Registration Modernization, 52336-52345 [2018-22486]

Agencies

• Library of Congress
• Copyright Office

[Federal Register Volume 83, Number 201 (Wednesday, October 17, 2018)]
[Proposed Rules]
[Pages 52336-52345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22486]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Parts 201 and 202

[Docket No. 2018-9]


Registration Modernization

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

ACTION: Notification of inquiry.

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SUMMARY: The U.S. Copyright Office is building a new registration 
system to meet the demands of the digital age. As the Office develops a 
new technological infrastructure for this system, it is considering 
several legal and policy changes to improve user experience, increase 
Office efficiency, and decrease processing times. The Office is seeking 
public comment to inform its decisions on how to improve the 
regulations and practices related to the registration of copyright 
claims.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on January 15, 2019.

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/reg-modernization. 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: Regan A. Smith, General Counsel and 
Associate Register of Copyrights at [email protected]; Robert J. 
Kasunic, Associate Register of Copyrights and Director of Registration 
Policy and Practice at [email protected]; Erik Bertin, Deputy Director 
of Registration Policy and Practice at [email protected]; Cindy 
Abramson, Assistant General Counsel at [email protected]; or Jalyce 
Mangum at [email protected]. All can be reached by telephone by 
calling 202-707-3000.

SUPPLEMENTARY INFORMATION: 

I. Background

    The U.S. Copyright Office (the ``Office'') is statutorily 
responsible for administering the nation's copyright laws pursuant to 
the Copyright Act.\1\ One of the most significant responsibilities 
assigned to the Office is the registration of copyright claims. The 
Office's registration services are vital to creators and users of 
creative works of all types, including large and small businesses, 
individuals, and non-profit organizations. Copyright registration 
provides essential benefits for copyright owners. Before bringing a 
lawsuit for infringement of a U.S. work, registration of the claim must 
be made in accordance with the Copyright Act, or refused by the 
Office.\2\ A timely registration constitutes prima facie evidence of 
the validity of the copyright and the facts stated in the certificate 
of registration.\3\ Additionally, copyright owners must obtain a timely 
registration to seek statutory damages and attorney's fees in 
litigation.\4\ A registration also creates a public record that 
includes key facts relating to the authorship and ownership of the 
work, as well as information about the work itself, such as title, year 
of creation, and date of publication (if any). And an index of

[[Page 52337]]

each registration is published in the Online Public Record, the 
database posted on the Office's website containing indexes of records 
relating to registrations and document recordations issued after 
1977.\5\ In fiscal year 2017, the Office received 539,662 claims to 
copyright and issued 452,122 registrations.\6\ And in fiscal year 2018, 
the Office processed more than 600,000 claims. It is therefore crucial 
that the Office have an innovative and modern copyright registration 
system that can meet the rapidly expanding needs of the highly diverse 
copyright community and the public at large.
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    \1\ See 17 U.S.C. 701(a) (``All administrative functions and 
duties under this title . . . are the responsibility of the Register 
of Copyrights as director of the Copyright Office of the Library of 
Congress.'').
    \2\ 17 U.S.C. 411(a). The Supreme Court recently granted 
certiorari to resolve a conflict among the circuits concerning the 
interpretation of section 411(a), specifically, whether a copyright 
owner may commence an infringement suit after delivering the proper 
deposit, application, and fee to the Copyright Office, but before 
the Register of Copyrights has acted on the application for 
registration. In the government's view, the statute requires the 
copyright owner to receive either a registration or a refusal from 
the Copyright Office before instituting suit. See Br. for the U.S. 
as Amicus Curiae for Writ of Cert. at 12, Fourth Estate Pub. Ben. 
Corp. v. Wall-Street.com, LLC, 856 F.3d 1338 (11th Cir. 2017), (No. 
17-571), available at https://www.copyright.gov/rulings-filings/briefs/fourth-estate-pub-ben-corp-v-wall-street-com-138-s-ct-720-2018.pdf.
    \3\ 17 U.S.C. 410(c).
    \4\ See 17 U.S.C. 412, 504, 505.
    \5\ Indexes of records related to earlier registrations and 
recordations, as well as the actual records, are available at the 
Copyright Office.
    \6\ See U.S. Copyright Office, Fiscal 2017 Annual Report 4-5 
(2017), available at https://www.copyright.gov/reports/annual/2017/ar2017.pdf. During the same period, the Office rejected more than 
17,000 claims for failure to comply with the statutory and/or 
regulatory requirements for registration, and closed more than 
52,000 claims because the applicant failed to respond to a written 
communication from the Office.
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    The Office is dedicated to modernizing its systems. Starting in 
2011, the Office began a series of comprehensive and targeted efforts 
to understand and analyze its information technology (``IT'') needs. 
The Office issued its Priorities and Special Projects of the United 
States Copyright Office (October 2011-October 2013), which highlighted 
the need for technological upgrades. The Office then undertook a 
comprehensive study of its technological capabilities and needs, which 
included extensive stakeholder feedback. The resulting 2015 Report and 
Recommendations of the Technical Upgrades Special Project Team 
acknowledged challenges with the current user experience and access to 
the public record, and offered recommendations for improvement.\7\ 
Based on congressional direction, the Office followed its initial 
report with a more detailed plan, 2016's Provisional Information 
Technology Modernization Plan and Cost Analysis (``Provisional IT 
Plan'').\8\ And in 2017, the Office prepared a Modified U.S. Copyright 
Office Provisional IT Modernization Plan (``Modified IT Plan'') \9\ at 
the direction of the House Committee on Appropriations that includes 
``potential opportunities for shared efficiencies and cost-savings as 
well as ways the [Library of Congress' (the ``Library's'') Office of 
the Chief Information Officer (``OCIO'')] can support the Copyright 
Office in its overall modernization efforts.'' \10\
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    \7\ See U.S. Copyright Office, Report and Recommendations of the 
Technical Upgrades Special Project Team (Feb. 18, 2015), available 
at https://www.copyright.gov/docs/technical_upgrades/usco-technicalupgrades.pdf.
    \8\ U.S. Copyright Office, Provisional Information Technology 
Modernization Plan and Cost Analysis (Feb. 29, 2016), available at 
https://www.copyright.gov/reports/itplan/technology-report.pdf.
    \9\ Library of Congress & U.S. Copyright Office, Modified U.S. 
Copyright Office Provisional IT Modernization Plan (Sept. 1, 2017), 
available at https://www.copyright.gov/reports/itplan/modified-modernization-plan.pdf.
    \10\ See 163 Cong Rec. H4033 (daily ed. May 3, 2017) 
(explanatory statement submitted by Rep. Rodney Frelinghuysen, 
Chairman of the H. Comm. on Appropriations), available at https://www.congress.gov/congressional-record/2017/5/3/house-section/article/H3949-2; see also Modified IT Plan at 1.
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    A principal reason that the Office has prioritized modernization is 
to improve the Office's processing times for claims submitted for 
registration.\11\ Current processing times vary based on a number of 
factors, including delays in the receipt of the deposit, the number of 
examiners available to review pending claims, the complexity of the 
claim, whether there are errors or inconsistencies in the registration 
materials, and whether the Office needs to correspond with an applicant 
to resolve those issues. If the examiner sends an email or other 
correspondence, the applicant will be given 45 days to respond, and if 
the applicant responds in a timely manner, the examiner will review and 
respond within 30 days after the applicant's response has been 
received.\12\
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    \11\ The current processing times are posted on the Office's 
website with separate figures for claims submitted through the 
electronic registration system and claims filed on paper forms. See 
Registration Processing Times, Copyright.gov, https://www.copyright.gov/registration/docs/processing-times-faqs.pdf.
    \12\ U.S. Copyright Office, Compendium of U.S. Copyright Office 
Practices 605.6(B), (D) (3d ed. 2017) (``Compendium (Third)'').
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    The Office intends to replace the current electronic system (known 
as ``eCO'') with a modern solution that meets the changing needs of 
individual creators, industry (including on the user side), copyright 
practitioners, and the general public. In the past year, the Office 
engaged stakeholders in targeted outreach efforts with the assistance 
of a third-party contractor. The contractor interviewed numerous 
examiners, supervisors, and managers from the Office's Registration 
Program to identify common problems faced by applicants and the Office. 
External user interviews were conducted in Washington DC, New York 
City, Nashville, and Los Angeles with companies, organizations, 
lawyers, and individual creators who engage with the copyright 
registration system. In addition, the Office analyzed eCO survey data 
as well as calls received by the Public Information Office (``PIO'') 
and eCO help desk, which included over 10,000 responses from individual 
applicants.
    Based on the information gathered during these outreach efforts, 
the Office is planning to develop several solutions to improve the 
registration system. These solutions will include a more powerful 
dashboard, which will allow users to track application progress; an 
integrated drag and drop submission option for electronic deposits; and 
an improved messaging system to confirm that a submission has been 
received and provide details on what to expect next. The Office also 
intends to improve the flow and usability of the user interface. For 
example, the Office plans to develop a mechanism that will allow users 
to view a draft version of the registration certificate before final 
submission to confirm that the correct information has been entered. 
The Office also plans to implement more automated validations to 
enhance the application.
    As the Office identifies the IT infrastructure needed to support 
the new registration system, we are considering a number of legal and 
policy changes to improve the efficiency of the system for both users 
and the Office. The Office invites public comment in three specific 
areas of reform: The administration and substance of the application 
for registration, the utility of the public record, and the deposit 
requirements for registration.
    While this document addresses a broad range of issues related to 
the national copyright registration system, the Office will continue to 
focus on additional topics in current and future rulemakings and 
notices of inquiry. For example, the Office has open rulemakings 
related to certain group registration options, and is preparing 
additional notices concerning group registration options for musical 
compositions and sound recordings, certain short online literary works, 
and websites.\13\
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    \13\ Information related to open rulemakings, including 
instructions for submitting public comments, can be found at https://www.copyright.gov/rulemaking/.
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II. Subjects of Inquiry

