Group Registration of Serials, 22896-22902 [2018-10422]

Agencies

• Library of Congress
• Copyright Office

[Federal Register Volume 83, Number 96 (Thursday, May 17, 2018)]
[Proposed Rules]
[Pages 22896-22902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-10422]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Parts 201, 202

[Docket No. 2018-2]


Group Registration of Serials

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 update its 
regulation governing the group registration option for serials--works 
such as magazines and journals. The proposed rule will make a number of 
changes to reflect 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 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. It will update the eligibility 
requirements for this group option in several respects, such as 
clarifying that each issue must be published under the same continuing 
title. In addition, the proposed rule will remove the requirement that 
the claimant provide the Library of Congress with two complimentary 
subscriptions to that serial as a condition for using the group 
registration option. Under the proposed rule, however, serial 
publishers will remain subject to the mandatory deposit requirement. 
Specifically, if a serial is published in the United States in a 
physical format, the publisher must send complimentary subscriptions to 
the Library, unless it is informed that the serial title is not needed 
for the Library's collection. Serials published only in electronic form 
will continue to be subject to the existing on-demand mandatory deposit 
regime. 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 June 18, 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 therefore 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/group-serials/. 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 [email protected] and 
[email protected]; or Cindy Paige Abramson, Assistant General Counsel, by 
telephone at 202-707-0676, or by email at [email protected].

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. See 17 U.S.C.408(c). 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). 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. H.R. Rep. 
No. 94-1476, at 154 (1976); reprinted in 1976 U.S.C.C.A.N. 5659, 5770; 
S. Rep. No. 94-473, at 136 (1975). Pursuant to the authority granted 
from Congress, 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),(6), (9), 202.4(e), (g)-(i), (k).

II. The Existing Group Registration Option for Serials

    In 1991, the Office began offering a group registration option for 
serials.\1\ 55 FR 50556 (Dec. 7, 1990). A ``serial'' is defined as a 
``work issued or intended to be issued in successive parts bearing 
numerical or chronological designations and intended to be continued 
indefinitely,'' such as periodicals, magazines, and journals. 37 CFR 
202.3(b)(1)(v).
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    \1\ Subsequently, the Office created separate group registration 
options for daily newspapers and daily newsletters. 57 FR 39615 
(Sept. 1, 1992); 60 FR 15874 (Mar. 28, 1995). While such works meet 
the regulatory definition of ``serials,'' see 37 CFR 202.3(b)(1)(v), 
they could not be registered under the existing serial group 
registration option because that option was limited to serials 
published at intervals of a week or longer. See 55 FR at 50556. The 
Office has recently updated its regulations regarding the group 
registration of newspapers, 83 FR 4144 (Jan. 30, 2018), and plans to 
issue a proposed rule relating to the group registration of 
newsletters.
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    The current group registration option for serials has a number of 
requirements, which are listed in different areas of the Code of 
Federal Regulations and in various Office publications. Specifically, 
applicants may use the group option (i) if the serial is ``published at 
intervals of a week or longer''; (ii) if the issues are ``published in 
the same calendar year''; (iii) if the ``application covers no more 
than the issues published in a given three month period''; and (iv) if 
the issues are ``created no more than one year prior to publication.'' 
37 CFR 202.3(b)(6)(i), (i)(B), (i)(G). The applicant must include a 
``minimum [of] 2 issues'' in each submission, id. Sec.  201.3(c)(6), 
and may register the works using the online application designated for 
groups of serial issues, or submit a paper application on Form SE/
Group, id. Sec.  202.3(b)(6)(v). In addition, ``[t]he claim to 
copyright for which registration is sought'' must be ``in the 
collective work''; the collective work must be a work made for hire; 
``[t]he collective work authorship'' must be ``essentially new material 
that is being published for the first time''; and ``[t]he author(s) and 
claimant(s) of the collective work'' must be ``the same person(s) or 
organization(s).'' Id. Sec.  202.3(b)(6)(i)(C)-(F). The applicant must 
also submit a deposit consisting of one complete copy of the best 
edition of each issue included in the group registration.\2\ Id. Sec.  
202.3(b)(6)(v)(A)(3), B(3).
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    \2\ 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 the most suitable for its 
purposes.'' 37 CFR 202.19(b)(1)(i).

