Mandatory Deposit of Published Electronic Works Available Only Online, 34286-34290 [E9-16675]

Download as PDF 34286 Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Proposed Rules 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: Notice of proposed rulemaking. srobinson on DSKHWCL6B1PROD with PROPOSALS SUMMARY: The Copyright Office of the Library of Congress is proposing to amend its regulations governing mandatory deposit of electronic works published in the United States and available only online. The amendments would establish that such works are exempt from mandatory deposit until a demand for deposit of copies or phonorecords of such works is issued by the Copyright Office. They would also set forth the process for issuing and responding to a demand for deposit, amend the definition of a ‘‘complete copy’’ of a work for purposes of mandatory deposit of online–only works, and establish new best edition criteria for electronic serials available only online. The Copyright Office seeks public comment on these proposed revisions. DATES: Written comments must be received in the Office of the General Counsel of the Copyright Office no later than August 31, 2009. Reply comments must be received in the Office of the General Counsel of the Copyright Office no later than September 28, 2009. ADDRESSES: If hand delivered by a private party, an original and five copies of a comment or reply comment should be brought to the Library of Congress, U.S. Copyright Office, Room 401, 101 Independence Avenue, SE, Washington, DC 20559, between 8:30 a.m. and 5 p.m. E.D.T. The envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office. If delivered by a commercial courier, an original and five copies of a comment or reply comment must be delivered to the Congressional Courier Acceptance Site (‘‘CCAS’’) located at 2nd and D Streets, NE, Washington, DC between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office, LM 403, James Madison Building, 101 Independence Avenue, SE, Washington, DC 20559. Please note that CCAS will not accept delivery by means of overnight delivery services such as Federal Express, United Parcel Service VerDate Nov<24>2008 15:16 Jul 14, 2009 Jkt 217001 or DHL. If sent by mail (including overnight delivery using U.S. Postal Service Express Mail), an original and five copies of a comment or reply comment should be addressed to U.S. Copyright Office, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024. 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: specifies the required deposit in instances where ‘‘two or more editions of the same version of a work have been published.’’ When the mandatory deposit regulations were first issued in 1978, the Copyright Office adopted a regulation exempting machine–readable works. It reads as follows: Literary works, including computer programs and automated databases, published in the United States only in the form of machine–readable copies (such as magnetic tape or disks, punch cards, or the like) from which the work cannot ordinarily be visually perceived except with the aid of a machine or device [are exempted]. Works published in a form requiring the use of a machine or device for purposes of optical enlargement (such as film, filmstrips, slide films and works published in any variety of microform), and works published in visually perceivable form but used in connection with optical scanning devices, are not within this category and are subject to the applicable deposit requirements. Historical Context 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 also 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, the Copyright Office, with the approval of the Librarian of Congress, established regulations governing mandatory deposit and deposit for registration of copyright, which are set forth in Chapter II, Part 202 of Title 37 of the Code of Federal Regulations (CFR). Section 202.19 establishes the standards governing mandatory deposit of copies and phonorecords published in the United States for the Library of Congress. Section 202.20 prescribes rules pertaining to the required deposit for registration of a copyright claim with the Copyright Office under section 408 of Title 17, 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 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 37 CFR 202.19(c)(5) (1978). At the time this exemption was promulgated, copies of such machine–readable works were not widely marketed to the public. Thus, the Library decided not to require their deposit. However, by the mid–1980s many important reference materials traditionally made available only in print form were being published in whole or in part in machine–readable form (e.g, CD–ROM) and the public’s demand for access to and use of these materials had increased significantly. In addition, the Library’’s interest in collecting computer programs published in IBM and Macintosh formats was growing, and it needed a way to obtain these works for its collection. As a result, the Library established a Machine–Readable Collections Reading Room, and, in 1989, 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).1 The 1989 amendments also added two classes of works to the list of those not covered by the exemption: ‘‘automated databases distributed only in the form of machine–readable copies (such as magnetic tape or disks, punch cards, or the like) from which the work cannot 1The 1989 rulemaking did not suggest that electronic online–only works should also be subject to mandatory deposit, and there is no evidence that such an outcome was contemplated. In fact at that time, the Library did not possess the technological means of ingesting copies of online–only works. E:\FR\FM\15JYP1.SGM 15JYP1 Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Proposed Rules srobinson on DSKHWCL6B1PROD with PROPOSALS ordinarily be visually perceived except with the aid of a machine or device’’ and ‘‘computerized information works in the nature of statistical compendia, serials, and reference works.’’ Two years later, the Copyright Office amended section 202.19(c)(5) yet again to explicitly identify CD–ROM–formatted works as another category of works no longer included in the exemption. 56 FR 47402 (Sept. 19, 1991). Regulatory Interpretation and Practice. The term ‘‘automated database,’’ although used in the regulations to characterize a class of works, is a term that has not been defined in Title 17, and neither the Copyright Office regulations regarding mandatory deposit, nor the relevant Federal Register notices proposing and implementing regulatory changes, provide a definition of the term. However, the Copyright Office did provide a definition in its Circular 65: Copyright Registration for Automated Databases:2 The circular defines an ‘‘automated database’’ as ‘‘a body of facts, data, or other information assembled into an organized format suitable for use in a computer and comprising one or more files.’’ This definition comports with the general understanding of what constitutes a database, in that a database usually would not include works like journals, newspapers or encyclopedias. Even so, the Copyright Office practice to date has been, for purposes of mandatory deposit, to interpret this category broadly to encompass all electronic works published only online. To understand how this interpretation evolved, it should be noted that when section 202.19(c)(5) was amended in 1989, there was no tension involved in using the category ‘‘automated databases available only on–line in the United States’’ to refer to all online–only publications. For all practical purposes, the only works being published online at that time were automated databases, e.g. Westlaw and Nexis. The Copyright Office, however, did not revise its definition of automated databases as other categories of works, such as articles and serial titles, began to be published online. It chose instead to include these works in the exempted category ‘‘automated databases available only on–line in the United States’’ as a matter of convenience because, at that time, the Library exhibited neither the intention nor the technological ability to collect such works. Unfortunately, the effect of these practices has been to stretch the definition of the excluded 2 Circular 65 is currently under revision. VerDate Nov<24>2008 15:16 Jul 14, 2009 Jkt 217001 category ‘‘automated databases available only on–line in the United States’’ beyond its generally understood limits. Hence, the proposed revision to the exemption will replace this category with the more accurate ‘‘electronic works published in the United States and available only online.’’ Proposed Qualified Exemption: Demand–Based Deposit of Electronic Works Published in the United States and Available Only Online Twenty years have passed since the adoption of the regulation used to exclude from mandatory copyright deposit electronic works published in the United States and available only online. 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. Thus, the current inability of the Library to acquire online–only works through mandatory copyright deposit places the long–term preservation of the works at risk. To fulfill its mandate of sustaining and preserving a universal collection of knowledge, the Library is currently developing technological systems that will allow it to electronically ingest online–only works and maintain them in formats suitable for long–term preservation. As part of this process, the Library will also establish policies and practices to insure the security and integrity of its electronic collections, and to provide appropriate, limited access as allowed by law. So that this strategy may be implemented, the Copyright Office proposes to amend the mandatory copyright deposit regulations and thus 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). Via this notice, the Office seeks public comment on the proposed regulatory changes. To date, mandatory copyright deposit 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. There is no reason why mandatory deposit cannot or should not serve this function in the digital environment as well. If, for example, a PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 34287 scholarly journal is subject to mandatory copyright deposit when published in paper copies, it is logical and reasonable to demand its deposit once it is published solely in an online– accessible format, and such is the goal of the proposed amendments. a. Qualified Exemption for Electronic Works Published in the United States and Available Only Online This notice proposes that the current section 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 would mean that any work in this class is exempt until the Copyright Office issues a demand for its deposit. This revised exemption would apply to all published electronic works available only online. It would apply to serials, monographs, sound recordings, automated databases, and all other categories of electronic works. Furthermore, because the revised exemption would apply exclusively to published online–only works, there will be no need to retain the current list of machine–readable works in physical formats to which the exemption does not apply. It is important to emphasize, however, 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 § 202.19(c)(5).3 In proposing a qualified exemption, the Office 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. Guidance for adopting this approach comes from the House and Senate Reports for the Copyright Act of 1976 which state that: The fundamental criteria governing regulations issued under section 407(c) . . . would be the needs and wants of the Library. The purpose of this provision is to make the deposit requirements as flexible as possible . . . so that reasonable 3Note 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. E:\FR\FM\15JYP1.SGM 15JYP1 34288 Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Proposed Rules srobinson on DSKHWCL6B1PROD with PROPOSALS adjustments can be made to meet practical needs in special cases. The regulations, in establishing special categories for these purposes, would necessarily balance the value of the copies or phonorecords to the collections of the Library of Congress against the burdens and costs to the copyright owner of providing them. H.R. Rep. No. 94–1476, at 150 (1976); S. Rep. No. 94–473, at 133 (1975). By exempting published electronic works available only online until a demand is made, the proposed 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 burdens on copyright owners, who will only have to deposit those works demanded by the Copyright Office. b. Single Copy of Work Demanded Title 17’s mandatory deposit provision requires the deposit of two copies or phonorecords [17 U.S.C. 407(a)(1)], but grants the Copyright Office authority to reduce that number to one by regulation. Pursuant to this authority, the proposed qualified exemption will state 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. Upon receipt of the single copy of a demanded work, the Library may allow simultaneous access by two on–site users. This achieves the statute’’s goal of providing two copies of a published work to the Library of Congress in a more efficient and flexible manner. c. Demand Deposit Process This notice proposes that published electronic works available only online be deposited only pursuant to a demand issued by the Copyright Office, under the authority of section 407(d) of Title 17. The Library intends to phase in its collection of online–only works on a category–by–category basis. The initial revision of § 202.19(c)(5) proposed in this notice identifies ‘‘electronic serials’’ as being exempt but subject to demand, because that is the first category of online–only works that the Library intends to collect. As the Library expands its collection of online–only works to other categories, these new categories would be identified in § 202.19(c)(5) as