A. The Application Process: How Users Engage With the Registration 
System

1. New Solutions for Delivering Application Assistance: How should the 
Office integrate in-application support and assistance to users of the 
electronic registration system?
    Through the data it has collected, the Office confirmed that users 
approach

[[Page 52338]]

the electronic registration system with varying levels of understanding 
of copyright law and technical experience. Infrequent users require 
more guidance than frequent users. Therefore, in-application assistance 
should be pointed and flexible.
    The Office is considering a multi-tier option that will offer 
different levels of support during the online application process. The 
first level, or Tier One, would provide the most elementary and basic 
support by placing an icon next to certain application terms that would 
expand to display one to two concise sentences of explanatory text. At 
Tier Two, users would receive in-depth substantive assistance through a 
help panel that would expand to provide comprehensive information and 
instructions on pertinent copyright concepts. The Office is also 
contemplating a live chat support feature to resolve common problems 
quickly and efficiently, subject to the availability of resources.
    The Office welcomes comment on these multi-tier support options and 
invites other ideas for improving in-application assistance and 
support. The Office also seeks comment on the potential value and 
benefit of a live chat service as well as the most common questions 
users have when filling out applications for registration.
2. Electronic Applications and Payments: Should the Office mandate the 
use of electronic applications and payments, and eliminate the paper 
application and payment options via check or money order?
    Section 409 of the Copyright Act authorizes the Register of 
Copyrights to prescribe forms for copyright registration. At present, 
the Office maintains three basic registration forms: The Standard and 
Single electronic applications, and the paper application. Paper 
applications, however, continue to be less efficient than electronic 
forms. The Office must scan each paper form into the registration 
system and input the relevant information by hand before an examiner 
even begins to review the claim. This is a cumbersome, labor-intensive 
process. Also, a significant portion of claims submitted on paper forms 
require correspondence or other action from the Office, which further 
increases pendency times and contributes to the overall backlog of 
pending claims.\14\ For example, applicants routinely fail to provide 
information expressly requested on paper forms, or add materially 
conflicting information. In many cases, the Office must contact the 
applicant to request additional information or permission to correct 
the application. As a result, paper applications are more costly to 
process than electronic applications, and the corresponding filing fee 
for a basic registration submitted on a paper form is $85 (compared to 
$55 for a basic registration submitted on an electronic form).\15\
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    \14\ The average time for the Office to resolve a paper 
application that requires correspondence is 20 months. By contrast, 
the average time for the Office to resolve an electronic application 
that requires correspondence is nine months. Registration Processing 
Times, Copyright.gov, https://www.copyright.gov/registration/docs/processing-times-faqs.pdf (last visited Oct. 4, 2018).
    \15\ The Office recently proposed to increase the filing fee for 
a basic registration submitted on a paper form to $125. Copyright 
Office Fees, 83 FR 24054, 24057 (May 24, 2018).
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    Addressing common errors on paper applications imposes significant 
burdens on the Office's limited resources, and has had an adverse 
effect on the examination of claims submitted on electronic forms. 
Eliminating the paper application should mitigate many of these 
problems. Among other improvements, the new online application is 
expected to contain automated validations that would prevent applicants 
from submitting claims that fail to provide pertinent information. 
Also, the Office intends to develop a reliable system that is 
maintained to mitigate service interruptions and technical processing 
delays. For these reasons, the Office believes mandating electronic 
applications is necessary to improve the overall efficiency of the 
registration process.
    The Office is also contemplating requiring the designation of an 
email address for receiving correspondence concerning applications for 
registration, and eliminating physical correspondence and physical 
forms of payment such as checks and money orders. These changes would 
facilitate end-to-end electronic processing of applications, thereby 
improving efficiency, reducing processing errors, and decreasing 
pendency times.\16\
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    \16\ The U.S. Patent and Trademark Office (``USPTO'') recently 
issued a similar proposal that would eliminate paper applications 
for trademark claims and require trademark applicants ``to provide 
and maintain an email address for correspondence.'' See Changes to 
the Trademark Rules of Practice To Mandate Electronic Filing, 83 FR 
24701, 24702 (May 30, 2018).
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    The Office recognizes that public access to computers and internet 
technology continues to rise. Nearly every local library provides free 
public access to computers and the internet.\17\ In fiscal year 2017, 
96% of basic registrations were submitted electronically, which 
reflects the pervasiveness of computer and internet access among the 
Office's users.
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    \17\ Institute of Museum and Library Services, Public Libraries 
in the United States Survey Fiscal Year 2012 10 (Dec. 2014), 
available at https://www.imls.gov/assets/1/AssetManager/PLS_FY2012.pdf.
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    At the same time, the Office is aware that certain communities do 
not have access to computer and internet technologies. A number of 
factors may contribute to a person's ability to access the Office's 
electronic system, including age, educational attainment, household 
income, and community type. Some of the most frequent users of paper 
applications include older adults and individuals who are incarcerated. 
Thus, to serve these populations and other individual needs, the Office 
is considering offering the paper application upon written request 
demonstrating sufficient need.
    The Office welcomes comment on the viability of the proposal to 
require electronic applications and payments and invites the submission 
of other proposals to improve the efficiency of the Office's 
registration processes for populations with limited access to computer 
and internet technology.
3. Electronic Certificates: Should the Office issue electronic 
certificates and offer paper certificates for an additional fee?
    The Copyright Act mandates the payment of a fee as one of the 
conditions for seeking a copyright registration.\18\ Section 708(a)(1) 
of the statute provides that fees shall be paid to the Register ``on 
filing each application . . . for registration of a copyright claim'' 
and for ``the issuance of a certificate of registration if registration 
is made.'' The cost of issuing a certificate is included in the filing 
fee for a basic registration, though the Office does charge an 
additional fee if extra copies of the certificate are needed.\19\
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    \18\ See 17 U.S.C. 408(a).
    \19\ See 37 CFR 201.3(c)(13).
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    The Office has always issued certificates of registration on a 
special type of paper that confirms the authenticity of each document. 
The Office prints roughly 10,000 to 20,000 certificates in any given 
week. This requires a substantial amount of resources both in terms of 
employee compensation and the cost of maintaining printing equipment. 
Paper certificates are also subject to delays associated with mail 
delivery, and many certificates are returned to the Office as 
undeliverable due to errors or omissions in the mailing addresses 
provided by