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[[Page 22897]]

    The regulation also contains several provisions that are intended 
to help bolster the Library's collections. To use the group 
registration option, ``two complimentary subscriptions . . . must be 
entered and maintained in the name of the Library of Congress,'' and 
applicants ``must submit a letter affirming that two complimentary 
subscriptions to the particular serial have been entered for the 
Library of Congress.'' Id. Sec. Sec.  202.3(b)(6)(ii), 
202.20(c)(2)(xvii). Moreover, the complimentary copies ``must be 
submitted regularly and promptly after publication,'' mailed to the 
Office, and received ``promptly after publication of each issue of the 
serial.'' Id. Sec. Sec.  202.3(b)(6)(i)(A), (iii), 202.20(c)(2)(xvii). 
If the publisher does not comply with these requirements, the Register 
``may revoke the privilege'' of using the group registration option.\3\ 
Id. Sec.  202.3(b)(6)(iv).
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    \3\ When the Office published the regulation in the Federal 
Register it stated that providing ``two complimentary subscription 
copies will satisfy the mandatory deposit requirement of section 
407,'' although this was not mentioned in the regulation itself. See 
55 FR 50556.
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    The Office adopted an interim practice for mandatory deposit of 
serials because the Library does not desire all registered serials for 
its collections. The interim practice is reflected in the ``help text'' 
for the online application, the Compendium of U.S. Copyright Office 
Practices, Third Edition, and Circular 62B: Copyright Registration for 
a Group of Serial Issues, though not in the Office's regulations. Under 
the interim practice, the Office encourages applicants to contact the 
Copyright Acquisitions Division (``CAD'') prior to submitting an 
application to determine if the Library has selected that serial for 
its collections. If the Library has selected the serial, CAD will 
notify the applicant in writing and provide instructions for seeking a 
group registration and for mailing complimentary subscription copies to 
the Library. If the serial has not been selected, CAD will notify the 
applicant that it may use the group registration option without 
providing subscription copies. See Copyright Office, Compendium of U.S. 
Copyright Office Practices sec. 1109.5(A) (3d ed. 2017) (hereinafter 
the ``Compendium''); Circular 62b: Copyright Registration for a Group 
of Serial Issues at 2-3 (hereinafter ``Circular 62b''); Help: Serial 
Issues (https://www.copyright.gov/eco/help-serial.html).
    In addition to the above practices, Form SE/Group and Office 
publications list additional requirements for the group registration 
option for serials. Specifically, the instructions for Form SE/Group 
state that each issue must be published under the same continuing 
title, and the applicant must provide a publication date for each 
issue. These requirements have appeared in Form SE/Group since at least 
February 2000. In addition, the Compendium, and Circular 62b state that 
the letter to the Office affirming the complimentary subscription 
should include the name of the publisher, the title of the serial, and 
the volume, number, issue date, or other identifying information that 
appear on the first issue that will be delivered to the Library. See 
Compendium sec. 1109.5(A), Circular 62b.

