Registration of Claims to Copyright, 37605-37608 [2012-15235]

Download as PDF Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations telephone (415) 399–7442 or email at D11-PF-MarineEvents@uscg.mil. The Coast Guard will enforce a 100 foot safety zone around the fireworks barge during the loading, transit, and arrival of the fireworks barge to the display location and until the start of the fireworks display. From 9 a.m. until 2 p.m. on July 4, 2012, the barge will be loading off of Pier 50 in position 37°46′28″ N, 122°23′06″ W (NAD 83). From 7 p.m. to 8:30 p.m. on July 4, 2012 the loaded barge will transit from Pier 50 to the launch site near Sausalito, CA in position 37°51′30″ N, 122°28′29″ W (NAD83). Upon the commencement of the fireworks display, scheduled to take place from 9:15 p.m. to 9:30 p.m. on July 4, 2012, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge within a radius 1,000 feet around the launch site near Sausalito, CA in position 37°51′30″ N, 122°28′29″ W (NAD83) for the City of Sausalito’s Fourth of July Fireworks Display in 33 CFR 165.1191. This safety zone will be in effect from 9 a.m. to 9:45 p.m. on July 4, 2012. Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so. This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners. If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area. wreier-aviles on DSK7SPTVN1PROD with RULES SUPPLEMENTARY INFORMATION: VerDate Mar<15>2010 14:17 Jun 21, 2012 Jkt 226001 Dated: June 6, 2012. Cynthia L. Stowe, Captain, U.S. Coast Guard, Captain of the Port San Francisco. [FR Doc. 2012–15264 Filed 6–21–12; 8:45 am] BILLING CODE 9110–04–P LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. 2012–6] Registration of Claims to Copyright Copyright Office, Library of Congress. ACTION: Statement of Policy; Registration of Compilations. AGENCY: The Copyright Office issues this statement of policy to clarify the practices relating to the examination of claims in compilations, and particularly in claims of copyrightable authorship in selection and arrangement of exercises or of other uncopyrightable matter. The statement also clarifies the Office’s policies with respect to registration of choreographic works. DATES: Effective June 22, 2012. FOR FURTHER INFORMATION CONTACT: Robert Kasunic, Deputy General Counsel, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024–0400. Telephone (202) 707–8380; fax (202) 707–8366. SUPPLEMENTARY INFORMATION: The Copyright Office is issuing a statement of policy to clarify its examination practices with respect to claims in ‘‘compilation authorship,’’ or the selection, coordination, or arrangement of material that is otherwise separately uncopyrightable. The Office has long accepted claims of registration based on the selection, coordination, or arrangement of uncopyrightable elements, because the Copyright Act specifically states that copyrightable authorship includes compilations. 17 U.S.C. 103. The term ‘‘compilation’’ is defined in the Copyright Act: SUMMARY: A ‘‘compilation’’ is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. 17 U.S.C. 101 (‘‘compilation’’). This definition’s inclusion of the terms ‘‘preexisting material’’ or ‘‘data’’ suggest that individually uncopyrightable elements may be compiled into a copyrightable whole. The legislative PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 37605 history of the 1976 Act supports this interpretation, stating that a compilation ‘‘results from a process of selecting, bringing together, organizing, and arranging previously existing material of all kinds, regardless of whether the individual items in the material have been or ever could have been subject to copyright.’’ H.R. Rep. 94–1476, at 57 (emphasis added). Viewed in a vacuum, it might appear that any organization of preexisting material may be copyrightable. However, the Copyright Act, the legislative history and the Supreme Court’s decision in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (U.S. 1991), lead to a different conclusion. In Feist, interpreting the congressional language in the section 101 definition of ‘‘compilation,’’ the Supreme Court found protectable compilations to be limited to ‘‘a work formed by the collection and assembling of preexisting material or data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.’’ Feist at 356, quoting 17 U.S.C. 101 (‘‘compilation’’) (emphasis by the Court). The Court stated: The purpose of the statutory definition is to emphasize that collections of facts are not copyrightable per se. It conveys this message through its tripartite structure, as emphasized above by the italics. The statute identifies three distinct elements and requires each to be met for a work to qualify as a copyrightable compilation: (1) The collection and assembly of pre-existing material, facts, or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of an ‘‘original’’ work of authorship * * *. Not every selection, coordination, or arrangement will pass muster. This is plain from the statute. * * * [W]e conclude that the statute envisions that there will be some fact-based works in which the selection, coordination, and arrangement are not sufficiently original to trigger copyright protection. Feist, 499 U.S. at 357–358 (U.S. 1991) The Court’s decision in Feist clarified that some selections, coordinations, or arrangements will not qualify as works of authorship under the statutory definition of ‘‘compilation’’ in section 101. However, a question that was not present in the facts of Feist and therefore not considered by the Court, is whether the selection, coordination, or arrangement of preexisting materials must relate to the section 102 categories of copyrightable subject matter. In Feist, Rural Telephone’s alphabetical directory was found deficient due to a lack of originality, i.e., E:\FR\FM\22JNR1.SGM 22JNR1 37606 Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations or arrangement that results in a work of authorship. But that expansion also makes it clear that not every selection, coordination, or arrangement of material is copyrightable. Only selection, coordination, or arrangement that falls within section 102 authorship is copyrightable, i.e., is selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. Moreover, section 103 provides that compilations fall within ‘‘[t]he subject matter of copyright as specified by section 102,’’ and the legislative history of the 1976 Act confirms what this means: ‘‘Section 103 complements section 102: A compilation or derivative work is copyrightable if it represents an ‘original work of authorship’ and falls within one or more of the categories listed in section 102.’’ H.R. Rep. 94–1476 at 57 (1976) (emphasis added). This requirement indicates that compilation authorship is limited not only by the tripartite structure of the statutory definition of ‘‘compilation,’’ but that in addition, a creative selection, coordination, or arrangement must also result in one or more congressionally recognized categories of authorship. Although the statute together with the legislative history warrant this conclusion, it is far from obvious when the statutory definition of ‘‘compilation’’ is read in isolation. Moreover, other portions of the legislative history have obscured this interpretation. The legislative history states that the term ‘‘works of authorship’’ is said to ‘‘include’’ the seven categories of authorship listed in section 102 (now eight with the addition of ‘‘architectural works’’), but that the listing is ‘‘illustrative and not limitative.’’ H.R. Rep 94–1476, at 53. If these categories The subject matter of copyright as specified of authorship are merely illustrative, may courts or the Copyright Office by section 102 includes compilations and recognize new categories of derivative works, but protection for a work copyrightable authorship? Given that employing preexisting material in which copyright subsists does not extend to any Congress chose to include some part of the work in which such material has categories of authorship in the statute, been used unlawfully. but not other categories, did Congress intend to authorize the courts or the 17 U.S.C. 103(a). (emphasis added). Section 103 makes it clear that Copyright Office to recognize compilation authorship is a subset of authorship that Congress did not the section 102(a) categories, not a expressly include in the statute? For instance, the decision to include separate and distinct category. Section 103 and the definition of ‘‘compilation’’ ‘‘pantomimes and choreographic works’’ as a new category of authorship that did in Section 101 also mark a departure not exist under the 1909 Act was the from the treatment of compilations subject of much deliberation, including under the 1909 Act, which listed a commissioned study and hearings. composite works and compilations as Copyright Office Study for Congress. falling within the class of ‘‘books.’’ The Study No. 28, ‘‘Copyright in 1976 Act significantly broadened the Choreographic Works,’’ by Borge scope of compilation authorship to Varmer; Copyright Law Revision, Part 2, include certain selection, coordination, wreier-aviles on DSK7SPTVN1PROD with RULES of sufficient creativity. Had the items contained in the directory (names, addresses and telephone numbers) been selected, coordinated, or arranged in a sufficiently original manner, there is no question that the resulting compilation would have fit comfortably within the category of literary works—the first category of copyrightable authorship recognized by Congress in section 102. But what if an original selection, coordination, or arrangement of preexisting material did not fall within a category of section 102 authorship? For instance, is a selection and arrangement of a series of physical movements copyrightable, if the resulting work as a whole does not fit within the categories of pantomime and choreographic works or dramatic works, or any other category? Although the Feist decision did not address this question, the Copyright Office concludes that the statute and relevant legislative history require that to be registrable, a compilation must fall within one or more of the categories of authorship listed in section 102. In other words, if a selection and arrangement of elements does not result in a compilation that is subject matter within one of the categories identified in section 102(a), the Copyright Office will refuse registration. The Office arrives at this conclusion in accordance with the instruction of the Supreme Court in Feist: ‘‘the established principle that a court should give effect, if possible, to every clause and word of a statute,’’ citing Moskal v. United States, 498 U.S. 103, 109–110 (1990). Applying this principle, the Office finds that in addition to the statutory definition of ‘‘compilation’’ in section 101, Congress also provided clarification about the copyrightable authorship in compilations in section 103(a) of the Copyright Act: VerDate Mar<15>2010 14:17 Jun 21, 2012 Jkt 226001 PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 Discussion and Comments on Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, House Comm. on the Judiciary (February 1963) at 8–9. Similarly, the decision not to include typeface as copyrightable authorship was a deliberate decision. H.R. Rep 94–1476, at 55. Could Congress have intended the courts or the Office to second-guess such decisions, or accept forms of authorship never considered by Congress? Again, the answer lies in the legislative history. First, the legislative history states that ‘‘In using the phrase ‘original works of authorship,’ rather than ‘all the writings of an author,’ the committee’s purpose was to avoid exhausting the constitutional power of Congress to legislate in this field, and to eliminate the uncertainties arising from the latter phrase.’’ H.R. Rep 94–1476, at 51. Thus, one goal of the illustrative nature of the categories was to prevent foreclosing the congressional creation of new categories: The history of copyright law has been one of gradual expansion in the types of works accorded protection, and the subject matter affected by this expansion has fallen into one of two categories. In the first, scientific discoveries and technological developments have made possible new forms of creative expression that never existed before. In some of these cases the new expressive forms— electronic music, filmstrips, and computer programs, for example—could be regarded as an extension of copyrightable subject matter Congress had already intended to protect, and were thus considered copyrightable from the outset without the need of new legislation. In other cases, such as photographs, sound recordings, and motion pictures, statutory enactment was deemed necessary to give them full recognition as copyrightable works. Authors are continually finding new ways of expressing themselves, but it is impossible to foresee the forms that these new expressive methods will take. The bill does not intend either to freeze the scope of copyrightable technology or to allow unlimited expansion into areas completely outside the present congressional intent. Section 102 implies neither that that subject matter is unlimited nor that new forms of expression within that general area of subject matter would necessarily be unprotected. The historic expansion of copyright has also applied to forms of expression which, although in existence for generations or centuries, have only gradually come to be recognized as creative and worthy of protection. The first copyright statute in this country, enacted in 1790, designated