Mandatory Deposit of Published Electronic Works Available Only Online, 3863-3870 [2010-1202]

Agencies

• Library of Congress
• Copyright Office
• Copyright Office, Library of Congress

[Federal Register Volume 75, Number 15 (Monday, January 25, 2010)]
[Rules and Regulations]
[Pages 3863-3870]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-1202]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. RM 2009-3]


Mandatory Deposit of Published Electronic Works Available Only 
Online

AGENCY: Copyright Office, Library of Congress.

ACTION: Interim Rule.

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SUMMARY: The Copyright Office of the Library of Congress is adopting an 
interim regulation governing mandatory deposit of electronic works 
published in the United States and available only online. The 
regulation establishes that online-only works are exempt from mandatory 
deposit until a demand for deposit of copies or phonorecords of such 
works is issued by the Copyright Office. It also states that categories 
of online-only works subject to demand will first be identified in the 
regulations, and names electronic serials as the first such category 
for which demands will issue. In addition, the regulation sets forth 
the process for issuing and responding to a demand for deposit, amends 
the definition of a ``complete copy'' of a work for purposes of 
mandatory deposit of online-only works, and establishes new best 
edition criteria for electronic serials available only online.

EFFECTIVE DATE: February 24, 2010.

FOR FURTHER INFORMATION CONTACT: Tanya M. Sandros, Deputy General 
Counsel, or Christopher Weston, Attorney Advisor, Copyright GC/I&R, 
P.O. Box 70400, Washington, DC 20024. Telephone: (202) 707-8380. 
Telefax: (202)-707-8366.

SUPPLEMENTARY INFORMATION: The fundamental goal of this rulemaking 
proceeding is to establish a qualified exemption from the mandatory 
deposit requirement of 17 U.S.C. 407 for works available only online. 
In July 2009, the Copyright Office published a Notice of Proposed 
Rulemaking in the Federal Register, 74 FR 34286 (July 15, 2009), 
seeking public comment on proposed amendments to its mandatory deposit 
regulations at 37 CFR 202.19 and 202.24, and Appendix B of Chapter 37. 
The notice proposed an exemption from

[[Page 3864]]

mandatory deposit for all published online-only works until the Library 
identifies a particular category of such works as being subject to a 
deposit demand by the Copyright Office. Once a category of online-only 
works is identifed, the Copyright Office may issue demands upon the 
publisher that a single electronic copy be deposited within three 
months. The Office identified ``electronic serials,'' a term that the 
notice also proposed to define, as the initial category subject to the 
qualified exemption. The notice also proposed a demand issuance and 
response procedure, a definition of the term ``complete copy'' specific 
to online-only works, and a new best edition statement for electronic 
serials. Finally, the Notice sought public comment on the practical and 
legal concerns associated with the adoption of a requirement for 
publishers of online-only works to notify the Library upon the 
publication of a new online-only work in the United States.
    The Office received seven initial comments and, after an extension 
of the reply deadline, three reply comments. The initial comments were 
from Bose McKinney & Evans LLP, the American Society of Media 
Photographers (ASMP), the Association of American Publishers, Inc. 
(AAP), the American Library Association with the Association of 
Research Libraries (ALA-ARL), the Software & Information Industry 
Association (SIIA), the Professional Photographers of America (PPA), 
and the Newspaper Association of America (NAA). Reply comments were 
received from Patrice Lyons, an attorney; West, a publisher of works 
for the legal industry; and the ALA-ARL. All comments are available for 
viewing at https://www.copyright.gov/docs/online-only/.
    Of the comments that directly addressed issues presented by the 
notice, most were generally favorable toward the Office's proposal. 
However, the commenters did raise questions regarding the method of 
deposit, definitions of certain terms, user access to deposited works, 
and the proposed publisher notification requirement, among others.
    The Copyright Office, in consultation with the Library of Congress, 
has thoroughly considered these comments, and determined that the 
amendments will be adopted as an interim rule largely as proposed, with 
some changes as described in the Discussion section below. In addition, 
the Office and the Library have determined that it is unnecessary at 
this interim phase of the rulemaking process to impose a requirement 
for publishers of online-only works to notify the Library upon 
publication of a new work, although the Office may again consider the 
question when expanding the categories of online-only works subject to 
a mandatory deposit demand.
    The rule is interim, and not final, because the Office anticipates 
that the experience of issuing and responding to demands for online-
only works will raise additional issues that should be considered 
before the regulation becomes final, e.g., the technical details of how 
an online-only work should be transmitted to the Copyright Office. 
Thus, the Office will provide an opportunity for additional comment 
later in 2010 in order to consider amendments to address problems or 
issues yet to be identified.

