202.3(b)(5); 202.20(c)(2)(vii)(D)(8). Although the Office will continue to accept these claims, the Office strongly encourages photographers, stock photography companies, database providers, and other interested parties to register their works with the group option for published or unpublished photographs—rather than the database option—for several reasons. Many photography Web sites and catalogs do not qualify as a database, and therefore, are not eligible for the group option for photographic databases. For purposes of registration, a database is defined ‘‘as a compilation of digital information comprised of data, information, abstracts, images, maps, music, sound recordings, video, other digitized material, or references to a particular subject or subjects. In all cases, the content of a database must be arranged in a systematic manner, and it must be accessed solely by means of an integrated information retrieval program or system with the following characteristics.’’ Compendium section 1117.1. First, ‘‘a query function must be used to access the content.’’ Id. Second, ‘‘[t]he information retrieval program or system must yield a subset of the content, or it must organize the content based on the parameters specified in each query.’’ Id. Stock photography Web sites or catalogs that merely display photographs do not satisfy these requirements and therefore are not considered databases for the purpose of registration. In most cases, users may access all the content on a Web site or in a catalog by scrolling or browsing through the individual images or categories of related images. Id. section 1002.6. By contrast, users cannot access the content of a database in its entirety. Id. Instead, they must use a query function to identify specific content within the database, and they must use an information retrieval system to extract the content that matches the user’s search criteria. Id. While a user may view the entire content of a Web site or catalog, a user may view the content of a database only to the extent that it matches a particular query that the user entered into the information retrieval system. Id. While some Web sites may provide a search feature that may be used to locate particular images or categories of images, these types of features do not qualify as an information retrieval system nor do they transform an ordinary Web site into a database, because these features are not the sole means for accessing the images posted on the site. See id. If the Office determines that a particular Web site, VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 catalog, or other work does not qualify as a database, the Office will refuse to register the work as a database or as a group of updates or revisions to a photographic database. Copyright owners also should consider the following issue before registering their photographs as part of a photographic database. As noted above in Section III.G.1, the Copyright Act states that a copyright owner may be entitled to recover ‘‘an award of statutory damages for all infringements involved in [an infringement] action, with respect to any one work,’’ but ‘‘[f]or the purposes of this subsection, all the parts of a compilation . . . constitute one work.’’ 17 U.S.C. 504(c)(1). A database is—by definition— a compilation. See Alaska Stock, LLC v. Houghton Mifflin Harcourt Publishing Co., 747 F.3d 673, 676 (9th Cir. 2014) (concluding that a photographic database is a collective work); see also Compendium section 1117.1 (same). Consequently, when a group of photographs is registered as a database, the copyright owner may be entitled to seek only one award of statutory damages for the database as a whole— rather than a separate award for each photograph—even if the defendant infringed all the photographs that are covered by the registration. By contrast, when a copyright owner registers a group of photographs under GRPPH or GRUPH, the registration covers each photograph in the group, but the group itself is not a compilation within the meaning of the Copyright Act. Therefore, any claim for infringement would not be subject to the limitation set forth in Section 504(c)(1) of the Copyright Act. For these reasons, the group options for published and unpublished photographs provide significant benefits, while avoiding the potential downside of registering a number of works as part of a photographic database. 4. Group Registration of Photographs vs. Collective Works The Proposed Rule will not change the requirements for registering a number of photographs as part of a collective work, such as a book of photographs, a travel guide, or the like. Applicants may continue to register these types of works with a standard application submitted through the electronic system or with a paper application submitted on Form VA. Registration of photographs as part of a collective work differs in many respects from group registration of photographs. A registration for a collective work may include photographs taken by multiple PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 photographers (even if the photographers are not explicitly named in the application), and there is no limit on the number of photographs that may be included within each claim. If the claim is approved, the registration will cover the authorship involved in selecting, coordinating, and/or arranging the content of the collective work as a whole. It also may cover the individual photographs that appear in the collective work if the claimant owns the copyright in those images and the collective work as a whole, and if the photographs have not been previously published or registered. There are some drawbacks to registering photographs as a collective work. As discussed in Section III.G.1, a collective work is—by definition—a compilation. As such, these types of works are subject to the limitation set forth in section 504(c)(1) of the Copyright Act. When a number of photographs are registered as part of a collective work, the copyright owner may be entitled to receive only one award of statutory damages in an infringement action, even if the defendant infringed all the photographs that appear in that work (regardless of whether the collective work is published or unpublished). By contrast, when a group of photographs are registered under GRPPH or GRUPH, the copyright owner would not be subject to the collective-work limitation in section 504(c)(1). For this reason, photographers may wish to register their photographs under GRPPH or GRUPH, even if those works also may be eligible for registration as part of a collective work. H. Technical Amendments The Proposed Rule will move the regulation governing published photographs from § 202.3 to § 202.4.35 In the future, the Office intends to move all regulations governing the various group options that have been implemented under section 408(c) of the Copyright Act to § 202.4. This change is intended to improve the readability of the existing regulations, but it does not represent a substantive change in policy. In addition, the Proposed Rule incorporates the definitions of ‘‘claimant’’ and ‘‘Class VA’’ that are set forth in § 202.3, and it confirms that an application for a group of photographs may be submitted by any of the parties listed in § 202.3(c)(1), namely (i) the author or copyright claimant of those 35 The Office recently issued a notice of proposed rulemaking that would remove the current text of § 202.4 and reserve that section for later use. See Copyright Office Technical Amendments, 81 FR 67940, 67942 (Oct. 3, 2016). E:\FR\FM\01DEP1.SGM 01DEP1 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules works, (ii) the owner of any of the exclusive rights in those works, or (iii) a duly authorized agent of any author, claimant, or owner of exclusive rights. IV. Conclusion The Proposed Rule will allow broader participation in the registration system by expanding the class of works that may be registered as a group, increase the efficiency of the registration process, and create a more robust record of the claim. The Office invites public comment on these proposed changes. List of Subjects § 202.3 Registration of copyright. * * * * * (b) * * * (4) * * * (ii) In the case of an application for registration made under paragraphs (b)(4) through (b)(10) of this section or under § 202.4, the ‘‘year of creation,’’ ‘‘year of completion,’’ or ‘‘year in which creation of this work was completed,’’ means the latest year in which the creation of any copyrightable element was completed. * * * * * (c) * * * (2) * * * 37 CFR Part 201 Copyright, General provisions. 37 CFR Part 202 Copyright, Preregistration and registration of claims to copyright. Proposed Regulation For the reasons set forth in the preamble, the U.S. Copyright Office proposes amending 37 CFR parts 201 and 202, as follows: PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 is amended to read as follows: ■ Authority: 17 U.S.C. 702. 2. Amend § 201.3 by: a. Redesignating paragraphs (c)(3) through (18) as paragraphs (c)(4) through (19), respectively. ■ b. Adding new paragraph (c)(3). ■ c. Revising newly redesignated paragraph (c)(4). The revisions and additions to read as follows: ■ ■ jstallworth on DSK7TPTVN1PROD with PROPOSALS a. In paragraph (b)(3) removing the phrase ‘‘, subject to the limitations in paragraph (b)(10)(v) of this section’’ . ■ b. Revising paragraph (b)(4)(ii). ■ c. Removing and reserving paragraph (b)(10). ■ d. In the text of paragraph (c)(2), removing the reference to footnote ‘‘6’’ and adding in its place a reference to footnote ‘‘5’’. ■ e. In paragraph (c)(2), revising footnote 5. The revisions to read as follows: ■ 5 In the case of an application to register a group of newspapers, newsletters, contributions to periodicals, or photographs under paragraphs (b)(7) or (9) of this section or under § 202.4, the deposit shall comply with the respective requirements specified in those paragraphs. * ■ * * * * 6. Revise § 202.4 to read as follows: § 202.4 Group Registration. (a) This section prescribes conditions for issuing a registration for a group of related works under section 408(c) of § 201.3 Fees for registration, recordation, title 17 of the United States Code. and related services, special services, and (b) Definitions. For purposes of this services performed by the Licensing section, the terms copy and work made Division. for hire have the meanings set forth in * * * * * section 101 of title 17 of the United (c) * * * States Code, and the terms claimant and Class VA have the meanings set forth in (3) Registration of a claim in a group of § 202.3(a)(3) and (b)(1)(iii). published photographs or a claim in a (c) [Reserved] group of unpublished photographs ..... 55 (d) [Reserved] (4) Registration for a database that pre(e) [Reserved] dominantly consists of photographs (f) [Reserved] and updates thereto:. (g) [Reserved] (i) Electronic filing ................................... 55 (ii) Paper filing ........................................ 65 (h) [Reserved] (i) Group registration of unpublished * * * * * photographs. Pursuant to the authority granted by 17 U.S.C. 408(c)(1), the PART 202—PREREGISTRATION AND Register of Copyrights has determined REGISTRATION OF CLAIMS TO that a group of unpublished COPYRIGHT photographs may be registered in Class VA with one application, one filing fee, ■ 3. The authority citation for part 202 and the required deposit, if the continues to read as follows: following conditions are met: Authority: 17 U.S.C. 408(f), 702. (1) All the works in the group must be ■ 4. Amend § 202.3 by: photographs. VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 86655 (2) The group must include no more than 750 photographs, and the application must specify the total number of photographs that are included in the group. (3) All the photographs must be created by the same photographer. (4) The copyright claimant for all the photographs must be the same person or organization. (5) The photographs may be registered as works made for hire if all the photographs are identified in the application as such, if all the photographs were created by the same photographer for the same employer, and if the application identifies both the photographer and the employer in the name of author field (e.g., ‘‘ABC Corporation, employer for hire of John Doe’’). (6) All the photographs must be unpublished. (7) The applicant must provide a title for the group as a whole. (8) The applicant must complete and submit the online application designated for a group of unpublished photographs. (The Office will not register a group of unpublished photographs as an unpublished collection under § 202.3(b)(4)(i)(B).) The application may be submitted by any of the parties listed in § 202.3(c)(1). (9) The appropriate filing fee, as required by § 201.3(c) of this chapter, must be included with the application or charged to an active deposit account. (10) The applicant must submit one copy of each photograph in one of the following formats: JPEG, GIF, TIFF, or PCD. The file name for a particular photograph may consist of letters, numbers, and spaces, but the file name should not contain any other form of punctuation. The photographs may be uploaded to the electronic registration system together with the required numbered list, preferably in a .zip file containing all the photographs. The file size for each uploaded file must not exceed 500 megabytes; the photographs may be compressed to comply with this requirement. Alternatively, the photographs and the required numbered list may be saved on a physical storage device, such as a flash drive, CD–R, or DVD–R, and delivered to the Copyright Office together with the required shipping slip generated by the electronic registration system. (11) The applicant must submit a sequentially numbered list containing a title and file name for each photograph in the group (matching the corresponding file names for each photograph specified in paragraph (i)(10)). The title and file name for a particular photograph may be the same. E:\FR\FM\01DEP1.SGM 01DEP1 jstallworth on DSK7TPTVN1PROD with PROPOSALS 86656 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Proposed Rules The numbered list must be contained in an electronic file in Excel format (.xls), Portable Document Format (PDF), or other electronic format approved by the Office, and the file name for the list must contain the title of the group and the case number assigned to the application by the electronic registration system (e.g., ‘‘Title Of Group Case Number 16283927239.xls’’). (j) Group registration of published photographs. Pursuant to the authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has determined that a group of published photographs may be registered in Class VA with one application, one filing fee, and the required deposit, if the following conditions are met: (1) All the works in the group must be photographs. (2) The group must include no more than 750 photographs, and the application must specify the total number of photographs that are included in the group. (3) All the photographs must be created by the same photographer. (4) The copyright claimant for all the photographs must be the same person or organization. (5) The photographs may be registered as works made for hire if all the photographs are identified in the application as such, if all the photographs were created by the same photographer for the same employer, and if the application identifies both the photographer and the employer in the name of author field (e.g., ‘‘XYZ Corporation, employer for hire of Jane Doe’’). (6) All the photographs must be published within the same nation and within the same calendar year, and the applicant must specify the earliest and latest date that the photographs were published during the year. (7) The applicant must provide a title for the group as a whole. (8) The applicant must complete and submit the online application designated for a group of published photographs. The application may be submitted by any of the parties listed in § 202.3(c)(1). (9) The appropriate filing fee, as required by § 201.3(c) of this chapter, must be included with the application or charged to an active deposit account. (10) The applicant must submit one copy of each photograph in one of the following formats: JPEG, GIF, TIFF, or PCD. The file name for a particular photograph may consist of letters, numbers, and spaces, but the file name should not contain any other form of punctuation. The photographs may be uploaded to the electronic registration VerDate Sep<11>2014 13:51 Nov 30, 2016 Jkt 241001 system together with the required numbered list, preferably in a .zip file containing all the photographs. The file size for each uploaded file must not exceed 500 megabytes; the photographs may be compressed to comply with this requirement. Alternatively, the photographs and the required numbered list may be saved on a physical storage device, such as a flash drive, CD–R, or DVD–R, and delivered to the Copyright Office together with the required shipping slip generated by the electronic registration system. (11) The applicant must submit a sequentially numbered list containing the title, file name, and month and year of publication for each photograph in the group (matching the corresponding file names for each photograph specified in paragraph (j)(10)). The title and file name for a particular photograph may be the same. The numbered list must be contained in an electronic file in Excel format (.xls), Portable Document Format (PDF), or other electronic format approved by the Office, and the file name for the list must contain the title of the group and the case number assigned to the application by the electronic registration system (e.g., ‘‘Title Of Group Case Number 16283927239.xls’’). (k) [Reserved] (l) [Reserved] (m) [Reserved] (n) The scope of a group registration. When the Office issues a group registration under paragraphs (i) or (j) of this section, the registration covers each work in the group and each work is registered as a separate work. For purposes of registration, the group as a whole is not considered a compilation, a collective work, or a derivative work under sections 101, 103(b), or 504(c)(1) of title 17 of the United States Code. ■ 7. Amend § 202.20 by: ■ a. Revising paragraph (c)(2)(vii)(D)(8); and. ■ b. Removing paragraph (c)(2)(xx). The revision to read as follows: digital form in one of the following formats: JPEG, GIF, TIFF, or PCD. In addition, the applicant must submit a sequentially numbered list containing the title and file name—and if the photographs have been published, the month and year of publication—for each photograph in the group. The title and file name for a particular photograph may be the same and may consist of letters, numbers, and spaces, but the file name should not contain any other form of punctuation. The numbered list must be contained in an electronic file in Excel format (.xls), Portable Document Format (PDF), or other electronic format approved by the Office. The file name for the list must contain the title of the database, and the case number assigned to the application by the electronic registration system, if any (e.g., ‘‘Title Of Database Case Number 162883927239.xls’’). The photographs and the numbered list may be uploaded to the electronic registration system with the permission and under the direction of the Visual Arts Division, preferably in a .zip file containing these materials. The file size for each uploaded file must not exceed 500 megabytes; the photographs may be compressed to comply with this requirement. Alternatively, the photographs and the numbered list may be saved on a physical storage device, such as a flash drive, CD–R, or DVD–R, and delivered to the Copyright Office together with the required shipping slip generated by the electronic registration system or with a paper application submitted on Form VA. * * * * * Dated: November 22, 2016. Sarang V. Damle, General Counsel and Associate Register of Copyrights. [FR Doc. 2016–28706 Filed 11–30–16; 8:45 am] BILLING CODE 1410–30–P LIBRARY OF CONGRESS § 202.20 Deposit of copies and phonorecords for copyright registration. Copyright Office * 37 CFR Parts 201, 202 * * * * (c) * * * (2) * * * (vii) * * * (D) * * * (8) In the case of an application for registration of a database that consists predominantly of photographs (including a group registration for revised or updated versions of such a database), ‘‘identifying portions’’ shall instead consist of all individual photographs included in the claim. Photographs must be submitted in PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 [Docket No. 2016–9] Supplementary Registration U.S. Copyright Office, Library of Congress. ACTION: Notice of proposed rulemaking. AGENCY: The U.S. Copyright Office is proposing to amend the regulation governing supplementary registration to reflect certain technical upgrades that will soon be made to the electronic SUMMARY: E:\FR\FM\01DEP1.SGM 01DEP1

