Mandatory Deposit of Electronic-Only Books, 16269-16276 [2018-07484]

Agencies

• Library of Congress
• Copyright Office

[Federal Register Volume 83, Number 73 (Monday, April 16, 2018)]
[Proposed Rules]
[Pages 16269-16276]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07484]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. 2016-03]


Mandatory Deposit of Electronic-Only Books

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: Section 407 of the Copyright Act requires the mandatory 
deposit with the Copyright Office (``Office'') of all works published 
in the United States, within three months of publication, for use by 
the Library of Congress (``Library''). The Office is allowed to exclude 
certain classes of works from this requirement. In a 2010 interim rule, 
the Office codified its longstanding practice of excluding from the 
mandatory deposit requirements all electronic works that are not 
otherwise available in a physical format (i.e., ``electronic works 
published in the United States and available only online.''). The 2010 
interim rule created one exception to this general rule for electronic-
only serials, which are subject to mandatory deposit, if they are 
published in the United States and if they are affirmatively demanded 
by the Office. On May 17, 2016, the Office published a Notice of 
Inquiry seeking public comment on potential regulatory changes that 
would make the interim rule final and would make electronic-only books 
and sound recordings subject to mandatory deposit requirements by way 
of the same demand process. Based on the responses to the NOI and input 
from the Library, the Office proposes revising its regulations to make 
the interim rule final, and to make electronic-only books published in 
the United States subject to the mandatory deposit requirements if they 
are affirmatively demanded by the Office. The proposed rule does not 
address mandatory deposit of electronic-only sound recordings.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on May 31, 2018.

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 to be submitted 
electronically through regulations.gov. Specific instructions for 
submitting comments are available on the Copyright Office website at 
https://www.copyright.gov/rulemaking/ebookdeposit. 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: Cindy P. Abramson, Assistant General 
Counsel, by email at [email protected] or John R. Riley at [email protected]. 
Both can be reached by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

A. Mandatory Deposit Under the Copyright Act Generally

    The Copyright Act's ``mandatory deposit'' requirement, section 407 
of title 17, provides that the owner of copyright or the exclusive 
right of publication in a work published in the United States must, 
within three months of publication, deposit two complete copies of the 
``best edition'' of the work with the Copyright Office, or, in the case 
of sound recordings, two complete phonorecords of the best edition, 
together with any printed or other visually perceptible material 
published with the phonorecords.\1\ The Register may issue a written 
demand for works at any time after they have been published in the 
United States.\2\ Failure to make the required deposit after a written 
demand is made by the Register may subject such person on whom the 
demand was made to monetary liability.\3\ Compliance with this section 
is not a condition of copyright protection, but the Copyright Act 
provides that deposits made under section 407 may be used to satisfy 
the registration deposit provisions under

[[Page 16270]]

section 408, if all other registration conditions are met.\4\
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    \1\ 17 U.S.C. 407(a); see generally 37 CFR 202.19.
    \2\ 17 U.S.C. 407(d).
    \3\ See id.
    \4\ Id. at 408(b). Although section 408 states that copies 
deposited pursuant to the mandatory deposit provision in section 407 
may be used to satisfy the registration deposit requirement in 
section 408, in practice the Office treats copies of works submitted 
for registration as satisfying the mandatory deposit requirement 
(assuming the deposit requirements are the same), and not vice 
versa. 37 CFR 202.19(f)(1), 202.20(e); see 43 FR 763, 768 (Jan. 4, 
1978).
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    Deposits made to satisfy section 407 are for the ``use or 
disposition of the Library of Congress'' and must satisfy the ``best 
edition'' requirement. That is, such deposits must be of the edition, 
published in the United States at any time before the date of deposit, 
that the ``Library of Congress determines to be most suitable for its 
purposes.'' \5\ These requirements are governed by section 202.19 and 
Appendix B of part 202 of the Office's regulations, which set forth 
rules and criteria, respectively, for the different types of works 
subject to the mandatory deposit requirement.
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    \5\ 17 U.S.C. 101; see also 17 U.S.C. 407(b).
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    Certain categories of works are not subject to mandatory deposit. 
By definition, mandatory deposit requirements do not apply to 
unpublished works and foreign works that have not been published in any 
form in the United States. In addition, under section 407(c) of the 
Copyright Act, the Register of Copyrights can, by regulation, exempt 
any categories of material from section 407's mandatory deposit 
requirements or demand only one copy or phonorecord to provide a 
``satisfactory archival record of a work.'' With section 407, Congress 
balanced different, important interests, including the ``value of the 
copies or phonorecords to the collections of the Library of Congress'' 
and ``the burdens and costs to the copyright owner of providing [copies 
of the works].'' \6\ Under this authority, the Register has adopted a 
series of exemptions from the mandatory deposit requirement.\7\
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    \6\ H.R. Rep. No. 94-1476, at 151 (1976), reprinted in 1976 
U.S.C.C.A.N. 5659, 5767.
    \7\ See 37 CFR 202.19(c).
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B. Regulations Regarding Mandatory Deposit of Electronic-Only Materials

    In 2010, the Office codified its longstanding practice of excluding 
from mandatory deposit requirements all ``[e]lectronic works published 
in the United States and available only online.'' \8\ (The Office is 
now referring to this category of works as ``electronic-only'' works, 
to better distinguish it from works that are published in both 
electronic and physical formats. The Office is also proposing changes 
to the regulations to adopt this clearer nomenclature.) The Office, 
however, also adopted an exception to this exemption, putting in place 
a demand-based mandatory deposit provision for electronic-only 
serials.\9\ An electronic-only serial is ``an electronic work published 
in the United States and available only online, issued or intended to 
be issued on an established schedule in successive parts bearing 
numerical or chronological designations, without subsequent 
alterations, and intended to be continued indefinitely.'' This category 
includes ``periodicals, newspapers, annuals, and the journals, 
proceedings, transactions, and other publications of societies.'' \10\ 
The 2010 Interim Rule also stated that, any additional categories of 
electronic-only works would first be ``identified as being subject to 
demand'' through a rulemaking with notice and comment before the Office 
issues any actual demands for such works.\11\
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    \8\ 75 FR 3863, 3869 (Jan. 25, 2010) (``2010 Interim Rule''); 37 
CFR 202.19(c)(5).
    \9\ 75 FR at 3865-66.
    \10\ 37 CFR 202.19(b)(4). ``Electronic works'' are themselves 
defined as ``works fixed and published solely in an electronic 
format.'' 37 CFR 202.24(c)(3).
    \11\ 75 FR at 3866.
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C. 2016 Notice of Inquiry Regarding Expansion of Demand-Based Deposit