I. Background

    Under section 407 of the Copyright Act of 1976, Title 17 of the 
United States Code, the owner of copyright, or of the exclusive right 
of publication, in a work published in the United States is required to 
deposit two complete copies (or, in the case of sound recordings, two 
phonorecords) of the best edition of the work with the Copyright Office 
for the use or disposition of the Library of Congress. The deposit is 
to be made within three months after such publication. Failure to make 
the required deposit does not affect copyright in the work, but it may 
subject the copyright owner to fines and other monetary liability if 
the owner fails to comply after a demand for deposit is made by the 
Register of Copyrights. These general provisions, however, are subject 
to limitations. Section 407 provides that the Register of Copyrights 
``may by regulation exempt any categories of material from the deposit 
requirements of this section, or require deposit of only one copy or 
phonorecord with respect to any categories.'' 17 U.S.C. 407(c).
    Accordingly, in 1978 the Copyright Office, with the approval of the 
Librarian of Congress, established regulations governing mandatory 
deposit, which are set forth in Chapter II, Part 202 of Title 37 of the 
Code of Federal Regulations. Section 202.19 establishes the standards 
governing mandatory deposit of copies and phonorecords published in the 
United States for the Library of Congress, and section 202.21 allows 
for a deposit of identifying material in lieu of copies or phonorecords 
in certain cases, for both mandatory deposit and registration deposit. 
In addition, the Library of Congress's Best Edition Statement in 
Appendix B of Part 202 specifies the required deposit in instances 
where ``two or more editions of the same version of a work have been 
published.''
    At that time, the Copyright Office also adopted a regulation 
exempting machine-readable literary works from mandatory deposit. 
Copies of machine-readable works were not widely marketed to the public 
and the Library had no interest in collecting these works, so it 
decided not to require their deposit. However, in 1989, in response to 
the increased use of databases and computer programs distributed in CD-
ROM and other formats and an increased demand by Library users for 
these works, the Copyright Office amended the machine-readable copies 
exemption so that machine-readable works published in physical form 
were subject to mandatory deposit, and only ``automated databases 
available only online in the United States'' were exempted. 54 FR 42295 
(Oct. 16, 1989).
    The Copyright Office identified the exempted category of works as 
such to refer to all online-only publications since, for all practical 
purposes, the only works being published online in 1989 were automated 
databases, e.g., Westlaw and Nexis. As other categories of works, such 
as articles and serial titles, began to be published only online, the 
Copyright Office included them in the exempted category because the 
Library in the early 1990s had neither the intention nor the technology 
to collect such works, and it also continued to use the term 
``automated databases available only on-line in the United States'' as 
a matter of convenience. Hence, Copyright Office practice to date has 
been to interpret ``automated databases available only online in the 
United States'' broadly as encompassing all electronic works published 
only online.
    Much has changed in the twenty years that have passed since the 
adoption of the regulation used to exclude electronic works published 
in the United States and available only online from mandatory deposit. 
In that time, the Internet has grown to become a fundamental tool for 
the publication and dissemination of millions of works of authorship. 
To cite just one pertinent example, the Library has determined that 
there are now more than five thousand scholarly electronic serials 
available exclusively online, with no print counterparts. In some cases 
the Library has purchased subscriptions to these periodicals, but such 
subscriptions are typically ``access only,'' and rarely allow the 
Library to acquire a ``best edition'' copy for its collections. 
However, the current inability of the Library to acquire online-only 
works through mandatory

[[Page 3865]]

deposit places the long-term preservation of the works at risk.
    Thus, to fulfill its mission to sustain and preserve a universal 
collection of knowledge, and to inform Congress, the Library is 
currently developing technological systems that will allow it to ingest 
electronic works, including those available exclusively online, and 
maintain them in formats suitable for long-term preservation. In 
addition, the Copyright Office is amending the mandatory deposit 
regulations to enable the on-demand mandatory deposit of electronic 
works published in the United States and available only online (i.e., 
not published in physical form).
    To date, mandatory deposit of works in physical formats has been 
one of the most important methods for building the Library's 
collections and making it the world's largest repository of knowledge 
and creativity. With the adoption of this amendment, mandatory deposit 
will apply in a measured and balanced way to works offered only in the 
digital environment as well.