Agencies

[Federal Register Volume 81, Number 231 (Thursday, December 1, 2016)]
[Proposed Rules]
[Pages 86643-86656]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28706]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Parts 201, 202

[Docket No. 2016-10]


Group Registration of Photographs

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 update its 
regulations governing group registration options for photographers to 
encourage broader participation in the registration system, increase 
the efficiency of the registration process, and create a more robust 
record of the claim. First, the Office has created new online 
registration applications specifically designed for group registrations 
of published photographs and group registrations of unpublished 
photographs. The proposed rule would require applicants to use these 
online applications, in lieu of any existing paper application. 
Applicants will be allowed to include up to 750 photographs with each 
application. Second, the proposal would eliminate less-efficient forms 
of registering photographs that have been adopted over the years--
namely, the pilot program permitting group registration of published 
photographs using the electronic application designed for registering a 
single work, and the option of registering a number of unpublished 
photographs as an ``unpublished collection.'' The pilot program for 
photographic databases will remain in effect. Third, the proposed rule 
will update the deposit requirement for group registrations of 
photographs and photographic databases by requiring applicants to 
submit their works in digital form.

DATES: Comments on the proposed rule must be made in writing and must 
be received in the U.S. Copyright Office no later than January 3, 2017.

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 Web site 
at http://www.copyright.gov/rulemaking/group-photographs/. 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: Robert J. Kasunic, Associate Register 
of Copyrights and Director of Registration Policy and Practice, or Erik 
Bertin, Deputy Director of Registration Policy and Practice, at 202-
707-8040.

SUPPLEMENTARY INFORMATION: The U.S. Copyright Office (the ``Office'') 
is proposing to amend the regulation that

[[Page 86644]]

governs the group registration option for published photographs. In 
addition, the Office is proposing to create a new group registration 
option for unpublished photographs. Finally, the Office is proposing to 
amend the deposit requirements for groups of published photographs and 
photographic databases, and is proposing to establish similar deposit 
requirements for the new group option for unpublished photographs. 
These proposals are discussed in more detail below. The Office invites 
public comment on each proposal.
    Last year the Office issued a notice of inquiry concerning the 
practical and legal challenges faced by photographers, graphic artists, 
and illustrators (referred to herein as the ``Visual Works Inquiry'' 
\1\). See 80 FR 23054 (Apr. 24, 2015). The Office recognized that 
photographers, graphic artists, and illustrators have a broad impact on 
U.S. culture, but they face significant challenges in the digital age. 
To better understand these challenges, the Office requested written 
comments on how photographs, graphic artworks, and illustrations are 
monetized, licensed, registered, and enforced under the Copyright Act 
of 1976 (``the Copyright Act''). The Office sought information 
concerning the current marketplace for these types of works, as well as 
observations regarding the real or potential obstacles that these 
creators and their licensees or other representatives face when 
navigating the digital landscape. With respect to registration, the 
Office asked the public to identify the most significant challenges for 
photographers and other visual artists. 80 FR at 23056.
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    \1\ Information concerning the Visual Works Inquiry is available 
on the Office's Web site at http://copyright.gov/policy/visualworks/.
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    The Office received 2,795 comments and 166 reply comments in 
response to the Visual Works Inquiry. The Office has not attempted to 
address these comments in this notice of proposed rulemaking.\2\ The 
rule proposed in this notice focuses solely on photographs, and it 
represents an interim improvement to the current electronic 
registration system. In the future, the Office may consider other 
options as it assesses the broader concerns of visual artists 
generally.
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    \2\ In preparing this notice of proposed rulemaking the Office 
did consider comments submitted in a prior rulemaking concerning the 
deposit requirements for photographic databases, which was completed 
in July 2012. Information concerning that rulemaking is available on 
the Office's Web site at http://copyright.gov/rulemaking/databases/.
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I. Background

    When Congress enacted the Copyright Act, it authorized the Register 
of Copyrights (the ``Register'') to specify by regulation the 
administrative classes of works for the purpose of seeking a 
registration and the nature of the deposit required for each such 
class. In addition, Congress gave the Register the discretion to allow 
groups of related works to be registered with one application and one 
filing fee, a procedure known as ``group registration.'' See 17 U.S.C. 
408(c)(1). Pursuant to this authority, the Register issued regulations 
permitting the Office to issue group registrations for certain limited 
categories of works, provided that certain conditions have been met. 
See generally 37 CFR 202.3(b)(5)-(10).
    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.'' 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). 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, since copyright registration is not a prerequisite to 
copyright protection. Id. If copyright owners do not submit their works 
for registration under this permissive system, the public record will 
not contain any information concerning those works. This creates a void 
in the record that diminishes the value of the Office's database.
    Congress cited ``a group of photographs by one photographer'' as an 
example of a ``group of related works'' that would be suitable for 
registration under section 408(c)(1). Id. At the same time, when large 
numbers of works are bundled together in one application, information 
about the individual works may not be adequately captured. Therefore, 
group registration options require careful balancing of the need for an 
accurate public record and the need for an efficient method of 
facilitating the registration of multiple photographs.

II. Existing Registration Accommodations for Photographers

    Under the Copyright Office's existing regulations and registration 
practice, photographers have several options for registering groups or 
collections of photographs with one application and one filing fee. 
These options are summarized below.

A. Group Registration of Published Photographs

    After conducting an extensive rulemaking, the Office issued a 
regulation in 2001 that allows applicants to register a group of 
published photographs with one application and one filing fee. See 66 
FR 37142, 37149-50 (July 17, 2001). The Office refers to this procedure 
as the ``group option for published photographs'' or ``GRPPH.''
    An applicant may register a group of photographs under this 
procedure if all the photographs were taken by the same photographer 
and were published within the same calendar year, and if the copyright 
claimant for all the photographs is the same person or organization. 37 
CFR 202.3(b)(10)(i)-(iii). If the photographs were created as works 
made for hire, the application must provide both the name of the 
photographer and the name of the photographer's employer or the party 
who specially ordered or commissioned the photographs (e.g., ``ABC 
Corporation, employer for hire of John Doe''). Id. Sec.  
202.3(b)(10)(ix).
    As a general rule, the applicant must provide a precise date of 
publication for each photograph in the group (i.e., month, day, and 
year), either by providing the date on the application, on a 
continuation sheet submitted on Form GR/PPh/CON,\3\ on a separate list 
submitted on paper or in a text file, or on the photographs themselves 
(e.g., writing the date on the back of each print, including the date 
in the file name for each image, etc.). Id. Sec.  202.3(b)(10)(iv)(A)-
(D). Alternatively, the applicant may provide a range of dates (e.g., 
February 25, 2015 through May 25, 2015), but only if the photographs 
were published within three months before the date that the application 
is received in the Office. Id. Sec.  202.3(b)(10)(vi). If the applicant 
chooses to provide publication information on Form GR/PPh/CON, the 
applicant may include up to 750 photographs in the claim. Id. Sec.  
202.3(b)(10)(v). By contrast, if the applicant provides publication 
information using any other method, there is no limit on the number of 
photographs that may be submitted. Id. Sec.  202.3(b)(10)(v), (viii).
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    \3\ Form GR/PPh/CON is a continuation sheet for Form VA 
specifically designed for providing information for a group 
registration of published photographs.
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    Initially, all applicants were required to file their claims using 
a paper application submitted on Form VA. As discussed below in Section 
III.A.1, the Office has established a pilot program