    As described in-depth in this rulemaking's 2016 NOI,\12\ the Office 
is interested in finalizing the 2010 Interim Rule, as well as adding a 
new category of online works--electronic-only books--to the demand-
based mandatory deposit scheme. Although the NOI included online sound 
recordings as a potential additional category of works that could be 
subject to the mandatory deposit requirement, the Office has not 
included electronic-only sound recordings within the rule proposed in 
this current rulemaking. The Copyright Office is postponing further 
consideration of this issue until after the conclusion of the present 
rulemaking.
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    \12\ 81 FR 30505, 30506-08 (May 17, 2016).
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    In the Office's NOI, it sought comments on four topics. First, the 
public was invited to opine on the efficacy of the 2010 Interim Rule, 
including whether it adequately serves the needs of the Library and 
other affected parties and whether it could serve as a good framework 
for adding additional categories of electronic works to the mandatory 
deposit system. Second, the NOI solicited comments on the Library's 
access policy as applied to both electronic-only serials and, 
potentially, to electronic-only books. The third topic asked about 
``information technology, security, and/or other requirements'' that 
should apply to the receipt and storage of, and access to, electronic-
only books. Fourth, the NOI requested comments on how the ``best 
edition'' requirements should be applied to the mandatory deposit of 
electronic-only books. The Copyright Office received fifteen comments 
on the proposed changes. While some of the comments praised the efforts 
to collect more works in the identified categories, others expressed 
reservations.

D. 2018 Rule Regarding Public Access To Deposited Works

    In January 2018, the Office also issued a final rule updating its 
regulations governing the group registration and mandatory deposit of 
newspapers.\13\ Under that rule, newspaper publishers can submit groups 
of newspapers issues, in electronic format, pursuant to the group 
registration option.\14\ Copies of those newspaper issues are then 
delivered to the Library for its collections, and the rule specifies 
that those copies satisfy the mandatory deposit regulations.\15\ As 
part of that rule, the Office codified public access restrictions in a 
new section 202.18, specifying that access will be provided only to 
authorized users at Library of Congress premises and off-site to 
Library staff as part of their assigned duties via a secure 
connection.\16\ These access restrictions reflected informal 
restrictions that had been in place for electronic-only serials since 
2010.\17\ In issuing the notice of proposed rulemaking, the Office 
emphasized that ``over time the Library would like to expand [section 
202.18] to address public access to digital registration deposits for 
other types of digital works'' but that ``[b]efore expanding such 
access, . . . the Office will issue separate rulemakings to notify the 
public.'' \18\
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    \13\ 83 FR 4144 (Jan. 30, 2018).
    \14\ 37 CFR 202.4(e).
    \15\ Id. at 202.19(d)(2)(ix).
    \16\ Id. at 202.18.
    \17\ 82 FR 51369, 51377 (Nov. 6, 2017).
    \18\ Id.
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II. Discussion

    This Notice of Proposed Rulemaking addresses issues raised in 
response to the NOI as well as additional issues raised by commenting 
parties. This rule aims to respond to the increase in publication and 
marketing of works in electronic-only digital forms.\19\ The Library's 
collections comprise the world's most comprehensive record of human 
creativity and knowledge and support the Library's role as the

[[Page 16271]]

research arm of Congress. To help the Library continue to fulfill these 
responsibilities, the Copyright Office is proposing to amend the 
mandatory deposit rules and criteria to include electronic-only books.
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    \19\ Libr. Copyright All. (``LCA'') Comments at 3; Nat'l Writers 
Union et al. Comments at 11; Univ. of Mich. Libr. Comments at 2; 
Univ. of Va. Libr. Comments at 2.
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    Under this proposed rule, electronic-only books would be subject to 
mandatory deposit if a written demand is issued by the Copyright 
Office. The Office anticipates that, in some cases, rather than sending 
individual demands for each work, it will instead demand all of the 
published electronic-only works from particular publishers. 
Additionally, this proposal would make the 2010 Interim Rule concerning 
electronic-only works final, and amend the rule governing public access 
to electronic-only works to encompass electronic-only serials and 
electronic-only books received via mandatory deposit. Finally, with 
this rule the Office proposes specific ``best edition'' criteria for 
electronic-only books, and proposes amendments to the best edition 
criteria for electronic-only serials, modeled on the Library's 
Recommended Formats Statement.\20\
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    \20\ See Recommended Formats Statement, Libr. of Cong., https://www.loc.gov/preservation/resources/rfs/textmus.html (last visited 
Mar. 29, 2018).
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A. Electronic Deposit and the 2010 Interim Rule