only ‘‘maps, charts, and books’’; major forms of expression such as music, drama, and works of art achieved specific statutory recognition only in later enactments. Although the coverage of the present statute is very broad, and would be broadened further by explicit recognition of all forms of choreography, E:\FR\FM\22JNR1.SGM 22JNR1 Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations wreier-aviles on DSK7SPTVN1PROD with RULES there are unquestionably other areas of existing subject matter that this bill does not propose to protect but that future Congresses may want to. Id. (emphasis added.) This passage suggests that Congress intended the statute to be flexible as to the scope of established categories, but also that Congress also intended to retain control of the designation of entirely new categories of authorship. The legislative history goes on to state that the illustrative nature of the section 102 categories of authorship was intended to provide ‘‘sufficient flexibility to free the courts from rigid or outmoded concepts of the scope of particular categories.’’ Id. at 53 (emphasis added). The flexibility granted to the courts is limited to the scope of the categories designated by Congress in section 102(a). Congress did not delegate authority to the courts to create new categories of authorship. Congress reserved this option to itself. If the federal courts do not have authority to establish new categories of subject matter, it necessarily follows that the Copyright Office also has no such authority in the absence of any clear delegation of authority to the Register of Copyrights. Interpreting the Copyright Act as a whole, the Copyright Office issues this policy statement to announce that unless a compilation of materials results a work of authorship that falls within one or more of the eight categories of authorship listed in section 102(a) of title 17, the Office will refuse registration in such a claim. Thus, the Office will not register a work in which the claim is in a ‘‘compilation of ideas,’’ or a ‘‘selection and arrangement of handtools’’ or a ‘‘compilation of rocks.’’ Neither ideas, handtools, nor rocks may be protected by copyright (although an expression of an idea, a drawing of a handtool or a photograph of rock may be copyrightable). On the other hand, the Office would register a claim in an original compilation of the names of the author’s 50 favorite restaurants. While neither a restaurant nor the name of a restaurant may be protected by copyright, a list of 50 restaurant names may constitute a literary work—a category of work specified in section 102(a)—based on the author’s original selection and/or arrangement of the author’s fifty favorite restaurants. An example that has occupied the attention of the Copyright Office for quite some time involves the copyrightability of the selection and arrangement of preexisting exercises, such as yoga poses. Interpreting the VerDate Mar<15>2010 14:17 Jun 21, 2012 Jkt 226001 statutory definition of ‘‘compilation’’ in isolation could lead to the conclusion that a sufficiently creative selection, coordination or arrangement of public domain yoga poses is copyrightable as a compilation of such poses or exercises. However, under the policy stated herein, a claim in a compilation of exercises or the selection and arrangement of yoga poses will be refused registration. Exercise is not a category of authorship in section 102 and thus a compilation of exercises would not be copyrightable subject matter. The Copyright Office would entertain a claim in the selection, coordination or arrangement of, for instance, photographs or drawings of exercises, but such compilation authorship would not extend to the selection, coordination or arrangement of the exercises themselves that are depicted in the photographs or drawings. Rather such a claim would be limited to selection, coordination, or arrangement of the photographs or drawings that fall within the congressionally-recognized category of authorship of pictorial, graphic and sculptural works. As another example, Congress has stated that the subject matter of choreography does not include ‘‘social dance steps and simple routines.’’ H.R. Rep. 94–1476 at 54 (1976). A compilation of simple routines, social dances, or even exercises would not be registrable unless it results in a category of copyrightable authorship. A mere compilation of physical movements does not rise to the level of choreographic authorship unless it contains sufficient attributes of a work of choreography. And although a choreographic work, such as a ballet or abstract modern dance, may incorporate simple routines, social dances, or even exercise routines as elements of the overall work, the mere selection and arrangement of physical movements does not in itself support a claim of choreographic authorship. A claim in a choreographic work must contain at least a minimum amount of original choreographic authorship. Choreographic authorship is considered, for copyright purposes, to be the composition and arrangement of a related series of dance movements and patterns organized into an integrated, coherent, and expressive whole. Simple dance routines do not represent enough original choreographic authorship to be copyrightable. Id. Moreover, the selection, coordination or arrangement of dance steps does not transform a compilation of dance steps into a choreographic work unless the resulting work amounts to an integrated PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 37607 and coherent compositional whole. The Copyright Office takes the position that a selection, coordination, or arrangement of functional physical movements such as sports movements, exercises, and other ordinary motor activities alone do not represent the type of authorship intended to be protected under the copyright law as a choreographic work. In addition to the requirement that a compilation result in a section 102(a) category of authorship, the Copyright Office finds that section 102(b) precludes certain compilations that amount to an idea, procedure, process, system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. In the view of the Copyright Office, a selection, coordination, or arrangement of exercise movements, such as a compilation of yoga poses, may be precluded from registration as a functional system or process in cases where the particular movements and the order in which they are to be performed are said to result in improvements in one’s health or physical or mental condition. See, e.g, Open Source Yoga Unity v. Choudhury, 2005 WL 756558, *4, 74 U.S.P.Q.2d 1434 (N.D. Cal. 2005) (‘‘Here, Choudhury claims that he arranged the asanas in a manner that was both aesthetically pleasing and in a way that he believes is best designed to improve the practitioner’s health.’’).1 While such a functional system or process may be aesthetically appealing, it is nevertheless uncopyrightable subject matter. A film or description of such an exercise routine or simple dance routine may be copyrightable, as may a compilation of photographs of such movements. However, such a copyright will not extend to the movements themselves, either individually or in combination, but only to the expressive description, depiction, or illustration of the routine that falls within a section 102(a) category of authorship. The relationship between the definition of compilations in section 101 and the categories of authorship in section 102(a) has been overlooked even by the Copyright Office in the past. The Office has issued registration certificates that included ‘‘nature of authorship’’ statements such as ‘‘compilations of exercises’’ or ‘‘selection and arrangement of exercises.’’ In retrospect, and in light of the Office’s closer analysis of legislative intent, the 1 The court in Open Source Yoga Unity did not address section 102(b). See also the discussion of Open Source Yoga Unity below. E:\FR\FM\22JNR1.SGM 22JNR1 37608 Federal Register / Vol. 77, No. 121 / Friday, June 22, 2012 / Rules and Regulations Copyright Office finds that such registrations were issued in error. The Office recognizes that in one unreported decision, a district court concluded, albeit with misgivings, that there were triable issues of fact whether a sufficient number of individual yoga asanas were arranged in a sufficiently creative manner to warrant copyright protection. See Open Source Yoga Unity, discussed above. However, that court did not consider whether section 102(a) or (b) would bar a copyright claim in such a compilation. The Copyright Office concludes that the section 102(a) categories of copyrightable subject matter not only establish what is copyrightable, but also necessarily serve to limit copyrightable subject matter as well. Accordingly, when a compilation does not result in one or more congressionally-established categories of authorship, claims in compilation authorship will be refused. Dated: June 18, 2012. Maria A. Pallante, Register of Copyrights. [FR Doc. 2012–15235 Filed 6–21–12; 8:45 am] BILLING CODE 1410–30–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 9 and 721 EPA–HQ–OPPT–2011–0577; FRL–9352–7] RIN 2070–AB27 Significant New Use Rules on Certain Chemical Substances; Withdrawal of Significant New Use Rules Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is withdrawing significant new use rules (SNURs) promulgated under the Toxic Substances Control Act (TSCA) for seven chemical substances which were the subject of premanufacture notices (PMNs). EPA published these SNURs using direct final rulemaking procedures. EPA received a notice of intent to submit adverse comments on the rule. Therefore, the Agency is withdrawing these SNURs, as required under the expedited SNUR rulemaking process. EPA intends to publish in the near future proposed SNURs for these seven chemical substances under separate notice and comment procedures. wreier-aviles on DSK7SPTVN1PROD with RULES SUMMARY: This final rule is effective June 26, 2012. FOR FURTHER INFORMATION CONTACT: DATES: VerDate Mar<15>2010 14:17 Jun 21, 2012 Jkt 226001 For technical information contact: Kenneth Moss, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (202) 564–9232; email address: moss.kenneth@epa.gov. For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554– 1404; email address: TSCAHotline@epa.gov. SUPPLEMENTARY INFORMATION: I. Does this action apply to me? A list of potentially affected entities is provided in the Federal Register of April 27, 2012 (77 FR 25236) (FRL– 9343–4). If you have questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT. II. What rule is being withdrawn? In the Federal Register of April 27, 2012 (77 FR 25236), EPA issued several direct final SNURs, including SNURs for seven chemical substances that are the subject of this withdrawal. These direct final rules were issued pursuant to the procedures in 40 CFR part 721, subpart D. In accordance with § 721.160(c)(3)(ii), EPA is withdrawing these rules issued for seven chemical substances which were the subject of PMNs P–10–548, P–10–550, P–10–551, P–10–552, P–10–553, P–10–554, and P– 10–555 because the Agency received notice of intent to submit adverse comments. EPA intends to publish proposed SNURs for these chemical substances under separate notice and comment procedures. For further information regarding EPA’s expedited process for issuing SNURs, interested parties are directed to 40 CFR part 721, subpart D, and the Federal Register of July 27, 1989 (54 FR 31314). The record for the direct final SNUR for these chemical substances that are being withdrawn was established at EPA–HQ–OPPT–2011– 0577. That record includes information considered by the Agency in developing this rule and the notice of intent to submit adverse comments. III. How do I access the docket? To access the electronic docket, please go to http://www.regulations.gov and follow the on-line instructions to access docket ID number EPA–HQ– OPPT–2011–0577. Additional information about the Docket Facility is provided under ADDRESSES in the Federal Register of April 27, 2012 (77 PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 FR 25236). If you have questions, consult the technical person listed under FOR FURTHER INFORMATION CONTACT. IV. Statutory and Executive Order Reviews This final rule revokes or eliminates existing regulatory requirements and does not contain any new or amended requirements. As such, the Agency has determined that this withdrawal will not have any adverse impacts, economic or otherwise. The statutory and executive order review requirements applicable to the direct final rule were discussed in the Federal Register of April 27, 2012 (77 FR 25236). Those review requirements do not apply to this action because it is a withdrawal and does not contain any new or amended requirements. V. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This rule is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects 40 CFR Part 9 Environmental protection, Reporting and recordkeeping requirements. 40 CFR Part 721 Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements. Dated: June 15, 2012. Maria J. Doa, Director, Chemical Control Division, Office of Pollution Prevention and Toxics. Therefore, 40 CFR parts 9 and 721 are amended as follows: PART 9—[AMENDED] 1. The authority citation for part 9 continues to read as follows: ■ Authority: 7 U.S.C. 135 et seq., 136–136y; 15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971–1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g–1, 300g–2, 300g–3, 300g–4, 300g–5, 300g–6, 300j–1, E:\FR\FM\22JNR1.SGM 22JNR1