II. Discussion

    In its July 15 notice, the Copyright Office proposed that the 
current Sec.  202.19(c)(5) exemption be amended so that all electronic 
works published in the United States and available only online enjoy a 
qualified exemption from mandatory deposit, which means that any work 
in this class would be exempt until the Copyright Office issues a 
demand for its deposit. This revised exemption would apply to all 
published electronic works available only online. The exemption would 
apply to serials, monographs, sound recordings, automated databases, 
cartography, and all other categories of electronic works. Furthermore, 
because the revised exemption would apply exclusively to published 
online-only works, there would be no need to retain the current list of 
machine-readable works in physical formats to which the exemption did 
not apply. Finally, the notice emphasized that the revised exemption 
would not apply to those works published in both physical and online 
formats. These works, because they are not published ``only'' online, 
were never exempted from mandatory deposit by Sec.  202.19(c)(5).\1\ 
The interim regulation promulgated by this notice is consistent with 
all of the above aspects of the notice of proposed rulemaking.
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    \1\ Note that the Library's current Best Edition Statement for 
``Works Existing in More Than One Medium'' does not currently list 
electronic formats. See, e.g., 37 CFR 202.20(b)(1) ``For purposes of 
this section, if a work is first published in both hard copy, i.e., 
in a physically tangible format, and also in an electronic format, 
the current Library of Congress Best Edition Statement requirements 
pertaining to the hard copy format apply.'') Nevertheless, the 
Library of Congress retains the authority to determine what 
constitutes ``best edition'' and it may decide at a future time 
that, when a particular work is published in both print and 
electronic editions, the electronic edition is the ``best edition'' 
for purposes of mandatory deposit.
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    The rule establishing a qualified mandatory deposit exemption for 
online-only works seeks to balance the current needs of the Library of 
Congress against the imposition of a mandatory requirement on all 
copyright owners of works published exclusively online to deposit one 
complete copy of the best edition. By exempting published electronic 
works available only online until a demand is made, the qualified 
exemption addresses the practical difficulties of acquiring works 
published in non-physical formats, ensures that the Library will only 
receive those works that it needs for its collections, and reduces the 
burden on copyright owners, who will only have to deposit those works 
demanded by the Copyright Office.
    Commenters were generally supportive of the Office's goal of a 
qualified exemption for online-only works, with one stating that it 
appeared to be ``sensible and non-controversial.'' AAP Comment at 2. 
However, they also raised a number of questions concerning the scope of 
the term ``electronic serials,'' the process for responding to deposit 
demands, the inclusion of metadata and formatting codes in deposit 
copies, user access to deposit copies of online-only works, and the 
nature of publication on the Internet. Commenters also responded to the 
Office's request for reactions to the concept of requiring publishers 
of online-only works to provide notice to the Library upon publication 
of a new work as a mechanism for identification of the works that exist 
in this format. These issues, along with the related changes 
incorporated into the interim rule, are discussed in the sections that 
follow.

Category-by-Category Demands, Beginning with Electronic Serials

    As explained in the July 15 notice, the initial category of online-
only works that will be subject to demand deposit is ``electronic 
serials.'' (``This class includes periodicals; newspapers; annuals; and 
the journals, proceedings, transactions, etc. of societies.'')
    In its comments, West supported the decision to begin with 
electronic serials because they ``appear to be analogous to print 
serials which are printed in separate, successive discrete editions.'' 
West comment at 2. This is, in fact, the same rationale applied by the 
Library. While serials encompass everything from scholarly journals to 
daily newspapers to semiweekly newsletters, the Library's demands for 
electronic serials initially will be restricted to journals that 
publish no more often than weekly, and have the same, or similar, 
appearance, formatting, and regular issue schedule as print journals.
    However, West did request that the electronic serials definition be 
revised so that it cannot be read to cover databases or blogs. In 
response, the Office notes that the definition in the interim rule has 
been revised to say that an electronic serial must be ``issued or 
intended to be issued on an established schedule, in successive parts 
bearing numerical or chronological designations, without subsequent 
alterations.'' This limitation, the Office believes, does in fact 
exclude works like databases and blogs that are constantly updated with 
no demarcations between particular, discrete issues of the publication.
    SIIA also commented on the definition of electronic serials. It 
opined that the use of ``etc.'' in the last sentence of the definition 
of electronic serials may cause it to be read too broadly. See SIIA 
comment at 6-7. The Office disagrees. The Office notes that ``etc.'' 
only extends the list of publications issued by societies, and not the 
larger list of electronic serials. However, there is no harm in 
replacing it with ``and other publications,'' which is how the interim 
rule now reads.
    Commenters also requested additional definitions to clarify the 
category of electronic serials or questioned the use of other terms in 
the context of this rule. Specifically, Patrice Lyons commented that 
the exempted category ``electronic works,'' (of which ``electronic 
serials'' is a subset), is problematic because it implies a lack of the 
``fixation in a tangible medium of expression'' required for copyright 
protection. Lyons comment at 1-2. She suggests instead the term 
``digital object.'' Id., at 2.\2\ The Office does not agree that 
introducing new terminology is necessary. The interim regulation must 
be understood

[[Page 3866]]

