Group Registration of Newspapers, 51369-51380 [2017-23917]

Agencies

• Library of Congress
• U.S. Copyright Office

[Federal Register Volume 82, Number 213 (Monday, November 6, 2017)]
[Proposed Rules]
[Pages 51369-51380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-23917]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Parts 201 and 202

[Docket No. 2017-16]


Group Registration of Newspapers

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The U.S. Copyright Office is proposing to amend its regulation 
governing the group registration option for newspapers. The proposed 
rule will make a number of changes to reflect

[[Page 51370]]

current Office practices, promote efficiency of the registration 
process, and encourage broader participation in the registration system 
by reducing the burden on applicants. Specifically, the proposed rule 
revises the definition of ``newspaper issues'' and clarifies that the 
group registration option is available to any qualifying ``newspaper 
issue.'' The proposed rule will require applicants to file an online 
application rather than a paper application, and upload a complete 
digital copy of each issue through the electronic registration system 
instead of submitting them in physical form. The Library of Congress 
intends to incorporate digital copies of newspapers received by the 
Office under this group registration option, and provide public access 
to them, subject to certain restrictions set forth in the proposed 
rule. Applicants may continue to submit their issues on microfilm (in 
addition to submitting digital files) on a voluntary basis if the 
microfilm is received by December 31, 2019. After that date, the 
microfilm option will be phased out. The proposed rule will clarify 
that each newspaper issue in the group must be a new collective work 
and a work made for hire, that the author and copyright claimant for 
each issue must be the same person or organization, and will clarify 
the scope of protection for newspaper issues, compared to individual 
components appearing within those issues. In addition, the proposed 
rule will require applicants to submit a full month of issues, and 
submit their claims within three months after the publication of the 
earliest issue in the group. The Office invites public comment on these 
proposed changes.

DATES: Comments must be made in writing and must be received in the 
U.S. Copyright Office no later than December 6, 2017.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office Web site 
at https://www.copyright.gov/rulemaking/group-newspapers. If electronic 
submission of comments is not feasible due to lack of access to a 
computer and/or the Internet, please contact the Office using the 
contact information below for special instructions.

FOR FURTHER INFORMATION CONTACT: Robert J. Kasunic, Associate Register 
of Copyrights and Director of Registration Policy and Practice, or Erik 
Bertin, Deputy Director of Registration Policy and Practice, by 
telephone at 202-707-8040, or by email at rkas@loc.gov and 
ebertin@loc.gov; or Anna Bonny Chauvet, Assistant General Counsel, by 
telephone at 202-707-8350, or by email at achau@loc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    When Congress enacted the Copyright Act of 1976 (the ``Act''), it 
authorized the Register of Copyrights (the ``Register'') to specify by 
regulation the administrative classes of works for the purpose of 
seeking a registration, and the nature of the deposits required for 
each such class. In addition, Congress granted the Register the 
discretion to allow groups of related works to be registered with one 
application and one filing fee, a procedure known as ``group 
registration.'' See 17 U.S.C. 408(c)(1). Pursuant to this authority, 
the Register has issued regulations permitting the U.S. Copyright 
Office (the ``Office'') to issue a group registration for limited 
categories of works, provided that certain conditions have been met. 
See generally 37 CFR 202.3(b)(5)-(10), 202.4(g).
    As the legislative history explains, allowing ``a number of related 
works to be registered together as a group represent[ed] a needed and 
important liberalization of the law.'' H.R. Rep. No. 94-1476, at 154 
(1976); S. Rep. No. 94-473, at 136 (1975). Congress recognized that 
requiring applicants to submit separate applications for certain types 
of works may be so burdensome and expensive that authors and copyright 
owners may forgo registration altogether, since copyright registration 
is not a prerequisite to copyright protection. Id. If copyright owners 
do not submit their works for registration, the public record will not 
contain any information concerning those works. This creates a void in 
the public record that diminishes the value of the Office's database, 
and deprives the public of copies of works that might otherwise be 
included in the collections of the Library of Congress (the 
``Library''). When large numbers of works are grouped in one 
registration application, however, granular information about the 
individual works may not be adequately captured. Therefore, group 
registration options require careful balancing of the need for an 
accurate public record and the need for an efficient method of 
facilitating the registration of multiple works.

II. The Existing Group Registration Option for Newspapers

    To register a group of newspapers under the current regulation, the 
applicant must complete and submit a paper application using Form G/
DN.\1\ 37 CFR 202.3(b)(7)(i)(B). The current regulation states that a 
newspaper is eligible for the group registration option if it is listed 
in ``Newspapers Received Currently in the Library of Congress,'' \2\ a 
policy document listing newspapers that have been selected to be 
received and retained by the Library. 37 CFR 202.3(b)(7)(ii). The 
current regulation also includes a number of registration requirements. 
First, the group must include ``a full month of issues of the same 
newspaper title published with issue dates in one calendar month,'' and 
the applicant must specify the first and last day that the issues were 
published during that month. Id. Sec.  202.3(b)(7)(i)(A), (C). Second, 
the applicant must submit a microfilm deposit, consisting of positive 
35mm silver halide microfilm, containing the final edition of each 
issue published in the month specified in the application. Id. Sec.  
202.3(b)(7)(i)(D). The microfilm may include ``earlier editions 
published the same day in a given metropolitan area served by the 
newspaper, but may not include national or regional editions 
distributed beyond a given metropolitan area.'' \3\ Id. Finally, to be 
registered as a group, the applicant must seek registration within 
three months after the date of publication for the most recent issue 
included in the group. Id. Sec.  202.3(b)(7)(i)(F).
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    \1\ Although the regulation refers to this as a ``GDN 
application,'' the application itself is labeled ``Form G/DN.'' 
Applicants must also submit Form G/DN when using the group 
registration option for daily newsletters. 37 CFR 202.3(b)(9)(viii).
    \2\ This list is also available at https://www.loc.gov/rr/news/ncr_list.php.
    \3\ The Office's rationale for not including national or 
regional editions is that the Library considers them to be different 
newspapers because they have different International Standard Serial 
Numbers (``ISSN'').
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    In addition to these regulatory requirements, the instructions for 
Form G/DN include three additional requirements: Each issue in the 
group must be an ``essentially all-new collective work'' that has not 
been previously published; each issue must be a work made for hire; and 
the author and the copyright claimant must be the same person or 
organization. Form Group/Daily Newspapers and Newsletters. Although not 
referenced in the Office's regulation, these instructions have appeared 
in Form G/DN since at least February 2000, and have appeared in 
Copyright Office

[[Page 51371]]

Circular 62A: Group Registration of Newspapers and Newsletters 
(hereinafter ``Circular 62A'') since at least December 1999.\4\
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    \4\ Similar language appears in the regulations governing the 
group options for serials and newsletters. See 37 CFR 
202.3(b)(6)(C)-(F), (9)(ii)-(iv).
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    During the early 1990s, the Office became aware that applicants 
wished to use the group registration option to register newspapers that 
had not been selected for the Library's collections. These applicants 
went to the trouble and expense of transferring newspapers onto 
archival-quality microfilm for registration purposes, even though the 
Library did not include that microfilm in its collections.
    To reduce the number of applicants incurring such unnecessary costs 
in transferring non-selected newspapers to archival-quality microfilm, 
and to complement its existing regulation, the Office adopted an 
interim practice allowing applicants to use the group registration 
option for newspapers that have not been selected by the Library 
without submitting the works on microfilm. Specifically, the interim 
practice allows an applicant to submit: (i) Complete print copies of 
the earliest and most recent issues from the month specified in the 
application; (ii) print copies of the first section from the earliest 
and most recent issues in that month; or (iii) print copies of the 
first page from the earliest and most recent issues in that month. 
Although the Office's interim practice is not reflected in the current 
regulation, it is mentioned in the instructions for Form G/DN, in 
Circular 62A, and in the Compendium of U.S. Copyright Office Practices, 
section 1110.5(B) (3d ed. 2017) (hereinafter ``Compendium'').