III. The Current Rule Governing Mandatory Deposit of Serials

    Section 407 of the Copyright Act states that if a work is published 
in the United States, the copyright owner or the owner of the exclusive 
right of publication must affirmatively deposit two copies of the 
``best edition'' of that work with the Library within three months 
after publication. 17 U.S.C. 407(a)-(b). This is known as the 
``mandatory deposit'' requirement. As a general rule, publishers may 
satisfy this requirement by registering their works with the Office, or 
by sending copies to the Copyright Office's Copyright Acquisitions 
Division (``CAD'') without seeking a registration. If a publisher fails 
to comply with the mandatory deposit requirement, the Office may issue 
a written demand for those works, and if the required copies are not 
received within three months thereafter, the copyright owner or owner 
of the exclusive right of publication in that work may be subject to 
fines or other monetary liability. See id. 407(d). The Office has the 
authority to establish regulations governing mandatory deposit, 
including regulations to exempt any categories of material from the 
deposit requirements. See id. 407(c), 702.
    Serials published in a physical format (including works published 
both in physical and electronic formats) are subject to these 
affirmative mandatory deposit requirements. By contrast, in 2010, the 
Office adopted an interim rule that established a different process for 
serials published solely in electronic form. The interim rule 
established a general exemption for most ``[e]lectronic works published 
in the United States and available only online,'' except for serials 
published solely in electronic formats (i.e., ``electronic-only'' 
serials). 37 CFR 202.19(c)(5). For electronic-only serials, there is no 
affirmative obligation to deposit works with the Copyright Office. 
Instead, if the Library desires a particular serial title for its 
collections, the Office will issue a written demand requiring the 
publisher to deposit copies of those serials. 37 CFR 202.24.
    Under the current regulations, the mandatory deposit requirements 
for electronic-only serials are significantly different than the 
registration deposit and submission requirements governing the group 
registration option for serials. For purposes of mandatory deposit, 
publishers are required to submit an electronic copy in a specific 
format, together with certain types of metadata that may be embodied in 
the copy. 37 CFR pt. 202, app. B, sec. IX. In addition, publishers must 
comply with certain ``[t]echnical standards'' when they submit their 
electronic works to the Office. 37 CFR pt. 202, app. B, sec. IX.

IV. The Proposed Rule

    The existing regulations governing group registration of serials 
require updating. As noted above, the various rules that govern that 
group registration option are scattered across the Code of Federal 
Regulations, the Compendium, the relevant Circular, and the online help 
text for the eCO system. Accordingly, the Office is proposing to amend 
the regulation governing the group registration option for serials to 
centralize and streamline the eligibility requirements.\4\
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    \4\ The proposed rule also corrects an unrelated error in the 
preamble to the Best Edition Statement. The preamble states that 
``[f]or works first published only in a country other than the 
United States, the law requires the deposit of the best edition as 
first published.'' 37 CFR, pt. 202, app. B. That is inconsistent 
with section 101 of the Copyright Act, which defines ``best 
edition'' as ``the edition, published in the United States at any 
time before the date of deposit,'' and section 408(b)(3), which 
states that ``in the case of a work first published outside the 
United States,'' the applicant should submit ``one complete copy or 
phonorecord as so published.'' 17 U.S.C. 101, 408(b)(3) (emphasis 
added).
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    In addition, the existing group registration regulations do not 
accurately reflect the Office's current practices relating to mandatory 
deposit. The existing rule contemplates that registration examiners 
will confirm with the Library on an ongoing basis either that group 
registration applicants are continuing to provide serial subscriptions 
to the Library, or that they are exempt from that requirement. In 
practice, this does not happen; instead the registration examiners do 
not confirm whether or not subscriptions have been provided. In 
addition, the group registration regulations by their terms contemplate 
the provision of

[[Page 22898]]