    In its NOI, the Office asked for opinions 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.'' \21\ This question was aimed, in part, at eliciting concerns 
that should be addressed before the 2010 Interim Rule is made final. 
Comments responding to this question raised two main concerns: The 
perceived overbreadth of the 2010 Interim Rule and the need for a 
comprehensive Library of Congress digital collections strategy.
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    \21\ 81 FR at 30509.
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    Those who voiced concerns over the broad scope of authority granted 
to demand electronic works suggested that expanding the Interim Rule to 
include electronic-only books has a potential ``to impose widespread 
and burdensome deposit requirements,'' especially on independent or 
self-publishers.\22\ The Office appreciates these concerns, but 
believes that the approach of selective demand-based deposit 
requirements, as a way to fulfill the Library's digital collections, 
will not be as burdensome as some assume. While the Library's 
collection authority is relatively broad, it does not have the desire 
or the means to collect all electronic-only books. In the context of 
electronic-only serials, the Library has responsibly exercised its 
authority to demand such works, without significant issue.
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    \22\ Nat'l Writers Union et al. Comments at 15; see also Authors 
Guild Comments at 4.
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    Commenters also suggested that mandatory deposit for electronic-
only books would be premature as the Library has not publicly 
communicated a cohesive strategy for electronic deposits, and 
therefore, any such strategy could not be evaluated.\23\ These 
commenters cited reports such as those by the United States Government 
Accountability Office and the Library's Office of the Inspector General 
which made recommendations regarding the Library's digital collections 
and information technology. Some also pointed out the Inspector 
General's criticism that the Library lacked quantifiable performance 
measures for its electronic deposit and collections projects.\24\
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    \23\ Copyright All. Comments at 2; Recording Indus. Ass'n of Am. 
(``RIAA'') Comments at 8; Software & Info. Indus. Ass'n (``SIIA'') 
Comments at 2.
    \24\ Copyright All. Comments at 2-3.
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    In early 2017, the Library of Congress addressed some of these 
concerns. In February, the Library adopted strategic steps related to 
future acquisition of digital content, including confirming the 
Library's desire to expand the electronic deposit program to include 
electronic-only books.\25\ In March 2017, the Library issued an updated 
information technology strategic plan, outlining its goals and 
objectives to be accomplished over the next five years. The Library has 
also added performance measures to strengthen its plans and to help 
ensure it meets its collections and information technology development 
goals. Further, the Library formed a new ``eCollections Steering 
Group'' to coordinate the development of its digital collection 
strategies. While the Inspector General still believes the Library 
needs a comprehensive digital strategic plan, it has acknowledged these 
early efforts.\26\
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    \25\ Collecting Digital Content at the Library of Congress, 
Libr. of Cong., 1-2 (Feb. 2017), https://www.loc.gov/acq/devpol/CollectingDigitalContent.pdf.
    \26\ Office of the Inspector General Semiannual Report to the 
Congress, Libr. of Cong., 10 (Mar. 2017), https://www.loc.gov/portals/static/about/office-of-the-inspector-general/annual-reports/documents/March-2017-OIG-Semiannual-Report-to-Congress-5-17-17.pdf.
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    While some of the Library's collection strategies will need to be 
further refined as time goes on, it is clear that the Library will rely 
on mandatory deposit of digital works as a core component of its 
overall strategy going forward. It is also clear that the existing 
mandatory deposit program for electronic-only serials has successfully 
furthered the Library's important goals and could readily serve as a 
model for electronic-only books. Indeed, the Office has been receiving 
copies of electronic books on a voluntary basis through special relief 
agreements for a number of years.\27\ While implementing mandatory 
deposit for electronic-only books would require an update to the 
Copyright Office's information technology systems, the regulatory 
framework needs to be in place by the time the Library is ready to 
demand and receive such works.
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    \27\ Through special relief agreements, the Library has obtained 
free access to a number of publishers' online portals for use by 
patrons and received electronic copies of serials and books for 
archival purposes. These special relief agreements typically involve 
the deposit of electronic versions of works that are also published 
in print format, thereby saving publishers the burden and expense of 
having to send physical copies to satisfy mandatory deposit 
obligations.
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    Some commenters suggested that voluntary agreements should be a 
preferred method of obtaining digital works.\28\ The Office notes that 
mandatory deposit does not preclude voluntary agreements, and the 
Interim Rule has not precluded the Library from negotiating such 
arrangements with regard to electronic-only serials. In fact, these 
voluntary arrangements came about only after the 2010 Interim Rule was 
implemented. Nor does the existence of these voluntary arrangements 
involving electronic-only serials preclude the Office from expanding 
mandatory deposit to include other categories of online works.
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    \28\ Assoc. of Am. Pubs. (``AAP'') Comments at 10; SIIA Comments 
at 3-4.
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    The University of Virginia asked the Office to reconsider the 
decision to limit the Office's ability to demand electronic-only 
serials to those issues published after the effective date of the 
Interim Rule.\29\ The Office declines this proposal as it would be 
burdensome for publishers to comply with such a retroactive 
regulation.\30\
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    \29\ Univ. of Va. Libr. Comments at 5.
    \30\ Indeed, it is not clear whether section 407 even grants the 
Office the authority to issue such retroactive rules. See Bowen v. 
Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (``[A] statutory 
grant of legislative rulemaking authority will not, as a general 
matter, be understood to encompass the power to promulgate 
retroactive rules unless that power is conveyed by Congress in 
express terms.'').
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    Finally, one commenter asked whether the Library intends to expand 
its Surplus Books Program, a program where the Library donates physical 
books to qualifying educational

[[Page 16272]]

institutions, to its eCollections strategy.\31\ The Library has no 
plans to expand that program to electronic works, and will only be 
demanding electronic-only books that it wishes to keep in its 
collections. Indeed, section 202.18 would establish the outer limits of 
public access to electronic-only books and serials received through 
mandatory deposit.
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    \31\ AAP Comments at 7-8.
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B. Application of the 2010 Interim Rule to Electronic-Only Books