[[Page 86645]]

that allows applicants to submit their claims through the electronic 
registration system. Id. Sec.  202.3(b)(10)(xi).
    In all cases, the applicant must submit one copy of each photograph 
that is included in the group, and all the photographs must be 
submitted in the same format. Id. Sec.  202.3(b)(10)(x). The applicant 
may submit the photographs in digital form by saving them on a CD-ROM 
or DVD-ROM in a JPEG, GIF, TIFF, or PCD format.\4\ Alternatively, the 
applicant may submit the photographs in a physical form, such as 
prints, contact sheets, slides, photocopies, or even videotape. Id. 
Sec.  202.20(c)(2)(xx)(B)-(H).
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    \4\ The regulation that currently governs the deposit 
requirements for GRPPH does not mention other types of storage 
devices, such as flash drives. 37 CFR 202.20(c)(2)(xx)(A).
---------------------------------------------------------------------------

B. Other Registration Options

    In addition to the group option for published photographs, there 
are four other options for registering multiple photographs with the 
same application. These options are summarized below.
1. Unpublished Collections
    Since 1978 the Office has allowed applicants to register a number 
of unpublished works with one application and one filing fee if the 
works qualify as an ``unpublished collection.'' To qualify for this 
option, the works must be unpublished, the works must have at least one 
common author, the copyright claimant for each work and the collection 
as a whole must be the same person or organization, the works must be 
assembled in an orderly form, and the applicant must provide a single 
title identifying the collection as a whole. Id. Sec.  
203.3(b)(4)(i)(B). Photographers may use this option to register their 
photographs if they satisfy these requirements, and at the present time 
there is no limit on the number of photographs that may be included 
within each collection. Under this option, the applicant may register 
the works using the electronic registration system or a paper 
application submitted on Form VA. Id. Sec.  202.3(b)(2).
    In all cases, the applicant must submit one copy of each photograph 
that is included in the collection. The applicant may submit the 
photographs in digital form (e.g., uploading digital files to the 
electronic registration system or mailing them to the Office on a CD-
ROM or DVD-ROM, etc.) or physical form (e.g., prints, slides, 
photocopies, etc.), but all of the photographs must be submitted in the 
same format. Id. Sec.  202.20(c)(2)(xx).
2. Group Registration for Contributions to Periodicals
    Without prejudice to the Register's general authority to create 
group registration options under Section 408(c)(2) at the Register's 
discretion, Congress also directed the Register to create a group 
option for works by the same individual author that were first 
published as a contribution to a periodical. 17 U.S.C. 408(c)(2). In 
response to this directive, the Office established a procedure known as 
the ``group option for contributions to periodicals'' or ``GRCP.'' See 
43 FR 965, 966-67 (Jan. 5, 1978). Photographers may use this option to 
register their photographs if they satisfy the requirements set forth 
in the regulation. First, all the photographs must be taken by the same 
individual, and none of them can be a work made for hire. 37 CFR 
202.3(b)(8)(i)(A)-(B). Second, all the photographs must be first 
published as a contribution to a periodical (e.g., a newspaper, a 
magazine, a journal, etc.) and they must be published within a twelve-
month period (e.g., June 1, 2014 through May 31, 2015). Id. Sec.  
202.3(b)(8)(i)(C) & n.2. And, third, if the photographs were first 
published before March 1, 1989, each photograph must contain an 
appropriate copyright notice. Id. Sec.  202.3(b)(8)(i)(D).
    Under the current regulation, there is no limit on the number of 
photographs that may be registered under GRCP. The applicant must 
complete a paper application using Form VA and Form GR/CP.\5\ Id. Sec.  
202.3(b)(8)(ii)(A)-(B). The applicant must submit the photographs in 
the precise form in which they were first published, and the copies 
must be submitted in physical--rather than digital--form. See id. Sec.  
202.3(b)(8)(i)(E). For example, the applicant may submit the entire 
issue of the periodical that contains the photograph, the entire 
section of the newspaper that contains the photograph, a photocopy of 
the entire page from the periodical that contains the photograph, among 
other formats.\6\ See id.
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    \5\ Form GR/CP is an adjunct form specifically designed for 
providing information for a group registration of contributions to 
periodicals.
    \6\ The Office is issuing a separate notice of proposed 
rulemaking (published elsewhere in this volume of the Federal 
Register, and referred to herein as the ``GRCP Rulemaking'') that 
invites comment on a proposed rule that will modify the group option 
for contributions to periodicals. To be clear, the Office is not 
proposing any changes to the GRCP regulation as part of this 
rulemaking on group registration of photographs.
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3. Group Registration for Photographic Databases
    In 1989, the Office created a procedure that allows database owners 
to register the updates and revisions to a database with one 
application and one filing fee. 37 CFR 202.3(b)(5); 54 FR 13177 (Mar. 
31, 1989). The Office refers to this procedure as the ``group database 
option.'' In the late 1990s, some stock photography companies began 
using this option to register databases that contain large numbers of 
photographs. After consulting with representatives from the industry, 
the Office concluded that the database option could potentially be used 
to register a photographic database if certain requirements have been 
met. The Office noted this understanding in an earlier notice of 
proposed rulemaking that is discussed in Section III.A.1 below. See 76 
FR 4072, 4075-76 (Jan. 24, 2011).
    The requirements for the database option are extremely complex.\7\ 
Briefly stated, an applicant may register the updates or revisions that 
were made to a database over a period of three months if the updates 
and revisions are owned by the same claimant and if the general content 
and organization of the updates and revisions are similar. 37 CFR 
202.3(b)(5). The applicant must submit a detailed statement that 
describes the content and organization of the database, and in the case 
of a photographic database, the applicant must submit one copy of each 
photograph that is included in the group. The applicant may submit an 
online application or a paper application. The applicant may submit the 
photographs in digital or physical form, but all the photographs must 
be submitted in the same format. 37 CFR 202.20(c)(2)(xx).
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    \7\ For a detailed summary of these requirements, see section 
1117 of the Compendium of U.S. Copyright Office Practices, Third 
Edition (hereinafter the ``Compendium'').
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    A registration for a photographic database covers the authorship 
involved in selecting, coordinating, and arranging the content of the 
database as a whole. It also may cover the individual photographs that 
are included within the database if the photographers transferred the 
exclusive rights in their respective works to the owner of the 
database, and if the selection, coordination, and/or arrangement of 
those photographs is sufficiently creative. See Compendium section 
1117.2. That said, the Office has questioned whether this practice 
should be revised to limit the examination of a database to the 
authorship involved in creating the selection, coordination, and 
arrangement of the database as a whole and to exclude examination (and 
thus, the prima facie validity) of a claim in the component elements of 
the database.

[[Page 86646]]

See 77 FR 40268, 40269 (July 9, 2012); see also 76 FR at 4073. The 
Office generally discourages photographers from registering their works 
as part of a photographic database and instead encourages them to use 
one of the other options discussed in this section, in part, because 
they provide a better registration record for claims in the individual 
component works within a database, as opposed to a claim in the 
database itself as a compilation of data. See 77 FR at 40269 n.1; 76 FR 
at 4073. Moreover, registering photographs as part of a photographic 
database may limit the copyright owner's ability to seek certain 
remedies in an infringement action. This issue is discussed in more 
detail in Section III.G.3 below.
4. Collective Works
    Applicants may register a number of photographs with one 
application and one filing fee if they are part of a collective work. 
The statute defines a collective work as ``a work, such as a periodical 
issue, anthology, or encyclopedia, in which a number of contributions, 
constituting separate and independent works in themselves, are 
assembled into a collective whole.'' 17 U.S.C. 101. A collective work 
may consist entirely of photographs, such as a book of photographs, an 
exhibition catalog, or a retrospective book that contains photographs 
taken by a particular photographer. A collective work also may combine 
photographs with other types of authorship, such as a calendar, 
textbook, coffee table book, or similar types of works.
    Applicants may register a collective work with an online 
application or a paper application. The claim may include photographs 
taken by multiple photographers, but the applicant does not need to 
name each photographer in the application and there is no limit on the 
number of photographs that may be included within each claim. If the 
claim is approved, the registration will cover the authorship involved 
in selecting, coordinating, and arranging the content of the collective 
work as a whole. It also may cover the individual photographs that are 
included within the collective work if (i) the claimant owns the 
copyright in both the individual photographs and the collective work as 
a whole, and if (ii) the photographs have not previously been published 
or registered. Although a registration for a collective work may cover 
the individual photographs contained therein, this type of registration 
may limit the copyright owner's ability to seek certain remedies in an 
infringement action. This issue is discussed in more detail in Section 
III.G.4 below.

III. The Proposed Rule

    The Proposed Rule does several things. First, the Office is 
proposing to amend the regulation that governs the group option for 
published photographs to reflect certain technical upgrades that will 
be made to the electronic registration system. Second, the Office is 
proposing to create, for the first time, an equivalent group 
registration option for unpublished photographs. This new procedure 
will be known as the ``group option for unpublished photographs'' or 
``GRUPH,'' and it will replace the option that currently allows 
photographers to register their works as an unpublished collection. 
These first two amendments will increase the efficiency of the 
registration process for both published and unpublished photographs 
alike by requiring applicants to submit their claims through the 
electronic registration system. In addition, GRUPH will foster early 
registration, thereby eliminating complex questions that arise when 
published and unpublished photographs are commingled.
    Third, the Office is proposing to update the deposit requirements 
for the group options for published photographs and photographic 
databases by requiring applicants to submit a digital copy of each 
photograph that is included in the group, and a separate document 
containing a sequentially numbered list that provides the title and 
file name for each photograph in the group. Applicants may submit these 
items by uploading them through the electronic system or by sending 
them on a physical storage device. This same requirement will apply to 
the new group option for unpublished photographs.
    Finally, the Proposed Rule will memorialize the Office's 
longstanding position regarding the scope of a group registration for 
photographs.
    Each of these proposals is discussed below.\8\
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    \8\ As mentioned above in footnote 6, the Office is issuing a 
separate notice of proposed rulemaking involving the group option 
for contributions to periodicals. The rule proposed in the GRCP 
Rulemaking states that the Office may refuse to issue a group 
registration or may cancel a group registration if it determines 
that the applicant failed to comply with the relevant requirements 
for a particular group option. These requirements will apply to any 
group option that the Office creates under section 408 of the 
Copyright Act, including GRCP, GRPPH, GRUPH, and the group option 
for photographic databases.
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A. Application Requirements for Groups of Published Photographs (GRPPH) 
and Groups of Unpublished Photographs (GRUPH)

1. Online Registration
    In February 2015 the Office completed a comprehensive analysis of 
its electronic registration system with input from technical experts 
and stakeholders. This analysis will support the Office's long-term 
goals of creating both a better interface and a better public record. 
See U.S. Copyright Office, Office of the Chief Information Officer, 
Report and Recommendations of the Technical Upgrades Special Project 
Team (February 2015), available at http://copyright.gov/docs/technical_upgrades/usco-technicalupgrades.pdf; see also Technological 
Upgrades to Registration and Recordation Functions, 78 FR 17722 (Mar. 
22, 2013). In December 2015, the Register issued a strategic plan that 
sets forth the Office's performance objectives for the next five years. 
The plan provides a roadmap for re-envisioning almost all of the 
services that the Office provides, including how applicants register 
claims, submit deposits, record documents, share data, and access 
expert resources. With respect to information technology, the plan 
calls for ``a robust and flexible technology enterprise that is 
dedicated to the current and future needs of a modern copyright 
agency.'' U.S. Copyright Office, Strategic Plan 2016-2020: Positioning 
the United States Copyright Office for the Future, at 35 (Dec. 1, 
2015), available at http://copyright.gov/reports/strategic-plan/USCO-strategic.pdf. At the direction of Congress,\9\ the Office also 
developed a detailed IT plan, and obtained public comments on specific 
strategies, costs, and timelines for technology objectives. U.S. 
Copyright Office, Provisional Information Technology Modernization Plan 
and Cost Analysis (Feb. 29, 2016), available at http://copyright.gov/reports/itplan/.
---------------------------------------------------------------------------

    \9\ H.R. Rep. No. 114-110, at 16-17 (2015).
---------------------------------------------------------------------------