physical subscription copies to the Library for all serial titles that 
the Library wants to include in its collections. But for one category 
of serial titles--electronic-only serials--this rule does not apply in 
practice. Electronic-only serials are not obtained by the Library 
through subscriptions, but through a separate demand-based scheme.\5\ 
The proposed rule separates and clarifies the registration and 
mandatory deposit requirements for serials, including by making the 
subscription requirement part of the mandatory deposit regulations.\6\
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    \5\ 37 CFR 202.24.
    \6\ The Copyright Office plans to take the same approach to 
registrations of single serial issues, and plans to issue an NPRM 
that, among other things, proposes that deposits provided with 
single serial issue applications will only satisfy the deposit 
requirements of section 408, and will not satisfy the mandatory 
deposit requirements in section 407.
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    To summarize, the proposed rule would do the following things:
    (1) The rule would codify the requirement (currently found only in 
the Compendium) that, to be eligible for the serial group registration 
option, each serial issue in the group must be an ``all-new'' 
collective work that has not been previously published, and each issue 
must be fixed and distributed as a discrete, self-contained collective 
work.
    (2) The rule would memorialize the Office's longstanding position 
regarding the scope of a registration for a group of serial issues--
i.e., a registration for a group of serial 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).
    (3) The rule would require applicants to register their serials 
through the Office's electronic registration system, and discontinue 
the existing paper application.
    (4) The rule would amend the deposit requirements by requiring 
applicants to upload their serials in digital form through the 
electronic registration system. The Office will no longer accept 
physical copies, such as a print copy or photocopy of each issue in the 
group, or digital copies that have been saved onto a flash drive, disc, 
or other physical storage medium that is delivered to the Office.
    (5) Serial publishers would no longer be required to provide 
complimentary subscriptions to the Library as a condition for using the 
group registration option, and the Register would no longer revoke the 
privilege of using the group registration option if the applicant fails 
to provide complimentary subscriptions. But the rule would also make 
clear that electronic deposits submitted to the Office through the 
registration system will not satisfy the mandatory deposit requirements 
in section 407. Specifically, if a serial is published in the United 
States in a physical format, the publisher must provide the Library 
with two complimentary subscriptions to the serial, unless they are 
informed that the serial title is not needed for the Library's 
collections. Serials published only in electronic form will continue to 
be subject to the existing on-demand mandatory deposit regime.
    (6) The rule would clarify that applicants must include at least 
two issues in each group registration, and maintains the requirements 
that each issue in the group must be a work made for hire, and the 
author and copyright claimant for each issue must be the same person or 
organization. 37 CFR 202.3(b)(6)(i)(E), (F).
    (7) The rule would retain the requirement that applicants may only 
register serials that are ``published at intervals of a week or 
longer'' (e.g., weekly, every two weeks, monthly). The rule would also 
retain the requirement that all of the issues included in one 
application be ``published in a given three month period'' \7\ and ``in 
the same calendar year.'' \8\ To help reinforce these longstanding 
requirements, the rule would expressly mandate that the issues be 
published under the same continuing title and bear issue dates within 
the three-month period specified in the application.\9\ For similar 
reasons, the rule would specifically require the applicant to provide a 
publication date for each issue in the group.
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    \7\ Quarterly and semi-annual publications are not eligible for 
this group option, because the regulations expressly state that the 
applicant must submit at least two issues, and all the issues must 
be published within a three-month period. The Office's rationale for 
creating the group registration option (i.e., to encourage 
registration of frequently published serials by reducing the burden 
on applicants) does not apply in the case of such infrequently 
published serials.
    \8\ See 37 CFR 202.3(b)(6)(i), (i)(B), (i)(G).
    \9\ In this respect, the proposed rule is similar to the 
regulations governing the group registration options for newspapers 
and newsletters, which state that the issues must be published 
within a single calendar month and bear issue dates within that 
month. See 37 CFR 202.3 (b)(9)(v), 202.4(e)(4).
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    (8) The proposed rule will eliminate the requirement that ``[e]ach 
issue must have been created no more than one year prior to 
publication,'' id. Sec.  202.3(b)(6)(i)(G), as the Office has not 
monitored or enforced this requirement in practice.
    The next sections discuss those changes warranting more discussion.

