Mandatory Deposit of Electronic Books and Sound Recordings Available Only Online, 30505-30509 [2016-11613]

Download as PDF Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules V. Public Participation and Request for Comments We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. We encourage you to submit comments through the Federal eRulemaking Portal at http:// www.regulations.gov. If your material cannot be submitted using http:// www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. We accept anonymous comments. All comments received will be posted without change to http:// www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086). Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site’s instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows: Lhorne on DSK30JT082PROD with PROPOSALS PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: ■ Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Department of Homeland Security Delegation No. 0170.1. ■ 2. Add § 165.1342 to read as follows: VerDate Sep<11>2014 15:05 May 16, 2016 Jkt 238001 §165.1342 Annual Roy Webster CrossChannel Swim, Columbia River, Hood River, OR. (a) Regulated area. The following regulated area is a safety zone. The safety zone will encompass all waters of the Columbia River between River Mile 169 and River Mile 170. (b) Definition. As used in this section— Designated representative means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Sector Columbia River in the enforcement of the regulated area. Non-participant person means a person not registered as a swimmer in the Roy Webster Cross-Channel Swim held on the Columbia River in the vicinity of Hood River, OR, each Labor Day. (c) Regulations. In accordance with the general regulations in 33 CFR part 165, subpart C, non-participant persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by Captain of the Port Sector Columbia River or a designated representative. (1) Non-participant persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port Sector Columbia River or a designated representative via VHF radio on channel 16. If authorization is granted by the Captain of the Port Sector Columbia River or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Sector Columbia River or a designated representative. (2) The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners and on-scene designated representatives. (d) Enforcement period. This safety zone will be enforced on Labor Day of each year, between the hours of 6 a.m. and Noon. Dated: May 9, 2016. D.F. Berliner, Captain, U.S. Coast Guard, Acting Captain of the Port, Sector Columbia River. [FR Doc. 2016–11515 Filed 5–16–16; 8:45 am] BILLING CODE 9110–04–P PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 30505 LIBRARY OF CONGRESS U.S. Copyright Office 37 CFR Part 202 [Docket No. 2016–3] Mandatory Deposit of Electronic Books and Sound Recordings Available Only Online U.S. Copyright Office, Library of Congress. ACTION: Notice of inquiry. AGENCY: In 2010, the U.S. Copyright Office, acting pursuant to section 407 of title 17 and following a public rulemaking process, adopted an interim rule governing mandatory deposit of electronic works that are not available in a physical format. The interim rule refers to such works as ‘‘electronic works published in the United States and available only online’’ (or ‘‘onlineonly works’’). The interim rule created a limited exception to the Register’s longstanding regulatory exemption that online-only works are not subject to mandatory deposit requirements. It also established best edition criteria and regulations as to electronic serials requested pursuant to section 407. The Library has adopted policies for the use of such materials, including limiting public access to deposited works to dedicated terminals located at the Library of Congress in Washington, DC. These policies were anticipated and discussed during the rulemaking process, but are not memorialized in the regulations. The Library of Congress is now interested in extending the interim rule to apply to online-only books and sound recordings. Because over six years have passed since the interim rule was adopted, and because the interim rule was intended to inform a more permanent solution and rule, the Copyright Office is initiating a notice of inquiry to further guide its work in this area. The Copyright Office seeks feedback from affected communities regarding the experience with mandatory deposit of electronic serials, generally, as well as comments pertaining to the potential application of mandatory deposit to online-only books and sound recordings, specifically. Based on this feedback, the Office will solicit further written comments and/or invite stakeholder meetings before moving to a rulemaking process. DATES: Written comments must be received no later than 11:59 p.m. Eastern Time on July 18, 2016. ADDRESSES: For reasons of government efficiency, the Copyright Office is using SUMMARY: E:\FR\FM\17MYP1.SGM 17MYP1 30506 Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office Web site at http:// copyright.gov/policy/mandatorydeposit/ comment-submission/. If electronic submission of comments is not feasible due to lack of access to a computer and/ or the internet, please contact the Office, using the contact information below, for special instructions. FOR FURTHER INFORMATION CONTACT: Jacqueline C. Charlesworth, General Counsel and Associate Register of Copyrights, jcharlesworth@loc.gov; or Sarang V. Damle, Deputy General Counsel, sdam@loc.gov. Both can be reached by telephone at 202–707–8350. SUPPLEMENTARY INFORMATION: Lhorne on DSK30JT082PROD with PROPOSALS I. Background A. Mandatory Deposit Under the Copyright Act Generally Mandatory deposit provisions, sometimes called ‘‘legal deposit’’ in foreign countries, permit national libraries to demand creative works for their respective collections pursuant to applicable laws, rights, restrictions, regulations, and fines. In the United States, the authority to demand, exempt, and otherwise regulate such works vests with the Register of Copyrights, who administers section 407 of title 17 of the United States Code, part of the Copyright Act. Section 407 provides that 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 1 for the use or disposition of the Library of Congress.2 The Library is not entitled to works that fall outside of the statutory framework, e.g., editions not published in the United States. Section 202.19 of title 37 of the Code of Federal Regulations sets forth a number of rules governing the mandatory deposit of copies and phonorecords under section 407, including certain best edition requirements. Appended to part 202 is a list, entitled ‘‘ ‘Best Edition’ of Published Copyrighted Works for the Collection of the Library of Congress’’ (referred to as the ‘‘Best Edition Statement’’), which sets forth the best 1 17 2 Id. U.S.C. 407(a). at 407(b). VerDate Sep<11>2014 15:05 May 16, 2016 Jkt 238001 edition criteria for particular categories of works.3 The same appendix specifies which published version must be deposited in instances where ‘‘two or more editions of the same version of a work have been published.’’ 4 The term ‘‘best edition of a work’’ is defined by statute as the ‘‘edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purpose.’’ 5 The Register has observed that it is really a preservation copy, rather than the best published copy, that is of interest to the Library, and has suggested that section 407 may need to be updated accordingly.6 Section 407 further provides that deposit is to be made within three months after such publication.7 If mandatory deposit is not satisfied, the Register of Copyrights may issue a demand for the work.8 The copyright owner may be subject to fines and other monetary liability if the owner fails to comply after a demand for deposit is made by the Register.9 These general provisions, however, are subject to limitations. Section 407 provides that the Register of Copyrights may by regulation ‘‘exempt any categories of material from the deposit requirements of [that] section, or require deposit of only one copy or phonorecord with respect to any categories.’’ 