III. The Proposed Rule

    The Office is proposing to amend the regulation governing the group 
registration option for newspapers (the ``Proposed Rule'') to reflect 
current Office practices, promote efficiency, and where possible, 
reduce the burden on applicants.
    As explained in greater detail below, the Proposed Rule will modify 
the eligibility requirements for this group option in several respects. 
First, it will make any newspaper, as defined in the regulation, 
eligible for a group registration, regardless of whether the Library 
has selected that newspaper for its collections. Second, it will 
improve the efficiency of this procedure by requiring applicants to 
register their newspapers through the Office's electronic registration 
system, rather than filing paper applications. Third, it will amend the 
deposit requirements by requiring applicants to upload their newspapers 
in digital form through the electronic registration system. Although 
applicants will no longer be required to submit microfilm containing a 
complete copy of each issue, they may do so voluntarily if the 
microfilm is received by December 31, 2019 (in addition to uploading 
digital copies). After that, the microfilm option will be phased out. 
Fourth, the Proposed Rule confirms that deposits submitted for the 
purpose of group registration will satisfy the mandatory deposit 
requirement under section 407 of the statute, and will not be subject 
to the best edition requirement. It also confirms that the Library may 
provide limited access to any digital newspaper deposits it receives 
from the Office under the group registration option, subject to certain 
restrictions.
    Finally, the Proposed Rule will memorialize the Office's 
longstanding position regarding the scope of a registration for a group 
of newspaper issues (i.e., a registration for a group of newspaper 
issues covers each issue in the group, as well as the articles, 
photographs, illustrations, or other contributions appearing within 
each issue--if they are fully owned by the copyright claimant and if 
they were first published in those issues). In addition, it will 
implement some technical amendments to address certain inconsistencies 
in the current regulation.

A. Eligibility Requirements

    This section discusses the proposed amendments to the eligibility 
requirements for the group option for newspapers. Applicants failing to 
satisfy these requirements will not be permitted to use this option.
1. The Definition of ``Daily Newspapers''
    The Proposed Rule will update the regulatory definition for the 
term ``newspaper'' in several respects.\5\ Currently, the regulation 
states that the Office may issue a group registration ``for a group of 
daily newspapers.'' 37 CFR 202.3(b)(7)(i). The term ``daily'' is 
misleading, because it implies that the newspaper must be published 
seven days a week. In practice, the Office has never applied this 
standard in registering groups of newspaper issues. Accordingly, the 
Proposed Rule will remove the term ``daily'' and replace it with 
``newspaper issues.''
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    \5\ The Proposed Rule also maintains certain portions of the 
current definition. It reiterates that newspapers are mainly 
designed to be a primary source of written information on current 
events, either local, national, or international in scope; they 
contain a broad range of news on all subjects and activities; they 
are not limited to any specific subject matter; and they are 
intended either for the general public or for a particular ethnic, 
cultural, or national group. See 37 CFR 202.3(b)(7)(ii).
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    As discussed above, the current regulation states that a newspaper 
is eligible for group registration if it is listed in ``Newspapers 
Received Currently in the Library of Congress,'' a policy document 
listing newspapers that have been selected to be received and retained 
by the Library. 37 CFR 202.3(b)(7)(ii). The Proposed Rule will make any 
newspaper eligible for a group registration, regardless of whether the 
Library has selected that title for its collections.
    In addition, the Proposed Rule clarifies that for purposes of 
registration, a newspaper will be classified as a ``periodical.'' Under 
the current regulation, ``newspapers'' and ``periodicals'' are both 
subsets of ``serials,'' a broader category of works ``issued or 
intended to be issued in successive parts bearing numerical or 
chronological designations and intended to be continued indefinitely.'' 
\6\ See 37 CFR 202.3(b)(1)(v). Serials do not have to be collective 
works for registration purposes. See id. For example, a newsletter 
containing a single article may qualify as a serial, but not a 
collective work. See H.R. Rep. No. 94-1476, at 122 (1976) (stating that 
a work does not qualify as a collective work ``where relatively few 
separate elements have been brought together,'' as in the case of ``a 
composition consisting of words and music, a work published with 
illustrations or front matter, or three one-act plays''). By contrast, 
a ``periodical'' is defined as ``a collective work that is issued or 
intended to be issued on an established schedule in successive issues 
that are intended to be continued indefinitely,'' and ``[i]n most 
cases, each issue will bear the same title, as well as numerical or 
chronological designations.'' \7\ 37 CFR

[[Page 51372]]

202.4(g)(4) (emphasis added). Accordingly, by classifying newspapers as 
``periodicals'' rather than ``serials'' generally, the Proposed Rule 
clarifies that newspapers must be collective works for registration 
purposes.\8\ The Proposed Rule also amends the definition for ``Class 
SE: Serials'' to reflect this clarification.
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    \6\ In 1991, the Office began offering a group registration 
option for serials. 55 FR 50556. The Office subsequently offered a 
separate group registration option for newspapers, which are 
published in successive parts bearing numerical or chronological 
designations (i.e., publications meeting the definition of a 
``serial''), but are ineligible for the serial group registration 
option because they do not meet the registration requirements, such 
as frequency of publication. 57 FR 39615. The Office will be issuing 
a proposed rule relating to group registration for serials to 
similarly streamline the registration process for that group 
registration option.
    \7\ In this respect, the Proposed Rule differs from the 
regulation governing the group registration option for newsletters, 
which are classified as ``serials'' generally rather than 
``periodicals'' specifically, because newsletters can be composed of 
a single work, whereas newspapers are by their nature collective 
works. See 37 CFR 202.3(b)(9)(i). Put another way, while a newspaper 
must be a collective work to qualify for the group registration 
option, a publisher may register a group of newsletter issues 
regardless of whether the newsletter is or is not a collective work. 
See 82 FR at 29412 n.12.
    \8\ Section 408(c)(1) of the Act states that ``[t]he Register of 
Copyrights is authorized to specify by regulation the administrative 
classes into which works are to be placed for purposes of deposit 
and registration.''
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    Defining a newspaper as a ``periodical'' is consistent with section 
408(c)(3) of the Act, which indicates that ``newspapers'' are a subset 
of ``periodicals.'' 17 U.S.C. 408(c)(3) (directing the Register to 
create a group registration option for works ``first published as 
contributions to periodicals, including newspapers''). Similarly, it is 
consistent with section 101 of the Act, which cites a ``periodical 
issue'' as an example of a collective work. 17 U.S.C. 101 (definition 
of ``collective work'').
    Finally, the Office will use the term ``GR/NP,'' which stands for 
``group newspapers,'' instead of the term ``G/DN'' when referring to 
the group registration option for newspapers. As discussed below in 
Section III.B.1, the Office is proposing to eliminate Form G/DN and 
require applicants to submit their claims through the electronic 
registration system. Thus, the term G/DN will soon be obsolete. The 
term G/DN is also confusing, because the Office uses the same term when 
referring to the group option for daily newsletters. See supra note 1.
2. Publication Requirements
    The current regulation states that applicants may register 
newspaper issues ``published with issue dates in one calendar month.'' 
37 CFR 202.3(b)(7)(i)(A). The Proposed Rule will clarify that all of 
the issues in the group must be published (i.e., distributed to the 
public) within the same calendar month and must bear issue dates within 
that month. Claims with dates outside of one calendar month will be 
refused. The change in language is simply intended to clarify these 
requirements and does not represent a substantive change.
3. Authorship, Ownership, and Work Made for Hire Requirements
    Under the Proposed Rule, each issue in the group must have been 
created as a work made for hire, with the same person or organization 
named as the author and copyright claimant. These requirements have 
appeared in Circular 62A and in the instructions for Form G/DN for more 
than a decade. Accordingly, this change is intended to reconcile the 
regulation with these longstanding Office practices.
4. The Collective Work Requirement
    The Proposed Rule states that each newspaper issue in the group 
must be an all-new collective work that has not been previously 
published. This requirement has appeared in Circular 62A for some time. 
Similarly, the instructions for Form G/DN state that each issue in the 
group must be an ``essentially all-new collective work'' that has not 
been previously published. The Proposed Rule will clarify that each 
issue must be an all-new collective work for registration purposes.
    A newspaper will be considered a collective work if it contains ``a 
number of contributions'' that constitute ``separate and independent 
works in themselves,'' and if the contributions are ``assembled into a 
collective whole'' ``in such a way that the resulting work as a whole 
constitutes an original work of authorship.'' 17 U.S.C. 101 
(definitions of ``collective work'' and ``compilation''). For example, 
a newspaper that contains multiple articles, photographs, 
illustrations, and advertisements could be considered a collective work 
if those contributions are selected, coordinated, and arranged in a 
sufficiently creative manner. By contrast, a work that contains a 
single article and a single photograph would not be considered a 
collective work, because it does not contain a sufficient number of 
contributions. See H.R. Rep. No. 94-1476, at 122 (1976).
    A newspaper issue may qualify as an ``all-new'' collective work if 
it contains a sufficient amount of compilation authorship. In other 
words, there must be a sufficient amount of new expression in the 
selection, coordination, and arrangement of the articles, photographs, 
or other content appearing in each issue. The fact that the content 
itself is entirely new is irrelevant to this determination. For 
example, an issue could be considered ``all-new'' if it contains a 
brand new selection, coordination, and arrangement of content, even if 
that individual content has been previously published in the 
newspaper--such as advertisements appearing in previous issues.
5. Scope of Protection for Newspaper Issues Versus Individual 
Contributions Versus Overall Group
    The Proposed Rule clarifies that a registration for a group of 
newspapers covers each issue in the group, and each issue will be 
registered as a separate collective work. As a general rule, a 
registration for a collective work covers the individual contributions 
contained within that work if they are fully owned by the copyright 
claimant and if they were first published in that work.\9\ Accordingly, 
a registration for a group of newspaper issues covers each issue in the 
group, as well as the articles, photographs, illustrations, or other 
contributions appearing within each issue--if they are fully owned by 
the copyright claimant at the time the application was filed and if 
they were first published in those issues. By contrast, if an issue 
contains contributions that are not fully owned by the copyright 
claimant, and/or contributions that were previously published, the 
registration will not extend to those works. See Morris v. Business 
Concepts, Inc., 259 F.3d 65, 71 (2d Cir. 2001) (``Unless the copyright 
owner of a collective work also owns all the rights in a constituent 
part, a collective work registration will not extend to the constituent 
part.''), abrogated on other grounds by Reed Elsevier, Inc. v. 
Muchnick, 559 U.S. 154, 160 (2010).
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    \9\ See, e.g., Alaska Stock, LLC v. Houghton Mifflin Harcourt 
Pub. Co., 747 F.3d 673, 683 (9th Cir. 2014); Morris v. Bus. 
Concepts, Inc., 259 F.3d 65, 68 (2d Cir. 2001); Compendium sections 
509.1, 509.2; see also 17 U.S.C. 201(c) (``Copyright in each 
separate contribution to a collective work is distinct from 
copyright in the collective work as a whole, and vests initially in 
the author of the contribution. In the absence of an express 
transfer of the copyright or of any rights under it, the owner of 
copyright in the collective work is presumed to have acquired only 
the privilege of reproducing and distributing the contribution as 
part of that collective work . . . .'').
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    With respect to the information collected as part of a group 
registration and examination practices, the Office must balance the 
public interest in creating a meaningful record (i.e., collecting 
information regarding each individual contribution within a newspaper 
issue) with the relative burden on applicants wishing to participate in 
the registration system. When an applicant submits an entire month of 
newspaper issues for registration, it is difficult to collect granular 
information concerning the individual articles, photographs, and other 
component works within each