in the context of the overall body of copyright regulations, where 
works embodied in digital files are described as ``electronic'' in 
contrast to works fixed in materials that are ``physically tangible.'' 
See 37 CFR 202.20(b)(1). In this context, ``electronic'' clearly does 
not mean ``unfixed.'' While online-only digital files may not be 
visible or perceptible to touch they are still fixed in a tangible 
medium of expression by virtue of their embodiment on a computer's hard 
drive, on a server, or on any other device that allows them to be 
communicated.\3\ However, the Office agrees that the term ``electronic 
works'' presents some ambiguity as to fixation in tangible medium, in 
that it suggests that the nature of the work itself is electronic, as 
opposed to the intended meaning that the work is merely fixed and 
published in an electronic format. Thus, the interim rule defines the 
term in the mandatory deposit context as ``works fixed and published 
solely in an electronic format.''
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    \2\ The Copyright Act states that ``a work is `fixed' in a 
tangible medium of expression when its embodiment in a copy or 
phonorecord, by or under the authority of the author, is 
sufficiently permanent or stable to permit it to be perceived, 
reproduced, or otherwise communicated for a period of more than 
transitory duration. A work consisting of sounds, images, or both, 
that are being transmitted, is ``fixed'' for purposes of this title 
if a fixation of the work is being made simultaneously with its 
transmission.'' 17 U.S.C. 101. A fixed work may be perceived, 
reproduced, or otherwise communicated ``either directly or with the 
aid of a machine or device.'' 17 U.S.C. 102(a).
    \3\ The proposition that electronic works are sufficiently 
``fixed'' on the computers where they originate so as to be 
copyrightable has been ratified, albeit tacitly, by numerous courts. 
See, e.g. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 
170-71 (D. Mass, 2008); A&M v. Napster, 239 F.3d 1004, 1014 (9th 
Cir., 2001); Marobie-Fl., Inc. v. National Ass'n of Fire Equip. 
Distribs., 983 F. Supp. 1167, 1177-78 (N.D. Ill, E. Div., 1997).
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    ASMP commented that ``electronic,'' along with the words 
``digital'' and ``online'' must be ``clearly defined'' in the 
regulation. ASMP comment at 3. While the Copyright Office agrees that 
definitions of terms are useful in some cases, it believes that 
definitions also have the potential to unintentionally obfuscate or 
limit common understandings. The three terms ASMP cites appear 
throughout Title 17 and the Office's regulations without definition, 
and this state of affairs has not caused confusion or controversy. The 
Copyright Office is concerned that defining them solely for the purpose 
of the present interim rule would have unintended consequences. 
Furthermore, the terms ``electronic'' and ``digital'' appear in the 
statute and the current regulations exclusively as modifiers (e.g., 
``electronic transmission,'' ``digital networks''), making their 
definition as stand-alone terms potentially confusing. Moreover, there 
is no need to define the term ``digital'' because it in fact does not 
appear in the present interim rule at all.

Best Edition Statement

    Regarding the proposed Best Edition Statement for electronic 
serials, the Office received one approving comment (from SIIA) and no 
criticisms. See SIIA comment at 7. However, in order to correct a minor 
technical error, the reference to ``OpenXML'' in section IX.A.1.c.ii of 
Appendix B has been changed to ``Office OpenXML.'' As stated in the 
July 15 notice, best edition criteria for other categories of 
electronic works published in the United States and available only 
online will follow as new categories become subject to demand deposit.
    The Copyright Act states that the ``best edition'' of a work ``is 
the edition, published in the United States at any time before the date 
of deposit, that the Library of Congress determines to be most suitable 
for its purposes.'' 17 U.S.C. 101. In other words, an edition of a 
work, no matter its quality, is not the ``best edition'' unless it has 
been published. Thus, if the published format of a demanded electronic 
serial does not meet any of the best edition criteria, the publisher is 
still obligated to send a copy of the serial in whatever form it is 
published. Furthermore, the Copyright Office may not require that a 
rights-holder deposit an edition of the work that has not been 
published.

Demand Deposit Process

    The process by which the Copyright Office will demand electronic 
serials is similar to that used to demand other published works under 
17 U.S.C. 407(d). Once a category of works is identified as being 
subject to demand under the qualified exemption of Sec.  202.19(c)(5), 
the Copyright Office may make a demand on the owner of copyright or of 
the exclusive right of publication for a single complete copy of a work 
in that category, for any such work published on or after the date that 
this proposed regulation goes into effect.
    The owner of copyright or of the exclusive right of publication 
will have three months from the date of receipt of the notice in which 
to make the deposit, in keeping with the time period allotted by 
statute for deposit of the best edition of a published work not subject 
to an exemption. See 17 U.S.C. 407(a). The regulation also includes a 
provision allowing special relief to accommodate, for example, 
situations where a publisher may need more time to make the deposit or 
wishes to arrange for alternative means of making a deposit. Special 
relief, however, is granted at the discretion of the Library.
    The mandatory deposit provision in the copyright law grants the 
Copyright Office authority to reduce the required number of deposit 
copies from two to one. See 17 U.S.C. 407(c)(1). Pursuant to this 
authority, the interim rule states that only a single copy or 
phonorecord of a demanded work is required. The Office has determined 
that transmitting duplicate electronic files presents a risk of slowing 
down the electronic ingest system of the Library, particularly in the 
case of a work consisting of a single large file or of many small 
files. Nevertheless, the Library may allow two on-site users to 
simultaneously access the single copy of an online-only work. This 
achieves, in an efficient and flexible manner, the statute's goal of 
providing two copies of a published work to the Library of Congress. As 
the only commenter to opine on the single copy requirement, the SIIA 
indicated its agreement with it. See SIIA comment at 7.
    On the other hand, commenters did raise questions and express 
concerns about the method, form, version, frequency, and format of 
depositing copies of online-only works with the Copyright Office in 
response to a demand. The Office believes, at least for the purposes of 
this interim rule that these issues will require a flexible approach 
and are not currently suited to resolution via this rulemaking. The 
present interim rule is an early step in the Library's program of 
acquiring online-only works, and the Library requires more information 
and experience with electronic publications before considering specific 
regulations to govern the demand deposit process.
    That said, rights-holders should note that the Best Edition 
Statement for electronic serials contains detailed technical standards 
for the preferred deposit formats, and should be consulted in the event 
an online-only work exists in more than one version. Regarding the 
possibility raised by SIIA and NAA of a rights-holder providing a 
direct feed to the Copyright Office, this is one option that may be 
explored once the demand deposit system is operational and adjustments 
are made. However, the Copyright Office is unprepared at this time to 
implement a regulation allowing rights-holders to meet their mandatory 
deposit obligations by providing a website link to the Office so that 
the Office may download an electronic serial itself. The Library 
recognizes that this approach represents an attractive alternative to 
publishers of works made available online, but it needs to examine the 
issue in more depth before considering including a link-and-download 
option in the regulations. Thus, for the immediate future, such an 
arrangement should be a matter of special relief.
    The question of frequency of deposits was also raised by SIIA in 
the context of publishers who might want to delay depositing issues of 
their serials for business reasons. See SIIA comment at