[[Page 52339]]

applicants.\20\ To expedite the delivery of certificates, and to reduce 
the rate of returned mail, the Office is contemplating providing 
electronic certificates of registration with appropriate watermarks or 
other security measures needed to ensure authenticity (in lieu of 
issuing paper certificates). The cost of the electronic certificate 
would be included in the basic registration fee. But upon request, the 
Office would provide paper certificates for an additional fee.
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    \20\ In July 2018 alone, the Office received 1,737 pieces of 
returned mail, most of which were undeliverable paper certificates.
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    For copyright owners, defaulting to electronic certificates would 
facilitate speedier access to certificates. And it would allow the 
Office to reallocate resources used in printing and mailing paper 
certificates to other important tasks.
    The Office welcomes comment on this proposal.
4. Dynamic Pricing Models: Should the Office replace the Single, 
Standard, and group applications with a dynamic pricing model that 
scales fees based on the number and type of works submitted for 
registration?
    On May 24, 2018, the Office issued a Notice of Proposed Rulemaking 
and Fee Study proposing the adoption of a new fee schedule to account 
for inflationary increases and the expected cost of IT modernization 
over the next several years.\21\ The Fee Study was issued pursuant to 
the Office's routine adjustment of fees, which occurs every three to 
five years, so it did not address alternative models for calculating 
and collecting fees.
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    \21\ 83 FR 24054 (May 24, 2018).
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    As mentioned above, the Copyright Act requires the payment of fees 
``on filing each application under section 408 for registration of a 
copyright claim or for a supplementary registration.'' \22\ Currently, 
the Office maintains three basic registration forms: (1) The Standard 
Application, (2) the Single Application, and (3) the paper application. 
And the Office recently proposed fees for nine types of group 
applications.\23\ Basic and group registrations account for the highest 
volume of the Office's fee generating services, and processing these 
registrations is the costliest activity the Office performs.\24\ This 
is due, in part, to the varying complexity posed by certain types of 
claims. For example, claims submitted on the Single Application tend to 
be straightforward, because they must be limited to one work by one 
author that is owned by that same individual. By contrast, claims 
submitted on the Standard Application tend to be more complex because 
they may involve works created by multiple authors, works with multiple 
owners, as well as works made for hire, derivative works, collective 
works, compilations, or other complicated issues.
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    \22\ 17 U.S.C. 708(a)(1).
    \23\ 83 FR at 24057.
    \24\ See Booz Allen Hamilton, 2017 Fee Study Report 13 (Dec. 
2017), available at https://www.copyright.gov/policy/feestudy2018.
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    Setting fees that accurately account for difficult and/or divergent 
claims is important because the Office recovers approximately 60% of 
its costs through fees.\25\ To achieve a more precise pricing model, 
the Office is considering adopting a system that varies fees based upon 
the kind of work submitted for registration and/or the number of works 
included in each application. This approach may also address user 
concerns regarding the numerical limits that currently apply to the 
Office's existing group registration options.
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    \25\ U.S. Copyright Office, Fiscal 2017 Annual Report 15 (2017), 
available at https://www.copyright.gov/reports/annual/2017/ar2017.pdf; see 83 FR 24054, 24057-58 (May 24, 2018) (explaining 
methodology for targeted cost of fee recovery).
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    Under this approach, the fee for any particular application could 
be dynamic and vary based on information provided in the application. 
The Office could charge a base fee for registering an individual work, 
and an incrementally higher fee for each additional work that is added 
to the application (assuming the pertinent facts for each work remains 
the same). Or the Office could conceivably offer a subscription service 
that would let authors register a specific number of works over a 
designated period (assuming the pertinent facts for each work remain 
the same).
    Many commenters have expressed support for these ideas.\26\ The 
Office invites additional comment on this approach, as well as the 
submission of alternative methods for calculating fees that would 
sustain the Office, provide equity to users, and encourage 
registration.
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    \26\ See, e.g., Coalition of Visual Artists, Comments Submitted 
in Response to the U.S. Copyright Office's December 1, 2016 Notice 
of Proposed Rulemaking at 17, 23-24, 59 (Jan. 30, 2017); Browning-
Smith PC, Comments Submitted in Response to the U.S. Copyright 
Office's October 12, 2017 Notice of Proposed Rulemaking at 1-2 (Nov. 
17, 2017); Copyright Alliance, Comments Submitted in Response to the 
U.S. Copyright Office's October 12, 2017 Notice of Proposed 
Rulemaking at 2 (Nov. 17, 2017).
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B. Application Information: The Information Requested on the 
Application for Registration

5. Authorship Statements and Administrative Classifications: Should the 
Office eliminate the Author Created and Nature of Authorship sections 
of the application, and instead, require the applicant to identify the 
work being submitted for registration, rather than the elements of 
authorship contained in the work?
    Section 409 of the Copyright Act enumerates nine items of 
information that should be requested on the application for 
registration. None of these provisions requires the applicant to 
identify the type of work or the type of authorship being registered, 
except in the case of a compilation or derivative work. But section 
409(10) gives the Register discretion to request ``any other 
information regarded'' by her ``as bearing upon the preparation or 
identification of the work or the existence, ownership, or duration of 
the copyright.'' Pursuant to this section, the Office has required 
applicants to ``clearly identif[y] the copyrightable authorship that 
the applicant intends to register'' and ``assert a claim to copyright 
in that authorship.'' \27\
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    \27\ Compendium (Third) 618.1. This practice was a departure 
from the Office's practices under the 1909 Act. The prior statute 
enumerated 11 classes of works that were eligible for copyright 
protection, such as books, periodicals, lectures, and musical 
compositions, and the Office developed a specific registration 
application for each class. When completing these applications 
copyright owners were not asked to identify the authorship they 
intended to register, because this information could be deduced from 
the form itself. For example, a work submitted on Form K presumably 
contained two-dimensional artwork, because that form could only be 
used to register prints and pictorial illustrations.
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    The statute also authorizes the Register to issue regulations 
specifying the ``administrative classes into which works are to be 
placed for purposes of deposit and registration'' and to develop the 
application forms that should be used to register each claim.\28\ 
Pursuant to this authority, the Office established five administrative 
classes for purposes of registration--namely, literary works, serials, 
works of the visual arts, works of the performing arts, and sound 
recordings--and developed a corresponding application for each class--
Forms TX, SE, VA, PA, and SR.
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    \28\ 17 U.S.C. 408(c), 409.
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    Because these forms can be used to register different types of 
works,\29\ the