10 Thus, in carrying out the authority provided under section 407, the Register seeks to fulfill the stated needs of the Library of Congress while balancing any competing concerns or requirements of the copyright system and affected parties. Such concerns are considered through a public rulemaking process carried out under the Administrative Procedure Act.11 Finally, the registration and deposit provisions of section 408 as to published works generally require the submission for examination of two complete copies of the best edition.12 And section 408 further states that deposits made under section 407 may be used to satisfy the deposit requirements of section 408 if application, fee and regulatory conditions are met.13 As such, the extension of mandatory deposit to new categories of online-only works under section 407, and the particular deposit requirements that may be adopted, will necessarily affect registration practices as to works that are typically, or frequently, registered. B. Mandatory Deposit of Electronic Materials Available Only Online When regulations implementing section 407 were first promulgated by the Copyright Office in 1978, the Office adopted a broad exemption from the mandatory deposit requirements for ‘‘[l]iterary 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.’’ 14 Over time, the Office narrowed this exemption to require the deposit of certain electronic materials if they are made available in a physical medium, such as electronic databases that are published in CD–ROM copies.15 Until 2010, however, Copyright Office practice exempted from mandatory deposit requirements all electronic works not made available in physical format.16 On January 25, 2010, after a period of notice and public comment, the Copyright Office adopted a new interim rule to address the mandatory deposit requirements for published electronic works that are only made available online.17 For purposes of the interim rule, ‘‘electronic works’’ are defined as ‘‘works fixed and published solely in an electronic format.’’ 18 ‘‘Online-only works’’ thus encompasses works that are 13 Id. at 408(b). CFR 202.19(c)(5) (1978). 15 In 1989, the Copyright Office amended the machine-readable copies exemption to require the deposit of machine-readable works published in physical form, exempting only ‘‘automated databases available only in the United States.’’ 54 FR 42295, 42296, Oct. 16, 1989. Two years later, the Copyright Office amended its regulation to clarify that CD–ROM packages were the preferred form of deposit for machine-readable works published in physical form. 56 FR 47402, Sept. 19, 1991. 16 See 74 FR 34286, 34287, Jan. 15, 2009 (explaining that the established Office practice was to interpret the exclusion for ‘‘automated databases available only online in the United States’’ to refer to all online-only publications). By contrast, works that are published both in an electronic and physical format are subject to the mandatory deposit requirement. 37 CFR 202.19(c)(5). 17 75 FR 3863, Jan. 25, 2010; see also 74 FR 34286, Jul. 15, 2009. 18 37 CFR 202.24(c)(3). 14 37 3 37 CFR pt. 202 app. B. 4 Id. 5 17 U.S.C. 101. A. Pallante, The Next Great Copyright Act, 36 Columbia J. of L. & the Arts 316, 336 (2013). 7 17 U.S.C. 407(a). 8 Id. at 407(d). 9 Id. 10 Id. at 407(c). With respect to certain pictorial, graphic and sculptural works that are published in limited numbers, the statute requires the Register to issue regulations that ‘‘provide either for complete exemption from the deposit requirements’’ of section 407 or ‘‘for alternative forms of deposit aimed at providing a satisfactory archival record of a work without imposing practical or financial hardships on the depositor.’’ Id. These regulations can be found in 37 CFR 202.19. 11 See 17 U.S.C. 701(e). 12 17 U.S.C. 408(b)(2). 6 Maria PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\17MYP1.SGM 17MYP1 Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules Lhorne on DSK30JT082PROD with PROPOSALS not published in physical formats and are made available via a live internet connection or downloaded from the internet onto a device and viewed, heard, or used offline. In this regard, it should be noted that the interim rule covers only works that are published online, not online works that are only publicly displayed or publicly performed online.19 The interim rule did two key things. First, it codified the Office’s longstanding practice of exempting online-only works from the requirements of mandatory deposit as a general matter.20 Second, notwithstanding the general exemption, the interim rule provided, for the first time, a mechanism by which the Office could demand one particular type of online-only work for the Library— namely, ‘‘electronic serials.’’ An ‘‘electronic serial’’ is defined as ‘‘an electronic work published in the United States and available only online, issued or intended to be issued on an established schedule in successive parts bearing numerical or chronological designations, without subsequent alterations, and intended to be continued indefinitely.’’ 21 The interim rule states that this class include ‘‘periodicals, newspapers, annuals, and the journals, proceedings, transactions, and other publications of societies.’’ 22 In extending mandatory deposit requirements to online-only serials, the Office observed that ‘‘the Internet has grown to become a fundamental tool for the publication and dissemination of millions of works of authorship.’’ 23 The Office noted that there were then ‘‘more than five thousand scholarly electronic serials available exclusively online, with no print counterparts.’’ 24 Even where the Library purchased a subscription to such a work, it would rarely be able to acquire a permanent copy for its collections, placing the ‘‘long-term preservation of the works at risk.’’ 25 Under the interim rule, a publisher does not need to proactively deposit copies of electronic serials with the Copyright Office.26 An electronic serial 19 See 17 U.S.C. 101 (‘‘A public performance or display of a work does not in itself constitute publication.’’). 20 37 CFR 202.19(c)(5) (exempting ‘‘[e]lectronic works published in the United States and available only online’’). 21 Id. at 202.19(b)(4). 22 Id. 23 75 FR at 3864. 24 Id. 25 Id. at 3864–65. 26 37 CFR 201.19(c)(5) (providing that the exemption from mandatory deposit for online-only works ‘‘includes electronic serials available only online only until such time as a demand is issued VerDate Sep<11>2014 15:05 May 16, 2016 Jkt 238001 is subject to mandatory deposit only if the Register of Copyrights specifically demands a copy of the online-only serial for the Library; or, put another way, the longstanding exemption continues to apply until overtaken by a demand for a specific work.27 A publisher receiving such a demand must deposit ‘‘one complete copy or a phonorecord’’ of ‘‘the demanded work within three months of the date the demand notice is received.’’ 28 The interim rule also amended the ‘‘Best Edition Statement’’ in appendix B of part 202 of title 37, Code of Federal Regulations, to specify the criteria that should be applied in cases where a publisher has distributed two or more editions of a particular serial.29 In such a case, for example, the statement indicates that the Library prefers to receive the edition that was published in a ‘‘[s]erials-specific structured/ markup format,’’ namely, ‘‘[c]ontent compliant with the NLM Journal Archiving (XML) Document Type Definition (DTD), with presentation stylesheet(s), rather than without.’’ 30 If the serial was published with metadata elements, the statement also notes that ‘‘descriptive data (metadata) should accompany the deposited material,’’ such as ‘‘serial or journal title,’’ ‘‘volume(s), numbers, issue dates,’’ and ‘‘article author(s).’’ 31 If the serial was published with technological protection measures, the statement also notes that the Library prefers that ‘‘[t]echnological measures that control access to or use of the work should be removed.’’ 32 The interim rule also provides for public access to deposited works, stating that ‘‘[c]opies or phonorecords deposited in response to a demand must be able to be accessed and reviewed by the Copyright Office, Library of Congress, and the Library’s authorized users on an ongoing basis.’’ 33 More specifically, in response to stakeholders seeking clarification regarding the Library’s downloading, distribution, and interlibrary loan practices with respect to electronically deposited works, the Federal Register notice announcing the interim rule explained that access to such works would be available only to ‘‘authorized users at the Library of Congress’’ in accordance with the following policies: by the Copyright Office under the regulations set forth in § 202.24 of these regulations’’). 27 See 37 CFR 202.24(a). 28 37 CFR 202.24(a), (a)(3). 29 37 CFR pt. 202, app. B, sec. IX. 30 Id. at sec. IX.A.1.a(i). 31 Id. at sec. IX.A.2. 32 Id. at sec. IX.A.3. 