[[Page 3867]]

4. Unless a publisher decides to deposit its online-only serials via 
group registration,\4\ it must deposit the work with the Library within 
three months of receipt of the demand notice, and it is expected that 
each issue of a demanded serial will be deposited with the Copyright 
Office thereafter as is the current practice, without the need for 
additional demand notices. The mandatory deposit requirement does not 
vary by business model, and the Library's need for timely deposits of 
serials does not change depending upon the format in which a serial is 
published.
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    \4\ The regulations for group registration of serial titles are 
at 37 CFR 202.3(b)(6)(v) and 37 CFR 202.20(c)(xvii).
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    Standards regarding the specific method of transmission of online-
only works will be developed by the appropriate divisions of the 
Library and the Copyright Office, in consultation with rights-holders 
as warranted. These standards will be posted on the Copyright Office 
website (www.copyright.gov) and depositors will be able to contact the 
Office by telephone with any questions.

Complete Copy

    The interim rule clarifies that a ``complete copy'' of a published 
electronic work available only online includes the associated metadata 
and formatting codes that make up the unit of publication. Section 407 
of Title 17 requires the deposit of a complete copy of the best edition 
of a work published in the United States. Section 202.19(b)(2) of the 
Copyright Office regulations defines a ``complete copy'' of a work for 
purposes of mandatory deposit as one that ``includes all elements 
comprising the unit of publication of the best edition of the work, 
including elements that, if considered separately, would not be 
copyrightable subject matter or would otherwise be exempt from 
mandatory deposit requirements under paragraph (c) of this section.'' 
Published electronic works often contain elements such as metadata and 
formatting codes that, while they are not perceptible to the naked eye 
or ear, are part of the unit of publication. These elements are also 
critical for continued access to and preservation of a work once it is 
deposited.
    Neither NAA, ASMP, nor SIIA opposed including metadata and 
formatting codes in the definition of ``complete copy.'' See NAA 
comment at 20, ASMP comment at 2-3, SIIA comment at 7. However, AAP 
expressed concern that these elements may be difficult to assemble and 
transmit to the Copyright Office as part of a single work, particularly 
for interactive works where elements exist on multiple servers for 
short periods of time and are regulated with digital management 
technology. AAP comment at 3. Patrice Lyons also noted the problem of 
dispersed elements of a work, and suggested adding ``information 
management system used to structure and identify'' to the definition of 
``complete copy.'' Lyons comment at 3.
    As has been stressed in this notice, the Library and Copyright 
Office will be focusing their initial demands on the subset of 
electronic serials that are analogous to print journals. This means 
that the works will be self-contained documents with no ability for the 
user to affect the content. The Office recognizes that future demands 
for online-only newspapers, web sites, and other categories may require 
adjustments to what constitutes a ``complete copy.'' This is one of the 
reasons that, as the Library expands its collection of online-only 
works to other categories, the Office will seek public comment before 
adding a new category to Sec.  202.19(c)(5) as being subject to demand.
    On the related question of what constitutes an online-only work, 
the NAA argues that, without a definition of ``online-only,'' the term 
creates uncertainty as to whether a newspaper's website is sufficiently 
different from the print version so as to constitute a separate, 
online-only work. NAA comment at 7. In response, the Office notes that 
the interim regulation does exclude works published in both physical 
and online editions from the definition of ``online-only'' in the last 
sentence of section 202.19(c)(5) (``This exemption does not apply to 
works that are published in both online, electronic formats and in 
physical formats, which remain subject to the appropriate mandatory 
deposit requirements.'') In addition, the NAA itself points to the 
Library's Best Edition Statement guidance that if two editions of a 
work have ``variations in copyrightable content, then each edition is a 
separate work.'' 37 CFR Ch.II, Part 202, App. B. In other words simply 
publishing the same content in both print and electronic formats does 
not create two separate copyrightable works. This guidance can, the 
Office believes, be profitably applied to print and online versions of 
a newspaper, but recognizes the possibility of the need to revisit this 
issue at a later date. The Library, however, will not initially be 
demanding online-only newspapers, or the online-only content of 
newspapers published both electronically and in print.