[[Page 52340]]

Office added a space to each application that asked the applicant to 
identify the ``nature of authorship'' being registered. But the Office 
found that some applicants provided vague or ambiguous statements in 
this portion of the application, such as ``plot,'' ``character,'' 
``story idea,'' ``beats,'' ``loops,'' or ``remastering.'' To address 
situations where it was unclear whether statements referred to 
copyrightable authorship or uncopyrightable material, the Office 
developed extensive practices for communicating with the applicant, 
amending the application, and/or annotating the certificate.\30\
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    \29\ For instance, Form SR is primarily intended for sound 
recordings, but it can be used to register a sound recording and the 
musical work, dramatic work, or literary embodied in that recording. 
Form SE is intended for registering a single issue of a serial 
publication, but it also can be used to register the individual 
articles, photographs, or other component works appearing within 
that issue.
    \30\ See, e.g.,Compendium (Third) 618.8(A)(1)-(11); U.S. 
Copyright Office, Compendium of U.S. Copyright Office Practices 619 
(2d ed. 1988).
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    When the Office introduced the eCO system, it included a series of 
checkboxes in the ``Author Created'' field, which were intended to 
minimize these problems.\31\ These boxes encourage applicants to 
provide an authorship statement that describes the work being 
registered. But many of the checkboxes focus on the individual elements 
of the work, such as ``text,'' ``music,'' or ``lyrics,'' rather than 
the work as a whole.
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    \31\ This approach was inspired by Form VA, which contains a 
similar set of checkboxes.
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    Collectively, this system can cause confusion for applicants and 
additional work for examiners. The Office is considering requiring 
applicants to identify the type of work being deposited. This approach 
has the benefit of ensuring that the work as a whole is considered by 
the examiner in addition to the individual elements of authorship. The 
Office is currently testing this approach with the new version of the 
Single Application, which was released on December 18, 2017. Instead of 
providing a blank space or a series of checkboxes that encourage 
applicants to assert claims in the individual elements of the work, the 
applicant is prompted to select an entry from a dropdown list that best 
describes the work as a whole. The Office intends to follow this same 
approach when it launches the new application for registering groups of 
unpublished works.\32\
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    \32\ See Group Registration of Unpublished Works, 82 FR 47415, 
47418-19 (Oct. 12, 2017).
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    The Office welcomes public comment on how this approach has been 
working. In addition, the Office welcomes public comment on the 
following proposals or other alternative suggestions for improving this 
portion of the application:
    (a) Should the Office eliminate the Author Created and Nature of 
Authorship sections in all of its applications, and instead, allow the 
applicant to provide a general statement that appropriately describes 
the work as a whole?
    (b) Should the Office eliminate the Author Created and Nature of 
Authorship sections in all of its applications, and instead, allow the 
examiner to add a statement that appropriately describes the work 
submitted for registration?
    (c) Should the Office eliminate the Author Created and Nature of 
Authorship sections in all of its applications, and instead, develop a 
searchable, crowdsourced list of terms that could be used to describe 
the work--similar to the USPTO's trademark ID manual for identifying 
and classifying goods and services? \33\
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    \33\ See Trademark ID Manual, USPTO.gov https://tmidm.uspto.gov/id-master-list-public.html.
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    The Office also invites comment on its current administrative 
classifications. These classes are solely for administrative purposes 
and have no bearing on the subject matter or exclusive rights provided 
by copyright.\34\ Instead, they identify the application form used to 
register each type of work and determine how the Office assigns 
applications to examiners for processing. If the work is registered, 
the administrative class will be reflected in the registration number 
that is assigned to the certificate and the public record for that 
claim. Interested parties often use this information to search the 
Office's records for specific types of works or authors.
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    \34\ 17 U.S.C. 408(c).
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    The Office, however, recognizes that these classifications, and the 
corresponding application forms, may be confusing for some applicants. 
Many works do not fit neatly into a specific class. For example, a 
children's book could be classified as either a literary or visual arts 
work, depending on the amount of text versus artwork that appears 
within the deposit, and the Office will accept such a work regardless 
of whether it is submitted on Form TX or Form VA.
    This confusion could be alleviated by letting applicants provide a 
general statement describing the work as a whole. The Office could use 
that information to assign the work to the appropriate class for 
purposes of routing the application for examination and indexing the 
public record. The Office requests public comment on this idea. We also 
welcome comment on whether the Office should modify the current 
administrative classes or create additional or alternative class 
structures.
6. Derivative Works: Should the Office require users to explicitly 
identify whether a work submitted for registration is a derivative 
work?
    The Copyright Act defines a derivative work as ``a work based upon 
one or more preexisting works, such as a translation, musical 
arrangement, dramatization, fictionalization, motion picture version, 
sound recording, art reproduction, abridgment, condensation, or any 
other form in which a work may be recast, transformed, or adapted.'' 
\35\ This category also includes ``[a] work consisting of editorial 
revisions, annotations, elaborations, or other modifications, which, as 
a whole, represent an original work of authorship.'' \36\ Thus, by 
definition, a derivative work contains at least two forms of 
authorship: (1) ``The authorship in the preexisting work(s) that have 
been recast, transformed, or adapted within the derivative work; and 
[(2)] the new authorship involved in recasting, transforming, or 
adapting the preexisting work(s).'' \37\
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    \35\ 17 U.S.C. 101 (definition of ``derivative work'').
    \36\ 17 U.S.C. 101 (definition of ``derivative work'').
    \37\ Compendium (Third) 618.5.
---------------------------------------------------------------------------

    To register a claim to copyright in a derivative work, the 
Copyright Act states that the application must include ``an 
identification of any preexisting work or works that it is based on or 
incorporates, and a brief, general statement of the additional material 
covered by the copyright claim being registered.'' \38\ The Office 
obtains this information on the current application in two steps. 
First, the Office requires the applicant to ``identify the new 
authorship that the applicant intends to register'' by checking ``one 
or more boxes that appear under the heading Author Created'' in the 
online application, or by providing a statement in the Nature of 
Authorship space on the paper application, ``that accurately 
describe[s] the new material that the applicant intends to register.'' 
\39\ Second, if the derivative work contains an appreciable amount of 
preexisting material that is previously published, previously 
registered, in the public domain, or owned by a third party, the 
applicant must identify that material ``by checking one or more boxes'' 
in the Material Excluded field of the online application or by 
providing a brief statement in the corresponding section