Agencies

[Federal Register Volume 77, Number 121 (Friday, June 22, 2012)]
[Rules and Regulations]
[Pages 37605-37608]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15235]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. 2012-6]


Registration of Claims to Copyright

AGENCY: Copyright Office, Library of Congress.

ACTION: Statement of Policy; Registration of Compilations.

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SUMMARY: The Copyright Office issues this statement of policy to 
clarify the practices relating to the examination of claims in 
compilations, and particularly in claims of copyrightable authorship in 
selection and arrangement of exercises or of other uncopyrightable 
matter. The statement also clarifies the Office's policies with respect 
to registration of choreographic works.

DATES: Effective June 22, 2012.

FOR FURTHER INFORMATION CONTACT: Robert Kasunic, Deputy General 
Counsel, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024-0400. 
Telephone (202) 707-8380; fax (202) 707-8366.

SUPPLEMENTARY INFORMATION: The Copyright Office is issuing a statement 
of policy to clarify its examination practices with respect to claims 
in ``compilation authorship,'' or the selection, coordination, or 
arrangement of material that is otherwise separately uncopyrightable. 
The Office has long accepted claims of registration based on the 
selection, coordination, or arrangement of uncopyrightable elements, 
because the Copyright Act specifically states that copyrightable 
authorship includes compilations. 17 U.S.C. 103.
    The term ``compilation'' is defined in the Copyright Act:

    A ``compilation'' is a work formed by the collection and 
assembling of preexisting materials or of data that are selected, 
coordinated, or arranged in such a way that the resulting work as a 
whole constitutes an original work of authorship.

17 U.S.C. 101 (``compilation''). This definition's inclusion of the 
terms ``preexisting material'' or ``data'' suggest that individually 
uncopyrightable elements may be compiled into a copyrightable whole. 
The legislative history of the 1976 Act supports this interpretation, 
stating that a compilation ``results from a process of selecting, 
bringing together, organizing, and arranging previously existing 
material of all kinds, regardless of whether the individual items in 
the material have been or ever could have been subject to copyright.'' 
H.R. Rep. 94-1476, at 57 (emphasis added).
    Viewed in a vacuum, it might appear that any organization of 
preexisting material may be copyrightable. However, the Copyright Act, 
the legislative history and the Supreme Court's decision in Feist 
Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (U.S. 
1991), lead to a different conclusion.
    In Feist, interpreting the congressional language in the section 
101 definition of ``compilation,'' the Supreme Court found protectable 
compilations to be limited to ``a work formed by the collection and 
assembling of preexisting material or data that are selected, 
coordinated, or arranged in such a way that the resulting work as a 
whole constitutes an original work of authorship.'' Feist at 356, 
quoting 17 U.S.C. 101 (``compilation'') (emphasis by the Court). The 
Court stated:

    The purpose of the statutory definition is to emphasize that 
collections of facts are not copyrightable per se. It conveys this 
message through its tripartite structure, as emphasized above by the 
italics. The statute identifies three distinct elements and requires 
each to be met for a work to qualify as a copyrightable compilation: 
(1) The collection and assembly of pre-existing material, facts, or 
data; (2) the selection, coordination, or arrangement of those 
materials; and (3) the creation, by virtue of the particular 
selection, coordination, or arrangement, of an ``original'' work of 
authorship * * *.
    Not every selection, coordination, or arrangement will pass 
muster. This is plain from the statute. * * * [W]e conclude that the 
statute envisions that there will be some fact-based works in which 
the selection, coordination, and arrangement are not sufficiently 
original to trigger copyright protection.