    The Office's NOI also invited comments on whether the 2010 Interim 
Rule provided a useful framework for mandatory deposit of electronic-
only books.\32\ The Office received several thoughtful responses to 
this question from interested parties. Those who supported, or did not 
oppose, expansion of the 2010 Interim Rule noted the rising importance 
of the Library being able to acquire electronic-only works. The Authors 
Guild cited reports indicating that nearly a half million self-
published electronic books are published each year.\33\ The Library 
Copyright Alliance (``LCA'') pointed out that, ``[w]ithout mandatory 
deposit, works created in the digital age could be lost forever.'' \34\
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    \32\ 81 FR at 30509.
    \33\ Authors Guild Comments at 3 (discussing self-published 
books in the context of ``The Growing Online-Only Book Market'').
    \34\ LCA Comments at 2.
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    Commenters with concerns about the Library's eCollections strategy 
and expanding the 2010 Interim Rule to electronic-only books expressed 
skepticism regarding how electronic-only books would be defined and 
whether the rule would apply to print-on-demand works. Further, these 
commenters asserted that the Office and the Library have not yet 
completed some planned actions outlined in the 2010 Interim Rule. These 
planned actions included, for example, examining the feasibility of 
allowing rightsholders to provide website links for the Office to 
download deposits or engaging in additional consultation with 
rightsholders, including on issues involving transmission standards and 
the potential of downloading or emailing copies of deposited electronic 
works.\35\
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    \35\ 75 FR at 3866, 3868; AAP Comments at 13.
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    In considering how to define ``electronic-only books,'' the Office 
notes that the Copyright Act itself does not contain a definition of 
``books,'' but refers to them as ``material objects'' that may embody a 
literary work.\36\ Similarly, the Office's regulations simply 
contemplate that books are a tangible medium of expression for literary 
works.\37\ The Office received several helpful considerations on this 
topic. Some commenters noted that a definition could be in reference to 
the file format or medium of the work, such as works published in PDF 
or HTML format.\38\ Others noted that an electronic-only book could be 
defined with reference to the content of the work.\39\ Others suggested 
that the definition of an electronic-only book should include 
consideration of how the work is transmitted. For example, the 
Association of American Publishers (``AAP'') recommended that 
electronic-only books would include downloaded works but not works 
available ``through online display, streaming, or apps.'' \40\ As the 
Authors Guild points out, ``[a] vast amount of text is `published' 
online today that might qualify as a `book,' depending how `book' is 
defined.'' \41\
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    \36\ 17 U.S.C. 101.
    \37\ See 37 CFR 202.16(b)(1)(iv) (describing a preregistration 
class of ``[l]iterary works being prepared for publication in book 
form''); see also Hadley v. Comm'r of Internal Revenue, 819 F.2d 
359, 361 (2d Cir. 1987) (noting, for the purposes of the Tax Code, 
``[t]here are many definitions of `book,' but a principal one 
relates to the tangible property consisting of a collection of 
written, printed, or blank pages fastened together along one edge, 
bound between covers into a volume'').
    \38\ Copyright All. Comments at 3.
    \39\ Nat'l Writers Union et al. Comments at 16.
    \40\ AAP Comments at 16.
    \41\ Authors Guild Comments at 2 (footnote omitted).
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    As commenters correctly indicate, defining a book as the physical 
embodiment of a literary work does not translate neatly to the digital 
environment. It is clear to the Office that, through mandatory deposit, 
the Library wishes to acquire textual works that are marketed or 
presented as ``electronic books'' and other monographic works such as 
organizational reports and long-form essays; it does not intend to 
obtain blog posts, social media posts, and general web pages through 
that mechanism.\42\ The Office recently issued a rule governing 
deposits of ``literary monographs'' \43\ and adopted a definition of 
that category of works for those purposes.\44\ With minor modification, 
that definition can also be adopted to define the category of works 
subject to mandatory deposit in this proposed rule. Accordingly, the 
Office proposes that an ``electronic-only book'' should be defined 
broadly as an electronic literary work published in one volume or a 
finite number of volumes published in the United States and available 
only online, with specific exclusions for certain types of works, 
including serials, audiobooks, computer programs, websites, blogs, and 
emails.
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    \42\ The Library currently obtains website material through 
means other than mandatory deposit, such its web archiving program. 
See generally Library of Congress, Web Archiving, https://www.loc.gov/webarchiving/ (last visited Apr. 6, 2018).
    \43\ 83 FR 2371 (Jan. 17, 2018).
    \44\ 37 CFR 202.19(b)(5) (``The term literary monograph means a 
literary work published in one volume or a finite number of volumes. 
This category does not include serials, nor does it include legal 
publications that are published in one volume or a finite number of 
volumes that contain legislative enactments, judicial decisions, or 
other edicts of government.'' (emphasis added)).
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    For clarity's sake, the proposed definition specifies that 
electronic-only books would be subject to mandatory deposit only if 
they are available to the public as electronic copies--for example, 
through download. Electronic-only books accessed through online display 
or streaming would generally be excluded, unless they were 
``published'' within the meaning of the Copyright Act.\45\
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    \45\ 17 U.S.C. 101 (```Publication' is the distribution of 
copies or phonorecords of a work to the public by sale or other 
transfer of ownership, or by rental, lease, or lending. The offering 
to distribute copies or phonorecords to a group of persons for 
purposes of further distribution, public performance, or public 
display, constitutes publication. A public performance or display of 
a work does not of itself constitute publication.'').
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    The Office believes that its definition of an electronic-only book 
balances the concerns of copyright owners who expressed concern about 
giving the Library sweeping discretion to demand various types of 
electronic works with the Library's reasonable need to obtain 
electronic works for its collections.
    In its comments on the earlier NOI, AAP sought to confirm that 
``the mandatory deposit exemption of `tests and answer material for 
tests when published separately from other literary works' is preserved 
even if the Interim Rule is expanded to ebooks available only online.'' 
\46\ To be clear, the existing exemption for tests and answer materials 
will continue to apply across the board, including tests and related 
material that are distributed solely online, but the Office does not 
believe that this exemption needs to be repeated in the regulatory 
language defining electronic-only books.
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    \46\ AAP Comments at 16.
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    Additional commenters noted potential issues that might arise with 
respect to works that are both available for download and print-on-
demand.\47\ In particular, the concern appears to be that it will be 
difficult for publishers to determine whether such works are subject to 
the general exemption for electronic-only works (and the demand-based 
mandatory deposit scheme proposed here), or whether they are subject to 
affirmative mandatory deposit