[[Page 52341]]

of the paper application. As with the Author Created section discussed 
above, these checkboxes encourage applicants to identify individual 
elements of the work that should be excluded from the claim, without 
identifying the preexisting work itself. In addition, the applicant 
must identify the elements of the work that should be ``included'' in 
the claim by completing another set of checkboxes in the online 
application or by providing a brief statement in the corresponding 
section of the paper application.
---------------------------------------------------------------------------

    \38\ 17 U.S.C. 409(9).
    \39\ Compendium (Third) 618.5.
---------------------------------------------------------------------------

    The Office is considering a different approach to streamline the 
way that applicants provide this type of information. As discussed 
above, applicants would be asked to identify the type of work the 
author created. Applicants would be given an opportunity to identify 
any elements that should be excluded from the claim using their own 
words, rather than a set of predetermined checkboxes. And the Office 
would eliminate the requirement to identify the new material that 
should be ``included'' in the claim and assume that the applicant 
intends to register all copyrightable aspects of the work that have not 
been expressly disclaimed.\40\
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    \40\ The Office is currently employing this approach with the 
new version of the Single Application, and it intends to follow this 
same approach when it launches the new application for registering 
groups of unpublished works. See Group Registration of Unpublished 
Works, 82 FR 47415, 47419 (Oct. 12, 2017).
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    In addition, the Office is considering asking applicants to 
affirmatively state whether the work submitted for registration is a 
derivative work. The question would be accompanied by informational 
text to educate applicants on derivative work authorship. If the 
applicant identifies the work as a derivative work, the applicant would 
be asked to identify the preexisting work that the derivative work is 
based on or incorporates. The Office welcomes comment on these 
proposals. The Office also invites comment on whether the Office should 
take a similar approach with claims involving compilations and 
collective works.
7. Simplifying Transfer Statements: Should the Office restrict the 
transfer statement options to ``by written agreement,'' ``by 
inheritance,'' and ``by operation of law''?
    Copyright ownership in a work initially vests in the author or 
authors of that work.\41\ However, ``[t]he ownership of a copyright may 
be transferred in whole or in part by any means of conveyance or by 
operation of law, and may be bequeathed by will or pass as personal 
property by the applicable laws of intestate succession.'' \42\ If the 
individual or organization named as the claimant or co-claimant is not 
an author of the work, the applicant must provide ``a brief statement 
of how the claimant obtained ownership of the copyright.'' \43\ The 
Office refers to this as a transfer statement.\44\
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    \41\ 17 U.S.C. 201(a).
    \42\ 17 U.S.C. 201(d)(1).
    \43\ 17 U.S.C. 409(5).
    \44\ Compendium (Third) 620.2.
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    The transfer statement should confirm that the copyright was 
transferred to the claimant by written agreement, by inheritance, or by 
operation of law.\45\ In the current online application, the applicant 
may provide this information by selecting one of the options listed in 
a dropdown menu.\46\ The options include ``By written agreement'' 
(which is the most common response provided) and ``By inheritance.'' If 
these options do not fully describe the transfer, the applicant may 
provide a more specific transfer statement in a blank space marked 
``Transfer Statement Other.'' \47\ This option has created 
inefficiencies for the Office. Providing conflicting information in the 
``Other'' field is one of the most common reasons that the Office must 
correspond with applicants, which delays the resolution of claims and 
increases pendency times.
---------------------------------------------------------------------------

    \45\ See 17 U.S.C. 201(d)(1), 204(a).
    \46\ Compendium (Third) 620.9(A).
    \47\ Compendium (Third) 620.9(A).
---------------------------------------------------------------------------

    Because the only acceptable means of transferring a copyright are 
``by written agreement,'' ``by inheritance,'' or ``by operation of 
law,'' the Office is considering whether to add ``by operation of law'' 
to the list of acceptable transfer statements and remove the ``Other'' 
space. In addition, the Office plans to include automated validations 
that would prevent an applicant from submitting an application without 
a transfer statement in cases where the names provided in the author 
and claimant fields do not match. The Office welcomes comment on these 
proposals.
8. In-Process Corrections: Should the Office permit applicants to make 
in-process edits to open cases prior to the examination of the 
application materials?
    Currently the Office does not permit an applicant to make manual 
corrections or edits to an application once it has been received by the 
Office. To make a correction or edit, an applicant must contact PIO and 
ask the Office to make the revision on the applicant's behalf. To 
improve efficiency, the Office is considering allowing applicants to 
make changes to pending applications at any point before an examiner 
opens the application for review.
    To implement this proposal, the Office must be able to assign an 
appropriate Effective Date of Registration (``EDR''). The EDR is the 
day on which an acceptable application, complete deposit copy, and 
filing fee--which are later determined by the Register of Copyrights or 
a court of competent jurisdiction to be acceptable for registration--
have all been received in the Office in proper form.\48\ ``Where the 
three necessary elements are received at different times the date of 
receipt of the last of them is controlling, regardless of when the 
Copyright Office acts on the claim.'' \49\ Certain in-process changes 
can affect the EDR assigned to a registered work. For example, the EDR 
may change if the applicant replaces the deposit copy that accompanies 
an application for registration or submits an insufficient or 
uncollectible filing fee.\50\ By contrast, replacing or updating the 
title of the work would not change the EDR.\51\
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    \48\ 17 U.S.C. 410(d).
    \49\ H.R. Rep. No. 94-1476, at 157 (1976), reprinted in 1976 
U.S.C.C.A.N. 5659, 5773.
    \50\ Compendium (Third) 625.2.
    \51\ Compendium (Third) 625.1.
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    The Office invites comment on this proposal.
9. The Rights and Permissions Field: Should the Office allow authorized 
users to make changes to the Rights and Permission field in a completed 
registration?
    In completing an online application for registration, an 
``applicant may provide the name, address, and other contact 
information for the person and/or organization that should be contacted 
for permission to use the work.'' \52\ This is known as Rights and 
Permissions information. Providing this information is optional and 
applicants may include as little information as they prefer. The 
application also cautions that any information provided in this portion 
of the application will appear in the Online Public Record for the 
work.\53\
---------------------------------------------------------------------------

    \52\ Compendium (Third) 622.1. There is no corresponding space 
for providing Rights and Permissions information in a paper 
application.
    \53\ Compendium (Third) 622.1.
---------------------------------------------------------------------------

    Once a certificate of registration has been issued, the Office may 
remove certain personally identifiable information from the Online 
Public Record and replace it with substitute information. To do so, the 
author, claimant, or an authorized representative must submit ``a 
written

[[Page 52342]]

request in the form of an affidavit, and must pay the appropriate fee 
for this service.'' \54\ Alternatively, an author, claimant, or other 
interested party may update Rights and Permissions information by 
submitting an application for a supplementary registration and paying 
the appropriate fee for that service.\55\ If the application is 
approved, the Office will issue a separate certificate containing the 
updated information, and cross-reference the records for the initial 
registration and the supplementary registration. However, the Office 
will not remove or replace the Rights and Permissions information that 
appears on the original certificate or record.
---------------------------------------------------------------------------

    \54\ 37 CFR 201.2(e)(1); Compendium (Third) 622.1. See generally 
Removal of Personally Identifiable Information from Registration 
Records, 82 FR 9004 (Feb. 2, 2017).
    \55\ 37 CFR 202.6(d), (e); Compendium (Third) 1802.
---------------------------------------------------------------------------