Feist, 499 U.S. at 357-358 (U.S. 1991)
    The Court's decision in Feist clarified that some selections, 
coordinations, or arrangements will not qualify as works of authorship 
under the statutory definition of ``compilation'' in section 101. 
However, a question that was not present in the facts of Feist and 
therefore not considered by the Court, is whether the selection, 
coordination, or arrangement of preexisting materials must relate to 
the section 102 categories of copyrightable subject matter.
    In Feist, Rural Telephone's alphabetical directory was found 
deficient due to a lack of originality, i.e.,

[[Page 37606]]

of sufficient creativity. Had the items contained in the directory 
(names, addresses and telephone numbers) been selected, coordinated, or 
arranged in a sufficiently original manner, there is no question that 
the resulting compilation would have fit comfortably within the 
category of literary works--the first category of copyrightable 
authorship recognized by Congress in section 102. But what if an 
original selection, coordination, or arrangement of preexisting 
material did not fall within a category of section 102 authorship? For 
instance, is a selection and arrangement of a series of physical 
movements copyrightable, if the resulting work as a whole does not fit 
within the categories of pantomime and choreographic works or dramatic 
works, or any other category?
    Although the Feist decision did not address this question, the 
Copyright Office concludes that the statute and relevant legislative 
history require that to be registrable, a compilation must fall within 
one or more of the categories of authorship listed in section 102. In 
other words, if a selection and arrangement of elements does not result 
in a compilation that is subject matter within one of the categories 
identified in section 102(a), the Copyright Office will refuse 
registration.
    The Office arrives at this conclusion in accordance with the 
instruction of the Supreme Court in Feist: ``the established principle 
that a court should give effect, if possible, to every clause and word 
of a statute,'' citing Moskal v. United States, 498 U.S. 103, 109-110 
(1990). Applying this principle, the Office finds that in addition to 
the statutory definition of ``compilation'' in section 101, Congress 
also provided clarification about the copyrightable authorship in 
compilations in section 103(a) of the Copyright Act:

    The subject matter of copyright as specified by section 102 
includes compilations and derivative works, but protection for a 
work employing preexisting material in which copyright subsists does 
not extend to any part of the work in which such material has been 
used unlawfully.

17 U.S.C. 103(a). (emphasis added).
    Section 103 makes it clear that compilation authorship is a subset 
of the section 102(a) categories, not a separate and distinct category. 
Section 103 and the definition of ``compilation'' in Section 101 also 
mark a departure from the treatment of compilations under the 1909 Act, 
which listed composite works and compilations as falling within the 
class of ``books.'' The 1976 Act significantly broadened the scope of 
compilation authorship to include certain selection, coordination, or 
arrangement that results in a work of authorship. But that expansion 
also makes it clear that not every selection, coordination, or 
arrangement of material is copyrightable. Only selection, coordination, 
or arrangement that falls within section 102 authorship is 
copyrightable, i.e., is selected, coordinated, or arranged in such a 
way that the resulting work as a whole constitutes an original work of 
authorship. Moreover, section 103 provides that compilations fall 
within ``[t]he subject matter of copyright as specified by section 
102,'' and the legislative history of the 1976 Act confirms what this 
means: ``Section 103 complements section 102: A compilation or 
derivative work is copyrightable if it represents an `original work of 
authorship' and falls within one or more of the categories listed in 
section 102.'' H.R. Rep. 94-1476 at 57 (1976) (emphasis added).
    This requirement indicates that compilation authorship is limited 
not only by the tripartite structure of the statutory definition of 
``compilation,'' but that in addition, a creative selection, 
coordination, or arrangement must also result in one or more 
congressionally recognized categories of authorship.
    Although the statute together with the legislative history warrant 
this conclusion, it is far from obvious when the statutory definition 
of ``compilation'' is read in isolation. Moreover, other portions of 
the legislative history have obscured this interpretation.
    The legislative history states that the term ``works of 
authorship'' is said to ``include'' the seven categories of authorship 
listed in section 102 (now eight with the addition of ``architectural 
works''), but that the listing is ``illustrative and not limitative.'' 
H.R. Rep 94-1476, at 53. If these categories of authorship are merely 
illustrative, may courts or the Copyright Office recognize new 
categories of copyrightable authorship? Given that Congress chose to 
include some categories of authorship in the statute, but not other 
categories, did Congress intend to authorize the courts or the 
Copyright Office to recognize authorship that Congress did not 
expressly include in the statute? For instance, the decision to include 
``pantomimes and choreographic works'' as a new category of authorship 
that did not exist under the 1909 Act was the subject of much 
deliberation, including a commissioned study and hearings. Copyright 
Office Study for Congress. Study No. 28, ``Copyright in Choreographic 
Works,'' by Borge Varmer; Copyright Law Revision, Part 2, Discussion 
and Comments on Report of the Register of Copyrights on the General 
Revision of the U.S. Copyright Law, House Comm. on the Judiciary 
(February 1963) at 8-9. Similarly, the decision not to include typeface 
as copyrightable authorship was a deliberate decision. H.R. Rep 94-
1476, at 55. Could Congress have intended the courts or the Office to 
second-guess such decisions, or accept forms of authorship never 
considered by Congress?
    Again, the answer lies in the legislative history. First, the 
legislative history states that ``In using the phrase `original works 
of authorship,' rather than `all the writings of an author,' the 
committee's purpose was to avoid exhausting the constitutional power of 
Congress to legislate in this field, and to eliminate the uncertainties 
arising from the latter phrase.'' H.R. Rep 94-1476, at 51. Thus, one 
goal of the illustrative nature of the categories was to prevent 
foreclosing the congressional creation of new categories:

    The history of copyright law has been one of gradual expansion 
in the types of works accorded protection, and the subject matter 
affected by this expansion has fallen into one of two categories. In 
the first, scientific discoveries and technological developments 
have made possible new forms of creative expression that never 
existed before. In some of these cases the new expressive forms--
electronic music, filmstrips, and computer programs, for example--
could be regarded as an extension of copyrightable subject matter 
Congress had already intended to protect, and were thus considered 
copyrightable from the outset without the need of new legislation. 
In other cases, such as photographs, sound recordings, and motion 
pictures, statutory enactment was deemed necessary to give them full 
recognition as copyrightable works.
    Authors are continually finding new ways of expressing 
themselves, but it is impossible to foresee the forms that these new 
expressive methods will take. The bill does not intend either to 
freeze the scope of copyrightable technology or to allow unlimited 
expansion into areas completely outside the present congressional 
intent. Section 102 implies neither that that subject matter is 
unlimited nor that new forms of expression within that general area 
of subject matter would necessarily be unprotected.
    The historic expansion of copyright has also applied to forms of 
expression which, although in existence for generations or 
centuries, have only gradually come to be recognized as creative and 
worthy of protection. The first copyright statute in this country, 
enacted in 1790, designated only ``maps, charts, and books''; major 
forms of expression such as music, drama, and works of art achieved 
specific statutory recognition only in later enactments. Although 
the coverage of the present statute is very broad, and would be 
broadened further by explicit recognition of all forms of 
choreography,

[[Page 37607]]

there are unquestionably other areas of existing subject matter that 
this bill does not propose to protect but that future Congresses may 
want to.