[[Page 16273]]

requirements. As a potential solution, the Authors Guild recommended 
that ``books `initially' or `originally' published only online but also 
available in [print-on-demand] format'' be essentially treated as works 
published ``only'' online, regardless of whether the book has actually 
been printed.\48\
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    \47\ See, e.g., Nat'l Writers Union et al. Comments at 17.
    \48\ Authors Guild Comments at 5.
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    The issue defies easy resolution. It may be that a book is 
available to print on demand, but has not been actually printed by 
anyone, in which case it would be strange to conclude that the book has 
nonetheless been published in physical format. But it would be equally 
strange for a book to be subject to one mandatory regime or another 
depending on whether a consumer has actually obtained a printed copy on 
demand. Indeed, some print-on-demand copies may be printed privately, 
in consumers' homes, or at kiosks at brick-and-mortar bookstores, in 
which case it would be difficult to determine whether a physical copy 
has been made. The Office is aware that the same issue arises with some 
frequency with respect to electronic-only serials, many of which are 
available for print on demand. This issue potentially arises for other 
types of works as well.\49\ Accordingly, the growing availability of 
print-on-demand type services for works that are otherwise available 
online may cause broader uncertainty regarding the scope of the general 
exemption for electronic-only works.
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    \49\ Eliot Van Buskirk, Tunecore, Amazon Set to Unveil On-Demand 
CD Sales, Wired (May 21, 2009), https://www.wired.com/2009/05/amazon-to-unveil-on-demand-cd-printing-service-with-tunecore/.
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    On balance, the Office believes that the Authors Guild's approach 
is the most administrable for the Office and for publishers. The 
Proposed Rule thus provides--for all electronic-only works--that a work 
shall be deemed to be ``available only online'' even if physical copies 
or phonorecords have been made available on demand for individual 
consumers, so long as the work is otherwise available only online. In 
other words, if the work is only available online or if the work is 
only available in physical format to individual consumers on demand, it 
will be subject to the general exemption for online only works in 
section 202.19(c)(5). Electronic-only books and serials that meet those 
qualifications will only be subject to the on demand mandatory deposit 
scheme in section 202.24, not the affirmative mandatory deposit 
requirements in 202.19.

C. Library Access Policies

    In its NOI, the Office also asked for opinions on the Library's 
access policy as applied to both electronic-only serials and, 
potentially, to electronic-only books.\50\
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    \50\ 81 FR at 30509.
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    Commenters representing libraries and user groups generally 
supported increased access and found the Library's existing access 
policies for eserials too restrictive. They also noted that limiting 
access to two users is ``not in accord with current practices in the 
library community'' and that ``[increased] access is an essential 
component of the Library's mission.'' \51\ Those representing creators 
voiced concerns that increased access, particularly to digital works, 
would bring increased risks of piracy or potential market 
substitution.\52\ Significantly, these commenters protested that the 
Library's access policy has not been codified in the regulations.\53\
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    \51\ LCA Comments at 4; see also Univ. of Va. Libr. Comments at 
5-6.
    \52\ Authors Guild Comments at 6.
    \53\ RIAA Comments at 11-12.
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    As discussed above, in January 2018, the Office issued a rule that 
codified the rules \54\ governing access to electronic copies of 
newspaper issues that are made part of the Library's collection through 
the group registration process.\55\ That rule aims to provide access to 
electronic works as similar as possible to the access provided to 
analog works, with some modifications to address the unique nature of 
digital works. The proposed rule modifies section 202.18 to apply the 
same access restrictions to electronic material obtained through 
mandatory deposit.
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    \54\ 37 CFR 202.18.
    \55\ 83 FR at 4146.
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    A number of comments expressed concern regarding the extent to 
which the Library informs patrons about copyright limitations.\56\ 
While the NOI pointed to ``a set of fair use criteria in a short 
training manual'' in the Library's Microform & Electronic Resources 
Center, meant to guide users when accessing electronic serials, 
commenters noted that such a manual could not be located.\57\ The 
Office confirmed with the Library that the manual was not a fair use 
training manual, but a short notice warning that Library patrons are 
personally liable for any copyright infringement. The Library has 
stated that it is fully committed to taking steps to prevent 
infringement of the material in its collections. At the same time, the 
Library believes that patrons must have sufficient access to the 
Library's collections to engage in legislative work, research, or 
activities protected by fair use. The proposed access policies balance 
these goals.
---------------------------------------------------------------------------

    \56\ Authors Guild Comments at 6; Nat'l Writers Union et al. 
Comments at 21-22.
    \57\ 81 FR at 30508; AAP Comments at 12-13; Copyright All. 
Comments at 4.
---------------------------------------------------------------------------

    The University of Michigan Library suggested that the depositor 
should be asked whether any public licenses apply to the deposited 
works, to give the Library ``more flexibility in providing access to 
the deposited copy of the work.'' \58\ The Office understands that this 
idea may be helpful as the Library's develops its overall eCollections 
strategy, but at this time, the Office believes collecting such 
information in the context of this rule will only impose administrative 
burdens on the collection of electronic works. The National Writers 
Union, Western Writers of America, and American Society of Journalists 
and Authors voiced concerns over whether the access rules had a 
provision to protect confidential information or trade secrets.\59\ The 
Office appreciates this concern, but notes that only published works 
will be subject to the demand requirements.
---------------------------------------------------------------------------

    \58\ Univ. of Mich. Libr. Comments at 4.
    \59\ Nat'l Writers Union et al. Comments at 16.
---------------------------------------------------------------------------

D. Information Technology, Security, and Related Requirements

    The Office asked parties to ``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 . . . collected under section 407.'' \60\ Some commenters 
suggested that the Library's information technology infrastructure and 
planning were not ready to accept electronic-only books, based on the 
status of the Library's security infrastructure in 2015.\61\
---------------------------------------------------------------------------

    \60\ 81 FR at 30509.
    \61\ See AAP Comments at 14-15.
---------------------------------------------------------------------------

    Since that time, the Library has taken major steps to address its 
information technology needs. The Librarian has appointed a permanent 
Chief Information Officer, who is responsible for information 
technology operations, strategy, and alignment with the Library's 
mission. The Library's aforementioned information technology strategic 
plan includes strategies to protect the Library's information 
technology systems, including following best practices for consistent 
security measures based on the National Institute of Standards and 
Technology's (``NIST's'') Risk Management Framework. The Library has 
implemented that Risk Management Framework and has developed a new

[[Page 16274]]