    The Office is considering building a user interface that will let 
users update Rights and Permissions information, as necessary, without 
having to submit a formal written removal request and fee and without 
having to seek a supplementary registration. This proposal is aligned 
with the Office's general goal to empower users to engage with the 
Online Public Record. The Office also believes that this change would 
improve the accuracy of Rights and Permissions information for persons 
who may be interested in licensing particular works.
    The Office welcomes comment on this proposal, specifically 
addressing how it may affect the user's decision to provide Rights and 
Permissions information in an application for registration and how 
self-service changes may improve the quality of the Online Public 
Record. The Office also requests comment on whether this option should 
be limited to the party that submitted the initial application or the 
account associated with that submission to prevent third parties from 
making unauthorized changes to the record.
10. Additional Data: What additional data should the Office collect on 
applications for registration? For example, should ISBNs or other 
unique identifiers be mandatory? Should the Office accept other 
optional data?
    The utility of the Office's Online Public Record is affected by the 
search capability of the electronic system (currently, the Voyager 
system), but it is also affected by the data contained within the 
record itself. The Office seeks input from members of the public that 
use and search the Online Public Record to determine whether additional 
data could be included in the online record to enhance the 
functionality of the system. For instance, the number of page numbers 
in a book might assist in matching a particular publication with the 
edition of a work that was registered. Low-resolution images or sound 
clips could help identify a work for potential licensing. The Office 
welcomes comments on any additional data that should be included in the 
registration record to enhance the value of the public registry. In 
particular, should the Office allow applicants to voluntarily upload 
low-resolution images or sound bites of their works to appear in the 
Online Public Record?
    As another example, the current system allows the applicant to 
include certain unique identifiers in the application, including an 
International Standard Book Number (``ISBN''), International Standard 
Recording Code (``ISRC''), International Standard Serial Number 
(``ISSN''), International Standard Audiovisual Number (``ISAN''), 
International Standard Music Number (``ISMN''), International Standard 
Musical Work Code (``ISWC''), International Standard Text Code 
(``ISTC''), or Entertainment Identifier Registry number (``EIDR'').\56\ 
If these numbers are provided in the appropriate fields, they will 
appear on the certificate and in the Online Public Record. These unique 
identifiers may assist ``in the identification of a work and may 
facilitate licensing,'' particularly in the digital environment.\57\
---------------------------------------------------------------------------

    \56\ Compendium (Third) 612.6(C); see U.S. Copyright Office, 
U.S. Copyright Office Adds Unique Identifiers to the Electronic 
Registration System, Issue No. 706 (Feb. 5, 2018), https://www.copyright.gov/newsnet/2018/706.html.
    \57\ Compendium (Third) 612.6(C).
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    The Office is considering making it mandatory for applicants to 
provide unique identifiers for published works if a number or code has 
been assigned when the claim is submitted. Alternatively, the applicant 
could be required to add an identifier to the record if it appears in 
or on the deposit copy submitted with the application for registration. 
The Office believes this would improve the utility of the public record 
because users would be able to search the Online Public Record using 
those unique identifiers.
    The Office has noted, ``reliable, up-to-date information about 
copyrighted works is a critical prerequisite for efficient licensing.'' 
\58\ As such, consistent with the in-process correction process noted 
above, the Office would allow applicants to add unique identifiers to 
pending cases as long as the changes are made before the case has been 
opened by the examiner. In addition, the Office is considering 
establishing a procedure for adding unique identifiers to completed 
registration records, potentially at no cost, which would be similar to 
the proposed procedure for updating Rights and Permissions information.
---------------------------------------------------------------------------

    \58\ U.S. Copyright Office, Copyright and the Music Marketplace 
59-62 (2015) (discussing data standards in music industry); see 
Compendium (Third) 612.6(C) (noting that unique identifiers assist 
``in the identification of a work and may facilitate licensing'').
---------------------------------------------------------------------------

    Finally, the Office appreciates that standard identifiers are not a 
static universe. Therefore, it is considering accepting additional 
identifiers in the new system, such as the Interested Parties 
Information (``IPI''), International Standard Name Identifier 
(``ISNI''), and the Plus Registry.
    The Office welcomes comment on these proposals. We also invite the 
public to identify other types of data that could be included in the 
registration application--either on an optional or mandatory basis--to 
improve the quality and utility of the public record. The Office 
encourages commenters to identify any special considerations for 
particular categories of copyrighted works.
11. Application Programming Interfaces (``APIs''): What considerations 
should the Office take into account in developing APIs for the 
electronic registration system?
    The Office is exploring the use of standard application programming 
interfaces (``APIs'') as part of the new electronic registration 
system. APIs offer opportunities for automated advancements. They could 
be used by companies to build a registration workflow into their normal 
business processes, or by third parties to create customized user 
interfaces for particular types of creators or industries, such as 
photographers, songwriters, book publishers, or recording artists. APIs 
could facilitate batch submissions of applications for registration. 
They could also be used to import and autofill work information, such 
as the title, author name(s), and date of publication from other 
databases when an author provides a unique identifier on an online 
application. In addition to making the application easier to complete, 
APIs could improve the accuracy of information provided on the 
application by minimizing errors from manual input, thereby increasing 
efficiency and decreasing processing times.
    Post-registration, APIs could also facilitate the export of data 
from the Office's Online Public Record, allowing the record to be 
augmented by private

[[Page 52343]]

entities to provide potentially useful facts about the work that may 
not be captured in the Online Public Record, such as additional 
information about the deposited works. This could foster efficient 
licensing transactions in registered works, and help detect the 
infringement of registered works. That said, the Office is committed to 
providing the public with accurate information about copyright and does 
not want the introduction of third-party API access to enable consumer 
confusion or facilitate business models that charge excessive premiums 
or otherwise prey upon individual authors who may be less sophisticated 
about the copyright system.
    The Office invites comment on how it should utilize APIs to 
integrate external data into the official registry or export internal 
data from the Office's registry to facilitate enhanced services offered 
by private entities. What factors should the Office consider? Should 
the Office limit API access to verified entities to minimize spam 
submissions and deter predatory behavior? Should the Office initiate 
API access through a pilot program, similar to past initiatives? \59\
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    \59\ See, e.g., Pilot Program for Bulk Submission of Claims to 
Copyright, 82 FR 21551 (May 9, 2017).
---------------------------------------------------------------------------

C. Public Record: How Users Engage and Manage Copyright Office Records

12. The Online Registration Record: Should the Office expand the Online 
Public Record to include refusals, closures, correspondence, and 
appeals?
    Because the Copyright Office is primarily an office of public 
record,\60\ all ``public records, indexes, and deposits'' are available 
for public inspection pursuant to section 705(c) of the Copyright Act. 
In addition, with the exception of deposited articles retained by the 
Office,\61\ section 706(a) of the Copyright Act makes the Office's 
records available for copying by the public. To that end, registration 
application materials that the Office receives, including any 
associated correspondence between the Office and an applicant, create 
public records that the Office maintains in full form within the Office 
and in condensed form in the Online Public Record.
---------------------------------------------------------------------------