[[Page 51373]]

issue. Requiring applicants to identify the author and title of each 
individual contribution would impose a significant burden both on 
applicants and the Office alike. This would discourage registration, 
which in turn, would diminish the value of the Office's public record. 
It would also be contrary to the Congressional purpose of providing the 
Office with the authority to create group registration options to 
foster registrations that otherwise would be unduly burdensome.
    Accordingly, the Office's application to register a group of 
newspaper issues does not contain spaces where the applicant can 
expressly assert a claim in the individual contributions appearing 
within each issue, provide titles, authors, or other identifying 
information for each contribution, or identify component works created 
by a third party and transferred to the claimant by written agreement. 
When the examiner reviews each newspaper issue, he or she will examine 
the issue as a whole to determine if it contains sufficient compilation 
authorship to warrant registration. And the examiner will review the 
newspaper issue to determine whether it contains ``a number of 
contributions'' constituting ``separate and independent works in 
themselves.'' 17 U.S.C. 101. When the Office issues a group 
registration, the certificate will identify the title, author, and 
claimant for each newspaper issue in the group, but it will not 
identify the titles, authors, or claimants for the individual 
contributions appearing within those issues.\10\
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    \10\ There are two other options for registration of individual 
contributions to newspapers. Applicants may expressly assert a claim 
in the component works appearing within a particular issue by using 
the option for ``literary work.'' When using this option, the 
applicant must complete a separate application and pay a separate 
filing fee for each issue, and may list the author(s) and title(s) 
of the individual contributions appearing within that issue. 
Alternatively, the applicant may be able to register the individual 
contributions by using the group option for contributions to 
periodicals (including newspapers), provided that the applicant 
satisfies the eligibility requirements (i.e., the contribution must 
not be a work made for hire) and deposit requirements for that 
option. See 37 CFR 202.4(g).
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    The scope of protection for a group registration issued under the 
Proposed Rule will have several consequences in infringement actions. 
First, a group registration may be used to satisfy the statutory 
requirements for instituting an infringement action involving any of 
the newspaper issues that were included within the group, or any of the 
individual contributions appearing within those issues--provided that 
the claimant fully owned those contributions at the time the 
application for registration is submitted, and provided that the 
contributions were first published in one of those issues.\11\ 17 
U.S.C. 411(a) (for works of U.S. origin, registration (or refusal) is 
necessary to enforce the exclusive rights of copyright through 
litigation).
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    \11\ Alternatively, a plaintiff may satisfy this statutory 
requirement if the Office refused registration, provided that the 
plaintiff serves a copy of the complaint on the Register of 
Copyrights. 17 U.S.C. 411(a).
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    Second, a group registration may also be used to satisfy the 
plaintiff's burden of proof by providing a presumption of validity for 
each registered issue. Specifically, a certificate of registration 
``constitute[s] prima facie evidence of the validity of the copyright 
and of the facts stated in the certificate.'' 17 U.S.C. 410(c). A group 
registration issued under the Proposed Rule would thus create a 
presumption that the claimant owns the copyright in each newspaper 
issue listed in the certificate, and a presumption that the copyright 
law protects each issue as a whole.
    Although the Proposed Rule does not require granular information 
concerning the individual component works within each newspaper issue, 
the Office foresees the future possibility of applicants submitting 
metadata for the component works appearing within each issue, and the 
possibility of the Office incorporating this information into the 
registration record. If this becomes feasible once the Office 
implements its next-generation registration system, it may require this 
type of information as a condition for using this group registration 
option.
    Finally, the Proposed Rule also clarifies that the group as a whole 
is not considered a compilation, a collective work, or a derivative 
work. Instead, the group is merely an administrative classification 
created solely for the purpose of registering multiple collective works 
with one application and one filing fee. The chronological selection, 
coordination, and arrangement of the issues within the group is 
entirely dictated by the regulatory requirements for this option. 
Likewise, when a group of newspaper issues are combined for the purpose 
of facilitating registration, those works are not ``recast, 
transformed, or adapted'' in any way, and the group as a whole is not 
``a work based upon one or more preexisting works'' because there is no 
copyrightable authorship in simply collecting a month of issues and 
arranging them in chronological order. 17 U.S.C. 101 (definition of 
``derivative work'').
6. Discrete, Self-Contained Works Protected
    The Proposed Rule clarifies that each newspaper issue in the group 
must be fixed and distributed as a discrete, self-contained collective 
work.\12\ An applicant may satisfy this requirement if the newspaper as 
a whole is fixed in a tangible medium of expression, and the content of 
each issue does not change once it has been distributed. For example, a 
publisher that hand-delivers each issue to its subscribers, or 
distributes them through newsstands, vending machines, or other retail 
outlets, would satisfy this requirement because the newspaper is 
clearly fixed and distributed in a physical format. A publisher that 
emails an electronically printed (``ePrint'') newspaper to its 
subscribers may satisfy this requirement if each issue contains a fixed 
selection of content, such as a PDF version of a physical publication. 
Similarly, a publisher that allows its subscribers to download an 
ePrint newspaper from its Web site may satisfy this requirement if each 
issue is distributed as a collective work and the content of each issue 
does not change once it has been downloaded.
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    \12\ Similar language has appeared in the Compendium since 
December 2014. See Compendium section 1113.
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    By contrast, a newspaper Web site would not satisfy this 
requirement. Newspaper Web sites typically add, archive, and/or replace 
content on a continuing basis. As such, they are not fixed and 
distributed as discrete, self-contained works. Moreover, these updates 
are rarely distributed on an established schedule, and rarely contain 
numerical or chronological designations distinguishing one update from 
the next. For this reason, Web sites are not considered ``newspapers'' 
for purposes of registration. As discussed above, ``newspapers'' and 
``periodicals'' have historically been considered subsets of 
``serials,'' a broader category of works ``issued or intended to be 
issued in successive parts bearing numerical or chronological 
designations and intended to be continued indefinitely,'' and under the 
Proposed Rule, newspapers will be categorized as a ``periodical.'' See 
37 CFR 202.3(b)(1)(v) (defining a ``serial''); see also 75 FR 3863, 
3865 (Jan. 25, 2010) (noting that works ``that are constantly updated 
with no demarcation between particular, discrete issues of the 
publication'' are not considered serials).
    Although the Proposed Rule does not extend to newspaper Web sites, 
the Office is aware of the need for establishing new and updated 
practices