Access to Deposit Copies

    As the AAP points out, online-only works may be regulated with 
digital management technology. The Copyright Office acknowledges that 
many publishers rely on such technology to prevent unauthorized access 
to or use of their works. However, copies of works submitted to the 
Copyright Office under this interim rule must be accessible to the 
Office, the Library, and the Library's users. Thus, the following 
provision has been added to the regulation's demand deposit conditions 
in Sec.  202.24: ``Copies or phonorecords deposited in response to a 
demand must be able to be accessed and reviewed by the Copyright 
Office, Library of Congress, and the Library's authorized users on an 
ongoing basis.'' In addition, the Best Edition Statement for electronic 
serials has been revised so that the final criterion now reads, 
``Technological measures that control access to or use of the work 
should be removed.''
    In its July 15th notice, the Office stated that ``the Library will 
. . . establish policies and practices to insure the security and 
integrity of its electronic collections, and to provide appropriate, 
limited access as allowed by law.'' AAP, West, and SIIA asked for more 
detailed information regarding user access restrictions, specifically 
regarding downloading, distribution, and interlibrary loan 
functionality. See AAP comment at 2-3, West comment at 2-3, SIIA 
comment at 6. The Library and the Copyright Office recognize that 
electronic works, because of their ease of reproduction and 
distribution, present special security concerns. For this reason, 
access to these works will be available only to authorized users at the 
Library of Congress (including its Packard Campus for Audio-Visual 
Conservation in Culpeper, VA and its National Library Service for the 
Blind and Physically Handicapped at the Taylor Street Annex in 
Washington, DC) and Capitol Hill facilities in accordance with the 
policies listed below.
     Access to electronic works received through mandatory 
deposit will be as similar as possible to the access provided to analog 
works.
     Access to electronic works received through mandatory 
deposit will be limited, at any one time, to two Library of Congress 
authorized users.
     Library of Congress authorized users will access the 
electronic works via a secure server over a secure network that serves 
Capitol Hill facilities and remote Library of Congress locations. The 
term ``Library of Congress

[[Page 3868]]

authorized users'' includes Library staff, contractors, and registered 
researchers, and Members, staff and officers of the U.S. House of 
Representatives and the U.S. Senate. The Library will not make the 
copyrighted works available to the public over the Internet without 
rights holders' permissions.
     Authorized users may print from electronic works to the 
extent allowed by the fair use provisions of the copyright law (17 
U.S.C. 107 and 108(f)), as is the case with traditional publications. 
However, users may not reproduce or distribute (i.e., download or 
email) copies of deposited electronic works until the Library has 
explored the advisability of permitting these options and the security 
and feasibility of the implementing technologies. As part of this 
process, the Library will seek comment from the public, including 
copyright owners and publishers, before adopting additional policies 
governing electronic copying or distribution by electronic 
transmission.

Notice of Publication

    The interim rule does not include a requirement that rights-holders 
notify the Library of Congress upon the publication of a new electronic 
serial, or any online-only work, in the United States. The Copyright 
Office requested comments on whether such a requirement would be 
necessary, prudent, or consistent with the Office's authority as 
granted by 17 U.S.C. 407. All commenters who addressed this question 
did so in the context of whether it would be necessary or prudent. 
These commenters opposed the requirement on the grounds that it would 
be too burdensome to rights-holders, particularly those who publish new 
works on a frequent basis. Some also asserted that the Library alone 
should bear the responsibility of researching electronic serials, 
particularly given the numbers of small publishers who would likely 
remain ignorant of the rule. AAP objected that there was not enough 
detail about how the requirement would be administered for it to 
address the issue. AAP comment at 3. ASMP suggested that registration 
applications could contain a field indicating whether a work is online-
only, and that the Library could generate a list from these 
applications of works to demand. ASMP comment at 2.
    The Copyright Office believes that the question of a notice 
requirement need not be addressed in the present rulemaking. As 
indicated in the July 15th notice, there currently exists an adequate 
level of bibliographic control over electronic serials. However, as the 
Copyright Office and the Library gain experience with electronic 
serials, and other categories of online-only work are removed from the 
exemption and become subject to demand, the issue of the most efficient 
and comprehensive way to make the Library aware of what online-only 
works are available will likely be raised again.
    On the subject of publication, Patrice Lyons also queried whether 
works available only online are truly ``published'' within the meaning 
of the Copyright Act. Section 101 of title 17 defines ``publication'' 
as: ``The distribution of copies or phonorecords of a work to the 
public by sale or other transfer of ownership, or by rental, lease, or 
lending. The offering to distribute copies or phonorecords to a group 
of persons for purposes of further distribution, public performance, or 
public display, constitutes publication. A public performance or 
display of a work does not of itself constitute publication.'' It 
defines ``copies'' as ``material objects, other than phonorecords, in 
which a work is fixed by any method now known or later developed, and 
from which the work can be perceived, reproduced, or otherwise 
communicated, either directly or with the aid of a machine or device. 
The term `copies' includes the material object, other than a 
phonorecord, in which the work is first fixed.'' 17 U.S.C. 101.\5\ 
These definitions led Ms. Lyons to challenge the assumption that a 
publication takes place when ``a work represented in digital form is 
made available, publicly and/or privately in an internet environment, 
but no physical copy changes hands.'' Lyons comment at 2. Ms. Lyons 
also expressed concern that treating online-only works as publications 
might ``have implications on other sections of the U.S. Copyright Law, 
in particular, what rights are implicated when a copyrighted work is 
made available in an Internet environment, but no physical object, 
i.e., copy, changes hands.'' Id. As an alternative, she suggested that 
the public performance right may ``play an important role in this 
context.'' Id.
---------------------------------------------------------------------------