33 37 CFR 202.24(a)(4). PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 30507 • Access to electronic works received through mandatory deposit will be as similar as possible to the access provided to analog works. • Access to electronic works received through mandatory deposit will be limited, at any one time, to two Library of Congress authorized users. • Library of Congress authorized users will access the electronic works via a secure server over a secure network that serves Capitol Hill facilities and remote Library of Congress locations. The term ‘‘Library of Congress authorized users’’ includes Library staff, contractors, and registered researchers, and Members, staff and officers of the U.S. House of Representatives and the U.S. Senate. The Library will not make the copyrighted works available to the public over the Internet without rights holders’ permissions. • Authorized users may print from electronic works to the extent allowed by the fair use provisions of the copyright law (17 U.S.C. 107 and 108(f)), as is the case with traditional publications. However, users may not reproduce or distribute (i.e., download or email) copies of deposited electronic works until the Library has explored the advisability of permitting these options and the security and feasibility of the implementing technologies. As part of this process, the Library will seek comment from the public, including copyright owners and publishers, before adopting additional policies governing electronic copying or distribution by electronic transmission.34 The Library instituted these policies in recognition of the fact that ‘‘electronic works, because of their ease of reproduction and distribution, present special security concerns.’’ 35 In accordance with these policies, the Library developed a system for providing and controlling access to electronic serials collected under the interim rule. The serials are stored on a server located in the Library’s Capitol Hill facilities. The electronic files can be viewed on two secure terminals located in the Microform & Electronic Resources Center (‘‘MERC’’), located in the Library of Congress’s Jefferson Building, which together constitute the sole point of public access to the files. The terminals have a web-based interface for searching and browsing the electronic serials collected by the Library. Individual articles are opened and read using customized viewing software that prevents users from being able to save 34 75 35 75 E:\FR\FM\17MYP1.SGM FR at 3867–68. FR at 3867. 17MYP1 30508 Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules Lhorne on DSK30JT082PROD with PROPOSALS or download a copy.36 The software also allows users to print the entire article to a color printer attached to the terminals, without charge. To help guide their printing activities, users are presented with a set of fair use criteria in a short training manual stored next to the terminal. While users may browse, read, and print articles on the terminals, the Library has disabled access to the terminals’ USB ports to prevent users from making electronic copies. Internet access on the terminals has also been disabled. In adopting the interim rule in 2010, the Copyright Office emphasized that ‘‘[t]he rule is interim, and not final, because the Office anticipates that the experience of issuing and responding to demands for online-only works will raise additional issues that should be considered before the regulation becomes final, e.g., the technical details of how an online-only work should be transmitted to the Copyright Office.’’ 37 After issuing the interim rule, the Office met with members of the publishing community on May 24, 2011 to further discuss the Library’s expectations and submission questions, but has not further sought or received public comment on the qualified exemption and demand-based deposit system for online-only works through an additional rulemaking process. Since the promulgation of the interim rule, the Library has collected over 400 electronic serial titles that are now available through the two dedicated computer terminals in the MERC.38 36 It appears that, as a technical matter, the article is copied to a temporary location on the terminal’s hard drive before it is opened by the viewing software. 37 75 FR at 3864. 38 Nonetheless, there is some agreement that the underlying provisions of the Copyright Act, codified in 1976, can only accomplish so much. As a general observation, the Office of the Inspector General of the Library of Congress recently commented that mandatory deposit may be one of several means of obtaining electronic deposits, but that in some cases ‘‘negotiated arrangements with private and public entities may be the only way forward.’’ Office of the Inspector General, The Library Needs to Determine an eDeposit and eCollections Strategy 11 (2015), available at https:// www.loc.gov/portals/static/about/documents/ edeposit-and-ecollections-strategy-april-2015.pdf. More specifically, the Register has testified that the mandatory deposit provisions in title 17 are ‘‘out of date and require attention’’ from Congress, and that issues include the ‘‘operation and relationship of mandatory deposit requirements to copyright registration requirements, the viability of ‘best edition’ requirements in the digital age, security of electronic works, and consideration of the Library’s stated goals.’’ Register’s Perspective on Copyright Review: Hearing Before the H. Comm. on Judiciary, 114th Cong. 37–38 (2015) (statement of Maria A. Pallante, Register of Copyrights). VerDate Sep<11>2014 15:05 May 16, 2016 Jkt 238001 II. Proposed Expansion of Mandatory Deposit Requirements To Include Online-Only Books and Sound Recordings Although the 2010 interim rule requires publishers to deposit only electronic serials—and only when the Office issues a demand for such a work—in promulgating that rule, the Register noted that mandatory deposit might be expanded over time to encompass new categories of onlineonly works.39 At this time, the Library has communicated to the Copyright Office its interest in obtaining onlineonly books and online-only sound recordings via mandatory deposit. Accordingly, the Office requests public comment regarding the imposition of a demand-based deposit system, akin to that provided under the interim rule for electronic serials, to these new categories of online-only works. A. Online-Only Books The Library has requested that the Copyright Office issue demands for electronic books that have been published solely through online channels. To be clear, in the case of a book published in both physical and electronic formats, the publisher would still be required to deposit the physical format as the ‘‘best edition’’ under section 407, rather than the electronic format.40 The Library has some experience in collecting, preserving and providing limited access to electronic deposits of text-based works under the existing interim rule for electronic serials. But there are some notable differences between online-only books and electronic serials. For example, many electronic serials, such as those in certain commercial journal databases, are accessed on a subscription basis and viewed via a live internet connection. Indeed, it was this fact that originally led the Office to adopt mandatory deposit requirements for electronic serials. As the Office noted in the 2010 interim rule, ‘‘subscriptions are typically ‘access only,’ and rarely allow the Library to acquire a ‘best edition’ copy for its collections.’’ The lack of mandatory deposit in this context thus ‘‘place[d] the long-term preservation of the works at risk.’’ 41 Under any rule requiring mandatory deposit of online-only books, the Library proposes to provide public access to such books under the same policies adopted in the 2010 interim rule (which could be included in the FR at 3864. 37 CFR 202.19(c)(5). 41 75 FR at 3864. regulatory provision itself), which, as noted above, are as follows: • Access to electronic works received through mandatory deposit will be as similar as possible to the access provided to analog works. • Access to electronic works received through mandatory deposit will be limited, at any one time, to two Library of Congress authorized users. • Library of Congress authorized users will access the electronic works via a secure server over a secure network that serves Capitol Hill facilities and remote Library of Congress locations. The term ‘‘Library of Congress authorized users’’ includes Library staff, contractors, and registered researchers, and Members, staff and officers of the U.S. House of Representatives and the U.S. Senate. The Library will not make the copyrighted works available to the public over the Internet without rights holders’ permissions. • Authorized users may print from electronic works to the extent allowed by the fair use provisions of the copyright law (17 U.S.C. 107 and 108(f)), as is the case with traditional publications. However, users may not reproduce or distribute (i.e., download or email) copies of deposited electronic works until the Library has explored the advisability of permitting these options and the security and feasibility of the implementing technologies. As part