    In the meantime, the Office has made some enhancements to the 
current electronic registration system that will benefit photographers, 
the Office, and the public at large. When the electronic registration 
system was introduced in 2007, it contained a ``standard'' application 
(referred to herein as the ``standard online application''). Applicants 
could use this application to register a single work; they also could 
use this application to register a number of works as an unpublished 
collection or as part of a collective work. See 72

[[Page 86647]]

FR 36883, 36885 (July 6, 2007). But the standard online application was 
not meant to be used to register groups of published photographs, 
photographic databases, or contributions to periodicals, because the 
system was not designed to take in the information required for a group 
claim. Instead, photographers were required to submit these types of 
claims using a paper application submitted on Form VA (either alone or 
together with Form GR/PPh/CON or Form GR/CP).
    Photographers soon expressed interest in using the electronic 
system, and beginning in 2010, some applicants began submitting large 
numbers of photographs with the standard online application. Although 
this application was not designed to handle group registrations, the 
Visual Arts Division processed some of these claims in cases where the 
application contained all the information required for a group claim. 
Based on this experience, the Office issued an interim regulation in 
2011 that established a pilot program allowing applicants to register 
groups of published photographs and photographic databases with the 
standard online application.\10\ 76 FR at 4074, 4075. Applicants that 
participate in the pilot program may submit their claims through the 
electronic system (rather than submitting a paper application), 
provided that they obtain prior authorization from the Visual Arts 
Division and follow the instructions from that Division concerning the 
information that should be included in the application and the proper 
method for submitting the deposit. 37 CFR 202.3(b)(5)(ii)(A), 
(b)(10)(xi).
---------------------------------------------------------------------------

    \10\ The pilot program does not apply to the group option for 
contributions to periodicals.
---------------------------------------------------------------------------

    The Office explained that, during the pilot, it would assess the 
desirability and feasibility of allowing applicants to submit groups of 
photographs through the electronic system on a permanent basis, and 
invited public comment on the issue. 76 FR 5106 (Jan. 28, 2011). The 
Professional Photographers of America (``PPA'') and other organizations 
that represent photographers supported the pilot program, predicting 
that the standard online application would require less time to 
complete than a paper application, and that applicants would receive 
their certificates in a more timely manner.\11\
---------------------------------------------------------------------------

    \11\ PPA at 2, available at http://copyright.gov/rulemaking/databases/comments/professional-photographers-of-america.pdf. PPA 
jointly submitted its comments with Commercial Photographers 
International, the Society of Sport & Event Photographers, the 
Student Photographic Society, Evidence Photographers International 
Council, and the Stock Artists Alliance. Id. at 1.
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    While the pilot program was well-intentioned, it has been extremely 
burdensome for both applicants and the Office. The standard online 
application was designed to handle claims involving one work or a 
limited number of works. Using the existing architecture to provide 
title and publication information for hundreds or even thousands of 
photographs is necessarily challenging for applicants who are 
unfamiliar with the system. Examining these types of claims also 
requires significantly more time. In some cases, registration 
specialists have spent an entire day processing a single claim, which 
has resulted in corresponding delays in issuing certificates of 
registration for such claims. Moreover, the increasing demand on the 
Office's limited resources has had an adverse effect on the examination 
of other types of works within the Visual Arts Division.
    To address these concerns, the Office has decided to eliminate the 
pilot program for published photographs, and replace it with an online 
application specifically designed for groups of published photographs. 
(The pilot program for photographic databases will remain in effect for 
the time being, though as discussed in Sections D.2 and G.3, the 
deposit requirements for photographic databases will be modified in 
some respects.) In addition, the Office has created a new online 
application specifically designed for groups of unpublished 
photographs.
    Under the Proposed Rule, applicants will be required to use the 
online application designated for GRPPH or GRUPH as a condition for 
using either of these group options. To facilitate this transition, the 
Office will contact each applicant that has participated in the pilot 
program for published photographs and will notify them that the pilot 
program will be replaced with a new procedure. The Office will provide 
instructions on how to complete the new applications on its Web site 
and in chapter 1100 of the Compendium. In addition, the Office will 
make its staff available to groups or associations that are interested 
in producing webinars or other educational programs for their members.
    Once the Proposed Rule goes into effect, the Office will no longer 
accept groups of published photographs or groups of unpublished 
photographs that are submitted with a paper application on Form VA 
(either with or without Form GR/PPh/CON).\12\ Likewise, the Office will 
no longer accept these types of claims if they are submitted with a 
standard online application, rather than the online application 
designated for GRPPH or GRUPH.\13\ In such cases the Office will ask 
the applicant to resubmit the photographs using the appropriate 
application, which may affect the effective date of registration that 
is assigned to the claim. The Office invites comment on this proposal, 
including whether it should eliminate the paper application for these 
group options, phase them out after a specified period of time, or 
continue to offer them for photographers who prefer to use the paper-
based system.
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    \12\ By contrast, Applicants may continue to use Form VA to 
register a photographic database if they meet the eligibility 
requirements for that option. Similarly, photographers may continue 
to use Form VA to register an individual photograph or a collective 
work, although the Office strongly encourages applicants to use the 
online application rather than the paper form.
    \13\ By contrast, applicants may continue to use the standard 
online application to register a photographic database, as long as 
they comply with the requirements for the pilot program. 
Photographers may continue to use the standard application to 
register photographs as part of a collective work. Likewise, 
photographers may continue to use the standard online application to 
register an individual photograph.
---------------------------------------------------------------------------

2. Relationship to Supplementary Registration Rulemaking
    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,'' including a 
registration for a group of related works. 17 U.S.C. 408(d). 
Specifically, it identifies an error or omission in an existing 
registration (referred to herein as a ``basic registration'') and 
places the corrected information or additional information in the 
public record. The Office refers to this type of registration as a 
``CA,'' which stands for ``correction and amplification.''
    The Office is issuing a separate notice of proposed rulemaking 
(published elsewhere in this volume of the Federal Register, and 
referred to herein as the ``CA Rulemaking'') that will modify the 
regulation that governs this procedure. Under the rule proposed in the 
CA Rulemaking, applicants will be required to file an online 
application in order to correct or amplify the information set forth in 
a basic registration for any photograph that is capable of being 
registered through the electronic system--even if the work was 
originally registered with a paper application submitted on Form VA 
(either with or without Form GR/PPh/CON).

[[Page 86648]]

    If the rules proposed in the CA Rulemaking and in this proceeding 
both go into effect, applicants will be required to file an online 
application in order to correct or amplify a basic registration for 
works registered under the GRPPH and GRUPH options. If an applicant 
attempts to use a paper application, the Office will ask the applicant 
to resubmit the claim using the online form. As discussed in Section 
III.C.1 below, if the basic registration encompasses more than 750 
photographs, multiple applications may need to be submitted to correct 
or amplify that registration. Applicants will not need to contact the 
Visual Arts Division in order to correct or amplify a basic 
registration for a group of photographs registered under GRPPH or 
GRUPH.
    This online-filing requirement will also apply when correcting or 
amplifying a basic registration for works registered under the pilot 
program for group registration option for photographic databases.\14\ 
Applicants will need to contact the Visual Arts Division before filing 
an application to correct or amplify a basic registration for a 
photographic database. This is due to the fact a supplementary 
registration for a photographic database will have to be submitted 
under the pilot program. As discussed in Section III.A.1, the Visual 
Arts Division closely monitors claims submitted under this program to 
ensure that applicants complete the online application in an 
appropriate manner.
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    \14\ Under the rule proposed in the CA Rulemaking, the online 
filing requirement for supplementary registrations will also apply 
to basic registrations for a single photograph, a collection of 
unpublished photographs, or a collective work that contains 
photographs.
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    Comments concerning this proposal should be submitted as part of 
the CA Rulemaking, and should not be submitted as part of this 
rulemaking on group registration of photographs.
3. Policy Considerations Supporting Online-Only Registration
    A substantial majority of the U.S. population has access to the 
internet,\15\ and the Office expects that most photographers will be 
able to use the electronic system.\16\ That said, the Office recognizes 
that millions of Americans do not have broadband service, and that the 
Proposed Rule may impose a burden on photographers who fall within this 
segment of the population.\17\ Nevertheless, the Office believes that 
the benefits of requiring applicants to use the online application 
designated for GRPPH or GRUPH outweigh the potential burden on 
photographers who do not have direct access to the internet.
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    \15\ The Pew Research Center found that 84% of adults use the 
internet, including 85% of the people in urban and suburban 
communities and 78% of the people in rural communities. Pew Research 
Center, Americans' Internet Access: 2000-2015, at 2, 10 (June 26, 
2015), available at http://www.pewinternet.org/files/2015/06/2015-06-26_internet-usage-across-demographics-discover_FINAL.pdf.
    \16\ Approximately 94% of the claims submitted in fiscal year 
2015 were filed through the electronic system, while 6% of the 
claims were submitted on a paper application.
    \17\ The Federal Communications Commission (``FCC'') reported 
that 17% of the population does not have access to a broadband 
service with connection speeds of twenty-five megabits per second 
(``mbps'') for downloads and three mbps for uploads. This figure 
includes 8% of the people who live in urban areas, 53% of the people 
in rural areas, and 63% of the people in U.S. territories and Tribal 
lands. Federal Communications Commission, 2015 Broadband Progress 
Report at 4 (Jan. 29, 2015), available at https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-10A1.pdf.
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    As discussed above, the PPA and other organizations that represent 
photographers expressed support for online registration in a prior 
rulemaking. They stated that ``only a tiny fraction of photographers 
(1% according to PPA member surveys)'' register their works with the 
Office, in part, because the paper application takes too much time to 
complete. PPA, supra note 11, at 1. Thus, requiring applicants to use 
the online application will encourage broader participation in the 
registration process.
    If a photographer does not have broadband at home, at the home of a 
relative, friend, or neighbor, or at her place of employment, there are 
other options for registering large numbers of published or unpublished 
photographs. If the copyright owner has a tablet or laptop, she could 
complete and submit the online application at a coffee shop, a 
bookstore, or any other place where wi-fi or cellular service is 
available.\18\ She could log onto the electronic system at a public 
library or other institution that provides computers with internet 
access. Although the photographer would have to submit the application 
through the electronic system and pay the filing fee through a secure 
Web site (www.pay.gov), she would not necessarily have to submit her 
photographs over the internet. As discussed in Section III.D.1.c, the 
photographer could save her photographs onto a flash drive or other 
storage device and mail it to the Office with the required shipping 
slip that is generated by the electronic registration system.
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    \18\ When filing an application for a supplementary registration 
there is no need to upload a copy of the work that is covered by the 
basic registration. Thus, applicants will be able to submit these 
types of claims with a tablet or other wi-fi enabled device. In some 
cases, the registration specialist may need to compare the 
information provided in the application for supplementary 
registration with the copy of the work that was submitted with the 
application for the basic registration. For instance, this may be 
necessary if the supplementary registration changes the publication 
status of the work or adds additional authors to the registration 
record. If the Office does not have a copy of the work in its 
possession, the registration specialist may ask the applicant to 
submit a replacement copy. See Compendium section 1802.9(C). But in 
all cases, the replacement copy could be sent by first class mail, 
courier, or hand delivery; the copy does not need to be uploaded to 
the electronic system (though this would be an option if the 
applicant has broadband service).
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    In the alternative, the photographer could hire an attorney to 
submit the application on her behalf, either by paying for the 
attorney's services or by obtaining pro bono representation.\19\ The 
Office also notes that a number of companies will prepare an 
application and file it with the Office for a fee. These companies 
typically provide this service for copyright owners who wish to 
register a single work, but they could conceivably expand their 
offering to include groups of photographs.
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    \19\ The Office does not require applications to be prepared or 
submitted by an attorney. In certain special cases the Office may 
suggest that the copyright owner consider seeking legal advice, but 
the Office does not furnish the names of copyright attorneys, 
publishers, agents, or other similar information. See 37 CFR 
201.2(a)(2).
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    The Office's decision to offer a group option for photographers is 
entirely discretionary, and Congress gave the Office broad authority to 
set the requirements for these types of claims. 17 U.S.C. 408(c)(1). 
For the foregoing reasons, the Office believes that requiring 
applicants to submit an online application as a condition for seeking a 
group registration for a group of photographs is a reasonable trade-off 
for improving the overall efficiency of the group registration process. 
Nonetheless, the Office invites comment on this aspect of the Proposed 
Rule.