Information Technology Contingency Plan template addressing NIST 
guidance and Library policy. It has also implemented an updated 
overarching System Security Plan policy, has updated existing System 
Security Plans, and continues comprehensive and effective security 
testing for all systems.
    While no security plan is flawless, the Library is encouraged that 
the existing system protecting electronic-only serials subject to 
mandatory deposit has not encountered security threats. The Library's 
efforts to improve information technology, including systems security, 
are ongoing and commenters will continue to be helpful to the Library 
in implementing its information technology plans going forward.\62\ The 
Office is reasonably relying on the Library's assurances regarding 
information technology security in moving this rulemaking forward.
---------------------------------------------------------------------------

    \62\ See, for example, Portico's detailed comments regarding 
issues such as server room temperature, staff access, and preferred 
file transfer and synchronization tools. Portico Comments at 3.
---------------------------------------------------------------------------

E. ``Best Edition'' Requirements for Electronic-Only Serials and 
Electronic-Only Books

    The final question the Office asked in its NOI was how the ``best 
edition'' requirements should be applied to mandatory deposit of 
electronic-only books, including ``whether and how the `best edition' 
criteria for electronic serials . . . or the guidelines from the 
Library's Recommended Formats Statement, might or might not be adapted 
[for the Best Edition Statement].'' \63\ The Library's Recommended 
Formats Statement encompasses the formats and related criteria which 
the Library prefers for the purposes of ensuring the preservation and 
long-term access of its collection; the Library uses the Recommended 
Formats Statement for its collection efforts outside of the Copyright 
Act. The Library's Recommended Formats Statement identifies six 
criteria for the works it covers, including: technical characteristics, 
formats, rarity and special features, completeness, metadata, and 
technological measures.\64\ In many instances the Best Edition 
Statement tracks, but does not mirror exactly, the Recommended Formats 
Statement. While the best edition of a work should be the edition 
published in the United States that the Library of Congress determines 
to be most suitable for its purposes, as with other aspects of any 
deposit requirement, deposit of such editions should not be overly 
burdensome to copyright owners. Thus, the goal in creating best edition 
criteria is to make depositing works as simple and inexpensive as 
possible while ensuring that the Library fulfills its role in acquiring 
and preserving the creative output of the nation.
---------------------------------------------------------------------------

    \63\ 81 FR at 30509.
    \64\ Recommended Formats Statement, Libr. of Cong., https://www.loc.gov/preservation/resources/rfs/textmus.html (last visited 
Mar. 29, 2018).
---------------------------------------------------------------------------

    As an initial matter, commenters voiced concerns that the best 
edition of electronic-only books would differ from the publication 
version of the electronic-only book.\65\ The statute, however, requires 
the deposit only of the best published edition of a work.\66\ It does 
not require the publisher or producer to create a special preservation 
copy simply for the benefit of the Library of Congress.
---------------------------------------------------------------------------

    \65\ See AAP Comments at 16-17; Portico Comments at 4; SIIA 
Comments at 2.
    \66\ 17 U.S.C. 101 (``The `best edition' of a work is the 
edition, published in the United States at any time before the date 
of deposit, that the Library of Congress determines to be most 
suitable for its purposes.'' (emphasis added)).
---------------------------------------------------------------------------

    Relatedly, the Office does not agree with AAP's suggestion that 
books created solely in proprietary formats should be automatically 
exempt from the mandatory deposit requirements.\67\ To begin with, the 
Library doubts this will be an issue with respect to the kinds of works 
that it wishes to include in the Library's collections. But in the 
unlikely event that the Library seeks to acquire a work that is only 
published in a proprietary format that cannot be viewed by the Library, 
the Office will work with the publisher to identify a means to access 
the work.
---------------------------------------------------------------------------

    \67\ AAP Comments at 16-17.
---------------------------------------------------------------------------

    In responding to this inquiry, a few commenters addressed the 
viability of the Library's Recommended Formats Statement as an 
appropriate basis for the Best Edition Statement for electronic-only 
books.\68\ While the University of Michigan Library voiced general 
support for use of the Recommended Formats Statement,\69\ others 
offered input on that Statement's ``formats'' and ``metadata'' 
requirements as well as the ``completeness'' components. For instance, 
Portico suggested that several of the format and metadata standards 
found in the Recommended Formats Statement were acceptable, including 
XML-based markup formats (including BITS-, JATS-, and EPUB-compliant 
formats) and PDFs.\70\ AAP voiced concerns, however, that the desired 
metadata identified by the Recommended Formats Statement included more 
fields, including ``creation date,'' ``place of publication,'' and 
``contact information,'' than are required by the ONIX for Books 
standard (``ONIX''), which they prefer.\71\ Portico offered additional 
helpful comments, suggesting that the Library should be able to accept 
metadata, such as a MARC record, apart from ``rendition'' material and 
that the Library ``should encourage publishers to send ISBNs for all 
available formats of the book in the metadata record.'' \72\
---------------------------------------------------------------------------

    \68\ Only Portico indirectly addressed the use of the electronic 
serials' best edition statement as the basis for a Best Edition 
Statement for electronic books, when it stated during its analysis 
of security-related concerns that ``academic electronic book content 
typically utilizes the same range of formats as electronic serial 
content.'' Portico Comments at 2.
    \69\ Univ. of Mich. Libr. Comments at 4.
    \70\ Portico Comments at 2-3.
    \71\ AAP Comments at 17; see also Univ. of Mich. Libr. Comments 
at 4 (noting support for accepting ONIX metadata as opposed to the 
Library's web forms). ONIX is a XML-based standard for communicating 
metadata, created in part by the Association of American Publishers, 
and includes information such as title, author, ISBN, BISAC Subject 
Codes, and more. See ONIX for Books, Book Indus. Study Grp., https://bisg.org/page/ONIXforBooks (last visited Mar. 29, 2018).
    \72\ Portico Comments at 2-3.
---------------------------------------------------------------------------