    \5\ ``Phonorecords'' are similarly defined as ``material objects 
in which sounds, other than those accompanying a motion picture or 
other audiovisual work, are fixed by any method now known or later 
developed, and from which the sounds can be perceived, reproduced, 
or otherwise communicated, either directly or with the aid of a 
machine or device. The term `phonorecords' includes the material 
object in which the sounds are first fixed.'' 17 U.S.C. 101. For 
convenience, this notice uses ``copies'' to refer to both copies and 
phonorecords.
---------------------------------------------------------------------------

    As a threshold matter, it appears well-settled electronic files are 
``fixed'' in the sense that they reside on server hard drives which 
are, as discussed above, material objects, and thus the files meet the 
``copies'' requirement of publication and distribution. To the extent 
that Ms. Lyons is questioning whether publication can take place by 
means of electronic transmission, that issue has also been settled. In 
New York Times Co. v. Tasini, 533 U.S. 483 (2001), the Supreme Court 
concluded that online databases that made copies of articles available 
electronically ``reproduce and distribute'' copies of those articles. 
Cases involving peer-to-peer file-sharing on the Internet have also 
recognized that online transmission constitutes distribution. See 
Metro-Goldwyn-Mayer v. Grokster, 545 U.S. 913 (2005) (noting that 
``peer-to-peer networks are employed to store and distribute electronic 
files`` and that peer-to-peer software ``enabled users to reproduce and 
distribute the copyrighted works in violation of the Copyright Act.''); 
London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 170-172 (D. 
Mass, 2008) (stating that ``an electronic file transfer is plainly 
within the sort of transaction that Sec.  106(3) [the distribution 
right] was intended to reach.''). Because ``[u]nder the definition in 
section 101, a work is `published' if one or more copies or 
phonorecords embodying it are distributed to the public,'' H.R. Rep. 
No. 96-1976, at 138 (1976), it follows that the electronic transmission 
of copies of a work to the public, as addressed in the distribution 
context in Tasini and Grokster, constitutes publication of that work.

Comments Outside of the Scope of the Rulemaking

    A number of commenters raised issues related to but outside of the 
scope of mandatory deposit for online-only works. Specifically, 
comments from BME, NAA, ASMP, and PPA regarding copyright registration 
cannot properly be addressed in a mandatory deposit rulemaking. 
Comments seeking a permanent exemption for mandatory deposit for 
photographs and databases are more appropriately raised when and if the 
Copyright Office proposes making those categories subject to demand. 
See PPA comment at 3; West comment at 4-5. Similarly, ASMP's request 
for a reevaluation of the best edition requirement regarding works 
published in both print and electronic formats goes beyond the 
immediate questions raised in the notice. See ASMP comment at 2. 
Indeed, the notice specifically stated that the proposed regulation 
would not apply ``to those works published in both physical and online 
formats.'' 74 FR, at 34287. ASMP also proposed that the regulation set 
standards for the medium,

[[Page 3869]]

security devices, and metadata for a copy of a deposited online-only 
work to be provided by the Library to a litigant. See id. at 3. This 
topic is out-of-scope as well.
    Finally, SIIA and West comment that fines for noncompliance with a 
demand should be imposed on a per-serial, rather than a per-work basis, 
is actually a question of statutory change beyond the purview of this 
or any rulemaking. While section 407 does grant the Register of 
Copyrights the discretion whether to impose a fine at all, it does not 
grant her the discretion to determine on what basis a fine may be 
imposed.

List of Subjects in 37 CFR Part 202

    Copyright, Registration of claims to copyright.

Interim Regulation

0
In consideration of the foregoing, the Copyright Office amends part 202 
of 37 CFR as follows:

PART 202 - PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

0
1. The authority citation for part 202 continues to read as follows:

    Authority: 17 U.S.C. 702.
0
2. Amend Sec.  202.19 as follows:
0
a. By adding a new sentence at the end of the undesignated paragraph 
following paragraph (b)(2)(ii);
0
b. By adding a new paragraph (b)(4); and
0
c. By revising paragraph (c)(5).
    The additions and revisions to Sec.  202.19 read as follows:

Sec.  202.19 Deposit of published copies or phonorecords for the 
Library of Congress.

* * * * *
    (b) * * *
    (2) * * * In the case of an electronic work published in the United 
States and available only online, a copy is ``complete'' if it includes 
all elements constituting the work in its published form, i.e., the 
complete work as published, including metadata and formatting codes 
otherwise exempt from mandatory deposit.
* * * * *
    (4) For purposes of Sec.  202.19(c)(5) of this regulation, an 
electronic serial is an electronic work published in the United States 
and available only online, issued or intended to be issued on an 
established schedule in successive parts bearing numerical or 
chronological designations, without subsequent alterations, and 
intended to be continued indefinitely. This class includes periodicals, 
newspapers, annuals, and the journals, proceedings, transactions, and 
other publications of societies.
    (c) * * *
    (5) Electronic works published in the United States and available 
only online. This exemption includes electronic serials available only 
online only until such time as a demand is issued by the Copyright 
Office under the regulations set forth in Sec.  202.24 of these 
regulations. This exemption does not apply to works that are published 
in both online, electronic formats and in physical formats, which 
remain subject to the appropriate mandatory deposit requirements.
* * * * *

0
3. Add a new Sec.  202.24, as follows:

Sec.  202.24 Deposit of published electronic works available only 
online.