B. Filing Fee for GRPPH and GRUPH

    The filing fee for registering groups of published or unpublished 
photographs will be $55, which is the amount the Office currently 
charges for a group of published photographs submitted with an online 
application under the pilot program.\20\ 37 CFR 201.3(c)(3)(i).
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    \20\ Likewise, the filing fee for registering a photographic 
database will remain unchanged. Applicants will continue to pay $55 
if the claim is submitted with an online application under the pilot 
program, and will continue to pay $65 if the claim is submitted with 
a paper application on Form VA. 37 CFR 201.3(c)(3).
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    In 2012 the Office conducted a study pursuant to section 708 of the 
Copyright Act, which authorizes the Register to establish, adjust, and 
recover fees for certain services that the Office provides

[[Page 86649]]

to the public. Initially, the Office proposed to increase the filing 
fee for a group of published photographs, but after weighing the 
concerns expressed by photographers the Office decided to keep the fee 
for submitting an online application under the pilot program at $55 and 
the fee for submitting a paper application at $65. The Office noted 
that photographers ``expressed significant concern about the impact of 
fees on their ability to protect their works,'' given ``the number of 
works they produce and must register in order to receive the full range 
of judicial remedies for infringement.'' U.S. Copyright Office, 
Proposed Schedule and Analysis of Copyright Fees To Go Into Effect On 
Or About April 1, 2014, at 15 (Nov. 14, 2013), available at http://www.copyright.gov/docs/newfees/USCOFeeStudy-Nov13.pdf.
    Section 708(b) authorizes the Register to adjust the fees that the 
Office charges for certain services (including the fee for seeking a 
group registration), but before doing so the Register must conduct a 
study of the costs incurred by the Office for registering claims, 
recording documents, and providing other services. In conducting this 
study, the Register must consider the timing of any fee adjustments and 
the Office's authority to use the fees consistent with its budget. 17 
U.S.C. 708(b)(1). Section 708(b) provides that the Register may adjust 
these fees no ``more than that necessary to cover the reasonable costs 
incurred by the Copyright Office for . . . [such services], plus a 
reasonable inflation adjustment to account for any estimated increase 
in costs.'' 17 U.S.C. 708(b)(2). It also provides that the Office must 
submit a proposed fee schedule to Congress and that the Office may 
implement the schedule 120 days thereafter (unless Congress enacts a 
law stating that it does not approve the schedule). 17 U.S.C. 
708(b)(5).
    Once the Proposed Rule has been implemented, the Office will 
monitor the cost of processing groups of published and unpublished 
photographs to determine if future fee adjustments may be warranted. 
The Office will use this information in conducting its next fee study.

C. Eligibility Requirements for GRPPH and GRUPH

    This section discusses the eligibility requirements for the group 
option for published photographs and the group option for unpublished 
photographs. Applicants that fail to satisfy these requirements will 
not be permitted to use these options.
1. Photographs That May Be Included in the Group
    Among the key requirements of the Proposed Rule are that all the 
works in the group must be photographs, the group must contain no more 
than 750 photographs, and the applicant must specify the total number 
of photographs that are included in the group. These requirements must 
be satisfied, regardless of whether the applicant uses the group option 
for published or unpublished photographs.
    This represents a change in policy. Under the current regulation, 
applicants may register a group of published photographs by submitting 
a paper application on Form VA and may use Form GR/PPh/CON to provide 
titles, publication dates, and other pertinent information for each 
photograph. Completing Form GR/PPh/CON is optional, although it does 
provide certain advantages. See Compendium section 1116.2. When using 
Form GR/PPh/CON, the applicant may only include up to 750 photographs 
in each group. By contrast, if the applicant uses any other method for 
submitting a group of published photographs--such as completing the 
standard online application under the pilot program or submitting a 
paper application on Form VA without completing Form GR/PPh/CON--there 
is no limit on the number of photographs that may be included in the 
group. Likewise, when an applicant submits a number of photographs as 
an unpublished collection under Sec.  202.3(b)(4)(i)(B), there is no 
limit on the number of photographs that may be included in the claim 
(regardless of whether the applicant submits the claim through the 
electronic system or with a paper application).
    The Office recognizes that photographers are prolific creators. A 
photographer may take dozens or even hundreds of copyrightable images 
in a single session and thousands of images over the course of a week, 
a month, or a year. The Office created a group option for photographs, 
in part, because it is unrealistic and cost-prohibitive to expect 
photographers to register all of their images on an individual basis. 
At the same time, the Office recognizes that an effective public record 
must provide sufficient information about each claim. Photographers who 
register their works in a timely manner may be entitled to claim 
statutory damages in an infringement action and the granularity of the 
public record is critical to that determination.
    Given resource limitations and the modest filing fee for this group 
option, the Office must impose some limit on the total number of 
photographs that may be submitted under the group option for published 
photographs and the new option for unpublished photographs. Based on 
its experience with Form GR/PPh/CON, the Office has determined that a 
limit of 750 photographs strikes an appropriate balance between the 
interests of photographers and the administrative capabilities of the 
Office.
    To ensure that applicants do not attempt to circumvent the 750-
photograph limit the Office proposes to eliminate the pilot program 
that allows applicants to submit groups of published photographs with 
the standard online application.\21\ If an applicant submits more than 
750 photographs or fails to use the online application designated for 
GRPPH, the Office will ask the applicant to resubmit the claim using 
the appropriate application and will ask the applicant to limit the 
claim to no more than 750 photographs.
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    \21\ The Proposed Rule only eliminates the pilot program for 
GRPPH. As discussed in Section III.A.1, the pilot program for 
photographic databases will remain in effect for the time being.
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    For the same reason, the Office will no longer register a group of 
unpublished photographs as an unpublished collection. If an applicant 
submits more than 750 photographs or fails to use the online 
application designated for GRUPH, the Office will ask the applicant to 
resubmit the claim using the appropriate application and will ask the 
applicant to limit the number of photographs in the group.
    The limit on the number of photographs, in turn, will affect the 
procedure for correcting or amplifying a basic registration for a group 
of published photographs. As noted in Section III.A.2, the rule 
proposed in the CA rulemaking will require applicants to file an online 
application in order to seek a supplementary registration for a group 
of photographs. If the basic registration covers 750 photographs or 
fewer, the applicant will be able to correct or amplify the 
registration record with a single supplementary registration submitted 
through the online system. But if the basic registration was issued 
before the Proposed Rule goes into effect, and if that registration 
covers more than 750 photographs, multiple supplementary registrations 
may be needed to correct or amplify the record for those works.
2. Authorship and Ownership
    Another key requirement is that all the photographs in the group 
must be taken by the same photographer.

[[Page 86650]]

Applicants will not be allowed to submit groups of photographs taken by 
different photographers (e.g., 300 photographs by Raul Martinez, 300 
photographs by Jose Rodriguez, and 150 photographs by Diego Hernandez). 
Likewise, the Office will not accept applications claiming that two or 
more individuals jointly created each photograph in the group as a 
joint work.\22\ These requirements are consistent with the regulation 
that currently governs GRPPH. See 37 CFR 202.3(b)(10)(ii).
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    \22\ Joint authors will not be able to use GRPPH or GRUPH. The 
Office is willing to entertain these types of claims if the 
applicant submits a separate application for each individual 
photograph (i.e., not using the group option) and provides a 
sufficient basis for the claim of joint authorship.
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    In all cases, the claim will be limited to ``photographs'' and that 
term will be added automatically to the application by the electronic 
system. The system will not accept claims in ``digital editing,'' 
``compilation,'' or any other form of authorship other than 
``photographs.'' \23\ Likewise, the Office will not allow applicants to 
add other forms of authorship to the claim during the examination 
process or with a supplementary registration.
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    \23\ To assert a claim in ``digital editing'' applicants may 
submit a separate application and a separate filing fee for each 
photograph (rather than submitting a group of photographs under 
GRPPH or GRUPH). In appropriate cases, applicants may assert a claim 
in a ``compilation'' of photographs by registering them as part of a 
collective work, such as a book of photographs, an exhibition 
catalog, a calendar, or the like.
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    In all cases, the copyright claimant for each photograph must be 
the same person or organization.\24\ Specifically, the claimant must be 
the author of all the photographs in the group, or the copyright owner 
that owns all the exclusive rights in those photographs.\25\
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    \24\ This requirement appears in the current regulation 
governing groups of published photographs. 37 CFR 202.3(b)(10)(i).
    \25\ The term ``claimant'' is defined in Sec.  202.3(a)(3)(iii) 
of the regulations. That provision contains a footnote stating that 
a person or organization that has obtained ``the contractual right 
to claim legal title to the copyright'' may be named as claimant. 37 
CFR 202.3(a)(3)(ii) n.1. The Office proposed to eliminate this 
footnote in a prior rulemaking. See Registration of Copyright: 
Definition of Claimant, 77 FR 29257, 29259 (May 17, 2012). The 
Office expects to issue a final rule in that proceeding before the 
new regulations governing GRPPH and GRUPH go into effect.
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    Applicants will be allowed to register a group of photographs if 
the claimant obtained all the exclusive rights in those works through a 
transfer of ownership. Likewise, applicants will be allowed to register 
a group of photographs as works made for hire (i) if all the 
photographs are identified in the application as works made for hire, 
(ii) if all the photographs were created by the same individual for the 
same employer, and (iii) if the photographer and the employer are both 
listed in the name of author field (e.g., ``Advertising Agency LLC, 
employer for hire of John Smith'').\26\ However, the Office will not 
allow applicants to combine works made for hire with works obtained 
through a transfer of ownership. Similarly, the electronic system will 
not allow works created by one photographer to be combined with works 
created by a different photographer (even if those works are owned by 
the same claimant).
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    \26\ This requirement appears in the current regulation 
governing groups of published photographs. 37 CFR 202.3(b)(10)(ix).
---------------------------------------------------------------------------