[[Page 51374]]

for examining and registering online works. See, e.g., Comments of 
Newspaper Association of America (urging the Office to create a group 
registration option for newspaper Web sites), available at https://www.copyright.gov/rulemaking/online-only/comments/naa.pdf; Comments of 
the National Writers Union, Western Writers of America, and American 
Society of Journalists and Authors (urging the Office to create a group 
registration option for multiple works published online on different 
dates), available at https://www.regulations.gov/contentStreamer?documentId=COLC-2016-0005-0009&attachmentNumber=1&disposition=attachment&contentType=pdf; see 
also 81 FR 86634, 86636-37 (Dec. 1, 2016); 81 FR 86643, 86646 (Dec. 1, 
2016). The Office is considering these issues and will take them into 
account when developing its priorities for future upgrades to the 
electronic registration system. In the meantime, this Proposed Rule 
makes made some interim improvements to the current registration system 
to benefit newspaper publishers, the Library, and the public at large.

B. Application Requirements

1. Online Registration
    The Office has allowed and encouraged applicants to register their 
works through the electronic registration system since 2007. See 72 FR 
36883 (July 6, 2007). When the online registration system was 
introduced, applicants could submit their works on an individual basis. 
See id. But applicants could not submit a group registration covering 
multiple newspaper issues because the system was not designed to 
receive the information required for such a registration. Instead, 
applicants were required to file their claims on a paper application 
using Form G/DN.
    On December 14, 2012, the Office made some modifications to its 
electronic registration system to allow newspaper publishers to submit 
their claims with the online application. Under the Proposed Rule, 
applicants will be required to use the electronic application 
designated for a group of newspaper issues as a condition for seeking a 
group registration. The Office will no longer accept groups of 
newspaper issues submitted for registration on paper using Form G/DN. 
If, after the effective date of this rule, such paper applications are 
received, the Office will refuse registration and instruct the 
applicant to resubmit the claim through the electronic system. The 
Office invites comment on this proposal, including whether the Office 
should eliminate the paper application for newspaper issues, phase it 
out after a specified period of time, or continue to offer Form G/DN 
for applicants who prefer to use the paper-based system.
2. Supplementary Registration
    A supplementary registration is a special type of registration that 
may be used ``to correct an error in a copyright registration or to 
amplify the information given in a registration,'' including a 
registration for a group of related works. 17 U.S.C. 408(d). 
Specifically, it identifies an error or omission in an existing 
registration (referred to herein as a ``basic registration'') and 
places the corrected information or additional information in the 
public record.
    The Office recently issued a final rule that modified the 
regulation governing this procedure. 82 FR 27424 (June 15, 2017). This 
rule requires applicants to file an online application in order to 
correct or amplify the information set forth in a basic registration 
for any work capable of being registered through the electronic system, 
rather than filing a paper application. This online filing requirement 
will apply to supplementary registrations for groups of newspaper 
issues--even if the issues were originally registered using Form G/DN. 
See 81 FR at 86657 & n.3. If an applicant attempts to use a paper 
application to correct or amplify a registration for a group of 
newspaper issues, the Office will refuse registration and instruct the 
applicant to resubmit the claim using the online version of this form.
3. Policy Considerations Supporting Online-Only Registration
    The Office's decision to offer a group option is entirely 
discretionary, and Congress gave the Office broad authority to 
establish the requirements for these types of claims. 17 U.S.C. 
408(c)(1). Currently, the vast majority of the claims submitted on Form 
G/DN require correspondence or other action from the Office. Applicants 
routinely file claims that are not eligible for this group option, such 
as submitting a full year of issues instead of limiting the claim to 
one month, or submitting claims long after the deadline has expired 
(i.e., more than three months after the date of publication for the 
most recent issue in the group). In addition, applicants routinely fail 
to provide information expressly requested on the form, such as the 
title of the newspaper, issue numbers, publication dates, or the name 
of the author and claimant. Often applicants add extraneous information 
that is not requested, such as providing a transfer statement 
explaining how the claimant acquired the copyright in the issues. In 
each case, the Office must scan these paper applications into the 
registration system and input the relevant information by hand. This is 
a cumbersome, labor-intensive process, and if it is done incorrectly, 
the information must be re-entered into the system. In many cases, the 
Office must contact the applicant to request additional information or 
permission to correct the application.
    Addressing these issues imposes significant burdens on the Office's 
limited resources, and has had an adverse effect on the examination of 
other types of works within the Literary Division of the Registration 
Program. Eliminating the paper application should mitigate many of 
these problems. Among other improvements, the online application 
contains automated validations that prevent applicants from submitting 
applications that fail to comply with the eligibility requirements for 
this group option, such as including too many issues in the group 
(i.e., more than one month of issues), or failing to submit the claim 
within the time allowed (i.e., more than three months after the 
publication of the issues in the group).
    For these reasons, the Office believes that requiring applicants to 
submit online applications is necessary to avoid a significant fee 
increase and to improve the overall efficiency of the group 
registration process. Nonetheless, the Office invites comment on this 
aspect of the Proposed Rule.