subject to demand, following a notice and comment period. Under the proposed regulation, once a category of works is identified as being subject to demand under the qualified VerDate Nov<24>2008 15:16 Jul 14, 2009 Jkt 217001 exemption of § 202.19(c)(5), the Copyright Office would be able to make a demand on the owner of copyright or of the exclusive right of publication for one 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. A demand for a copy of an online–only periodical or other serial would cover not only the issue or issues specified in the demand, but also all subsequent issues of the serial title. The owner of copyright or of the exclusive right of publication would 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 proposed regulation also includes a provision governing requests for special relief from the requirements of the demand process to accommodate, for example, situations where the work is no longer available in any of the formats listed in the Best Edition Statement. d. Notice of Publication The Library intends to commence the demand–deposit program proposed by this notice with the ‘‘electronic serials’’ category of electronic works published in the United States and available only online. The Library believes that sufficient bibliographic information exists on electronic serials (such as indexes, online search tools, and announcement lists) that it will be able to independently determine which titles to demand. However, experience with the demand–deposit process may demonstrate that a number of important electronic serial titles are escaping the Library’’s notice. Moreover, other categories of online–only works likely are not subject to the same level of bibliographic control as electronic serials, and hence may prove to be even more elusive. The Copyright Office is thus soliciting comments on the question of whether the owner of copyright or of the exclusive right of publication in an online–only work should be required to notify the Library of Congress upon the publication of a new online–only work in the United States. Such a notice of publication would provide an additional source of information on which the Library could rely in ascertaining what works are available. As a threshold matter, the Office is interested in comments regarding whether promulgating such a notice requirement as a condition of the qualified exemption from mandatory deposit is within the Office’’s authority PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 as granted by 17 U.S.C. 407. In addition, commenters should address whether a notice requirement is necessary and prudent and whether it would strike the appropriate balance between the needs of the Library for timely publication information and the imposition of a further requirement on copyright holders. Comments are also welcome on the content and frequency of notices of publication. For example, would it be preferable to require notification upon the publication of each new work or serial title, or instead to require the submission of a list of all new publications at a predetermined frequency (monthly, quarterly, etc.)? Finally, assuming the advisability of a notice of publication requirement, what should the consequences be for noncompliance? e. Revised ‘‘Complete Copy’’ Definition 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. Thus, this notice proposes to clarify 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. f. Best Edition Statement for Electronic Serials This notice proposes the creation of a new section of the Best Edition Statement in Appendix B to Part 202, describing best edition criteria for published electronic works available only online in the United States. These criteria are based primarily upon the potential sustainability of the various digital formats currently in use. A work deposited in a sustainable format is one that is less difficult and more cost– effective to transform or migrate to future systems as technologies change. Consistent with the Library’’s current collection priorities, demands under the proposed amendments will initially E:\FR\FM\15JYP1.SGM 15JYP1 Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Proposed Rules focus on material that has traditionally been published in hard copy. The first category of electronic works published in the United States and available only online for which the Library is proposing best edition criteria is electronic serials, a term that this notice proposes to define. It is the understanding of the Copyright Office that the formats listed in the proposed Best Edition Statement for electronic serials are all currently publication formats used by some, if not all, electronic serial publishers. Best edition criteria for other categories of electronic works published in the United States and available only online will follow as they are developed. List of Subjects in 37 CFR Part 202 Copyright and registration of claims to copyright Proposed Regulations In consideration of the foregoing, the Copyright Office proposes to amend part 202 of 37 CFR, as follows: PART 202 – PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT 1. The authority citation for part 202 continues to read as follows: Authority: 17 U.S.C. 702 2. Amend § 202.19 as follows: a. By revising paragraph (b)(2); b. By adding a new paragraph (b)(4); and c. By revising paragraph (c)(5). The additions and revisions to § 202.19 read as follows: § 202.19 Deposit of published copies or phonorecords for the Library of Congress. srobinson on DSKHWCL6B1PROD with PROPOSALS * * * * * (b) * * * (2) A complete copy 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. (i) In the case of sound recordings, a (complete( phonorecord includes the phonorecord, together with any printed or other visually perceptible material published with such phonorecord (such as textual or pictorial matter appearing on record sleeves or album covers, or embodied in leaflets or booklets included in a sleeve, album, or other container). (ii) In the case of a musical composition published in copies only, or in both copies and phonorecords: VerDate Nov<24>2008 17:05 Jul 14, 2009 Jkt 217001 (A) If the only publication of copies in the United States took place by the rental, lease, or lending of a full score and parts, a full score is a (complete( copy; and (B) If the only publication of copies in the United States took place by the rental, lease, or lending of a conductor’s score and parts, a conductor’s score is a (complete( copy. (iii) In the case of a motion picture, a copy is (complete( if the reproduction of all of the visual and aural elements comprising the copyrightable subject matter in the work is clean, undamaged, undeteriorated, and free of splices, and if the copy itself and its physical housing are free of any defects that would interfere with the performance of the work or that would cause mechanical, visual, or audible defects or distortions. (iv) 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 § 202.19(c)(5) of these regulations, an electronic serial is an electronic work published in the United States and available only online, issued or intended to be issued in successive parts bearing numerical or chronological designations, and intended to be continued indefinitely. This class includes periodicals; newspapers; annuals; and the journals, proceedings, transactions, etc. 