Id. (emphasis added.)
    This passage suggests that Congress intended the statute to be 
flexible as to the scope of established categories, but also that 
Congress also intended to retain control of the designation of entirely 
new categories of authorship. The legislative history goes on to state 
that the illustrative nature of the section 102 categories of 
authorship was intended to provide ``sufficient flexibility to free the 
courts from rigid or outmoded concepts of the scope of particular 
categories.'' Id. at 53 (emphasis added). The flexibility granted to 
the courts is limited to the scope of the categories designated by 
Congress in section 102(a). Congress did not delegate authority to the 
courts to create new categories of authorship. Congress reserved this 
option to itself.
    If the federal courts do not have authority to establish new 
categories of subject matter, it necessarily follows that the Copyright 
Office also has no such authority in the absence of any clear 
delegation of authority to the Register of Copyrights.
    Interpreting the Copyright Act as a whole, the Copyright Office 
issues this policy statement to announce that unless a compilation of 
materials results a work of authorship that falls within one or more of 
the eight categories of authorship listed in section 102(a) of title 
17, the Office will refuse registration in such a claim.
    Thus, the Office will not register a work in which the claim is in 
a ``compilation of ideas,'' or a ``selection and arrangement of 
handtools'' or a ``compilation of rocks.'' Neither ideas, handtools, 
nor rocks may be protected by copyright (although an expression of an 
idea, a drawing of a handtool or a photograph of rock may be 
copyrightable).
    On the other hand, the Office would register a claim in an original 
compilation of the names of the author's 50 favorite restaurants. While 
neither a restaurant nor the name of a restaurant may be protected by 
copyright, a list of 50 restaurant names may constitute a literary 
work--a category of work specified in section 102(a)--based on the 
author's original selection and/or arrangement of the author's fifty 
favorite restaurants.
    An example that has occupied the attention of the Copyright Office 
for quite some time involves the copyrightability of the selection and 
arrangement of preexisting exercises, such as yoga poses. Interpreting 
the statutory definition of ``compilation'' in isolation could lead to 
the conclusion that a sufficiently creative selection, coordination or 
arrangement of public domain yoga poses is copyrightable as a 
compilation of such poses or exercises. However, under the policy 
stated herein, a claim in a compilation of exercises or the selection 
and arrangement of yoga poses will be refused registration. Exercise is 
not a category of authorship in section 102 and thus a compilation of 
exercises would not be copyrightable subject matter. The Copyright 
Office would entertain a claim in the selection, coordination or 
arrangement of, for instance, photographs or drawings of exercises, but 
such compilation authorship would not extend to the selection, 
coordination or arrangement of the exercises themselves that are 
depicted in the photographs or drawings. Rather such a claim would be 
limited to selection, coordination, or arrangement of the photographs 
or drawings that fall within the congressionally-recognized category of 
authorship of pictorial, graphic and sculptural works.
    As another example, Congress has stated that the subject matter of 
choreography does not include ``social dance steps and simple 
routines.'' H.R. Rep. 94-1476 at 54 (1976). A compilation of simple 
routines, social dances, or even exercises would not be registrable 
unless it results in a category of copyrightable authorship. A mere 
compilation of physical movements does not rise to the level of 
choreographic authorship unless it contains sufficient attributes of a 
work of choreography. And although a choreographic work, such as a 
ballet or abstract modern dance, may incorporate simple routines, 
social dances, or even exercise routines as elements of the overall 
work, the mere selection and arrangement of physical movements does not 
in itself support a claim of choreographic authorship.
    A claim in a choreographic work must contain at least a minimum 
amount of original choreographic authorship. Choreographic authorship 
is considered, for copyright purposes, to be the composition and 
arrangement of a related series of dance movements and patterns 
organized into an integrated, coherent, and expressive whole.
    Simple dance routines do not represent enough original 
choreographic authorship to be copyrightable. Id. Moreover, the 
selection, coordination or arrangement of dance steps does not 
transform a compilation of dance steps into a choreographic work unless 
the resulting work amounts to an integrated and coherent compositional 
whole. The Copyright Office takes the position that a selection, 
coordination, or arrangement of functional physical movements such as 
sports movements, exercises, and other ordinary motor activities alone 
do not represent the type of authorship intended to be protected under 
the copyright law as a choreographic work.
    In addition to the requirement that a compilation result in a 
section 102(a) category of authorship, the Copyright Office finds that 
section 102(b) precludes certain compilations that amount to an idea, 
procedure, process, system, method of operation, concept, principle or 
discovery, regardless of the form in which it is described, explained, 
illustrated, or embodied in such work. In the view of the Copyright 
Office, a selection, coordination, or arrangement of exercise 
movements, such as a compilation of yoga poses, may be precluded from 
registration as a functional system or process in cases where the 
particular movements and the order in which they are to be performed 
are said to result in improvements in one's health or physical or 
mental condition. See, e.g, Open Source Yoga Unity v. Choudhury, 2005 
WL 756558, *4, 74 U.S.P.Q.2d 1434 (N.D. Cal. 2005) (``Here, Choudhury 
claims that he arranged the asanas in a manner that was both 
aesthetically pleasing and in a way that he believes is best designed 
to improve the practitioner's health.'').\1\ While such a functional 
system or process may be aesthetically appealing, it is nevertheless 
uncopyrightable subject matter. A film or description of such an 
exercise routine or simple dance routine may be copyrightable, as may a 
compilation of photographs of such movements. However, such a copyright 
will not extend to the movements themselves, either individually or in 
combination, but only to the expressive description, depiction, or 
illustration of the routine that falls within a section 102(a) category 
of authorship.
---------------------------------------------------------------------------

    \1\ The court in Open Source Yoga Unity did not address section 
102(b). See also the discussion of Open Source Yoga Unity below.
---------------------------------------------------------------------------

    The relationship between the definition of compilations in section 
101 and the categories of authorship in section 102(a) has been 
overlooked even by the Copyright Office in the past. The Office has 
issued registration certificates that included ``nature of authorship'' 
statements such as ``compilations of exercises'' or ``selection and 
arrangement of exercises.'' In retrospect, and in light of the Office's 
closer analysis of legislative intent, the

[[Page 37608]]

Copyright Office finds that such registrations were issued in error.
    The Office recognizes that in one unreported decision, a district 
court concluded, albeit with misgivings, that there were triable issues 
of fact whether a sufficient number of individual yoga asanas were 
arranged in a sufficiently creative manner to warrant copyright 
protection. See Open Source Yoga Unity, discussed above. However, that 
court did not consider whether section 102(a) or (b) would bar a 
copyright claim in such a compilation.
    The Copyright Office concludes that the section 102(a) categories 
of copyrightable subject matter not only establish what is 
copyrightable, but also necessarily serve to limit copyrightable 
subject matter as well. Accordingly, when a compilation does not result 
in one or more congressionally-established categories of authorship, 
claims in compilation authorship will be refused.

    Dated: June 18, 2012.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2012-15235 Filed 6-21-12; 8:45 am]
BILLING CODE 1410-30-P