C. Deposit Requirements

    The Proposed Rule will amend the deposit requirements for this 
group option by requiring applicants to submit their newspapers in 
digital form and upload each issue through the electronic system. 
Applicants will no longer be required to submit microfilm as a 
condition for using the group registration option--but they may do so 
voluntarily if the microfilm is received before December 31, 2019 (in 
addition to providing digital copies). After that, the microfilm 
requirement will be phased out. These proposals are discussed below.
1. Digital Deposit Requirement
    To register a group of newspapers under the Proposed Rule, 
applicants will be required to submit a complete copy of each issue in 
the group, regardless of whether the Library has selected that 
newspaper for its collections. This will ensure that the

[[Page 51375]]

Office receives the entire content of each issue for the purpose of 
examining, indexing, and documenting claims. The interim practice 
allowing applicants to submit the earliest and most recent issues for a 
particular month or excerpts from those issues (discussed above in 
Section II) will be eliminated. While this interim practice was well-
intentioned, it allows newspaper publishers to register an entire month 
of issues without submitting a complete copy of each issue in the 
group. This reduces the evidentiary value of the registration and the 
public record, because only a fraction of the issues in the group are 
examined for copyrightable authorship.
    The Proposed Rule reiterates that applicants must submit the final 
edition of each issue that was published in the month specified in the 
application. The current regulation states that applicants may submit 
earlier editions of the same newspaper if they were published on the 
same date as the final edition. 37 CFR 202.3(b)(7)(i)(D). The Office is 
aware that most newspapers no longer publish multiple print editions 
throughout the day, such as the ``morning,'' ``afternoon,'' 
``evening,'' or ``late'' edition of a particular newspaper.\13\ 
Therefore, the Office requests comment on whether this provision should 
be retained in the Proposed Rule. Under the current regulation, 
applicants may also include ``local editions'' of the newspaper that 
were published within the same metropolitan area (such as the Brooklyn, 
Bronx, Manhattan, Queens, and Staten Island editions of a New York City 
paper), but they may not include national or regional editions that 
were distributed outside that metropolitan area. See id.; see also H.R. 
Rep. No. 94-1476, at 153 (1976) (authorizing the Register ``to make 
exceptions or special provisions'' for ``multipart newspaper 
editions''). Although the Proposed Rule retains this longstanding 
restriction, the Office requests comment on whether it should be 
retained.
---------------------------------------------------------------------------

    \13\ Newspaper Web sites typically update their content 
throughout each day, but as discussed in Section III.A.6, they are 
not eligible for the group option.
---------------------------------------------------------------------------

    In all cases, applicants will be required to submit a digital copy 
of each issue, rather than a physical copy. Under the Proposed Rule, 
the Office will no longer accept physical copies, such as a print copy 
or photocopy of each issue in the group (although, as discussed below, 
newspaper publishers may provide microfilm in addition to digital 
copies on a voluntary basis until December 31, 2019). Likewise, the 
Office will not accept digital copies that have been saved onto a flash 
drive, disc, or other physical storage medium that is delivered to the 
Office by mail, courier, or hand delivery.
    In addition, the Office will have a number of technical 
requirements for the digital files. Specifically, applicants will be 
required to submit electronic files in Portable Document Format 
(``PDF''). Each newspaper issue in the group must be submitted to the 
Office as one discrete, self-contained collective work (i.e., as one 
PDF file per issue with the pages in reading order). In each case, the 
file name must adhere to the file-naming conventions specified on the 
Office's Web site and/or in the Compendium. The Office proposes that 
each file name start with the letters ``GRNP,'' followed by the 
International Standard Serial Number (``ISSN'') for that newspaper, and 
the publication date in a ``YYYYMMDD'' format. If a newspaper publishes 
multiple editions on the same date (e.g., morning, evening, and late 
editions), the publisher will be permitted to combine all of the 
editions in a single electronic file, assuming the file does not exceed 
file size requirements (discussed below), the editions are separate, 
and all pages are in sequential reading order. In addition, the 
metadata for each file should contain the newspaper's ISSN in the 
``dc:identifier'' or ``xmp: identifier'' fields, the publication date 
in the ``dc:date'' field, and each file should be viewable and 
searchable, contain embedded fonts, and be free from any access 
restrictions (such as those implemented through Digital Rights 
Management (DRM)). Applicants will be required to assemble the files in 
an orderly form, and upload them through the electronic registration 
system. When uploading the files, applicants will not be permitted to 
upload .zip files to the system, and should instead upload files 
individually. In all cases, the size of each uploaded file may not 
exceed 500 megabytes, although applicants may digitally compress the 
files to comply with this limitation.
    If the applicant's electronic files do not comply with the Office's 
technical requirements, the Copyright Acquisitions Division (``CAD'') 
will contact the publisher and ask for replacement files. If the 
publisher does not provide replacement files, CAD will notify the 
Literary Division of the Registration Program, which will review that 
publisher's future electronic submissions for similar deficiencies, and 
may refuse registration if there are similar defects. If an applicant 
is unable to comply with the application requirements at the time of 
filing the application, the applicant may request special relief from 
the deposit requirements under 37 CFR 202.20(d). See 82 FR at 29412. 
The Office seeks public comment on the proposed digital file 
requirements.
    Requiring applicants to upload digital copies to the electronic 
system will increase the efficiency of the group registration process. 
The Office does not need physical copies to examine a newspaper for 
copyrightable authorship, or to determine whether the applicant 
satisfied the formal and legal requirements for this group option. See 
17 U.S.C. 410(a) (providing that the Register of Copyrights must 
determine whether ``material deposited [for registration] constitutes 
copyrightable subject matter''). Indeed, physical copies slow down the 
examination process. Electronic submissions take less time to process, 
and are easier to track and handle than physical copies. A registration 
specialist can examine a digital copy as soon as it has been uploaded 
to the electronic registration system. By contrast, when an applicant 
submits an online application and mails a physical deposit to the 
Office, it may take weeks to connect the application with the correct 
deposit. In addition, each copy must be moved multiple times during the 
examination process.
    Requiring digital uploads may also provide newspaper publishers 
with certain legal benefits. When the Office registers a group of 
newspapers and issues a certificate of registration, the effective date 
of registration is the date on which the Office received the 
application, filing fee, and deposit in proper form. When an applicant 
uploads a digital copy of the deposit to the electronic system, the 
Office typically receives the application, filing fee, and deposit on 
the same date. By contrast, when an applicant sends physical copies to 
the Office the deposit may arrive long after the date that the 
application and filing fee were received--thereby establishing a later 
effective date of registration.
    Moreover, if an applicant uploads a complete copy of the newspaper 
through the electronic registration system, the Office will retain a 
digital copy of those issues in its repository of electronic deposits. 
Digital copies are much easier to store and retrieve. This is critical 
if the copyright owner or other interested parties need to obtain a 
copy of a particular issue for use in litigation or another legitimate 
purpose. The current regulation assumes that a complete copy of each 
issue will be sent to the Library on microfilm, which may be used to 
identify the work, if necessary. But as discussed above, many

[[Page 51376]]