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 § 202.24. 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. * * * * * 3. Add a new § 202.24, as follows: § 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 phonorecord of an electronic work published in the United PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 34289 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 § 202.19(c)(5) of these regulations as being subject to demand. (2)Demands may be made only for works published on or after [the effective date of the final regulation]. (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)If the demanded work is not available in any of the formats listed in the Best Edition Statement, the owner of copyright or of the exclusive right of publication may request special relief under paragraph (c) of this section. (b) Definitions. (1) ‘‘Best edition’’ has the meaning set forth in § 202.19(b)(1) of this part. (2)‘‘Complete copy’’ has the meaning set forth in § 202.19(b)(2) of this part. (c)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[e1]; (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. 4.Amend Part 202, Appendix B, Section I as follows: a.By redesignating section IX as section X; and b.By adding a new section IX. The revision to Part 202, Appendix B, Section I reads as follows: Appendix B to Part 202 – ‘‘Best Edition’’ of Published Copyrighted E:\FR\FM\15JYP1.SGM 15JYP1 34290 Federal Register / Vol. 74, No. 134 / Wednesday, July 15, 2009 / Proposed Rules Works for the Collections of the Library of Congress * * * * * srobinson on DSKHWCL6B1PROD with PROPOSALS 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. (ii)XML (widely used, publicly documented XML–based word–processing formats, e.g. ODF/OpenDocument Format, 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.Access and copy controls: a.Editions without access and copy controls, or with those controls disabled, are preferred over editions with such controls. Dated: July 7, 2009. Marybeth Peters, Register of Copyrights. [FR Doc. E9–16675 Filed 7–14–09; 8:45 am] BILLING CODE 1410–30–S VerDate Nov<24>2008 17:05 Jul 14, 2009 Jkt 217001 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 50 [EPA–HQ–OAR–2006–0922; FRL– 8930–6] RIN 2060–AO19 Public Hearings for Primary National Ambient Air Quality Standards for Nitrogen Dioxide AGENCY: Environmental Protection Agency (EPA). ACTION: Announcement of public hearings. SUMMARY: The EPA is announcing two public hearings to be held for the proposed rule ‘‘Primary National Ambient Air Quality Standards for Nitrogen Dioxide’’ which is published elsewhere in this Federal Register. The hearings will be held in Arlington, Virginia, on Monday, August 3, 2009 and Los Angeles, California, on Thursday, August 6, 2009. In the notice of proposed rulemaking, EPA proposes to make revisions to the primary nitrogen dioxide (NO2) national ambient air quality standard (NAAQS) in order to provide requisite protection of public health. Specifically, EPA proposes to supplement the current annual standard by establishing a new short-term NO2 standard based on the 3year average of the 99th percentile (or 4th highest) of the annual distribution of 1-hour daily maximum concentrations. The EPA proposes to set the level of this new standard within the range of 80 to 100 parts per billion (ppb) and solicits comment on standard levels as low as 65 ppb and as high as 150 ppb. Also, EPA proposes to establish requirements for an NO2 monitoring network that will include monitors within 50 meters of major roadways. In addition, EPA is soliciting comment on an alternative approach to setting the standard and revising the monitoring network. Consistent with the terms of a consent decree, the Administrator will sign a notice of final rulemaking by January 22, 2010. DATES: The public hearings will be held on August 3, 2009 in Arlington, Virginia, and on August 6, 2009 in Los Angeles, California. Please refer to SUPPLEMENTARY INFORMATION for additional information on the public hearings. ADDRESSES: The hearings will be held at the following locations: 1. Arlington, VA: Environmental Protection Agency Conference Center, First Floor Conference Center South, One Potomac Yard, 2777 S. Crystal Drive, Arlington, VA 22202. All visitors PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 will need to go through security and present a valid photo identification, such as a driver’s license. 2. Los Angeles, CA: Sheraton Los Angeles Downtown, 711 South Hope Street, Los Angeles, CA 90017, telephone (213) 488–3500. Written comments on this proposed rule may also be submitted to EPA electronically, by mail, by facsimile, or through hand delivery/courier. Please refer to the notice of proposed rulemaking for the addresses and detailed instructions for submitting written comments. A complete set of documents related to the proposal is available for public inspection at the EPA Docket Center, located at 1301 Constitution Avenue, NW., Room 3334, Washington, DC between 8:30 a.m. and 4:30 p.m., Monday through Friday, excluding legal holidays. A reasonable fee may be charged for copying. Documents are also available through the electronic docket system at http://www.regulations.gov . The EPA Web site for the rulemaking, which includes the proposal and information about the public hearings can be found at: http://www.epa.gov/air/ nitrogenoxides/. FOR FURTHER INFORMATION CONTACT: If you would like to speak at the public hearings or have questions concerning the public hearings, please contact Ms. Tricia Crabtree at the address given below under SUPPLEMENTARY INFORMATION. Questions concerning the ‘‘Primary National Ambient Air Quality Standards for Nitrogen Dioxide’’ proposed rule should be addressed to Dr. Scott Jenkins, U.S. EPA, Office of Air Quality Planning and Standards, Health and Environmental Impacts Division (C504– 06), Research Triangle Park, NC 27711, telephone (919) 541–1167, e-mail: jenkins.scott@epa.gov . SUPPLEMENTARY INFORMATION: The proposal for which EPA is holding the public hearings is published elsewhere in this Federal Register and is also available on the following Web site: http://www.epa.gov/air/nitrogenoxides/. The public hearings will provide interested parties the opportunity to present data, views, or arguments concerning the proposed rules. The EPA may ask clarifying questions during the oral presentations, but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as any oral comments and supporting information presented at the public hearings. Written comments must be E:\FR\FM\15JYP1.SGM 15JYP1