of this process, the Library will seek comment from the public, including copyright owners and publishers, before adopting additional policies governing electronic copying or distribution by electronic transmission. Although the above policies are identical to those articulated in the 2010 interim rule, the Library believes that in the future it may be able to comply with these policies using different technical means than are currently available. In addition, as noted above, the ‘‘Best Edition Statement’’ specifies the criteria that should be applied in cases where a publisher issues two or more editions of the same electronic serial. But these criteria, listed in 37 CFR, part 202, appendix B, do not appear to readily extend to electronic books. To this end, the Library believes it is possible that the criteria specified in the Library’s ‘‘Recommended Formats Statement’’ 42 for digital textual works could be adapted for this purpose. B. Online-Only Sound Recordings The Library has also communicated to the Copyright Office its interest in acquiring online-only sound recordings 39 75 40 See PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 42 https://www.loc.gov/preservation/resources/rfs/ TOC.html. E:\FR\FM\17MYP1.SGM 17MYP1 Federal Register / Vol. 81, No. 95 / Tuesday, May 17, 2016 / Proposed Rules under section 407. Demands would issue only for sound recordings that are fixed and published solely in onlineonly electronic format. In the case of a sound recording published in both physical and electronic form, the publisher would be required to deposit the physical format as the ‘‘best edition,’’ rather than the electronic version.43 As with online-only books, it seems that many, if not most, published sound recordings are available not only via subscription services, but also for purchase and download. As explained above, this is distinct from electronic serials, many of which are accessible to end users only through a subscription service. The Office invites comment on this difference as it may relate to the advisability of extending on-demand deposit requirements to online-only sound recordings, including the need for such mandatory deposit to further the Library’s collection and preservation goals. Under any rule requiring mandatory deposit of online-only sound recordings, the Library would provide public access to such recordings. The Library currently has a system by which authorized users can access and listen to digitized copies of physical sound recordings collected through other means at the Madison Building of the Library of Congress. Currently, users may access such recordings through six dedicated computer terminals.44 The Library, however, expects to modify this system to bring it into compliance with the policies identified in the 2010 interim rule before it is used to provide access to any online-only sound recordings obtained via mandatory deposit. Those policies are: • Access to electronic works received through mandatory deposit will be as 43 See 37 CFR 202.19(c)(5). Library’s Motion Picture, Broadcasting, and Recorded Sound Division currently allows Library patrons to listen to digitized versions of sound recordings in its Recorded Sound Collection via either one of five dedicated computers located in the Recorded Sound Reference Center’s main listening room in the Madison Building, or at an additional terminal located in a private listening room set off from the main listening room. See generally Guidelines for Listening to Sound Recordings, Library of Congress, https:// www.loc.gov/rr/record/rrinstructions.html. Public use of these facilities is by appointment only; in advance of the appointment, the Library digitizes any requested materials and copies those materials onto a server located at the Packard Campus of the National Audio-Visual Conservation Center of the Library, located in Culpeper, Virginia. The content is then downloaded to the Madison Building terminals via a 75-mile dedicated fiber optic cable network that connects the Packard Campus to the Library’s Capitol Hill facilities. In describing this arrangement, the Copyright Office does not mean to suggest an opinion on the copyright implications of such a system. Lhorne on DSK30JT082PROD with PROPOSALS 44 The VerDate Sep<11>2014 15:05 May 16, 2016 Jkt 238001 similar as possible to the access provided to analog works. • Access to electronic works received through mandatory deposit will be limited, at any one time, to two Library of Congress authorized users. • Library of Congress authorized users will access the electronic works via a secure server over a secure network that serves Capitol Hill facilities and remote Library of Congress locations. The term ‘‘Library of Congress authorized users’’ includes Library staff, contractors, and registered researchers, and Members, staff and officers of the U.S. House of Representatives and the U.S. Senate. The Library will not make the copyrighted works available to the public over the Internet without rights holders’ permissions. • Users may not reproduce or distribute (i.e., download or email) copies of deposited electronic works until the Library has explored the advisability of permitting these options and the security and feasibility of the implementing technologies. As part of this process, the Library will seek comment from the public, including copyright owners and publishers, before adopting additional policies governing electronic copying or distribution by electronic transmission. Again, although, with the exception of the policy regarding printing of electronic works, the above policies are identical to those articulated in the 2010 interim rule, the Library believes that in the future it may be able to comply with these policies using different technical means than are currently available. In addition, no ‘‘best edition’’ criteria exist yet for online-only sound recordings. Here too, however, the Library is proposing that the criteria specified in the Library’s ‘‘Recommended Formats Statement’’ 45 for digital audio works could be adapted for this purpose. III. Subjects of Inquiry The Office invites written comments on the general subjects below. A party choosing to respond to this notice of inquiry need not address every subject, but the Office requests that responding parties clearly identify and separately address each subject for which a response is submitted. In responding, please identify your particular interest in and experience with these issues. 1. Please comment on the efficacy of the 2010 interim rule, including whether it adequately addresses the digital collection and preservation needs of the Library of Congress, whether it has adequately addressed the 45 https://www.loc.gov/preservation/resources/rfs/ TOC.html. PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 30509 concerns of affected parties, and whether it is a good framework for further developing section 407. 2. Please comment on the Library’s adopted policies as to the interim rule and/or their application to online-only books and/or sound recordings. 3. Please comment on the information technology, security, and/or other requirements that should apply to the Library’s receipt and storage of, and public access to, any online-only books and/or sound recordings collected under section 407. 4. Please provide comments and observations regarding the application of ‘‘best edition’’ requirements to online-only books and/or sound recordings, including whether and how the ‘‘best edition’’ criteria for electronic serials found in part 202 of 37 CFR, appendix B, or the guidelines from the Library’s Recommended Formats Statement, might or might not be adapted to address these additional categories of online-only works. Dated: May 11, 2016. Maria A. Pallante, Register of Copyrights, U.S. Copyright Office. [FR Doc. 2016–11613 Filed 5–16–16; 8:45 am] BILLING CODE 1410–30–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R09–OAR–2016–0070 FRL–9945–23– Region 9] Approval of California State Air Plan Revisions, Eastern Kern Air Pollution Control District Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: The Environmental Protection Agency (EPA) is proposing to approve revisions to the Eastern Kern Air Pollution Control District (EKAPCD) portion of the California State Implementation Plan (SIP). These revisions concern administrative changes of a previously approved regulation and emissions of volatile organic compounds (VOCs) from aerospace coating assembly and coating operations and metal, plastic and pleasure craft parts and products coating operations. We are proposing to approve local rules to regulate these activities under the Clean Air Act (CAA or the Act). DATES: Any comments on this proposal must arrive by June 16, 2016. SUMMARY: E:\FR\FM\17MYP1.SGM 17MYP1