    For example, if an advertising agency acquired a group of 
photographs from a particular photographer through an assignment of 
copyright and acquired another group of photographs taken by the same 
photographer through a work made for hire agreement, the agency could 
register those photographs under GRPPH or GRUPH only by separating the 
photographs into two groups and submit a separate application for each 
group (i.e., one application with the work made for hire question 
answered ``yes'' and the other with the question answered ``no''). 
Likewise, if the agency hired five freelancers to take photographs 
pursuant to a work made for hire agreement, the agency should separate 
the photographs into five separate groups (i.e., one group for each 
photographer) and submit a separate application for each group.
3. Publication and Titles
    The group options for published and unpublished photographs are 
designed to be mutually exclusive of each other. Under the Proposed 
Rule, an applicant will be allowed to register a group of unpublished 
photographs if all the photographs are unpublished, and will be allowed 
to register a group of published photographs if all the photographs are 
published. Applicants will not be allowed to combine published and 
unpublished photographs in the same claim. In addition, in the case of 
published photographs, all the works must be published within the same 
nation and within the same calendar year (e.g., January 1 through 
December 31, 2016).\27\ When completing the online application, 
applicants will be asked to verify this information by providing the 
earliest date and the most recent date that photographs were published 
during the year.
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    \27\ The current regulation governing GRPPH states that the 
photographs must be published within the same calendar year, but 
does not indicate whether the photographs must be published within 
the same nation. 37 CFR 202.3(b)(10)(iii).
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    To register a group of published or unpublished photographs, 
applicants will be required to provide a title for the group as a 
whole, and will be required to include this information in the online 
application itself. For example, the applicant may provide a title that 
identifies the photographer and the month/year that the photographs 
were created, such as ``Jack Jackson's photos May through July 2016,'' 
or one that identifies the subject matter of the photographs, such as 
``Tropical Images from Hawaii.''
    In addition to this basic information about the group of 
photographs, applicants will be required to submit a separate document 
in Excel format (``.xls''), Portable Document Format (``PDF''), or 
other electronic format that may be specifically approved by the Office 
that contains a sequentially numbered \28\ list with a title, file name 
(matching the file name of the corresponding deposit copy), and in the 
case of GRPPH, the month and year of publication \29\ (e.g., ``January 
2016,'' ``February 2016,'' etc.) for each photograph in the group.\30\ 
This list must be submitted together with the copies of the 
photographs, by uploading them through the electronic system or by 
sending them on a physical storage device. The specific requirements of 
this list are discussed below.
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    \28\ Each entry on the list must be sequentially numbered (i.e., 
1, 2, 3, etc.); these numbers can be entered automatically with most 
spreadsheet programs. The Office will use this information to count 
the number of photographs that are included in the deposit, and to 
ensure that it matches the number of photographs claimed in the 
application.
    \29\ Applicants will not be required to provide a precise date 
of publication for each photograph in the group (i.e., month, day, 
and year). This represents a change in the current policy for 
registering a group of published photographs. Under the current 
regulation for GRPPH, applicants generally are required to provide a 
month, day, and year of publication for each photograph, although 
they may provide a range of dates if the application is received 
within three months after the first date of publication specified in 
the application.
    \30\ The specific requirements for the numbered list are 
discussed below in Section III.D.1.b.
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    In addition, applicants will be encouraged--but not required--to 
provide title and publication information in the online application 
itself. The Office will provide instructions on its Web site that will 
explain how to copy this information from the numbered list into the 
appropriate fields in the online application.
    Although applicants will not be required to provide title and 
publication information in the online application, there are certain 
advantages to doing so.

[[Page 86651]]

If the applicant includes the titles in the online application, they 
will appear on the certificate of registration and in the Office's 
online database. This will improve the quality of the registration 
record by making the information more accessible to the public. If this 
information appears on the certificate, and if the certificate is 
issued within five years after the publication of a particular 
photograph, the certificate will create a legal presumption that the 
work was published in the month and year specified on the certificate. 
See 17 U.S.C. 410(c).
    By contrast, if the applicant provides title and publication 
information in the numbered list, but does not include that information 
in the online application itself, the titles and publication dates will 
not appear on the certificate of registration or the Office's online 
database (although the Office will keep a copy of the numbered list in 
its files). In such cases, the Office will add an annotation to the 
record, such as ``Regarding title: deposit contains complete list of 
titles that correspond to the individual photographs included in this 
group.''
    In comments regarding the Office's pilot program for electronic 
registration of photographs, the PPA and other organizations stated 
that photographers struggle with the definition of ``publication'' and 
``the public,'' and find it difficult to determine whether their works 
are published or unpublished, particularly when they are distributed in 
digital form. PPA, supra note 11, at 2-3. They explained that their 
members are reluctant to register their works, in part, because they 
worry about the possible consequences of classifying an unpublished 
photograph as a published work (or vice versa). They asked the Office 
to address this ``barrier to registration'' by providing clarification 
and guidance on these issues. Id. at 3.
    The new group option for unpublished photographs will help mitigate 
this problem by encouraging early registration. The Office strongly 
encourages photographers to register their works before they are 
published (i.e., before any distributions have occurred), because this 
avoids much of the confusion concerning publication and the treatment 
of published works. The new group option supports this objective by 
giving photographers a convenient and cost-effective means for 
registering their photographs before they are distributed to the 
public.
    In addition, the Office released a comprehensive revision of the 
Compendium in 2014, which sets forth and explains key administrative 
duties of the Copyright Office under title 17 of the United States 
Code. See 79 FR 78911, 78911-12 (Dec. 31, 2014). Among other 
improvements, the Compendium contains an entire chapter on publication. 
This chapter provides a detailed discussion of the definition of 
``publication'' and ``the public'' and specific examples of how the 
Office applies these definitions to photographs and other types of 
works. See generally Compendium, chapter 1900. The Compendium provides 
guidance on how to determine whether a work is published or unpublished 
when it is posted on the internet or distributed online. See id. 
section 1008.3. It also explains how to correct an error in a 
registration if the applicant mistakenly claims that the work was 
published or unpublished. See id. sections 1802.6(I), 1802.7(C).
    In the future, the Office intends to develop a portal on its Web 
site that will provide photographers with pertinent information on a 
wide range of copyright issues. In developing these resources it would 
be helpful to learn more about the specific methods that photographers 
use to distribute their works to their customers and the general 
public. The Office previously asked for written comments on this issue 
in the Visual Works Inquiry, and it welcomes additional input as part 
of this rulemaking.

D. The Deposit Requirement

    The Proposed Rule will modify the deposit requirements for the 
group option for published photographs and the group option for 
photographic databases, and it will establish similar requirements for 
the new option for unpublished photographs. These requirements are 
summarized below.\31\
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    \31\ The rule proposed in the GRCP Rulemaking will modify the 
deposit requirements for registering a group of contributions to 
periodicals in some respects. By contrast, the Office is not 
proposing to make any changes to the deposit requirements for an 
individual photograph or a collective work, such as a calendar or a 
book of photographs. To register an individual photograph, the 
applicant should submit two complete copies of the best edition if 
the photograph has been published in the United States or one 
complete copy if the photograph is unpublished. To register a 
collective work, the applicant should submit one complete copy of 
the collective work (if it is unpublished) or two complete copies of 
the best edition (if the work has been published in the United 
States). See generally Compendium, chapter 1500.
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1. Deposit Requirements for GRPPH and GRUPH
a. Digital Photographs
    Under the Proposed Rule, applicants will be required to submit a 
digital copy of each photograph that is included in a group of 
published photographs (GRPPH) or a group of unpublished photographs 
(GRUPH). Applicants will be required to submit each photograph in one 
of the following formats: JPEG, GIF, TIFF, or PCD. The Office will no 
longer accept physical copies, such as prints, contact sheets, slides, 
photocopies, videotapes, or clippings from a newspaper, magazine, or 
other publication. This should not impose a significant burden on 
photographers because it appears that the vast majority of them use 
digital cameras.
b. Numbered List of Photographs
    In addition, as noted above, applicants will be required to submit 
a separate document containing a sequentially numbered list that 
identifies the title and file name--and in the case of published 
photographs, the month and year of publication--for each photograph in 
the group. The Office will provide a template on its Web site that may 
be used to prepare this list. The title and file name for a particular 
photograph may be the same, and may consist solely of numbers, letters, 
and spaces that were automatically assigned by the camera or a unique 
identifier that has been assigned to the image by a third party, such 
as the PLUS Registry. As noted above, the file names specified in the 
list must match the corresponding file names in the deposit copy. 
However, the file name should not contain slashes or any other form of 
punctuation. Including punctuation marks in the file name (other than 
spaces) may cause a system error that may prevent the Office from 
viewing the photographs. The Office also discourages applicants from 
stating ``Untitled,'' ``No Title,'' or the like, because interested 
parties typically search for works by title and it may be impossible to 
locate a particular photograph unless a meaningful title has been 
provided.
    The Office will use the list to examine and document the claim, 
particularly in cases where the applicant does not provide title or 
publication information in the online application itself. In addition, 
the Office may use the list to locate and retrieve the deposit in the 
event it is needed for litigation or other legitimate purposes. For 
these reasons, the titles and file names specified in the list must 
correspond to the titles and files names for the actual photographs 
that are included in the deposit. In this respect, the Proposed Rule 
builds upon a suggestion that the Digital Media

[[Page 86652]]

Licensing Association (``DMLA'') offered in a prior rulemaking.\32\
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    \32\ DMLA was previously known as the Picture Archive Council of 
America (``PACA''). In a prior rulemaking, it stated that works 
deposited with the Office should be accessible upon request so that 
parties can easily determine whether a particular photograph is 
covered by a particular registration. PACA at 1, available at http://copyright.gov/rulemaking/databases/comments/picture-archive-council-of-america.pdf.
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    The list must be contained in an electronic file in Excel format 
(``.xls''), Portable Document Format (``PDF''), or other electronic 
format that may be specifically approved by the Office. The file name 
for the list must include the title of the group as a whole and the 
eleven-digit case number that is automatically assigned to the 
application by the electronic system (e.g., '' [Title of Group] Case 
Number 12345678910''). The Office will provide further guidance 
regarding the preferred format and naming conventions for these file 
names on its Web site and in Chapter 1100 of the Compendium. When 
completing the online application, applicants will be asked to provide 
the file name for this document in the application itself. This will 
help the Office connect the numbered list with the relevant 
application, and to distinguish it from the files that contain the 
digital photographs.
c. Procedure for Submitting the Digital Photographs and the Numbered 
List of Photographs
    Applicants will be required to submit the files containing the 
digital photographs together with the file that contains the 
sequentially numbered list of photographs. Applicants may upload these 
files through the electronic system. Alternatively, they may save them 
onto a physical storage device, such as a flash drive or a CD-R or DVD-
R, and send it to the Office by mail, by courier, or by hand delivery 
together with the required shipping slip.
    When submitting files through the electronic system, applicants 
will be strongly encouraged to save them in a .zip file and then upload 
the .zip file to the system. In all cases, the size of each uploaded 
file must not exceed 500 megabytes, although the applicant may 
digitally compress the photographs to comply with this limitation.
    When submitting files on a flash drive or other storage device, 
applicants must send that device in the same package with the shipping 
slip that is generated by the electronic system. If the applicant fails 
to include the required shipping slip, the Office may be unable to 
connect the storage device with the appropriate application. In such 
cases, the applicant will be required to pay an additional fee to 
search for the deposit and connect it with the application. If the 
deposit cannot be located, the applicant will be required to resubmit 
the storage device, which may change the effective date of registration 
for the claim.
    Packages that are delivered to the Office by mail or by courier 
will be irradiated to destroy possible contaminants, such as anthrax. 
This process may damage files stored on electronic media. To avoid this 
result, applicants will be strongly encouraged to send physical storage 
devices to the Office in boxes rather than envelopes. Additional 
information concerning the recommended procedure for delivering 
physical deposits by mail or by courier will be provided in the 
Compendium.
2. Deposit Requirements for Photographic Databases
    The Proposed Rule will impose the same deposit requirements on a 
database that consists predominantly of photographs. Specifically, 
database owners will be required to submit a digital copy of each 
photograph that is included in the claim, and a separate document 
containing a sequentially numbered list that identifies the title and 
file name--and in the case of published photographs, the month and year 
of publication--for each photograph.\33\ Database owners will be 
required to submit digital copies, regardless of whether they intend to 
file an online application under the pilot program (in which case the 
photographs and the numbered list may be uploaded to the electronic 
system or submitted on a physical storage device with the required 
shipping slip) or a paper application (in which case the photographs 
and the numbered list may be submitted on a physical storage device 
together with Form VA).\34\
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    \33\ As discussed in Section III.D.1.b, the Office will provide 
a standard template that may be used to prepare the numbered list of 
photographs.
    \34\ When submitting an online application the storage device 
must be accompanied by the shipping slip that is generated by the 
electronic system. When submitting a paper application, the device 
must be accompanied by Form VA.
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E. When should a group registration be filed?