Agencies

[Federal Register Volume 74, Number 134 (Wednesday, July 15, 2009)]
[Proposed Rules]
[Pages 34286-34290]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-16675]



[[Page 34286]]

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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: Notice of proposed rulemaking.

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SUMMARY: The Copyright Office of the Library of Congress is proposing 
to amend its regulations governing mandatory deposit of electronic 
works published in the United States and available only online. The 
amendments would establish that such works are exempt from mandatory 
deposit until a demand for deposit of copies or phonorecords of such 
works is issued by the Copyright Office. They would also set forth the 
process for issuing and responding to a demand for deposit, amend the 
definition of a ``complete copy'' of a work for purposes of mandatory 
deposit of online-only works, and establish new best edition criteria 
for electronic serials available only online. The Copyright Office 
seeks public comment on these proposed revisions.

DATES: Written comments must be received in the Office of the General 
Counsel of the Copyright Office no later than August 31, 2009. Reply 
comments must be received in the Office of the General Counsel of the 
Copyright Office no later than September 28, 2009.

ADDRESSES: If hand delivered by a private party, an original and five 
copies of a comment or reply comment should be brought to the Library 
of Congress, U.S. Copyright Office, Room 401, 101 Independence Avenue, 
SE, Washington, DC 20559, between 8:30 a.m. and 5 p.m. E.D.T. The 
envelope should be addressed as follows: Office of the General Counsel, 
U.S. Copyright Office. If delivered by a commercial courier, an 
original and five copies of a comment or reply comment must be 
delivered to the Congressional Courier Acceptance Site (``CCAS'') 
located at 2nd and D Streets, NE, Washington, DC between 8:30 a.m. and 
4 p.m. The envelope should be addressed as follows: Office of the 
General Counsel, U.S. Copyright Office, LM 403, James Madison Building, 
101 Independence Avenue, SE, Washington, DC 20559. Please note that 
CCAS will not accept delivery by means of overnight delivery services 
such as Federal Express, United Parcel Service or DHL. If sent by mail 
(including overnight delivery using U.S. Postal Service Express Mail), 
an original and five copies of a comment or reply comment should be 
addressed to U.S. Copyright Office, Copyright GC/I&R, P.O. Box 70400, 
Washington, DC 20024.