Agencies

[Federal Register Volume 81, Number 95 (Tuesday, May 17, 2016)]
[Proposed Rules]
[Pages 30505-30509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11613]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 202

[Docket No. 2016-3]


Mandatory Deposit of Electronic Books and Sound Recordings 
Available Only Online

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of inquiry.

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SUMMARY: In 2010, the U.S. Copyright Office, acting pursuant to section 
407 of title 17 and following a public rulemaking process, adopted an 
interim rule governing mandatory deposit of electronic works that are 
not available in a physical format. The interim rule refers to such 
works as ``electronic works published in the United States and 
available only online'' (or ``online-only works''). The interim rule 
created a limited exception to the Register's longstanding regulatory 
exemption that online-only works are not subject to mandatory deposit 
requirements. It also established best edition criteria and regulations 
as to electronic serials requested pursuant to section 407. The Library 
has adopted policies for the use of such materials, including limiting 
public access to deposited works to dedicated terminals located at the 
Library of Congress in Washington, DC. These policies were anticipated 
and discussed during the rulemaking process, but are not memorialized 
in the regulations.
    The Library of Congress is now interested in extending the interim 
rule to apply to online-only books and sound recordings. Because over 
six years have passed since the interim rule was adopted, and because 
the interim rule was intended to inform a more permanent solution and 
rule, the Copyright Office is initiating a notice of inquiry to further 
guide its work in this area. The Copyright Office seeks feedback from 
affected communities regarding the experience with mandatory deposit of 
electronic serials, generally, as well as comments pertaining to the 
potential application of mandatory deposit to online-only books and 
sound recordings, specifically. Based on this feedback, the Office will 
solicit further written comments and/or invite stakeholder meetings 
before moving to a rulemaking process.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on July 18, 2016.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using

[[Page 30506]]

the regulations.gov system for the submission and posting of public 
comments in this proceeding. All comments are therefore to be submitted 
electronically through regulations.gov. Specific instructions for 
submitting comments are available on the Copyright Office Web site at 
http://copyright.gov/policy/mandatorydeposit/comment-submission/. If 
electronic submission of comments is not feasible due to lack of access 
to a computer and/or the internet, please contact the Office, using the 
contact information below, for special instructions.

FOR FURTHER INFORMATION CONTACT: Jacqueline C. Charlesworth, General 
Counsel and Associate Register of Copyrights, jcharlesworth@loc.gov; or 
Sarang V. Damle, Deputy General Counsel, sdam@loc.gov. Both can be 
reached by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

A. Mandatory Deposit Under the Copyright Act Generally

    Mandatory deposit provisions, sometimes called ``legal deposit'' in 
foreign countries, permit national libraries to demand creative works 
for their respective collections pursuant to applicable laws, rights, 
restrictions, regulations, and fines. In the United States, the 
authority to demand, exempt, and otherwise regulate such works vests 
with the Register of Copyrights, who administers section 407 of title 
17 of the United States Code, part of the Copyright Act.
    Section 407 provides that 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 \1\ for the use or disposition of the Library 
of Congress.\2\ The Library is not entitled to works that fall outside 
of the statutory framework, e.g., editions not published in the United 
States.
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    \1\ 17 U.S.C. 407(a).
    \2\ Id. at 407(b).
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    Section 202.19 of title 37 of the Code of Federal Regulations sets 
forth a number of rules governing the mandatory deposit of copies and 
phonorecords under section 407, including certain best edition 
requirements. Appended to part 202 is a list, entitled `` `Best 
Edition' of Published Copyrighted Works for the Collection of the 
Library of Congress'' (referred to as the ``Best Edition Statement''), 
which sets forth the best edition criteria for particular categories of 
works.\3\ The same appendix specifies which published version must be 
deposited in instances where ``two or more editions of the same version 
of a work have been published.'' \4\ The term ``best edition of a 
work'' is defined by statute as the ``edition, published in the United 
States at any time before the date of deposit, that the Library of 
Congress determines to be most suitable for its purpose.'' \5\ The 
Register has observed that it is really a preservation copy, rather 
than the best published copy, that is of interest to the Library, and 
has suggested that section 407 may need to be updated accordingly.\6\
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    \3\ 37 CFR pt. 202 app. B.
    \4\ Id.
    \5\ 17 U.S.C. 101.
    \6\ Maria A. Pallante, The Next Great Copyright Act, 36 Columbia 
J. of L. & the Arts 316, 336 (2013).
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    Section 407 further provides that deposit is to be made within 
three months after such publication.\7\ If mandatory deposit is not 
satisfied, the Register of Copyrights may issue a demand for the 
work.\8\ The copyright owner may be subject to fines and other monetary 
liability if the owner fails to comply after a demand for deposit is 
made by the Register.\9\
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    \7\ 17 U.S.C. 407(a).
    \8\ Id. at 407(d).
    \9\ Id.
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    These general provisions, however, are subject to limitations. 
Section 407 provides that the Register of Copyrights may by regulation 
``exempt any categories of material from the deposit requirements of 
[that] section, or require deposit of only one copy or phonorecord with 
respect to any categories.'' \10\ Thus, in carrying out the authority 
provided under section 407, the Register seeks to fulfill the stated 
needs of the Library of Congress while balancing any competing concerns 
or requirements of the copyright system and affected parties. Such 
concerns are considered through a public rulemaking process carried out 
under the Administrative Procedure Act.\11\
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    \10\ Id. at 407(c). With respect to certain pictorial, graphic 
and sculptural works that are published in limited numbers, the 
statute requires the Register to issue regulations that ``provide 
either for complete exemption from the deposit requirements'' of 
section 407 or ``for alternative forms of deposit aimed at providing 
a satisfactory archival record of a work without imposing practical 
or financial hardships on the depositor.'' Id. These regulations can 
be found in 37 CFR 202.19.
    \11\ See 17 U.S.C. 701(e).
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    Finally, the registration and deposit provisions of section 408 as 
to published works generally require the submission for examination of 
two complete copies of the best edition.\12\ And section 408 further 
states that deposits made under section 407 may be used to satisfy the 
deposit requirements of section 408 if application, fee and regulatory 
conditions are met.\13\ As such, the extension of mandatory deposit to 
new categories of online-only works under section 407, and the 
particular deposit requirements that may be adopted, will necessarily 
affect registration practices as to works that are typically, or 
frequently, registered.
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    \12\ 17 U.S.C. 408(b)(2).
    \13\ Id. at 408(b).
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B. Mandatory Deposit of Electronic Materials Available Only Online