applicants do not currently submit their newspapers on microfilm 
because the Library has not selected them for its collections. Instead, 
they often submit a small portion of each issue, which is permitted 
under the interim rule discussed in Section II.
    The Office recognizes that some publishers may not have a digital 
copy of their issues or may find it difficult to create a digital copy 
for the purpose of seeking a group registration. The Office will 
address these concerns on a case-by-case basis. If an applicant is 
unable to upload a particular newspaper to the electronic system, the 
applicant may request special relief from the deposit requirements 
under 37 CFR 202.20(d). See 82 FR at 29412.
2. Microfilm Permitted, but Not Required, for an Interim Period
    The current regulation states that the applicant must provide the 
Library with microfilm containing a complete copy of each issue as a 
condition for using the group registration option. As discussed in more 
detail below, microfilm will no longer be required when the Final Rule 
goes into effect--even if the Library has selected that newspaper for 
its collections. In addition to digital files, newspaper publishers may 
provide microfilm on a voluntary basis if the microfilm is received by 
December 31, 2019. After that, the microfilm option will be phased out.
    The next few sections discuss the reasons for phasing out the 
microfilm requirement, as well as the procedure for submitting 
microfilm to the Office on a voluntary basis.
a. Policy Considerations Supporting the Phasing Out of the Microfilm 
Requirement
    Section 408(c) of the Copyright Act authorizes the Register to 
create discretionary registration options for groups of related works, 
including the applicable deposit requirements. In administering the 
group registration option for newspapers, the Register must balance the 
Library's need for microfilm deposits against the potential impact on 
the newspaper publishing industry. On the one hand, the microfilm 
requirement has benefitted the Library and the public by providing 
newspapers in a format suitable for long-term preservation, and at no 
cost to the government. It benefits researchers accessing these copies 
at the Library or through interlibrary loan. The regulation also 
creates a potential supply of microfilm that otherwise might not exist, 
which may benefit local and regional libraries, assuming they are able 
to purchase microfilm from publishers for use in their own collections.
    On the other hand, the current microfilm requirement does impose a 
burden on publishers if their newspapers have been selected for the 
Library's collections. This requirement appears to have been less 
burdensome when the newspaper group option was adopted in 1990. At that 
time, newspaper publishers apparently hired microfilm producers to 
transfer paper newspaper issues onto microfilm for their own archival 
preservation instead of keeping physical copies. Thus, newspaper 
publishers were creating microfilm copies in the ordinary course of 
business. Some publishers offered copies of their microfilm to 
libraries and other institutions, including the Library of Congress, to 
offset this cost.
    Needless to say, the newspaper publishing industry has since 
changed dramatically, and the microfilm requirement may have become 
more burdensome over the past twenty-five years. Representatives of the 
newspaper industry have informed the Office that most publishers no 
longer preserve their works on microfilm, and instead make digital 
copies for archival purposes. See Hearing on U.S. Copyright Office: Its 
Functions and Resources, Before the H. Comm. on the Judiciary, 114th 
Cong., 1st Sess., at 105 (2015) (statement of Keith Kupferschmid). In 
addition, representatives of the newspaper industry have stated that 
only a few companies provide microfilming services in the United 
States, and there can be significant delays in producing microfilm, 
which often prevents publishers from seeking registration in a timely 
manner. To the extent publishers transfer their newspapers onto 
microfilm, they apparently do so solely for the purpose of registering 
their works with the Office (i.e., to comply with the current 
regulatory requirements for the group newspaper option).
    In addition, representatives of the newspaper industry have 
informed the Office that ``many newspapers are no longer registering 
their works with the Copyright Office because the Library requires that 
newspaper deposits be in microfilm format.'' Id. at 5. The Office has 
found evidence to support this statement. In reviewing its registration 
records for fiscal years 2010 through the first half of fiscal year 
2015, the Office found that nearly 70% of the U.S. newspapers selected 
for the Library's collections were not registered during this period. 
Accordingly, although group registrations are intended to reduce 
``unnecessary burdens and expenses'' that may discourage authors and 
copyright owners from registering their works with the Office, 
requiring newspaper publishers to submit their issues on microfilm may 
well have the opposite effect. See H.R. Rep. No. 94-1476, at 154 
(1976); S. Rep. No. 94-473, at 136 (1975).
    Because newspapers have turned increasingly to online publishing, 
the Library has been considering how to incorporate online publishing 
into its collections. As part of that effort, in February 2016, the 
Library initiated a pilot project with the News Media Alliance known as 
the ``Newspaper ePrint Technical Pilot.'' The pilot involved collecting 
electronic files from six newspapers over two phases, with the goal of 
``explor[ing] the technical feasibility of accepting electronic copies 
of newspapers in lieu of physical deposits.'' Library of Congress and 
News Media Alliance (NMA) Technical Pilot project, Report on ePrints 2 
(March 4, 2017). The goals of the pilot were to (i) explore various 
types of PDFs and metadata generated by newspaper publishers, (ii) test 
a range of technical methods that newspaper publishers might use to 
deliver this type of content to the Library, and (iii) inform future 
decisions about recommended formats for group registration of 
newspapers. Id. at 3. On March 4, 2017, the Library issued its report, 
ultimately concluding that ``[t]he results give the team confidence 
that ePrints could be a viable technical alternative to microfilm 
deposits for newspapers.'' Id. at 11.
b. Transitional Period for Submitting Microfilm
    Based on the results of this pilot and the changes in the newspaper 
publishing industry, the Office is proposing to eliminate the microfilm 
requirement. Representatives of the newspaper industry have informed 
the Office that they generally support this proposal. But some 
publishers noted that they have entered into long-term contracts with 
microfilm producers that are still in effect. Others stated that they 
need time to develop internal procedures and quality assurance testing 
to ensure that their submissions contain a complete copy of each issue.
    To give publishers an opportunity to exhaust their microfilm 
production contracts, and to ease the transition to the new model, the 
Proposed Rule will allow newspaper publishers to submit microfilm on a 
voluntary basis (in addition to the required digital deposits for 
registration). Specifically, publishers may continue to submit 
microfilm if the microfilm is received by December 31,

[[Page 51377]]

2019.\14\ After that, the Office will no longer accept microfilm.
---------------------------------------------------------------------------

    \14\ If the Library receives microfilm for a newspaper that it 
has not selected for its collections, the microfilm may be offered 
to another institution through the Library's Surplus Books program. 
See generally https://www.loc.gov/acq/surplus.html.
---------------------------------------------------------------------------

    Under the Proposed Rule, if the applicant chooses to submit a 
microfilm copy in addition to the digital files discussed above in 
Section III.C.1, the applicant would have to provide positive 35mm 
silver halide microfilm containing the final edition of each issue that 
was published during the month specified in the application.\15\ The 
issues would have to be arranged on the microfilm in chronological 
order and the microfilm copy should be sent to CAD rather than to the 
Registration Program.\16\ The Registration Program does not need 
microfilm to determine whether the newspaper issues are copyrightable 
or whether the formal and legal requirements for this group option have 
been satisfied. The examiner can make these determinations based on his 
or her review of the digital copies provided with the application 
(described in Section III.C.1). Moreover, because the Registration 
Program does not have a reliable, functioning microfilm reader, 
examiners may be unable to review the film to determine whether it 
meets the Library's needs.
---------------------------------------------------------------------------

    \15\ The regulation currently states that the microfilm must 
meet ``the Library's best edition criteria.'' 37 CFR 
202.3(b)(7)(i)(D). The Proposed Rule eliminates this phrase, because 
it is redundant of what is stated elsewhere in the regulation. 
Compare id. (requiring ``positive, 35mm silver halide microfilm'') 
with Appendix B to Part 202, VII.B.1-2, X.A.1 (expressing the 
Library preference for collecting newspapers in ``microform'' rather 
than ``printed matter,'' consisting of ``positive rather than 
negative'' film, ``silver halide rather than any other emulsion,'' 
and ``35 mm rather than 16 mm'').
    \16\ Packages delivered to CAD by mail or by courier may be 
irradiated to destroy possible contaminants, such as anthrax. This 
process may damage microfilm. To avoid this problem, claimants are 
encouraged to send microfilm in boxes rather than envelopes.
---------------------------------------------------------------------------

    The Office requests comment on these proposals. The Office is 
particularly interested in knowing whether the proposed phase-out 
period will give publishers a sufficient amount of time to exhaust 
their current contracts or whether a longer period would be needed.
3. Public Access to Digital Deposits
    When the Office established the group registration option for 
newspapers, it implicitly recognized that publishers could satisfy 
their obligations under mandatory deposit by registering their issues 
with the Office and providing the Library with a copy of those issues 
on microfilm--although this was not explicitly stated in the regulation 
itself. The Proposed Rule codifies this understanding by stating that 
publishers may comply with mandatory deposit by registering their 
newspapers using the group registration option.
    The Copyright Act provides that all copies deposited with the 
Office for mandatory deposit and registration purposes under sections 
407 and 408 ``are the property of the United States Government,'' and 
that, in the case of published works, those copies ``are available to 
the Library of Congress for its collections.'' 17 U.S.C. 704(a)-(b). 
The Office has received digital files submitted by registration 
applicants under section 408 since it launched its electronic 
registration system in 2007. Although digital registration deposits 
submitted for registration are stored on Library-operated servers, the 
Library has to date not incorporated these digital deposits into its 
general collections or made them available to its patrons.
    In addition, electronic works not published in physical formats 
are--with one exception--exempt from all mandatory deposit requirements 
under section 407. See 37 CFR 202.19(c)(5). The one exception to the 
general exemption from mandatory deposit rules for electronic-only 
works is for electronic serials. Electronic serials that are fixed and 
published solely online are subject to mandatory deposit if the Office 
issues a written demand for a particular serial under section 202.24 of 
the regulations. 37 CFR 202.19(c)(5), 202.24(a). If the Office demands 
an electronic serial under this provision, the publisher is expected to 
submit a digital copy of that serial for use in the Library's 
collections. Currently, Library staff and members of the general public 
may access these copies using the Library's facilities. The Library 
provides access to these files via a secure network, and access is 
currently limited, at any one time, to two authorized users. See 75 FR 
3863, 3867-68 (Jan. 25, 2010).
    With this notice of proposed rulemaking, the Office notes that, for 
the first time, the Library plans to incorporate digital copies of 
works submitted for registration under section 408 into the Library's 
collections, and provide public access to those digital copies. To 
regulate such public access, the Proposed Rule borrows and codifies the 
existing public access practices used for electronic serials obtained 
under section 407; specifically, the Proposed Rule establishes a new 
section 201.18, entitled ``Access to electronic works.'' That provision 
clarifies that the Library may make these digital files available to 
``authorized users,'' meaning (i) Members, staff, and officers of the 
U.S. House of Representatives and the U.S. Senate, (ii) Library of 
Congress staff and its contractors, and (iii) registered researchers 
who use the Library's facilities in Washington, DC and Culpeper, 
Virginia. The limitation permitting access to two authorized users at 
any one time applies across all Library facilities. It also clarifies 
that the Library may not make these files available to the public over 
the Internet without the copyright owner's permission.
    To be clear, while the Proposed Rule would permit public access to 
digital copies only to newspapers received by the Office under the 
group registration option, over time the Library would like to expand 
this new provision to address public access to digital registration 
deposits for other types of digital works. Before expanding such 
access, however, the Office will issue separate rulemakings to notify 
the public.