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:

Historical Context

    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 also 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, the Copyright Office, with the approval of the 
Librarian of Congress, established regulations governing mandatory 
deposit and deposit for registration of copyright, which are set forth 
in Chapter II, Part 202 of Title 37 of the Code of Federal Regulations 
(CFR). Section 202.19 establishes the standards governing mandatory 
deposit of copies and phonorecords published in the United States for 
the Library of Congress. Section 202.20 prescribes rules pertaining to 
the required deposit for registration of a copyright claim with the 
Copyright Office under section 408 of Title 17, 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.''
    When the mandatory deposit regulations were first issued in 1978, 
the Copyright Office adopted a regulation exempting machine-readable 
works. It reads as follows:
     Literary works, including computer programs and automated 
databases, published in the United States only in the form of 
machine-readable copies (such as magnetic tape or disks, punch 
cards, or the like) from which the work cannot ordinarily be 
visually perceived except with the aid of a machine or device [are 
exempted]. Works published in a form requiring the use of a machine 
or device for purposes of optical enlargement (such as film, 
filmstrips, slide films and works published in any variety of 
microform), and works published in visually perceivable form but 
used in connection with optical scanning devices, are not within 
this category and are subject to the applicable deposit 
requirements.
    37 CFR 202.19(c)(5) (1978). At the time this exemption was 
promulgated, copies of such machine-readable works were not widely 
marketed to the public. Thus, the Library decided not to require their 
deposit.
    However, by the mid-1980s many important reference materials 
traditionally made available only in print form were being published in 
whole or in part in machine-readable form (e.g, CD-ROM) and the 
public's demand for access to and use of these materials had increased 
significantly. In addition, the Library''s interest in collecting 
computer programs published in IBM and Macintosh formats was growing, 
and it needed a way to obtain these works for its collection. As a 
result, the Library established a Machine-Readable Collections Reading 
Room, and, in 1989, 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).\1\
---------------------------------------------------------------------------

    \1\The 1989 rulemaking did not suggest that electronic online-
only works should also be subject to mandatory deposit, and there is 
no evidence that such an outcome was contemplated. In fact at that 
time, the Library did not possess the technological means of 
ingesting copies of online-only works.
---------------------------------------------------------------------------

    The 1989 amendments also added two classes of works to the list of 
those not covered by the exemption: ``automated databases distributed 
only in the form of machine-readable copies (such as magnetic tape or 
disks, punch cards, or the like) from which the work cannot

[[Page 34287]]

ordinarily be visually perceived except with the aid of a machine or 
device'' and ``computerized information works in the nature of 
statistical compendia, serials, and reference works.'' Two years later, 
the Copyright Office amended section 202.19(c)(5) yet again to 
explicitly identify CD-ROM-formatted works as another category of works 
no longer included in the exemption. 56 FR 47402 (Sept. 19, 1991).

Regulatory Interpretation and Practice.

    The term ``automated database,'' although used in the regulations 
to characterize a class of works, is a term that has not been defined 
in Title 17, and neither the Copyright Office regulations regarding 
mandatory deposit, nor the relevant Federal Register notices proposing 
and implementing regulatory changes, provide a definition of the term. 
However, the Copyright Office did provide a definition in its Circular 
65: Copyright Registration for Automated Databases:\2\ The circular 
defines an ``automated database'' as ``a body of facts, data, or other 
information assembled into an organized format suitable for use in a 
computer and comprising one or more files.'' This definition comports 
with the general understanding of what constitutes a database, in that 
a database usually would not include works like journals, newspapers or 
encyclopedias.
---------------------------------------------------------------------------

    \2\ Circular 65 is currently under revision.
---------------------------------------------------------------------------

    Even so, the Copyright Office practice to date has been, for 
purposes of mandatory deposit, to interpret this category broadly to 
encompass all electronic works published only online. To understand how 
this interpretation evolved, it should be noted that when section 
202.19(c)(5) was amended in 1989, there was no tension involved in 
using the category ``automated databases available only on-line in the 
United States'' to refer to all online-only publications. For all 
practical purposes, the only works being published online at that time 
were automated databases, e.g. Westlaw and Nexis. The Copyright Office, 
however, did not revise its definition of automated databases as other 
categories of works, such as articles and serial titles, began to be 
published online. It chose instead to include these works in the 
exempted category ``automated databases available only on-line in the 
United States'' as a matter of convenience because, at that time, the 
Library exhibited neither the intention nor the technological ability 
to collect such works. Unfortunately, the effect of these practices has 
been to stretch the definition of the excluded category ``automated 
databases available only on-line in the United States'' beyond its 
generally understood limits. Hence, the proposed revision to the 
exemption will replace this category with the more accurate 
``electronic works published in the United States and available only 
online.''

Proposed Qualified Exemption: Demand-Based Deposit of Electronic Works 
Published in the United States and Available Only Online