A. Only ``All-New,'' Discrete and Self-Contained Collective Works 
Eligible for Registration

    The proposed rule clarifies that each serial issue in the group 
must be an all-new collective work.\10\ A serial 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''). A serial issue may qualify as an ``all-new'' 
collective work if it contains a sufficient amount of new compilation 
authorship. In other words, the issues included in the group cannot be 
derivative versions of a previously published issue or a serial that is 
frequently modified, updated, or adapted.
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    \10\ Currently, this requirement appears only in the Compendium. 
See Compendium sec. 1109.2.
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    To be eligible for this group registration option, the serial must 
also be fixed and distributed as a discrete, self-contained collective 
work.\11\ An applicant may satisfy this requirement if the serial 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 emails an electronically printed (``ePrint'') serial 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.
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    \11\ Similar language appears in the Compendium. See Compendium 
sec. 1113.
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    By contrast, a website would not satisfy this requirement. Websites 
typically add, archive, and/or replace content on a continuing basis. 
As such, they are not fixed and distributed as discrete, self-contained 
collective 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, 
websites are not considered ``serials'' for purposes of 
registration.\12\
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    \12\ See 37 CFR 202.3(b)(1)(v) (defining a ``serial'' as ``a 
work issued or intended to be issued in successive parts bearing 
numerical or chronological designations''); see also 75 FR 3863, 
3865 (Jan. 25, 2010) (noting that works ``that are constantly 
updated with no demarcations between particular, discrete issues of 
the publication'' are not considered serials).
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    Although the proposed rule does not extend to websites, the Office 
is aware of the need for establishing new and

[[Page 22899]]

updated practices 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 websites), 
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.

B. Scope of Protection

    The proposed rule clarifies that a registration for a group of 
serials covers each issue in the group, and each issue will be 
registered as a separate collective work. In other words, the group 
registration is treated as the legal equivalent of a separate 
collective work registration for each serial issue.
    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.\13\ Because a registration for a group of serial issues 
effectively is treated as a separate collective work registration for 
each issue in the group, a group registration also covers 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. See 55 FR at 50557 (stating that publishers may 
``register claims in individual contributions published for the first 
time in the serial, if the publisher has obtained ownership of the 
copyright''). 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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    \13\ 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 secs. 
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 particular 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 serial 
issue) with the relative burden on applicants wishing to participate in 
the registration system. When an applicant submits up to three months 
of serial issues for registration, it is difficult to collect granular 
information concerning the individual articles, photographs, and other 
component works within each 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. Imposing these burdens would also be contrary 
to the Congressional purpose of providing the Office with the authority 
to create group registration options: To ease the registration of 
certain works.
    Accordingly, the Office's current application form for a group of 
serial issues does not allow for the applicant to 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. But 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.
    When the examiner reviews each serial 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 
serial issue to determine whether it contains ``a number of 
contributions'' constituting ``separate and independent works in 
themselves.'' 17 U.S.C. 101 (definition of ``collective work''). When 
the Office issues a group registration, the certificate will identify 
the title, author, and claimant for each serial issue in the group, but 
it will not identify the titles, authors, or claimants for the 
individual contributions appearing within those issues.
    The scope of protection for a group registration issued under the 
proposed rule will have two 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 serial 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.\14\ 17 
U.S.C. 411(a).
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    \14\ 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, 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 serial 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'').

C. Online Registration Requirement

    The current regulation states that applicants may register their 
works with the online application designated for groups of serial 
issues, or in the alternative, they may submit a paper application 
using Form SE/Group. 37

[[Page 22900]]