D. The Filing Fee Requirement

    Under the Proposed Rule, the applicant will be required to pay the 
same filing fee currently set forth in the Office's fee schedule, 
namely $80 per claim. The Proposed Rule clarifies that this fee must be 
included with the application or charged to an active deposit account. 
Once the Proposed Rule has been implemented, the Office will monitor 
the cost of processing newspapers through the electronic system to 
determine if future fee adjustments may be warranted, and may use this 
information in conducting its next fee study.

E. Timeliness Requirements

    The current regulation states that newspaper publishers must submit 
their claims within three months after the publication of the most 
recent issue in the group. 37 CFR 202.3(b)(7)(i)(F). The Proposed Rule 
maintains the three-month deadline, but will require applicants to 
submit their claims within three months after the publication of the 
earliest issue--rather than the most recent issue--in the group.\17\
---------------------------------------------------------------------------

    \17\ The regulation currently states that registration must be 
``sought'' within three months after publication of the last issue 
in the group, while the Proposed Rule states that the application, 
filing fee, and deposit must be ``received'' in the Office within 
three months after publication. The Office notes that, under the 
Proposed Rule, the date that a registration is ``sought'' and the 
date that the application, fee, and deposit are ``received'' are 
typically the same--particularly when the claim is submitted through 
the electronic registration system. The change in language is simply 
intended to clarify this point.
---------------------------------------------------------------------------

    Compliance with this requirement may provide newspaper publishers 
with certain legal benefits. Publishers must

[[Page 51378]]

register their issues in a timely manner to seek statutory damages and 
attorney's fees in an infringement action. Specifically, a publisher 
typically may seek these remedies if a newspaper issue was registered 
(i) before the infringement commenced or (ii) within three months after 
the first publication of that work. See 17 U.S.C. 412. Requiring 
applicants to submit their claims within three months after publication 
of the earliest issue would give publishers the ability to seek 
statutory damages and attorney's fees for each issue in the group. For 
example, if the applicant sought to register issues published between 
June 1st and June 30th, the applicant would be required to submit the 
claim on or before September 1st. By doing so, the applicant would 
preserve the ability to seek statutory damages and attorney's fees for 
infringement occurring after the effective date of registration (i.e., 
after September 1st), as well as infringement occurring within three 
months after the publication of the earliest issue in the group (i.e., 
between June 1st and September 1st). Moreover, the publisher would be 
able to seek these remedies for each issue in the group, because all of 
the issues were first published within that three-month period.
    By contrast, the current regulation allows an applicant to submit a 
claim up to four months after the publication of the earliest issue in 
the group, which may limit the remedies that a publisher may seek in an 
infringement action. For instance, in the previous example, the 
applicant could wait until September 30th to register issues published 
in the month of June, rather than submitting the claim on September 
1st. The publisher would be able to seek statutory damages and 
attorney's fees for infringement involving the June 30th issue 
occurring after the effective date of registration (i.e., after 
September 30th), or within three months after the publication of the 
most recent issue in the group (i.e., between June 30th and September 
30th). But the publisher would not be entitled to these remedies for 
infringement involving the issues published on June 1st through June 
29th, because they were received by the Office more than three months 
after the publication of those issues.
    Under the Proposed Rule, the date that optional microfilm copies 
are received by the Office would be irrelevant. This represents a 
significant improvement compared to the current process, in which the 
Office routinely receives microfilm between four to six months after 
the publication of the most recent issue in the group. On some 
occasions the Office has received microfilm one or two years after the 
deadline has expired. Representatives of the newspaper industry have 
informed the Office that these delays are due to the high cost of 
producing microfilm. Many publishers cannot afford to send their 
newspapers to a microfilm producer until they have a sufficient number 
of issues to justify the cost, which delays the production and delivery 
of the microfilm. Given these obstacles, it is unreasonable to penalize 
publishers for failing to transfer their newspapers onto microfilm 
within three months after publication.

F. Technical Amendments

    The Proposed Rule will move the regulation governing the newspaper 
group option from section 202.3 to section 202.4. Going forward, the 
Office intends to move all regulations governing the various group 
options implemented under section 408(c) of the Copyright Act to 
section 202.4. This change is intended to improve the readability of 
existing regulations and does not represent a substantive change in 
policy.
    In addition, the Proposed Rule incorporates the regulatory 
definitions from sections 202.3 and 202.20 into section 202.4, to apply 
to the various group registration options.
    The Proposed Rule also confirms that an application for a group of 
newspaper issues may be submitted by any of the parties listed in 
section 202.3(c)(1), namely, (i) the author or copyright claimant of 
those works, (ii) the owner of any of the exclusive rights in those 
works, or (iii) a duly authorized agent of any author, claimant, or 
owner of exclusive rights.
    Finally, the Proposed Rule contains an unrelated technical 
amendment, which removes the terms ``single application'' and ``single 
registration'' and replaces them with the terms ``application'' and 
``group registration.'' 37 CFR 202.3(b)(7)(i). This is intended to 
avoid potential confusion with the ``single application,'' a special 
application that may be used to register ``a single work by a single 
author that is owned by the person who created it.'' 37 CFR 
202.3(b)(2)(i)(B).

IV. Conclusion

    The Proposed Rule will encourage broader participation in the 
registration system, and increase the efficiency of the process for 
both the Office and copyright owners alike, while providing the Library 
with a means for adding newspapers to its collections in an archival-
quality format. The Office invites public comment on each of these 
proposed changes, including:

Eligibility Requirements

    1. The proposed definition of ``newspaper issues,'' including 
making the group registration option to all newspapers, regardless of 
whether they have been selected to be received and retained by the 
Library, and classifying a newspaper as a ``periodical.''
    2. The clarification that all issues in the group must be published 
and bear issue dates within the same calendar month.
    3. The proposed authorship, ownership, and work made for hire 
requirements.
    4. The proposed requirement that each newspaper issue in the group 
must be an all-new collective work that has not been previously 
published.
    5. The proposed clarifications for the scope of protection for 
newspaper issues, versus individual contributions appearing within 
those issues.
    6. The clarification that each newspaper issue in the group must be 
fixed and distributed as a discrete, self-contained collective work.

Application Requirements

    7. The proposed requirement that applicants use the electronic 
application designated for a group of newspaper issues as a condition 
for seeking a group registration, and whether the current online filing 
requirement for supplementary registrations relating to groups of 
newspaper issues should be retained.

Deposit Requirements

    8. The proposed requirement that applicants submit a complete 
digital copy of the final edition of each issue in the group, 
regardless of whether the newspaper was selected to be received and 
retained by the Library, as well as any of the proposed file submission 
requirements.
    9. The proposed phase-out of the practice of accepting microfilm 
deposits by December 31, 2019.
    10. The proposed parameters for public access to digital deposits 
of newspaper issues, including the Library making digital copies 
available to two authorized users at a time at the Library's 
facilities, and considerations related to secure storage of and access 
to such digital deposits.