    \60\ See generally 17 U.S.C. 705.
    \61\ Only authorized persons may receive copies of deposited 
articles. Persons authorized to receive copies of deposited articles 
include the copyright claimant of record or his or her designated 
agent, or an attorney representing the plaintiff or defendant in 
litigation, actual or prospective, involving the deposit materials. 
17 U.S.C. 706(b); see also 37 CFR 201.2(d)(2).
---------------------------------------------------------------------------

    Full records of approved, closed, or refused registration 
applications, and pending applications, including any associated 
correspondence, are available in the Office for public inspection and 
copying, under certain circumstances, and for a fee.\62\ Condensed 
indexes of approved post-1977 registration applications are available 
on the Office's website for free via the Online Public Record.\63\ The 
Office maintains the Online Public Record pursuant to section 707(a) of 
the Act, which provides that the Register ``shall compile and publish 
at periodic intervals catalogs of all copyright registrations.'' This 
provision also gives the Register the discretion to ``determine, on the 
basis of practicability and usefulness, the form'' of publication of 
these records.\64\
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    \62\ See 37 CFR 201.2(b).
    \63\ Public Catalog, Cocatalog.loc.gov, https://cocatalog.loc.gov. The Copyright Office currently publishes the 
registration of vessel hull designs in a separate database on its 
website, listing all registrations in reverse chronological order. 
See Registration of Vessel Designs, Copyright.gov, https://www.copyright.gov/vessels/.
    \64\ 17 U.S.C. 707(a).
---------------------------------------------------------------------------

    Due to considerations of feasibility and current technological 
limitations, the Online Public Record does not contain all of the 
information that is contained in the Office's full registration 
records. In particular, it does not include a copy of any 
correspondence between the Office and the applicant. It does not 
include information concerning claims that have been refused, claims 
that have been voluntarily withdrawn, or claims that have been closed 
for failure to respond to a written communication from the Office. 
Likewise, it does not contain information concerning first or second 
requests for reconsideration (although recent decisions that have been 
issued by the Review Board are available on the Office's website).\65\ 
These types of records are maintained solely in the full registration 
record, which must be viewed at the Office.\66\ As a result, courts, 
litigants, and the public may not be aware of refused claims or 
communications between the Office and applicant that resulted in 
material modifications to the registration materials.
---------------------------------------------------------------------------

    \65\ Review Board Letters Online, Copyright.gov, https://www.copyright.gov/rulings-filings/review-board/.
    \66\ See 37 CFR 201.2(b)(1); 201.2(b)(5) (providing that, ``[i]n 
exceptional circumstances'' the Office ``may allow inspection of 
pending applications and open correspondence files by someone other 
than the copyright claimant, upon submission of a written request 
which is deemed by the Register to show good cause for such access 
and establishes that the person making the request is one properly 
and directly concerned.'').
---------------------------------------------------------------------------

    The Office is considering whether to expand the Online Public 
Record to include correspondence records between the Office and an 
applicant, and refused registration application records including any 
associated appeal records.\67\ The Office believes these additions 
would greatly improve the utility of the public record, and invites 
public comment on the type and scope of information that should be 
included in the Online Public Record. In particular, the Office invites 
comment on whether it should publish condensed or full versions of 
these records, and comment on how these changes to the public record 
would affect stakeholders in different industries.
---------------------------------------------------------------------------

    \67\ This proposal is made in consideration of the Removal of 
Personally Identifiable Information final rule codified at 37 CFR 
201.2(e), (f).
---------------------------------------------------------------------------

13. Linking Registration and Recordation Records: What considerations 
should the Office take into account in expanding the Online Public 
Record to connect registration and recordation records and provide 
chain of title information?
    In addition to expanding the type of information included in the 
Online Public Record, the Office seeks to build improved search 
functionality, which will include enhancing the connection between its 
registration and recordation records. Currently, registration and 
recordation records are maintained as discrete data sets. A search for 
a name, title, or registration number pulls up the records for any 
registration or recordation that has been indexed with that 
information. And in some cases, there are hyperlinks within the 
registration record that allows the user to pull up any corresponding 
recordation records. But it is not possible to view all of the 
registration and recordation information on the same screen. This 
limits the functionality of the Online Public Record and makes it 
difficult to obtain chain of title information.
    The Office seeks to create a new version of the Online Public 
Record that would seamlessly link registration and recordation records 
and provide robust chain of title information. To inform its future 
activities concerning this endeavor, the Office invites comment on how 
it should link registration and recordation records in the Online 
Public Record, the level of detail and specificity that should be 
included within the chain of title, and the potential value of that 
information to copyright owners, users, and the general public.

[[Page 52344]]

14. Unified Case Numbers: Should the Office issue one case number to 
track and identify a work or group of works through the registration 
and appeal process?
    The Office currently uses multiple identification numbers to keep 
track of applications, correspondence, and requests for 
reconsideration. The Office assigns a service request/case number to 
each application to keep track of the claim within the electronic 
registration system. A separate ``THREAD ID'' is assigned to each email 
communication sent by the Office. A separate ``Correspondence ID'' is 
assigned to each letter that is sent by the Office. And the Office 
assigns another ``Correspondence ID'' when it issues a response to a 
request for reconsideration.
    Administering and tracking disparate numbers for these types of 
records has created internal and external challenges for the Office and 
users alike. For instance, THREAD and Correspondence ID numbers have 
occasionally been attached to the wrong service request/case number. 
Examiners often catch these errors, but they must be fixed by hand to 
ensure that the correspondence materials are assigned to the 
appropriate case. To avoid these problems and improve the transparency 
of its records, the Office is proposing to unify its identification 
numbers to create a clear relationship between an application for 
registration, any correspondence, and any associated request for 
reconsideration. This would benefit users because they would only be 
tasked with monitoring one case number over the life cycle of a claim. 
The Office invites comment on this proposal.

D. Deposit Requirements: The Deposit Requirements for Registration and 
Related Security Considerations

15. Digital First Strategy: Should the Office require only electronic 
and identifying material for all deposits for registration, thereby 
eliminating the need to submit physical deposits for purposes of 
registration?
    The Office is seeking comment on a new approach for registration 
deposits. Under this approach, applicants would be required to submit 
electronic deposit copies and phonorecords, or other identifying 
material, for the purpose of registering a work under section 408 of 
the Copyright Act. Copyright owners would only be expected to submit 
physical copies or phonorecords if they receive a written demand from 
the Office for that material pursuant to the mandatory deposit 
provisions set forth in section 407. In other words, the Library would 
continue to receive physical copies or phonorecords through mandatory 
deposit if they are needed for its collections, but only if the Office 
affirmatively issues a written demand for that material on the 
Library's behalf and provides adequate notice to the copyright 
owner.\68\
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    \68\ This approach would be similar to the demand-based 
mandatory deposit scheme that the Office established for electronic-
only serials and recently proposed to expand to include electronic-
only books. See 75 FR 3863, 3865-66 (Jan. 25, 2010); 83 FR 16269 
(Apr. 16, 2018).
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    The Office already administers two separate sets of deposit 
requirements as codified in the Copyright Act: The requirements for 
depositing a work for the Library pursuant to section 407 (the 
``mandatory deposit requirement'') \69\ and the deposit requirements 
for registering a work with the Copyright Office pursuant to section 
408 (the ``deposit requirements for registration'').\70\ It has been 
suggested that a digital approach to deposit requirements for 
registration would make clearer the discrete aims of the registration 
and mandatory deposit requirements, as the deposit needs for 
registration examination purposes in many cases can be fulfilled 
without receiving a physical copy of the work where identifying 
material is sufficient.\71\
---------------------------------------------------------------------------