    (a) Pursuant to authority under 17 U.S.C. 407(d), the Register of 
Copyrights may make written demand to deposit one complete copy or a 
phonorecord of an electronic work published in the United States and 
available only online upon the owner of copyright or of the exclusive 
right of publication in the work, under the following conditions:
    (1) Demands may be made only for works in those categories 
identified in Sec.  202.19(c)(5) of these regulations as being subject 
to demand.
    (2) Demands may be made only for works published on or after 
February 24, 2010.
    (3) The owner of copyright or of the exclusive right of publication 
must deposit the demanded work within three months of the date the 
demand notice is received.
    (4) Copies or phonorecords deposited in response to a demand must 
be able to be accessed and reviewed by the Copyright Office, Library of 
Congress, and the Library's authorized users on an ongoing basis.
    (b) Technical standards. Technical standards for the transmission 
of copies of online-only works to the Copyright Office in response to a 
demand will be available on the Copyright Office website 
(www.copyright.gov).
    (c) Definitions. (1) ``Best edition'' has the meaning set forth in 
Sec.  202.19(b)(1) of these regulations.
    (2) ``Complete copy'' has the meaning set forth in Sec.  
202.19(b)(2) of these regulations.
    (3) ``Electronic works'' are works fixed and published solely in an 
electronic format.
    (d) Special relief. (1) In the case of any demand made under 
paragraph (a) of this section, the Register of Copyrights may, after 
consultation with other appropriate officials of the Library of 
Congress and upon such conditions as the Register may determine after 
such consultation,
    (i) Extend the time period provided in section 407(d) of Title 17;
    (ii) Permit the deposit of incomplete copies or phonorecords; or
    (iii) Permit the deposit of copies or phonorecords other than those 
normally comprising the best edition.
    (2) Any decision as to whether to grant such special relief, and 
the conditions under which special relief is to be granted, shall be 
made by the Register of Copyrights after consultation with other 
appropriate officials of the Library of Congress, and shall be based 
upon the acquisition policies of the Library of Congress then in force.
    (3) Requests for special relief under this section shall be made in 
writing to the Copyright Acquisitions Division, shall be signed by or 
on behalf of the owner of copyright or of the exclusive right of 
publication in the work, and shall set forth specific reasons why the 
request should be granted.
* * * * *

0
4. Amend Part 202, Appendix B as follows:
0
a. By redesignating section IX as section X; and
0
b. By adding a new section IX.
    The revision to Part 202, Appendix B reads as follows:

Appendix B to Part 202 - ``Best Edition'' of Published Copyrighted 
Works for the Collections of the Library of Congress

* * * * *
    IX. Electronic Works Published in the United States and 
Available Only Online
    For all deposits, UTF-8 encoding is preferred to ASCII encoding 
and other non UTF-8 encodings for non-Latin character sets in all 
categories below.
    A. Electronic Serials
    1. Content Format
    a. Level 1: Serials-specific structured/markup format:
    (i) Content compliant with the NLM Journal Archiving (XML) 
Document Type Definition (DTD), with presentation stylesheet(s), 
rather than without.
    (ii) Other widely used serials or journal XML DTDs/schemas, with 
presentation stylesheet(s), rather than without.
    (iii) Proprietary XML format for serials or journals (with 
documentation), with DTD/schema and presentation stylesheet(s), 
rather than without.
    b. Level 2: Page-oriented rendition:
    (i) PDF/A (Portable Document Format/Archival; compliant with ISO 
19005).
    (ii) PDF (Portable Document Format, with searchable text, rather 
than without).
    c. Level 3: Other formats:
    (i) XHTML/HTML, as made available online, with presentation 
stylesheets(s), rather than without.

[[Page 3870]]

    (ii) XML (widely used, publicly documented XML-based word-
processing formats, e.g., ODF/OpenDocument Format, Office OpenXML), 
with presentation stylesheets(s), if appropriate, rather than 
without.
    (iii) Plain text.
    (iv) Other formats (e.g., proprietary word processing or page 
layout formats).
    2. Metadata Elements:
    If it has already been gathered and is available, descriptive 
data (metadata) as described below should accompany the deposited 
material.
    a. Title level metadata: serial or journal title, ISSN, 
publisher, frequency, place of publication.
    b. Article level metadata, as relevant/applicable: volume(s), 
number(s), issue dates(s), article title(s), article author(s), 
article identifier (DOI, etc.).
    c. With other descriptive metadata (e.g., subject heading(s), 
descriptor(s), abstract(s)), rather than without.
    3. Technological measures that control access to or use of the 
work should be removed.

    Dated: January 13, 2010.
Marybeth Peters,
Register of Copyrights.
    Approved by:
James H. Billington,
Librarian of Congress.
[FR Doc. 2010-1202 Filed 1-22-10; 8:45 am]
BILLING CODE 1410-30-S