Timeliness Requirement

    11. The proposed requirement that applicants submit their claims 
within three months after the publication of the earliest issue in the 
group.

List of Subjects

37 CFR Part 201

    Copyright, General provisions.

[[Page 51379]]

37 CFR Part 202

    Copyright, Preregistration and registration of claims to copyright.

Proposed Regulation

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

PART 201--GENERAL PROVISIONS

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

    Authority:  17 U.S.C. 702.

0
2. In Sec.  201.1, revise paragraph (c)(6) to read as follows:


Sec.  201.1  Communication with the Copyright Office.

* * * * *
    (c) * * *
    (6) Copyright Acquisitions. Deposit copies submitted under section 
407 of the Copyright Act should be addressed to: Library of Congress, 
U.S. Copyright Office, Attn: 407 Deposits, 101 Independence Avenue SE., 
Washington, DC 20559. Newspaper publishers that submit microfilm under 
Sec.  202.4(e) of this chapter should mail their submissions to: 
Library of Congress, U.S. Copyright Office, Attn: 407 Deposits, 101 
Independence Avenue SE., Washington, DC 20559.
* * * * *
0
3. In Sec.  201.3, revise paragraph (c)(6) to read as follows:


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

* * * * *
    (c) * * *

------------------------------------------------------------------------
 
------------------------------------------------------------------------
(6) Registration of a claim in a group of newspapers or a group       80
 of newsletters..................................................
------------------------------------------------------------------------

* * * * *

PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

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

    Authority:  17 U.S.C. 408(f), 702.

0
5. Amend Sec.  202.3 as follows:
0
a. Revise paragraph (a)(2).
0
b. Amend paragraph (b)(1)(v) by removing ``periodicals; newspapers'' 
and adding in its place ``periodicals (including newspapers)''.
0
c. Remove and reserve paragraph (b)(7).
    The revision reads as follows:


Sec.  202.3  Registration of copyright.

* * * * *
    (a) * * *
    (2) For the purposes of this section, the term author includes an 
employer or other person for whom a work is ``made for hire'' under 
section 101 of title 17.
* * * * *
0
6. Amend Sec.  202.4 as follows:
0
a. Revise paragraph (b).
0
b. Add paragraph (e).
0
c. Amend paragraph (g)(4) by removing the second sentence.
0
d. Amend paragraph (m) by adding the first sentence.
    The addition and revisions read as follows:


Sec.  202.4  Group Registration.

* * * * *
    (b) Definitions. (1) For purposes of this section, unless otherwise 
specified, the terms used have the meanings set forth in Sec.  202.3 
and Sec.  202.20.
    (2) For purposes of this section, the term Library means the 
Library of Congress.
    (3) For purposes of this section, a periodical is a collective work 
that is issued or intended to be issued on an established schedule in 
successive issues that are intended to be continued indefinitely. In 
most cases, each issue will bear the same title, as well as numerical 
or chronological designations.
* * * * *
    (e) Group registration of newspapers. Pursuant to the authority 
granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has 
determined that a group of newspaper issues may be registered with one 
application, one filing fee, and the required deposit, and the filing 
fee required by Sec.  201.3(c) of this chapter, if the following 
conditions are met:
    (1) All the issues in the group must be newspapers. For purposes of 
this section, a newspaper is a periodical (as defined in paragraph 
(b)(3) of this section) that is mainly designed to be a primary source 
of written information on current events, either local, national, or 
international in scope. A newspaper contains a broad range of news on 
all subjects and activities and is not limited to any specific subject 
matter. Newspapers are intended either for the general public or for a 
particular ethnic, cultural, or national group.
    (2) Each issue in the group must be an all-new collective work that 
has not been previously published (except where earlier editions of the 
same newspaper are included in the deposit together with the final 
edition), each issue must be fixed and distributed as a discrete, self-
contained collective work, and the claim in each issue must be limited 
to the collective work.
    (3) Each issue in the group must be a work made for hire, and the 
author and claimant for each issue must be the same person or 
organization.
    (4) All the issues in the group must be published under the same 
continuing title, and they must be published within the same calendar 
month and bear issue dates within that month. The applicant must 
include the final edition of each issue published within that month, 
and must identify the earliest and latest date that the issues were 
published. The applicant may include earlier editions of the same 
newspaper, provided that they were published on the same date as the 
final edition. The applicant also may include local editions of the 
newspaper that were published within the same metropolitan area, but 
may not include national or regional editions that were distributed 
outside that metropolitan area.
    (5) Application. The applicant must complete and submit the online 
application designated for a group of newspaper issues. The application 
may be submitted by any of the parties listed in Sec.  202.3(c)(1).
    (6) Deposit. (i) The applicant must submit one complete copy of the 
final edition of each issue published in the calendar month designated 
in the application. Each copy may include earlier editions of the same 
newspaper, provided that they were published on the same date as the 
final edition. Each copy may also include local editions of the 
newspaper that were published within the same metropolitan area, but 
may not include national or regional editions that were distributed 
outside that metropolitan area.
    (ii)(A) The issues must be submitted in a digital form, and each 
issue must be contained in a separate electronic file. The applicant 
must use the file-naming convention and submit digital files in 
accordance with instructions specified on the Copyright Office's Web 
site. The files must be submitted in Portable Document Format (PDF), 
they must be assembled in an orderly form, and they must be uploaded to 
the electronic registration system as individual electronic files 
(i.e., not .zip files). The files must be viewable and searchable, 
contain embedded fonts, and be free from any access restrictions (such 
as those implemented through Digital Rights Management (DRM)). The file 
size for each uploaded file must not exceed 500 megabytes, but files 
may be compressed to comply with this requirement.
    (B) The applicant may also submit the issues on positive 35mm 
silver halide

[[Page 51380]]

microfilm, provided that the microfilm is received by December 31, 
2019. The issues should be arranged on the microfilm in chronological 
order, and should be sent to: Library of Congress, U.S. Copyright 
Office, Attn: 407 Deposits, 101 Independence Avenue SE., Washington, DC 
20559.
    (7) The application, the filing fee, and files specified in 
paragraph (e)(7)(ii)(A) of this section must be received by the 
Copyright Office within three months after the date of publication for 
the earliest issue in the group.
* * * * *
    (m) The scope of a group registration. When the Office issues a 
group registration under paragraph (e) of this section, the 
registration covers each issue in the group and each issue is 
registered as a separate collective work. * * *
0
7. Add Sec.  202.18 to read as follows:


Sec.  202.18  Access to electronic works.

    (a) Access to electronic works received under Sec.  202.4(e) will 
be available only to authorized users at Library of Congress facilities 
in accordance with the policies listed below. Library staff may access 
such content off-site as part of their assigned duties via a secure 
connection.
    (b) Access to each individual electronic work received under Sec.  
202.4(e) will be limited, at any one time, to two Library of Congress 
authorized users via a secure server over a secure network that serves 
Library of Congress facilities.
    (c) The Library of Congress will not make electronic works received 
under Sec.  202.4(e) available to the public over the Internet without 
rightsholders' permissions.
    (d) ``Authorized user'' means Library of Congress staff, 
contractors, and registered researchers, and Members, staff and 
officers of the U.S. House of Representatives and the U.S. Senate for 
the purposes of this section.
    (e) ``Library of Congress facilities'' means all Library of 
Congress facilities in Washington, DC, and the Library of Congress 
Packard Campus for Audio-Visual Conservation in Culpeper, VA.

0
8. In Sec.  202.19, add paragraph (d)(2)(ix) to read as follows:


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

* * * * *
    (d) * * *
    (2) * * *
    (ix) In the case of published newspapers, a deposit submitted 
pursuant to and in compliance with the group registration option under 
Sec.  202.4(e) shall be deemed to satisfy the mandatory deposit 
obligation under this section.
* * * * *

    Dated: October 30, 2017.
Sarang V. Damle,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2017-23917 Filed 11-3-17; 8:45 am]
 BILLING CODE 1410-30-P