    Twenty years have passed since the adoption of the regulation used 
to exclude from mandatory copyright deposit electronic works published 
in the United States and available only online. 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. Thus, the current 
inability of the Library to acquire online-only works through mandatory 
copyright deposit places the long-term preservation of the works at 
risk.
    To fulfill its mandate of sustaining and preserving a universal 
collection of knowledge, the Library is currently developing 
technological systems that will allow it to electronically ingest 
online-only works and maintain them in formats suitable for long-term 
preservation. As part of this process, the Library will also establish 
policies and practices to insure the security and integrity of its 
electronic collections, and to provide appropriate, limited access as 
allowed by law. So that this strategy may be implemented, the Copyright 
Office proposes to amend the mandatory copyright deposit regulations 
and thus 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). Via this notice, the Office seeks public 
comment on the proposed regulatory changes.
    To date, mandatory copyright deposit 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. There is 
no reason why mandatory deposit cannot or should not serve this 
function in the digital environment as well. If, for example, a 
scholarly journal is subject to mandatory copyright deposit when 
published in paper copies, it is logical and reasonable to demand its 
deposit once it is published solely in an online-accessible format, and 
such is the goal of the proposed amendments.
    a. Qualified Exemption for Electronic Works Published in the United 
States and Available Only Online
    This notice proposes that the current section 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 would mean that any work in this class is 
exempt until the Copyright Office issues a demand for its deposit. This 
revised exemption would apply to all published electronic works 
available only online. It would apply to serials, monographs, sound 
recordings, automated databases, and all other categories of electronic 
works. Furthermore, because the revised exemption would apply 
exclusively to published online-only works, there will be no need to 
retain the current list of machine-readable works in physical formats 
to which the exemption does not apply. It is important to emphasize, 
however, 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).\3\
---------------------------------------------------------------------------

    \3\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.
---------------------------------------------------------------------------

    In proposing a qualified exemption, the Office 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. 
Guidance for adopting this approach comes from the House and Senate 
Reports for the Copyright Act of 1976 which state that:
     The fundamental criteria governing regulations issued under 
section 407(c) . . . would be the needs and wants of the Library. 
The purpose of this provision is to make the deposit requirements as 
flexible as possible . . . so that reasonable

[[Page 34288]]

adjustments can be made to meet practical needs in special cases. 
The regulations, in establishing special categories for these 
purposes, would necessarily balance the value of the copies or 
phonorecords to the collections of the Library of Congress against 
the burdens and costs to the copyright owner of providing them.
    H.R. Rep. No. 94-1476, at 150 (1976); S. Rep. No. 94-473, at 133 
(1975). By exempting published electronic works available only online 
until a demand is made, the proposed 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 burdens on copyright owners, 
who will only have to deposit those works demanded by the Copyright 
Office.
    b. Single Copy of Work Demanded
    Title 17's mandatory deposit provision requires the deposit of two 
copies or phonorecords [17 U.S.C. 407(a)(1)], but grants the Copyright 
Office authority to reduce that number to one by regulation. Pursuant 
to this authority, the proposed qualified exemption will state 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. Upon receipt of the single copy of a 
demanded work, the Library may allow simultaneous access by two on-site 
users. This achieves the statute''s goal of providing two copies of a 
published work to the Library of Congress in a more efficient and 
flexible manner.
    c. Demand Deposit Process
    This notice proposes that published electronic works available only 
online be deposited only pursuant to a demand issued by the Copyright 
Office, under the authority of section 407(d) of Title 17. The Library 
intends to phase in its collection of online-only works on a category-
by-category basis. The initial revision of Sec.  202.19(c)(5) proposed 
in this notice identifies ``electronic serials'' as being exempt but 
subject to demand, because that is the first category of online-only 
works that the Library intends to collect. As the Library expands its 
collection of online-only works to other categories, these new 
categories would be identified in Sec.  202.19(c)(5) as subject to 
demand, following a notice and comment period.
    Under the proposed regulation, 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 would be able to make a demand 
on the owner of copyright or of the exclusive right of publication for 
one 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. A demand for a copy of an online-only periodical or other 
serial would cover not only the issue or issues specified in the 
demand, but also all subsequent issues of the serial title.
    The owner of copyright or of the exclusive right of publication 
would 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 proposed regulation also 
includes a provision governing requests for special relief from the 
requirements of the demand process to accommodate, for example, 
situations where the work is no longer available in any of the formats 
listed in the Best Edition Statement.
    d. Notice of Publication
    The Library intends to commence the demand-deposit program proposed 
by this notice with the ``electronic serials'' category of electronic 
works published in the United States and available only online. The 
Library believes that sufficient bibliographic information exists on 
electronic serials (such as indexes, online search tools, and 
announcement lists) that it will be able to independently determine 
which titles to demand. However, experience with the demand-deposit 
process may demonstrate that a number of important electronic serial 
titles are escaping the Library''s notice. Moreover, other categories 
of online-only works likely are not subject to the same level of 
bibliographic control as electronic serials, and hence may prove to be 
even more elusive.
    The Copyright Office is thus soliciting comments on the question of 
whether the owner of copyright or of the exclusive right of publication 
in an online-only work should be required to notify the Library of 
Congress upon the publication of a new online-only work in the United 
States. Such a notice of publication would provide an additional source 
of information on which the Library could rely in ascertaining what 
works are available.
    As a threshold matter, the Office is interested in comments 
regarding whether promulgating such a notice requirement as a condition 
of the qualified exemption from mandatory deposit is within the 
Office''s authority as granted by 17 U.S.C. 407. In addition, 
commenters should address whether a notice requirement is necessary and 
prudent and whether it would strike the appropriate balance between the 
needs of the Library for timely publication information and the 
imposition of a further requirement on copyright holders. Comments are 
also welcome on the content and frequency of notices of publication. 
For example, would it be preferable to require notification upon the 
publication of each new work or serial title, or instead to require the 
submission of a list of all new publications at a predetermined 
frequency (monthly, quarterly, etc.)? Finally, assuming the 
advisability of a notice of publication requirement, what should the 
consequences be for noncompliance?
    e. Revised ``Complete Copy'' Definition
    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. Thus, this notice proposes to clarify 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.
    f. Best Edition Statement for Electronic Serials
    This notice proposes the creation of a new section of the Best 
Edition Statement in Appendix B to Part 202, describing best edition 
criteria for published electronic works available only online in the 
United States. These criteria are based primarily upon the potential 
sustainability of the various digital formats currently in use. A work 
deposited in a sustainable format is one that is less difficult and 
more cost-effective to transform or migrate to future systems as 
technologies change.
    Consistent with the Library''s current collection priorities, 
demands under the proposed amendments will initially