    An application for a group registration may be filed at any time. 
However, a photograph must be registered in a timely manner to seek 
statutory damages and attorney's fees in an infringement action. 
Specifically, a copyright owner typically may seek these remedies if a 
photograph was registered (i) before the infringement commenced or (ii) 
within three months after the first publication of that work. See 17 
U.S.C. 412.
    In the case of unpublished photographs, the Office strongly 
encourages photographers to register their works before sharing them 
with any other party. By doing so, photographers preserve the ability 
to seek statutory damages and attorney's fees in subsequent 
infringement disputes involving those works.
    In the case of published photographs, the Office encourages 
photographers to submit their claims every three months (instead of 
filing on an annual or semi-annual basis), and in each case, to file 
the claim within three months after the earliest date of publication 
specified in the application. For example, if a photographer first 
published his or her photographs on June 1, 2016, it would be advisable 
to submit a complete application, deposit, and filing fee on or before 
September 1, 2016. By doing so, the photographer would preserve his or 
her ability to seek statutory damages and attorney's fees for any 
infringements that began after the effective date of registration 
(i.e., after September 1, 2016), as well as any infringements that 
occurred within three months after the date of publication (i.e., 
between June 1, 2016 and September 1, 2016).

F. The Scope of a Group Registration

    The Proposed Rule memorializes the Office's longstanding position 
regarding the scope of a registration for a group of published 
photographs, and it confirms that the Office will take the same 
position regarding the group option for unpublished photographs.
    When the Office issues a group registration, it prepares one 
certificate of registration for the entire group and assigns one 
registration number to that certificate. The Proposed Rule clarifies 
that a registration for a group of published or unpublished photographs 
covers each photograph in the group, and that each photograph is 
registered as a separate ``work.'' This understanding is consistent 
with the statutory scheme. The legislative history makes clear that 
group registration was ``a needed and important liberalization of the 
law [then] in effect,'' which to that point had required ``separate 
registrations where related works or parts of a work are published 
separately.'' H.R. Rep. No. 94-1476, at 154 (1976). In particular, 
Congress noted that ``the technical necessity for separate applications 
and fees has caused copyright owners to forego copyright altogether.'' 
Id. Given that context, it would be anomalous for works

[[Page 86653]]

registered as part of a group registration application to be given less 
protection than if they had been registered through separate 
applications.
    For similar reasons, the Proposed Rule also clarifies that when a 
group of photographs is registered under GRPPH or GRUPH, the group as a 
whole is not considered a compilation or a collective work under 
sections 101, 103(b), or 504(c)(1) of the Copyright Act. The group is 
merely an administrative classification created solely for the purpose 
of registering multiple photographs with one application and one filing 
fee. See 17 U.S.C. 408(c)(1) (``Th[e] administrative classification of 
works has no significance with respect to the subject matter of 
copyright or the exclusive rights provided by this title.''). Although 
an applicant may exercise some judgment in selecting the photographs 
that are included within a particular group, that decision does not 
necessarily constitute copyrightable authorship. Instead, the selection 
is based on the regulatory requirements for these group options, and 
any coordination or arrangement of the photographs is merely an 
administrative formality that facilitates the examination of the works.
    Likewise, the Proposed Rule clarifies that the group is not 
considered a derivative work under sections 101, 103(b), or 504(c)(1) 
of the Copyright Act. When a group of photographs is compiled for the 
purpose of facilitating registration, those works are not ``recast, 
transformed, or adapted'' in any way, and the group as a whole is not 
``a work based upon one or more preexisting works'' because there is no 
copyrightable authorship in simply following the administrative 
requirements for GRPPH or GRUPH. 17 U.S.C. 101 (definition of 
``derivative work'').

G. Group Registration of Published and Unpublished Photographs 
Distinguished From Other Registration Options

    This section discusses the key differences between the options for 
registering a group of published or unpublished photographs as compared 
to the options for registering an unpublished collection, a group of 
contributions to periodicals, a photographic database, or a collective 
work.
1. Group Registration of Unpublished Photographs vs. Unpublished 
Collections
    The group option for unpublished photographs is intended to replace 
the option that currently allows an applicant to register a number of 
photographs as an unpublished collection. Once the Proposed Rule goes 
into effect, the Office will no longer accept an application to 
register photographs under Sec.  202.3(b)(4)(i)(B) of the regulations, 
regardless of whether the photographs are submitted with a standard 
application or a paper application (although the Office will continue 
to accept applications to register other types of works under this 
provision).
    As explained, the GRUPH option provides a more efficient mechanism 
for capturing information about photographs, and incorporating that 
information into the public record. Requiring applicants to use this 
option may also provide photographers with certain legal benefits.
    When an applicant submits photographs via the unpublished 
collection option, and asserts a claim in both the individual 
photographs as well as the selection and arrangement of the collection 
as whole, the Office will register the claim as an unpublished 
collective work, rather than an unpublished collection. A collective 
work is--by definition--a form of compilation. 17 U.S.C. 101 (``The 
term `compilation' includes collective works.''). Section 504(c)(1) of 
the Copyright Act states that a copyright owner may be entitled to 
recover ``an award of statutory damages for all infringements involved 
in [an infringement] action, with respect to any one work,'' but 
``[f]or the purposes of this subsection, all the parts of a compilation 
. . . constitute one work.'' 17 U.S.C. 504(c)(1). In other words, when 
a number of photographs are registered as an unpublished collective 
work, the copyright owner would be entitled to seek only one award of 
statutory damages in an infringement action, rather than a separate 
award for each photograph.
    In contrast, as noted above in Section III.F, when a number of 
photographs are registered under the GRUPH option, each photograph is 
registered as a separate work. For purposes of registration, the group 
as a whole is not considered a collective work or compilation, and 
thus, the individual photographs within the group would not be subject 
to the limitation on statutory damages set forth in section 504(c)(1). 
Instead, a registration for a group of unpublished photographs is 
treated as a separate registration for each photograph that is included 
within the group.
2. Group Registration of Published Photographs vs. Group Registration 
for Contributions to Periodicals
    The group option for published photographs is not intended to alter 
or replace the group option for contributions to periodicals. 
Photographers may continue to register their works as a group of 
published photographs or a group of contributions to periodicals, as 
long as they satisfy the relevant requirements for each option.
    There are some notable differences between these registration 
options. While a group of published photographs may include no more 
than 750 images, there is no limit on the number of photographs that 
may be included within a group of contributions to periodicals. 
Moreover, a group of published photographs may include photographs that 
were published during the same calendar year, while a group of 
contributions to periodicals may include photographs that were 
published over a twelve-month period--even if that period extends from 
one calendar year to the next (e.g., September 1, 2015 through August 
31, 2016). In addition, to be eligible for GRPPH, the photographs may 
be published in any manner, but there is no need to specify the medium 
of publication and no need to submit the photographs in the specific 
form in which they were first published. To be eligible for GRCP, the 
photographs must be first published in a periodical (e.g., a newspaper, 
a magazine, etc.), the applicant must provide pertinent information 
about each periodical (e.g., title, issue number, publication date, 
etc.), and the applicant must submit a copy of the photographs as they 
appeared in each publication (e.g., a copy of the entire periodical, a 
copy of an entire section from a newspaper, etc.).
    The Office generally encourages applicants to use GRPPH, in part, 
because the deposit requirements for published photographs are more 
flexible than the deposit requirements for GRCP. Regardless of whether 
the applicant uses GRPPH or GRCP, the registration will cover all the 
photographs that are included within the group.
3. Group Registration of Photographs vs. Group Registration for 
Photographic Databases
    As noted above, the Proposed Rule makes certain modifications to 
the deposit requirement for databases that predominantly consist of 
photographs. The Proposed Rule will not change any of the other 
requirements for these types

[[Page 86654]]

of claims. See 37 CFR 202.3(b)(5); 202.20(c)(2)(vii)(D)(8).
    Although the Office will continue to accept these claims, the 
Office strongly encourages photographers, stock photography companies, 
database providers, and other interested parties to register their 
works with the group option for published or unpublished photographs--
rather than the database option--for several reasons. Many photography 
Web sites and catalogs do not qualify as a database, and therefore, are 
not eligible for the group option for photographic databases. For 
purposes of registration, a database is defined ``as a compilation of 
digital information comprised of data, information, abstracts, images, 
maps, music, sound recordings, video, other digitized material, or 
references to a particular subject or subjects. In all cases, the 
content of a database must be arranged in a systematic manner, and it 
must be accessed solely by means of an integrated information retrieval 
program or system with the following characteristics.'' Compendium 
section 1117.1. First, ``a query function must be used to access the 
content.'' Id. Second, ``[t]he information retrieval program or system 
must yield a subset of the content, or it must organize the content 
based on the parameters specified in each query.'' Id.
    Stock photography Web sites or catalogs that merely display 
photographs do not satisfy these requirements and therefore are not 
considered databases for the purpose of registration. In most cases, 
users may access all the content on a Web site or in a catalog by 
scrolling or browsing through the individual images or categories of 
related images. Id. section 1002.6. By contrast, users cannot access 
the content of a database in its entirety. Id. Instead, they must use a 
query function to identify specific content within the database, and 
they must use an information retrieval system to extract the content 
that matches the user's search criteria. Id. While a user may view the 
entire content of a Web site or catalog, a user may view the content of 
a database only to the extent that it matches a particular query that 
the user entered into the information retrieval system. Id. While some 
Web sites may provide a search feature that may be used to locate 
particular images or categories of images, these types of features do 
not qualify as an information retrieval system nor do they transform an 
ordinary Web site into a database, because these features are not the 
sole means for accessing the images posted on the site. See id. If the 
Office determines that a particular Web site, catalog, or other work 
does not qualify as a database, the Office will refuse to register the 
work as a database or as a group of updates or revisions to a 
photographic database.
    Copyright owners also should consider the following issue before 
registering their photographs as part of a photographic database. As 
noted above in Section III.G.1, the Copyright Act states that a 
copyright owner may be entitled to recover ``an award of statutory 
damages for all infringements involved in [an infringement] action, 
with respect to any one work,'' but ``[f]or the purposes of this 
subsection, all the parts of a compilation . . . constitute one work.'' 
17 U.S.C. 504(c)(1). A database is--by definition--a compilation. See 
Alaska Stock, LLC v. Houghton Mifflin Harcourt Publishing Co., 747 F.3d 
673, 676 (9th Cir. 2014) (concluding that a photographic database is a 
collective work); see also Compendium section 1117.1 (same). 
Consequently, when a group of photographs is registered as a database, 
the copyright owner may be entitled to seek only one award of statutory 
damages for the database as a whole--rather than a separate award for 
each photograph--even if the defendant infringed all the photographs 
that are covered by the registration.
    By contrast, when a copyright owner registers a group of 
photographs under GRPPH or GRUPH, the registration covers each 
photograph in the group, but the group itself is not a compilation 
within the meaning of the Copyright Act. Therefore, any claim for 
infringement would not be subject to the limitation set forth in 
Section 504(c)(1) of the Copyright Act. For these reasons, the group 
options for published and unpublished photographs provide significant 
benefits, while avoiding the potential downside of registering a number 
of works as part of a photographic database.
4. Group Registration of Photographs vs. Collective Works
    The Proposed Rule will not change the requirements for registering 
a number of photographs as part of a collective work, such as a book of 
photographs, a travel guide, or the like. Applicants may continue to 
register these types of works with a standard application submitted 
through the electronic system or with a paper application submitted on 
Form VA.
    Registration of photographs as part of a collective work differs in 
many respects from group registration of photographs. A registration 
for a collective work may include photographs taken by multiple 
photographers (even if the photographers are not explicitly named in 
the application), and there is no limit on the number of photographs 
that may be included within each claim. If the claim is approved, the 
registration will cover the authorship involved in selecting, 
coordinating, and/or arranging the content of the collective work as a 
whole. It also may cover the individual photographs that appear in the 
collective work if the claimant owns the copyright in those images and 
the collective work as a whole, and if the photographs have not been 
previously published or registered.
    There are some drawbacks to registering photographs as a collective 
work. As discussed in Section III.G.1, a collective work is--by 
definition--a compilation. As such, these types of works are subject to 
the limitation set forth in section 504(c)(1) of the Copyright Act. 
When a number of photographs are registered as part of a collective 
work, the copyright owner may be entitled to receive only one award of 
statutory damages in an infringement action, even if the defendant 
infringed all the photographs that appear in that work (regardless of 
whether the collective work is published or unpublished). By contrast, 
when a group of photographs are registered under GRPPH or GRUPH, the 
copyright owner would not be subject to the collective-work limitation 
in section 504(c)(1). For this reason, photographers may wish to 
register their photographs under GRPPH or GRUPH, even if those works 
also may be eligible for registration as part of a collective work.