    When regulations implementing section 407 were first promulgated by 
the Copyright Office in 1978, the Office adopted a broad exemption from 
the mandatory deposit requirements for ``[l]iterary 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.'' \14\ Over time, the Office narrowed this exemption to require 
the deposit of certain electronic materials if they are made available 
in a physical medium, such as electronic databases that are published 
in CD-ROM copies.\15\ Until 2010, however, Copyright Office practice 
exempted from mandatory deposit requirements all electronic works not 
made available in physical format.\16\
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    \14\ 37 CFR 202.19(c)(5) (1978).
    \15\ In 1989, the Copyright Office amended the machine-readable 
copies exemption to require the deposit of machine-readable works 
published in physical form, exempting only ``automated databases 
available only in the United States.'' 54 FR 42295, 42296, Oct. 16, 
1989. Two years later, the Copyright Office amended its regulation 
to clarify that CD-ROM packages were the preferred form of deposit 
for machine-readable works published in physical form. 56 FR 47402, 
Sept. 19, 1991.
    \16\ See 74 FR 34286, 34287, Jan. 15, 2009 (explaining that the 
established Office practice was to interpret the exclusion for 
``automated databases available only online in the United States'' 
to refer to all online-only publications). By contrast, works that 
are published both in an electronic and physical format are subject 
to the mandatory deposit requirement. 37 CFR 202.19(c)(5).
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    On January 25, 2010, after a period of notice and public comment, 
the Copyright Office adopted a new interim rule to address the 
mandatory deposit requirements for published electronic works that are 
only made available online.\17\ For purposes of the interim rule, 
``electronic works'' are defined as ``works fixed and published solely 
in an electronic format.'' \18\ ``Online-only works'' thus encompasses 
works that are

[[Page 30507]]

not published in physical formats and are made available via a live 
internet connection or downloaded from the internet onto a device and 
viewed, heard, or used offline. In this regard, it should be noted that 
the interim rule covers only works that are published online, not 
online works that are only publicly displayed or publicly performed 
online.\19\
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    \17\ 75 FR 3863, Jan. 25, 2010; see also 74 FR 34286, Jul. 15, 
2009.
    \18\ 37 CFR 202.24(c)(3).
    \19\ See 17 U.S.C. 101 (``A public performance or display of a 
work does not in itself constitute publication.'').
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    The interim rule did two key things. First, it codified the 
Office's longstanding practice of exempting online-only works from the 
requirements of mandatory deposit as a general matter.\20\ Second, 
notwithstanding the general exemption, the interim rule provided, for 
the first time, a mechanism by which the Office could demand one 
particular type of online-only work for the Library--namely, 
``electronic serials.'' An ``electronic serial'' is defined as ``an 
electronic work published in the United States and available only 
online, issued or intended to be issued on an established schedule in 
successive parts bearing numerical or chronological designations, 
without subsequent alterations, and intended to be continued 
indefinitely.'' \21\ The interim rule states that this class include 
``periodicals, newspapers, annuals, and the journals, proceedings, 
transactions, and other publications of societies.'' \22\
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    \20\ 37 CFR 202.19(c)(5) (exempting ``[e]lectronic works 
published in the United States and available only online'').
    \21\ Id. at 202.19(b)(4).
    \22\ Id.
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    In extending mandatory deposit requirements to online-only serials, 
the Office observed that ``the Internet has grown to become a 
fundamental tool for the publication and dissemination of millions of 
works of authorship.'' \23\ The Office noted that there were then 
``more than five thousand scholarly electronic serials available 
exclusively online, with no print counterparts.'' \24\ Even where the 
Library purchased a subscription to such a work, it would rarely be 
able to acquire a permanent copy for its collections, placing the 
``long-term preservation of the works at risk.'' \25\
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    \23\ 75 FR at 3864.
    \24\ Id.
    \25\ Id. at 3864-65.
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    Under the interim rule, a publisher does not need to proactively 
deposit copies of electronic serials with the Copyright Office.\26\ An 
electronic serial is subject to mandatory deposit only if the Register 
of Copyrights specifically demands a copy of the online-only serial for 
the Library; or, put another way, the longstanding exemption continues 
to apply until overtaken by a demand for a specific work.\27\ A 
publisher receiving such a demand must deposit ``one complete copy or a 
phonorecord'' of ``the demanded work within three months of the date 
the demand notice is received.'' \28\ The interim rule also amended the 
``Best Edition Statement'' in appendix B of part 202 of title 37, Code 
of Federal Regulations, to specify the criteria that should be applied 
in cases where a publisher has distributed two or more editions of a 
particular serial.\29\ In such a case, for example, the statement 
indicates that the Library prefers to receive the edition that was 
published in a ``[s]erials-specific structured/markup format,'' namely, 
``[c]ontent compliant with the NLM Journal Archiving (XML) Document 
Type Definition (DTD), with presentation stylesheet(s), rather than 
without.'' \30\ If the serial was published with metadata elements, the 
statement also notes that ``descriptive data (metadata) should 
accompany the deposited material,'' such as ``serial or journal 
title,'' ``volume(s), numbers, issue dates,'' and ``article 
author(s).'' \31\ If the serial was published with technological 
protection measures, the statement also notes that the Library prefers 
that ``[t]echnological measures that control access to or use of the 
work should be removed.'' \32\
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    \26\ 37 CFR 201.19(c)(5) (providing that the exemption from 
mandatory deposit for online-only works ``includes electronic 
serials available only online only until such time as a demand is 
issued by the Copyright Office under the regulations set forth in 
Sec.  202.24 of these regulations'').
    \27\ See 37 CFR 202.24(a).
    \28\ 37 CFR 202.24(a), (a)(3).
    \29\ 37 CFR pt. 202, app. B, sec. IX.
    \30\ Id. at sec. IX.A.1.a(i).
    \31\ Id. at sec. IX.A.2.
    \32\ Id. at sec. IX.A.3.
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    The interim rule also provides for public access to deposited 
works, stating that ``[c]opies or phonorecords deposited in response to 
a demand must be able to be accessed and reviewed by the Copyright 
Office, Library of Congress, and the Library's authorized users on an 
ongoing basis.'' \33\ More specifically, in response to stakeholders 
seeking clarification regarding the Library's downloading, 
distribution, and interlibrary loan practices with respect to 
electronically deposited works, the Federal Register notice announcing 
the interim rule explained that access to such works would be available 
only to ``authorized users at the Library of Congress'' in accordance 
with the following policies:
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    \33\ 37 CFR 202.24(a)(4).
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     Access to electronic works received through mandatory 
deposit will be as similar as possible to the access provided to analog 
works.
     Access to electronic works received through mandatory 
deposit will be limited, at any one time, to two Library of Congress 
authorized users.
     Library of Congress authorized users will access the 
electronic works via a secure server over a secure network that serves 
Capitol Hill facilities and remote Library of Congress locations. The 
term ``Library of Congress authorized users'' includes Library staff, 
contractors, and registered researchers, and Members, staff and 
officers of the U.S. House of Representatives and the U.S. Senate. The 
Library will not make the copyrighted works available to the public 
over the Internet without rights holders' permissions.
     Authorized users may print from electronic works to the 
extent allowed by the fair use provisions of the copyright law (17 
U.S.C. 107 and 108(f)), as is the case with traditional publications. 
However, users may not reproduce or distribute (i.e., download or 
email) copies of deposited electronic works until the Library has 
explored the advisability of permitting these options and the security 
and feasibility of the implementing technologies. As part of this 
process, the Library will seek comment from the public, including 
copyright owners and publishers, before adopting additional policies 
governing electronic copying or distribution by electronic 
transmission.\34\
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    \34\ 75 FR at 3867-68.