    Based on this record, the Office believes that the Recommended 
Formats Statement is a viable basis for the Best Edition Statement with 
regards to format and metadata standards. Moreover, for purposes of 
consistency, the Office proposes to incorporate more of the 
requirements of the Recommended Formats Statement into the Best Edition 
Statement, for both electronic-only books and electronic-only serials.
    Importantly, to address AAP's concern, submitting metadata will be 
required only if the metadata has been distributed together with the 
published copy of the electronic-only book, alleviating parties' 
concerns that widely-used standards, such as the ONIX standard, will 
fall short of the metadata requirements. Publishers do not need to 
gather or generate additional metadata that has not been published with 
the electronic-only serial or book to comply with the Best Edition 
Statement.
    The University of Michigan Library suggested that if the 
Recommended Formats Statement is used as a basis for the Best Edition 
Statement, the ``Completeness'' section should be clarified to explain 
what is meant by the requirement to provide ``[a]ll updates, 
supplements, releases, and supersessions published as part of the work 
and offered for sale or distribution . . . .'' \73\ The Office agrees 
with this suggestion and proposes adding clarifying language in the 
Best Edition Statement for both electronic-only books

[[Page 16275]]

and electronic-only serials indicating that all updates, supplements, 
releases, and supersessions to a previously demanded and delivered 
electronic-only book or serial must be submitted by the publisher to 
the Office. Finally, commenters discussed the value of requiring works 
to be deposited without technological measures that control access or 
use of the work, as is currently the case for electronic-only 
serials.\74\ While the Office agrees that such technological protection 
measures provide significant security assurances,\75\ it also believes 
that encumbering deposited copies with such protections would conflict 
with the Library's purposes of preserving the works.\76\ The Office 
proposes that the existing requirement to remove technological measures 
that control access to or use of the work should remain a deposit 
requirement for electronic-only serials and should be included in the 
new regulation for electronic-only books.
---------------------------------------------------------------------------

    \73\ Univ. of Mich. Libr. Comments at 4-5 (quoting Recommended 
Formats Statement, Libr. of Congress, https://www.loc.gov/preservation/resources/rfs/textmus.html (last visited Mar. 29, 
2018)).
    \74\ 37 CFR pt. 202 app. B.IX.A.3.
    \75\ See Authors Guild Comments at 6.
    \76\ See Benetech Comments at 1; Univ. of Mich. Libr. Comments 
at 4; Univ. of Va. Libr. Comments at 6.
---------------------------------------------------------------------------

III. Conclusion

    In summary, the proposed rule would chiefly do the following:
    (1) Create a new demand-based mandatory deposit scheme for 
electronic-only books, similar to that for electronic-only serials.
    (2) Define electronic-only books to be an electronic literary work 
published in one volume or a finite number of volumes published in the 
United States and available only online.
    (3) Create ``best edition'' requirements for electronic-only books, 
mirroring the Library's Recommended Formats Statement.
    (4) Specify for all electronic-only works that a work shall be 
deemed to be available only online even if physical copies can be 
produced for consumers on demand.
    (5) Clean up and clarify the existing rule on electronic-only 
serials, including the best edition requirements.
    The Copyright Office hereby seeks comment from the public on the 
amendments proposed in this Notice of Proposed Rulemaking.

List of Subjects in 37 CFR Part 202

    Copyright.

Proposed Regulations

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

PART 202--GENERAL PROVISIONS

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

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

0
2. Amend Sec.  202.18 as follows:
0
a. In paragraph (a) add the words ``and Sec.  202.19, and transferred 
into the Library of Congress's collections,'' after ``under Sec.  
202.4(e)'' in the first sentence.
0
b. In paragraph (b), add the words ``and Sec.  202.19'' after ``under 
Sec.  202.4(e)'' in the first sentence.
0
c. In paragraph (c), add the words ``and Sec.  202.19'' after ``under 
Sec.  202.4(e)'' in the first sentence.
0
d. Add paragraph (f) to read as follows:


Sec.  202.18   Access to electronic works.

* * * * *
    (f) Except as provided under special relief agreements entered into 
pursuant to Sec.  202.19(e) or Sec.  202.20(d), electronic works will 
be transferred to the Library of Congress for its collections and made 
available only under the conditions specified by this section.
0
3. Amend Sec.  202.19 as follows:
0
a. Revise paragraph (b)(4).
0
b. In paragraph (c)(5), add ``electronic-only books and'' after the 
phrase ``This exemption includes''.
    The additions and revisions read as follows:


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

* * * * *
    (b) * * *
    (4) For purposes of paragraph (c)(5) of this section:
    (i) An electronic-only serial is serial as defined in Sec.  
202.3(b)(1)(v) that is published in electronic form in the United 
States and available only online.
    (ii) An electronic-only book is an electronic literary work 
published in one volume or a finite number of volumes published in the 
United States and available only online. This class excludes literary 
works distributed solely in phonorecords (e.g., audiobooks), serials 
(as defined in Sec.  202.3(b)(1)(v)), computer programs, websites, 
blogs, and emails.
    (iii) A work shall be deemed to be available only online even if 
physical copies have been made on demand for individual consumers, so 
long as the work is otherwise available only online.
* * * * *
0
4. Amend Sec.  202.24 as follows:
0
a. In paragraph (a)(2), remove ``works'' and add in its place 
``electronic-only serials''.
0
b. Redesignate paragraphs (a)(3) and (4) as paragraphs (a)(4) and (5), 
respectively.
0
c. Add new paragraph (a)(3).
0
d. In paragraph (b), remove ``online-only'' and add in its place 
``electronic-only''.
0
e. Revise paragraph (c)(3).
    The additions and revisions read as follows:


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

    (a)* * *
    (3) Demands may be made only for electronic-only books published on 
or after EFFECTIVE DATE OF RULE.
* * * * *
    (c) * * *
    (3) ``Electronic-only'' works are electronic works that are 
published and available only online.
0
6. Amend Appendix B to part 202 as follows:
0
a. Revise paragraph IX.
    The revision reads as follows:

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

* * * * *

IX. Electronic-Only Works Published in the United States and 
Available Only Online

    For all deposits, technological measures that control access to 
or use of the work should be removed. In addition, the following 
encodings are listed in descending order of preference for all 
deposits in all categories below:
    1. UTF-8.
    2. UTF-16 (with BOM).
    3. US-ASCII.
    4. ISO 8859.
    5. All other character encodings.
    A. Electronic-Only Serials:
    1. Content Format:
    a. Serials-specific structured/markup format:
    (i) Content compliant with the NLM Journal Archiving (XML) 
Document Type Definition (DTD), with presentation stylesheet(s), 
rather than without NISO JATS: Journal Article Tag Suite (NISO 
Z39.96-201x) with XSD/XSL presentation stylesheet(s) and explicitly 
stated character encoding.
    (ii) Other widely used serials or journal XML DTDs/schemas, with 
presentation stylesheet(s), rather than without.
    (iii) Proprietary XML format for serials or journals (with 
documentation), with DTD/schema and presentation stylesheet(s), 
rather than without.
    b. Page-oriented rendition:
    (i) PDF/UA (Portable Document Format/Universal Accessibility; 
compliant with ISO 14289-1).
    (ii) PDF/A (Portable Document Format/Archival; compliant with 
ISO 19005).
    (iii) PDF (Portable Document Format, with searchable text, 
rather than without; highest quality available, with features such 
as searchable text, embedded fonts, lossless compression, high 
resolution images, device-independent specification of colorspace;

[[Page 16276]]

content tagging; includes document formats such as PDF/X).
    c. Other structured or markup formats:
    (i) Widely-used serials or journal non-proprietary XML-based 
DTDs/schemas with presentation stylesheet(s).
    (ii) Proprietary XML-based format for serials or journals (with 
documentation) with DTD/schema and presentation stylesheet(s).
    (iii) XHTML or HTML, with DOCTYPE declaration and presentation 
stylesheet(s).
    (iv) XML-based document formats (widely used and publicly 
documented). With presentation stylesheets, if applicable. Includes 
ODF (ISO/IEC 26300) and OOXML (ISO/IEC 29500).
    d. PDF (web-optimized with searchable text).
    e. Other formats:
    (i) Rich text format.
    (ii) Plain text.
    (iii) Widely-used proprietary word processing or page-layout 
formats.
    (iv) Other text formats not listed here.
    2. Metadata Elements: If included with published version of 
work, descriptive data (metadata) as described below should 
accompany the deposited material:
    a. Title level metadata: Serial or journal title, ISSN, 
publisher, frequency, place of publication.
    b. Article level metadata, as relevant/or applicable: Volume(s), 
number(s), issue dates(s), article title(s), article author(s), 
article identifier (DOI, etc.).
    c. With other descriptive metadata (e.g., subject heading(s), 
descriptor(s), abstract(s)), rather than without.
    3. Completeness:
    a. All elements considered integral to the publication and 
offered for sale or distribution must be deposited--e.g., articles, 
table(s) of contents, front matter, back matter, etc. Includes all 
associated external files and fonts considered integral to or 
necessary to view the work as published.
    b. All updates, supplements, releases, and supersessions 
published as part of the work and offered for sale or distribution 
must be deposited and received in a regular and timely manner for 
proper maintenance of the deposit.
    B. Electronic-Only Books:
    1. Content Format:
    a. Book-specific structured/markup format, i.e., XML-based 
markup formats, with included or accessible DTD/schema, XSD/XSL 
presentation stylesheet(s), and explicitly stated character 
encoding:
    (i) BITS-compliant (NLM Book DTD).
    (ii) EPUB-compliant.
    (iii) Other widely-used book DTD/schemas (e.g., TEI, DocBook, 
etc.).
    b. Page-oriented rendition:
    (i) PDF/UA (Portable Document Format/Universal Accessibility; 
compliant with ISO 14289-1).
    (ii) PDF/A (Portable Document Format/Archival; compliant with 
ISO 19005).
    (iii) PDF (Portable Document Format; highest quality available, 
with features such as searchable text, embedded fonts, lossless 
compression, high resolution images, device-independent 
specification of colorspace; content tagging; includes document 
formats such as PDF/X).
    c. Other structured markup formats:
    (i) XHTML or HTML, with DOCTYPE declaration and presentation 
stylesheet(s).
    (ii) XML-based document formats (widely-used and publicly-
documented), with presentation style sheet(s) if applicable. 
Includes ODF (ISO/IEC 26300) and OOXML (ISO/IEC 29500).
    (iii) SGML, with included or accessible DTD.
    (iv) Other XML-based non-proprietary formats, with presentation 
stylesheet(s).
    (v) XML-based formats that use proprietary DTDs or schemas, with 
presentation stylesheet(s).
    d. PDF (web-optimized with searchable text).
    e. Other formats:
    (i) Rich text format.
    (ii) Plain text.
    (iii) Widely-used proprietary word processing formats.
    (iv) Other text formats not listed here.
    2. Metadata Elements: If included with published version of 
work, descriptive data (metadata) as described below should 
accompany the deposited material:
    a. As supported by format (e.g., standards-based formats such as 
ONIX, XMP, MODS, or MARCXML either embedded in or accompanying the 
digital item): Title, creator, creation date, place of publication, 
publisher/producer/distributor, ISBN, contact information.
    b. Include if part of published version of work: Language of 
work, other relevant identifiers (e.g., DOI, LCCN, etc.), edition, 
subject descriptors, abstracts.
    3. Rarity and Special Features:
    a. Limited editions (including those with special features such 
as high resolution images.)
    b. Editions with the greatest number of unique features (such as 
additional content, multimedia, interactive elements.)
    4. Completeness:
    a. For items published in a finite number of separate 
components, all elements published as part of the work and offered 
for sale or distribution must be deposited. Includes all associated 
external files and fonts considered integral to or necessary to view 
the work as published.
    b. All updates, supplements, releases, and supersessions 
published as part of the work and offered for sale or distribution 
must be submitted and received in a regular and timely manner for 
proper maintenance of the deposit.

     Dated: April 6, 2018.
Sarang Vijay Damle,
General Counsel and Associate Register of Copyrights.

[FR Doc. 2018-07484 Filed 4-13-18; 8:45 am]
 BILLING CODE 1410-30-P