CFR 202.3(b)(6)(v). Under the proposed rule, applicants will be 
required to use the electronic application designated for a group of 
serial issues as a condition for seeking a group registration. The 
Office will no longer accept groups of serial issues submitted for 
registration on paper using Form SE/Group.\15\ 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 serial issues, phase it out after a specified period of 
time, or continue to offer Form SE/Group for applicants who prefer to 
use the paper-based system.
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    \15\ Because the Office is proposing to eliminate Form SE/Group 
and require applicants to submit their claims through the electronic 
registration system, the term ``SE/Group'' will soon be obsolete. 
Going forward, the Office will refer to this registration option as 
``GR/SE,'' which stands for ``group registration of serials.'' In 
addition, the Office recently issued a final rule that 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. 82 FR 27424 (June 15, 2017). 
This online filing requirement will apply to supplementary 
registrations for groups of serial issues--even if the issues were 
originally registered using Form SE/Group. See 81 FR 86656, 86657 
n.3 (Dec. 1, 2016).
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    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 
SE/Group require correspondence or other action from the Office, which 
increases overall pendency and contributes to the Office's backlog of 
pending claims. For example, applicants routinely file claims that are 
not eligible for this group option, fail to provide information 
expressly requested on the form, or add extraneous information that is 
not requested. In each case, however, the Office must first scan these 
paper applications into the registration system and input the relevant 
information by hand before an examiner can reject the application as 
having been improperly filed. This is a cumbersome, labor-intensive 
process. 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 submitting a single issue rather than a 
group of two or more issues.
    For these reasons, the Office believes that requiring applicants to 
submit online applications is necessary to improve the overall 
efficiency of the group registration process.

D. Digital Registration Deposits

    As noted above, the proposed rule will require applicants to submit 
a complete copy of each serial issue in the group in digital form and 
upload each issue through the electronic system. 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 serial 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''). Electronic submissions also 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 serial publishers with 
certain legal benefits. When the Office registers a group of serials 
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 serial 
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.\16\
---------------------------------------------------------------------------

    \16\ 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 newsletter to the 
electronic system, the applicant may request special relief from the 
deposit requirements under 37 CFR 202.20(d).
---------------------------------------------------------------------------

E. Mandatory Deposit

    Although the proposed rule eliminates the requirement to provide 
subscriptions or microfilm as a condition of using the group 
registration option, serials will still be subject to the mandatory 
deposit requirement under section 407.
    To assist publishers with complying with these mandatory deposit 
requirements, the proposed rule amends the Office's mandatory deposit 
regulations, 37 CFR 202.19, to provide specific rules for serials that 
are published in the United States in a physical format, or in both a 
physical and electronic format.\17\ Publishers will be expected to 
provide the Library with two complimentary subscriptions to such 
serials, unless they have been informed by CAD that the serial title is 
not needed for the Library's collections. If subscription copies are 
not received within three months after publication of each issue, CAD 
may issue a written demand for ongoing subscriptions to that 
publication. The failure to provide subscription copies when demanded 
by the Office would subject the owner to penalties under section 407.
---------------------------------------------------------------------------

    \17\ The same proposal is being made as part of the notice of 
proposed rulemaking relating to group registration of newsletters.
---------------------------------------------------------------------------

    No change is being made to the mandatory deposit scheme for 
electronic-only serials; such serials will continue to be subject to 
the existing, demand-based mandatory deposit scheme.\18\
---------------------------------------------------------------------------

    \18\ See 37 CFR 202.19(c)(5), 202.24(a).
---------------------------------------------------------------------------

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 serials to its collections through mandatory 
deposit. The Office invites

[[Page 22901]]

public comment on all of these proposed changes.

List of Subjects

37 CFR Part 201

    Copyright, General Provisions.

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. Amend Sec.  201.1 by revising paragraph (c)(6) to read as follows:


Sec.  201.1   Communication with the Copyright Office.

* * * * *
    (c) * * *
    (6) Mandatory Deposit Copies. Mandatory deposit copies of published 
works submitted for the Library of Congress under 17 U.S.C. 407 and 
Sec.  202.19 of this chapter (including complimentary subscriptions to 
serial publications), and newspaper microfilm copies submitted under 
Sec.  202.4(e) of this chapter, should be addressed to: Library of 
Congress, U.S. Copyright Office, Attn: 407 Deposits, 101 Independence 
Avenue SE, Washington, DC 20559-6600.
* * * * *
0
3. Amend Sec.  201.3 by revising 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 serials (per issue, 
minimum two issues)
* * * * *

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.


Sec.  202.3   [Amended]

0
5. Amend Sec.  202.3 by removing and reserving paragraph (b)(6).
0
6. Amend Sec.  202.4 as follows by adding paragraph (d) and revising 
the first sentence of paragraph (n) to read as follows.