The Library instituted these policies in recognition of the fact that 
``electronic works, because of their ease of reproduction and 
distribution, present special security concerns.'' \35\
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    \35\ 75 FR at 3867.
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    In accordance with these policies, the Library developed a system 
for providing and controlling access to electronic serials collected 
under the interim rule. The serials are stored on a server located in 
the Library's Capitol Hill facilities. The electronic files can be 
viewed on two secure terminals located in the Microform & Electronic 
Resources Center (``MERC''), located in the Library of Congress's 
Jefferson Building, which together constitute the sole point of public 
access to the files. The terminals have a web-based interface for 
searching and browsing the electronic serials collected by the Library. 
Individual articles are opened and read using customized viewing 
software that prevents users from being able to save

[[Page 30508]]

or download a copy.\36\ The software also allows users to print the 
entire article to a color printer attached to the terminals, without 
charge. To help guide their printing activities, users are presented 
with a set of fair use criteria in a short training manual stored next 
to the terminal. While users may browse, read, and print articles on 
the terminals, the Library has disabled access to the terminals' USB 
ports to prevent users from making electronic copies. Internet access 
on the terminals has also been disabled.
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    \36\ It appears that, as a technical matter, the article is 
copied to a temporary location on the terminal's hard drive before 
it is opened by the viewing software.
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    In adopting the interim rule in 2010, the Copyright Office 
emphasized that ``[t]he rule is interim, and not final, because the 
Office anticipates that the experience of issuing and responding to 
demands for online-only works will raise additional issues that should 
be considered before the regulation becomes final, e.g., the technical 
details of how an online-only work should be transmitted to the 
Copyright Office.'' \37\ After issuing the interim rule, the Office met 
with members of the publishing community on May 24, 2011 to further 
discuss the Library's expectations and submission questions, but has 
not further sought or received public comment on the qualified 
exemption and demand-based deposit system for online-only works through 
an additional rulemaking process. Since the promulgation of the interim 
rule, the Library has collected over 400 electronic serial titles that 
are now available through the two dedicated computer terminals in the 
MERC.\38\
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    \37\ 75 FR at 3864.
    \38\ Nonetheless, there is some agreement that the underlying 
provisions of the Copyright Act, codified in 1976, can only 
accomplish so much. As a general observation, the Office of the 
Inspector General of the Library of Congress recently commented that 
mandatory deposit may be one of several means of obtaining 
electronic deposits, but that in some cases ``negotiated 
arrangements with private and public entities may be the only way 
forward.'' Office of the Inspector General, The Library Needs to 
Determine an eDeposit and eCollections Strategy 11 (2015), available 
at https://www.loc.gov/portals/static/about/documents/edeposit-and-ecollections-strategy-april-2015.pdf. More specifically, the 
Register has testified that the mandatory deposit provisions in 
title 17 are ``out of date and require attention'' from Congress, 
and that issues include the ``operation and relationship of 
mandatory deposit requirements to copyright registration 
requirements, the viability of `best edition' requirements in the 
digital age, security of electronic works, and consideration of the 
Library's stated goals.'' Register's Perspective on Copyright 
Review: Hearing Before the H. Comm. on Judiciary, 114th Cong. 37-38 
(2015) (statement of Maria A. Pallante, Register of Copyrights).
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II. Proposed Expansion of Mandatory Deposit Requirements To Include 
Online-Only Books and Sound Recordings

    Although the 2010 interim rule requires publishers to deposit only 
electronic serials--and only when the Office issues a demand for such a 
work--in promulgating that rule, the Register noted that mandatory 
deposit might be expanded over time to encompass new categories of 
online-only works.\39\ At this time, the Library has communicated to 
the Copyright Office its interest in obtaining online-only books and 
online-only sound recordings via mandatory deposit. Accordingly, the 
Office requests public comment regarding the imposition of a demand-
based deposit system, akin to that provided under the interim rule for 
electronic serials, to these new categories of online-only works.
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    \39\ 75 FR at 3864.
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A. Online-Only Books

    The Library has requested that the Copyright Office issue demands 
for electronic books that have been published solely through online 
channels. To be clear, in the case of a book published in both physical 
and electronic formats, the publisher would still be required to 
deposit the physical format as the ``best edition'' under section 407, 
rather than the electronic format.\40\
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    \40\ See 37 CFR 202.19(c)(5).
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    The Library has some experience in collecting, preserving and 
providing limited access to electronic deposits of text-based works 
under the existing interim rule for electronic serials. But there are 
some notable differences between online-only books and electronic 
serials. For example, many electronic serials, such as those in certain 
commercial journal databases, are accessed on a subscription basis and 
viewed via a live internet connection. Indeed, it was this fact that 
originally led the Office to adopt mandatory deposit requirements for 
electronic serials. As the Office noted in the 2010 interim rule, 
``subscriptions are typically `access only,' and rarely allow the 
Library to acquire a `best edition' copy for its collections.'' The 
lack of mandatory deposit in this context thus ``place[d] the long-term 
preservation of the works at risk.'' \41\
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    \41\ 75 FR at 3864.
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    Under any rule requiring mandatory deposit of online-only books, 
the Library proposes to provide public access to such books under the 
same policies adopted in the 2010 interim rule (which could be included 
in the regulatory provision itself), which, as noted above, are as 
follows:
     Access to electronic works received through mandatory 
deposit will be as similar as possible to the access provided to analog 
works.
     Access to electronic works received through mandatory 
deposit will be limited, at any one time, to two Library of Congress 
authorized users.
     Library of Congress authorized users will access the 
electronic works via a secure server over a secure network that serves 
Capitol Hill facilities and remote Library of Congress locations. The 
term ``Library of Congress authorized users'' includes Library staff, 
contractors, and registered researchers, and Members, staff and 
officers of the U.S. House of Representatives and the U.S. Senate. The 
Library will not make the copyrighted works available to the public 
over the Internet without rights holders' permissions.
     Authorized users may print from electronic works to the 
extent allowed by the fair use provisions of the copyright law (17 
U.S.C. 107 and 108(f)), as is the case with traditional publications. 
However, users may not reproduce or distribute (i.e., download or 
email) copies of deposited electronic works until the Library has 
explored the advisability of permitting these options and the security 
and feasibility of the implementing technologies. As part of this 
process, the Library will seek comment from the public, including 
copyright owners and publishers, before adopting additional policies 
governing electronic copying or distribution by electronic 
transmission.