[[Page 34289]]

focus on material that has traditionally been published in hard copy. 
The first category of electronic works published in the United States 
and available only online for which the Library is proposing best 
edition criteria is electronic serials, a term that this notice 
proposes to define. It is the understanding of the Copyright Office 
that the formats listed in the proposed Best Edition Statement for 
electronic serials are all currently publication formats used by some, 
if not all, electronic serial publishers. Best edition criteria for 
other categories of electronic works published in the United States and 
available only online will follow as they are developed.

List of Subjects in 37 CFR Part 202

    Copyright and registration of claims to copyright

Proposed Regulations

    In consideration of the foregoing, the Copyright Office proposes to 
amend part 202 of 37 CFR, as follows:

PART 202 - PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

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

    Authority: 17 U.S.C. 702
    2. Amend Sec.  202.19 as follows:
    a. By revising paragraph (b)(2);
    b. By adding a new paragraph (b)(4); and
    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) A complete copy 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.
    (i) In the case of sound recordings, a (complete( phonorecord 
includes the phonorecord, together with any printed or other visually 
perceptible material published with such phonorecord (such as textual 
or pictorial matter appearing on record sleeves or album covers, or 
embodied in leaflets or booklets included in a sleeve, album, or other 
container).
    (ii) In the case of a musical composition published in copies only, 
or in both copies and phonorecords:
    (A) If the only publication of copies in the United States took 
place by the rental, lease, or lending of a full score and parts, a 
full score is a (complete( copy; and
    (B) If the only publication of copies in the United States took 
place by the rental, lease, or lending of a conductor's score and 
parts, a conductor's score is a (complete( copy.
    (iii) In the case of a motion picture, a copy is (complete( if the 
reproduction of all of the visual and aural elements comprising the 
copyrightable subject matter in the work is clean, undamaged, 
undeteriorated, and free of splices, and if the copy itself and its 
physical housing are free of any defects that would interfere with the 
performance of the work or that would cause mechanical, visual, or 
audible defects or distortions.
    (iv) 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 these regulations, an 
electronic serial is an electronic work published in the United States 
and available only online, issued or intended to be issued in 
successive parts bearing numerical or chronological designations, and 
intended to be continued indefinitely. This class includes periodicals; 
newspapers; annuals; and the journals, proceedings, transactions, etc. 
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. 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.
* * * * *
    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 
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 [the 
effective date of the final regulation].
    (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)If the demanded work is not available in any of the formats 
listed in the Best Edition Statement, the owner of copyright or of the 
exclusive right of publication may request special relief under 
paragraph (c) of this section.
    (b) Definitions. (1) ``Best edition'' has the meaning set forth in 
Sec.  202.19(b)(1) of this part.
    (2)``Complete copy'' has the meaning set forth in Sec.  
202.19(b)(2) of this part.
    (c)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[e1];
    (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.

    4.Amend Part 202, Appendix B, Section I as follows:
    a.By redesignating section IX as section X; and
    b.By adding a new section IX.
    The revision to Part 202, Appendix B, Section I reads as follows:
    Appendix B to Part 202 - ``Best Edition'' of Published Copyrighted

[[Page 34290]]

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.
    (ii)XML (widely used, publicly documented XML-based word-
processing formats, e.g. ODF/OpenDocument Format, 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.Access and copy controls:
    a.Editions without access and copy controls, or with those 
controls disabled, are preferred over editions with such controls.

    Dated: July 7, 2009.
Marybeth Peters,
Register of Copyrights.
[FR Doc. E9-16675 Filed 7-14-09; 8:45 am]
BILLING CODE 1410-30-S