Sec.  202.4   Group Registration.

* * * * *
    (d) Group registration of serials. Pursuant to the authority 
granted by 17 U.S.C. 408(c)(1), the Register of Copyrights has 
determined that a group of serial issues may be registered with one 
application, the required deposit, and the filing fee required by Sec.  
201.3(c) of this chapter, if the following conditions are met:
    (1) Eligible works. (i) All the issues in the group must be 
serials.
    (ii) The group must include at least two issues.
    (iii) Each issue in the group must be an all-new collective work 
that has not been previously published, 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.
    (iv) 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.
    (v) All of the issues in the group must be published at intervals 
of a week or longer.
    (vi) All of the issues must be published within three months, under 
the same continuing title, within the same calendar year, bearing issue 
dates within those months, and the applicant must specify the date of 
publication for each issue in the group.
    (2) Application. The applicant must complete and submit the online 
application designated for a group of serial issues. The application 
may be submitted by any of the parties listed in Sec.  202.3(c)(1).
    (3) Deposit. The applicant must submit one complete copy of each 
issue that is included in the group. The issues must be submitted in 
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 website. 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) that prevent the viewing and examination of the work. The 
file size for each uploaded file must not exceed 500 megabytes, but 
files may be compressed to comply with this requirement. Copies 
submitted under this paragraph will be considered solely for the 
purpose of registration under section 408 of title 17 of the United 
States Code, and will not satisfy the mandatory deposit requirement 
under section 407 of title 17 of the United States Code.
* * * * *
    (n) * * * When the Office issues a group registration under 
paragraph (d) or (e) of this section, the registration covers each 
issue in the group and each issue is registered as a separate 
collective work. * * *
0
7. Amend Sec.  202.19 by adding paragraph (d)(2)(x) to read as follows:


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

* * * * *
    (d) * * *
    (2) * * *
    (x) In the case of serials (as defined in Sec.  202.3(b)(1)(v), but 
excluding newspapers) published in the United States in a physical 
format, or in both a physical and an electronic format, the copyright 
owner or the owner of the exclusive right of publication must provide 
the Library of Congress with two complimentary subscriptions to the 
serial, unless the Copyright Acquisitions Division informs the owner 
that the serial is not needed for the Library's collections. 
Subscription copies must be physically mailed to the Copyright Office, 
at the address for mandatory deposit copies specified in Sec.  201.1(c) 
of this chapter, promptly after the publication of each issue, and the 
subscription(s) must be maintained on an ongoing basis. The owner may 
cancel the subscription(s) if the serial is no longer published by the 
owner, if the serial is no longer published in the United States in a 
physical format, or if the Copyright Acquisitions Division informs the 
owner that the serial is no longer needed for the Library's 
collections. In addition, prior to commencing the subscriptions, the 
owner must send a letter to the Copyright Acquisitions Division at the 
address specified in Sec.  201.1(b) of this chapter confirming that the 
owner will provide the requested number of subscriptions for the 
Library of Congress. The letter must include the name of the publisher, 
the title of the newsletter, the International Standard Serial Number 
(``ISSN'') that has been assigned to the newsletter (if any), and the 
issue date and the numerical or chronological designations that appear 
on the first issue that will be provided under the subscriptions.
* * * * *

[[Page 22902]]

Sec.  202.20   [Amended]

0
8. Amend Sec.  202.20 by removing and reserving paragraph (c)(2)(xvii).

Appendix B to Part 202 [Amended]

0
9. In Appendix B to Part 202, remove the sentence ``(For works first 
published only in a country other than the United States, the law 
requires the deposit of the best edition as first published.)'' and 
replace with ``(For works first published only in a country other than 
the United States, the law requires the deposit of the work as first 
published.)''

    Dated: May 10, 2018.
Sarang Vijay Damle,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2018-10422 Filed 5-16-18; 8:45 am]
 BILLING CODE 1410-30-P