Although the above policies are identical to those articulated in the 
2010 interim rule, the Library believes that in the future it may be 
able to comply with these policies using different technical means than 
are currently available. In addition, as noted above, the ``Best 
Edition Statement'' specifies the criteria that should be applied in 
cases where a publisher issues two or more editions of the same 
electronic serial. But these criteria, listed in 37 CFR, part 202, 
appendix B, do not appear to readily extend to electronic books. To 
this end, the Library believes it is possible that the criteria 
specified in the Library's ``Recommended Formats Statement'' \42\ for 
digital textual works could be adapted for this purpose.
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    \42\ https://www.loc.gov/preservation/resources/rfs/TOC.html.
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B. Online-Only Sound Recordings

    The Library has also communicated to the Copyright Office its 
interest in acquiring online-only sound recordings

[[Page 30509]]

under section 407. Demands would issue only for sound recordings that 
are fixed and published solely in online-only electronic format. In the 
case of a sound recording published in both physical and electronic 
form, the publisher would be required to deposit the physical format as 
the ``best edition,'' rather than the electronic version.\43\
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    \43\ See 37 CFR 202.19(c)(5).
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    As with online-only books, it seems that many, if not most, 
published sound recordings are available not only via subscription 
services, but also for purchase and download. As explained above, this 
is distinct from electronic serials, many of which are accessible to 
end users only through a subscription service. The Office invites 
comment on this difference as it may relate to the advisability of 
extending on-demand deposit requirements to online-only sound 
recordings, including the need for such mandatory deposit to further 
the Library's collection and preservation goals.
    Under any rule requiring mandatory deposit of online-only sound 
recordings, the Library would provide public access to such recordings. 
The Library currently has a system by which authorized users can access 
and listen to digitized copies of physical sound recordings collected 
through other means at the Madison Building of the Library of Congress. 
Currently, users may access such recordings through six dedicated 
computer terminals.\44\ The Library, however, expects to modify this 
system to bring it into compliance with the policies identified in the 
2010 interim rule before it is used to provide access to any online-
only sound recordings obtained via mandatory deposit. Those policies 
are:
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    \44\ The Library's Motion Picture, Broadcasting, and Recorded 
Sound Division currently allows Library patrons to listen to 
digitized versions of sound recordings in its Recorded Sound 
Collection via either one of five dedicated computers located in the 
Recorded Sound Reference Center's main listening room in the Madison 
Building, or at an additional terminal located in a private 
listening room set off from the main listening room. See generally 
Guidelines for Listening to Sound Recordings, Library of Congress, 
https://www.loc.gov/rr/record/rrinstructions.html. Public use of 
these facilities is by appointment only; in advance of the 
appointment, the Library digitizes any requested materials and 
copies those materials onto a server located at the Packard Campus 
of the National Audio-Visual Conservation Center of the Library, 
located in Culpeper, Virginia. The content is then downloaded to the 
Madison Building terminals via a 75-mile dedicated fiber optic cable 
network that connects the Packard Campus to the Library's Capitol 
Hill facilities. In describing this arrangement, the Copyright 
Office does not mean to suggest an opinion on the copyright 
implications of such a system.
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     Access to electronic works received through mandatory 
deposit will be as similar as possible to the access provided to analog 
works.
     Access to electronic works received through mandatory 
deposit will be limited, at any one time, to two Library of Congress 
authorized users.
     Library of Congress authorized users will access the 
electronic works via a secure server over a secure network that serves 
Capitol Hill facilities and remote Library of Congress locations. The 
term ``Library of Congress authorized users'' includes Library staff, 
contractors, and registered researchers, and Members, staff and 
officers of the U.S. House of Representatives and the U.S. Senate. The 
Library will not make the copyrighted works available to the public 
over the Internet without rights holders' permissions.
     Users may not reproduce or distribute (i.e., download or 
email) copies of deposited electronic works until the Library has 
explored the advisability of permitting these options and the security 
and feasibility of the implementing technologies. As part of this 
process, the Library will seek comment from the public, including 
copyright owners and publishers, before adopting additional policies 
governing electronic copying or distribution by electronic 
transmission.

Again, although, with the exception of the policy regarding printing of 
electronic works, the above policies are identical to those articulated 
in the 2010 interim rule, the Library believes that in the future it 
may be able to comply with these policies using different technical 
means than are currently available. In addition, no ``best edition'' 
criteria exist yet for online-only sound recordings. Here too, however, 
the Library is proposing that the criteria specified in the Library's 
``Recommended Formats Statement'' \45\ for digital audio works could be 
adapted for this purpose.
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    \45\ https://www.loc.gov/preservation/resources/rfs/TOC.html.
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III. Subjects of Inquiry

    The Office invites written comments on the general subjects below. 
A party choosing to respond to this notice of inquiry need not address 
every subject, but the Office requests that responding parties clearly 
identify and separately address each subject for which a response is 
submitted. In responding, please identify your particular interest in 
and experience with these issues.
    1. Please comment on the efficacy of the 2010 interim rule, 
including whether it adequately addresses the digital collection and 
preservation needs of the Library of Congress, whether it has 
adequately addressed the concerns of affected parties, and whether it 
is a good framework for further developing section 407.
    2. Please comment on the Library's adopted policies as to the 
interim rule and/or their application to online-only books and/or sound 
recordings.
    3. Please comment on the information technology, security, and/or 
other requirements that should apply to the Library's receipt and 
storage of, and public access to, any online-only books and/or sound 
recordings collected under section 407.
    4. Please provide comments and observations regarding the 
application of ``best edition'' requirements to online-only books and/
or sound recordings, including whether and how the ``best edition'' 
criteria for electronic serials found in part 202 of 37 CFR, appendix 
B, or the guidelines from the Library's Recommended Formats Statement, 
might or might not be adapted to address these additional categories of 
online-only works.

    Dated: May 11, 2016.
Maria A. Pallante,
Register of Copyrights, U.S. Copyright Office.
[FR Doc. 2016-11613 Filed 5-16-16; 8:45 am]
BILLING CODE 1410-30-P