H. Technical Amendments

    The Proposed Rule will move the regulation governing published 
photographs from Sec.  202.3 to Sec.  202.4.\35\ In the future, the 
Office intends to move all regulations governing the various group 
options that have been implemented under section 408(c) of the 
Copyright Act to Sec.  202.4. This change is intended to improve the 
readability of the existing regulations, but it does not represent a 
substantive change in policy.
---------------------------------------------------------------------------

    \35\ The Office recently issued a notice of proposed rulemaking 
that would remove the current text of Sec.  202.4 and reserve that 
section for later use. See Copyright Office Technical Amendments, 81 
FR 67940, 67942 (Oct. 3, 2016).
---------------------------------------------------------------------------

    In addition, the Proposed Rule incorporates the definitions of 
``claimant'' and ``Class VA'' that are set forth in Sec.  202.3, and it 
confirms that an application for a group of photographs may be 
submitted by any of the parties listed in Sec.  202.3(c)(1), namely (i) 
the author or copyright claimant of those

[[Page 86655]]

works, (ii) the owner of any of the exclusive rights in those works, or 
(iii) a duly authorized agent of any author, claimant, or owner of 
exclusive rights.

IV. Conclusion

    The Proposed Rule will allow broader participation in the 
registration system by expanding the class of works that may be 
registered as a group, increase the efficiency of the registration 
process, and create a more robust record of the claim. The Office 
invites public comment on these proposed changes.

List of Subjects

37 CFR Part 201

    Copyright, General provisions.

37 CFR Part 202

    Copyright, Preregistration and registration of claims to copyright.

Proposed Regulation

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

PART 201--GENERAL PROVISIONS

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

    Authority: 17 U.S.C. 702.

0
2. Amend Sec.  201.3 by:
0
a. Redesignating paragraphs (c)(3) through (18) as paragraphs (c)(4) 
through (19), respectively.
0
b. Adding new paragraph (c)(3).
0
c. Revising newly redesignated paragraph (c)(4).
    The revisions and additions to read as follows:


Sec.  201.3   Fees for registration, recordation, and related services, 
special services, and services performed by the Licensing Division.

* * * * *
    (c) * * *

------------------------------------------------------------------------
 
------------------------------------------------------------------------
(3) Registration of a claim in a group of published photographs or    55
 a claim in a group of unpublished photographs.....................
(4) Registration for a database that predominantly consists of
 photographs and updates thereto:..................................
(i) Electronic filing..............................................   55
(ii) Paper filing..................................................   65
------------------------------------------------------------------------

* * * * *

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.  202.3 by:
0
a. In paragraph (b)(3) removing the phrase ``, subject to the 
limitations in paragraph (b)(10)(v) of this section'' .
0
b. Revising paragraph (b)(4)(ii).
0
c. Removing and reserving paragraph (b)(10).
0
d. In the text of paragraph (c)(2), removing the reference to footnote 
``6'' and adding in its place a reference to footnote ``5''.
0
e. In paragraph (c)(2), revising footnote 5.
    The revisions to read as follows:


Sec.  202.3   Registration of copyright.

* * * * *
    (b) * * *
    (4) * * *
    (ii) In the case of an application for registration made under 
paragraphs (b)(4) through (b)(10) of this section or under Sec.  202.4, 
the ``year of creation,'' ``year of completion,'' or ``year in which 
creation of this work was completed,'' means the latest year in which 
the creation of any copyrightable element was completed.
* * * * *
    (c) * * *
    (2) * * *

    \5\ In the case of an application to register a group of 
newspapers, newsletters, contributions to periodicals, or 
photographs under paragraphs (b)(7) or (9) of this section or under 
Sec.  202.4, the deposit shall comply with the respective 
requirements specified in those paragraphs.

* * * * *
0
6. Revise Sec.  202.4 to read as follows:


Sec.  202.4  Group Registration.

    (a) This section prescribes conditions for issuing a registration 
for a group of related works under section 408(c) of title 17 of the 
United States Code.
    (b) Definitions. For purposes of this section, the terms copy and 
work made for hire have the meanings set forth in section 101 of title 
17 of the United States Code, and the terms claimant and Class VA have 
the meanings set forth in Sec.  202.3(a)(3) and (b)(1)(iii).
    (c) [Reserved]
    (d) [Reserved]
    (e) [Reserved]
    (f) [Reserved]
    (g) [Reserved]
    (h) [Reserved]
    (i) Group registration of unpublished photographs. Pursuant to the 
authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights 
has determined that a group of unpublished photographs may be 
registered in Class VA with one application, one filing fee, and the 
required deposit, if the following conditions are met:
    (1) All the works in the group must be photographs.
    (2) The group must include no more than 750 photographs, and the 
application must specify the total number of photographs that are 
included in the group.
    (3) All the photographs must be created by the same photographer.
    (4) The copyright claimant for all the photographs must be the same 
person or organization.
    (5) The photographs may be registered as works made for hire if all 
the photographs are identified in the application as such, if all the 
photographs were created by the same photographer for the same 
employer, and if the application identifies both the photographer and 
the employer in the name of author field (e.g., ``ABC Corporation, 
employer for hire of John Doe'').
    (6) All the photographs must be unpublished.
    (7) The applicant must provide a title for the group as a whole.
    (8) The applicant must complete and submit the online application 
designated for a group of unpublished photographs. (The Office will not 
register a group of unpublished photographs as an unpublished 
collection under Sec.  202.3(b)(4)(i)(B).) The application may be 
submitted by any of the parties listed in Sec.  202.3(c)(1).
    (9) The appropriate filing fee, as required by Sec.  201.3(c) of 
this chapter, must be included with the application or charged to an 
active deposit account.
    (10) The applicant must submit one copy of each photograph in one 
of the following formats: JPEG, GIF, TIFF, or PCD. The file name for a 
particular photograph may consist of letters, numbers, and spaces, but 
the file name should not contain any other form of punctuation. The 
photographs may be uploaded to the electronic registration system 
together with the required numbered list, preferably in a .zip file 
containing all the photographs. The file size for each uploaded file 
must not exceed 500 megabytes; the photographs may be compressed to 
comply with this requirement. Alternatively, the photographs and the 
required numbered list may be saved on a physical storage device, such 
as a flash drive, CD-R, or DVD-R, and delivered to the Copyright Office 
together with the required shipping slip generated by the electronic 
registration system.
    (11) The applicant must submit a sequentially numbered list 
containing a title and file name for each photograph in the group 
(matching the corresponding file names for each photograph specified in 
paragraph (i)(10)). The title and file name for a particular photograph 
may be the same.

[[Page 86656]]

The numbered list must be contained in an electronic file in Excel 
format (.xls), Portable Document Format (PDF), or other electronic 
format approved by the Office, and the file name for the list must 
contain the title of the group and the case number assigned to the 
application by the electronic registration system (e.g., ``Title Of 
Group Case Number 16283927239.xls'').
    (j) Group registration of published photographs. Pursuant to the 
authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights 
has determined that a group of published photographs may be registered 
in Class VA with one application, one filing fee, and the required 
deposit, if the following conditions are met:
    (1) All the works in the group must be photographs.
    (2) The group must include no more than 750 photographs, and the 
application must specify the total number of photographs that are 
included in the group.
    (3) All the photographs must be created by the same photographer.
    (4) The copyright claimant for all the photographs must be the same 
person or organization.
    (5) The photographs may be registered as works made for hire if all 
the photographs are identified in the application as such, if all the 
photographs were created by the same photographer for the same 
employer, and if the application identifies both the photographer and 
the employer in the name of author field (e.g., ``XYZ Corporation, 
employer for hire of Jane Doe'').
    (6) All the photographs must be published within the same nation 
and within the same calendar year, and the applicant must specify the 
earliest and latest date that the photographs were published during the 
year.
    (7) The applicant must provide a title for the group as a whole.
    (8) The applicant must complete and submit the online application 
designated for a group of published photographs. The application may be 
submitted by any of the parties listed in Sec.  202.3(c)(1).
    (9) The appropriate filing fee, as required by Sec.  201.3(c) of 
this chapter, must be included with the application or charged to an 
active deposit account.
    (10) The applicant must submit one copy of each photograph in one 
of the following formats: JPEG, GIF, TIFF, or PCD. The file name for a 
particular photograph may consist of letters, numbers, and spaces, but 
the file name should not contain any other form of punctuation. The 
photographs may be uploaded to the electronic registration system 
together with the required numbered list, preferably in a .zip file 
containing all the photographs. The file size for each uploaded file 
must not exceed 500 megabytes; the photographs may be compressed to 
comply with this requirement. Alternatively, the photographs and the 
required numbered list may be saved on a physical storage device, such 
as a flash drive, CD-R, or DVD-R, and delivered to the Copyright Office 
together with the required shipping slip generated by the electronic 
registration system.
    (11) The applicant must submit a sequentially numbered list 
containing the title, file name, and month and year of publication for 
each photograph in the group (matching the corresponding file names for 
each photograph specified in paragraph (j)(10)). The title and file 
name for a particular photograph may be the same. The numbered list 
must be contained in an electronic file in Excel format (.xls), 
Portable Document Format (PDF), or other electronic format approved by 
the Office, and the file name for the list must contain the title of 
the group and the case number assigned to the application by the 
electronic registration system (e.g., ``Title Of Group Case Number 
16283927239.xls'').
    (k) [Reserved]
    (l) [Reserved]
    (m) [Reserved]
    (n) The scope of a group registration. When the Office issues a 
group registration under paragraphs (i) or (j) of this section, the 
registration covers each work in the group and each work is registered 
as a separate work. For purposes of registration, the group as a whole 
is not considered a compilation, a collective work, or a derivative 
work under sections 101, 103(b), or 504(c)(1) of title 17 of the United 
States Code.
0
7. Amend Sec.  202.20 by:
0
a. Revising paragraph (c)(2)(vii)(D)(8); and.
0
b. Removing paragraph (c)(2)(xx).
    The revision to read as follows:


Sec.  202.20  Deposit of copies and phonorecords for copyright 
registration.

* * * * *
    (c) * * *
    (2) * * *
    (vii) * * *
    (D) * * *
    (8) In the case of an application for registration of a database 
that consists predominantly of photographs (including a group 
registration for revised or updated versions of such a database), 
``identifying portions'' shall instead consist of all individual 
photographs included in the claim. Photographs must be submitted in 
digital form in one of the following formats: JPEG, GIF, TIFF, or PCD. 
In addition, the applicant must submit a sequentially numbered list 
containing the title and file name--and if the photographs have been 
published, the month and year of publication--for each photograph in 
the group. The title and file name for a particular photograph may be 
the same and may consist of letters, numbers, and spaces, but the file 
name should not contain any other form of punctuation. The numbered 
list must be contained in an electronic file in Excel format (.xls), 
Portable Document Format (PDF), or other electronic format approved by 
the Office. The file name for the list must contain the title of the 
database, and the case number assigned to the application by the 
electronic registration system, if any (e.g., ``Title Of Database Case 
Number 162883927239.xls''). The photographs and the numbered list may 
be uploaded to the electronic registration system with the permission 
and under the direction of the Visual Arts Division, preferably in a 
.zip file containing these materials. The file size for each uploaded 
file must not exceed 500 megabytes; the photographs may be compressed 
to comply with this requirement. Alternatively, the photographs and the 
numbered list may be saved on a physical storage device, such as a 
flash drive, CD-R, or DVD-R, and delivered to the Copyright Office 
together with the required shipping slip generated by the electronic 
registration system or with a paper application submitted on Form VA.
* * * * *

    Dated: November 22, 2016.
Sarang V. Damle,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2016-28706 Filed 11-30-16; 8:45 am]
 BILLING CODE 1410-30-P