    \69\ See 17 U.S.C. 407.
    \70\ See 17 U.S.C. 408.
    \71\ See, e.g., 37 CFR 202.20(c)(2), 202.21.
---------------------------------------------------------------------------

    Both sections 407 and 408 give the Register broad authority to 
issue regulations dictating the specific nature of the copies and 
phonorecords that must be deposited, and in practice, the Register has 
traditionally exercised this authority in significant ways. 
Specifically, section 408(c)(1) authorizes the Register to ``specify by 
regulation the administrative classes into which works are to be placed 
for purposes of deposit and registration, and the nature of the copies 
or phonorecords to be deposited in the various classes specified.'' 
\72\ In addition, the Register may further ``require or permit, for 
particular classes, the deposit of identifying material instead of 
copies or phonorecords.'' \73\ Currently, a wide range of works may be 
registered with identifying material, including most pictorial and 
graphic works and computer programs.\74\
---------------------------------------------------------------------------

    \72\ 17. U.S.C. 408(c)(1).
    \73\ 17. U.S.C. 408(c)(1).
    \74\ 37 CFR 202.20(c)(2) (iv), (v), (vii).
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    In enacting 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].'' \75\ Thus, 
under section 407(c), the Register may exempt any categories of 
material from the mandatory deposit requirements, or demand only one 
copy or phonorecord if it provides a ``satisfactory archival record of 
a work.'' \76\ As both the Office and the Library acknowledge that the 
Library does not need every deposit submitted for registration in its 
collections, over the years the Register has adopted a series of 
exemptions from the mandatory deposit requirement, including exemptions 
for most electronic works that are available only online, musical works 
that are published solely on phonorecords, advertising material, 
scientific or technical diagrams, greeting cards, individual lectures 
or sermons, and most three-dimensional sculptural works.\77\
---------------------------------------------------------------------------

    \75\ H.R. Rep. No. 94-1476, at 151 (1976), reprinted in 1976 
U.S.C.C.A.N. 5659, 5767.
    \76\ 17. U.S.C. 407(c).
    \77\ See 37 CFR 202.19(c).
---------------------------------------------------------------------------

    Considering a digital approach to deposit requirements for 
registration, the Office seeks comment on whether and how it should 
expand the classes of excepted works under section 408. Pursuant to its 
authority under section 408(c)(1), the Office is considering whether it 
should, for all classes of works, accept only, or preferentially, 
electronic copies or phonorecords and identifying material to satisfy 
the deposit requirement for registration.\78\
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    \78\ Where it is impractical or impossible to provide an 
electronic deposit, the Office would still accept a physical 
deposit.
---------------------------------------------------------------------------

    The Office takes seriously its responsibility to administer both 
the registration and mandatory deposit requirements. But the advent of 
a new registration system provides an opportunity to think innovatively 
about the best way to design a 21st century copyright registration 
system while serving the Library's collection needs. A digital approach 
to deposit requirements for registration would aim to (1) reduce the 
pendency time for processing applications, (2) reduce the number of 
physical deposit materials that the Office of Registration Policy & 
Practice (``RPP'') processes, and (3) simplify the deposit requirements 
for registration.
    Although pendency times have improved,\79\ this remains a crucial 
concern for the Office. On April 25, 2018, the House Subcommittee on

[[Page 52345]]

Legislative Branch Appropriations highlighted the need for the Office 
to decrease its processing times in its hearing on the Library of 
Congress's fiscal year 2019 budget request.\80\ While inquiring about 
the appropriate turnaround time for completing a copyright 
registration, Chairman Kevin Yoder emphasized that the aim is to make 
the registration system ``more efficient and quicker.'' \81\ It is 
believed that this proposal would further significantly decrease 
burdens on both copyright owners and the Copyright Office by 
simplifying registration requirements and the examination process, and 
subsequently decreasing pendency times.
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    \79\ Between April 3, 2018, and October 2, 2018, the average 
processing time for all claims decreased from eight months to seven 
months. See Registration Processing Times, Copyright.gov, https://www.copyright.gov/registration/docs/processing-times-faqs.pdf (last 
visited Oct. 4, 2018).
    \80\ See Legislative Branch Appropriations for 2019, Hearings 
Before the Subcomm. on Legislative Branch of the H. Comm. on 
Appropriations, Part 2, 115th Cong., 2d Sess. 325, 357-359 
(2018)(statement from Rep. Kevin Yoder, Chairman, Subcomm. on 
Legislative Branch concerning registration processing times, noting 
``we really want the Copyright Office to be successful and [] 
efficient''), available at https://www.gpo.gov/fdsys/pkg/CHRG-115hhrg30357/pdf/CHRG-115hhrg30357.pdf.
    \81\ Legislative Branch Appropriations for 2019, Hearings Before 
the Subcomm. on Legislative Branch of the H. Comm. on 
Appropriations, Part 2, 115th Cong., 2d Sess. at 358 (2018).
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    When an applicant sends a physical deposit with their application 
for registration, that deposit must be sent offsite to be screened and 
decontaminated for possible pathogens. Once the deposit is delivered to 
the Office, the Office's Receipt Analysis and Control Division 
(``RAC'') must manually match the physical deposit to its corresponding 
pending application and deliver the deposit to an examiner.\82\ This 
time consuming process can delay examination. And if the examiner later 
discovers that the applicant submitted an incorrect deposit, this 
process may be repeated, which would delay examination and re-set the 
EDR to the date that an acceptable deposit was received by the Office. 
Additionally, physical deposits are often heavy and unwieldy. The 
Office moves these deposits multiple times during the examination 
process, which increases the risk that they may be damaged, misplaced, 
mismatched, or lost.
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    \82\ When an applicant submits an online application and sends 
the deposit through the mail, they are expected to print and attach 
a ``shipping slip'' to the deposit. This document contains a barcode 
generated by the electronic registration system that is used to 
connect the deposit with the appropriate registration application. 
Unfortunately, large quantities of deposits are submitted without a 
shipping slip. In such cases, RAC staff must correspond with the 
applicant to obtain the ten-digit case numbers that have been 
assigned to all of the applications submitted by that party, and 
then search for those applications in the electronic registration 
system. Before delivering the deposit to the examiner for a 
substantive review, RAC staff must match each application to its 
corresponding deposit by manually generating a new shipping slip 
with an identifying barcode.
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    By contrast, when an applicant uploads a digital deposit to the 
electronic registration system, the Office receives the deposit as soon 
as the application is submitted. An examiner can immediately access the 
deposit when they open the application. Examiners do not need to move 
deposits around the Office. Electronic deposits allow examiners to 
process more claims per hour, thereby cutting processing times 
significantly.
    The Office is interested in hearing from copyright owners on how 
this digital approach may or may not incentivize the routine 
registration of copyrighted works and improve the efficiency of the 
registration system. The Office also seeks comments on how this 
approach may affect copyright owners with regard to their compliance 
with mandatory deposit.
16. Digital Deposit Security
    Any approach that increases the deposit of digital formats must be 
supported by a robust security system. Users have expressed concern 
regarding the capacity of the Office's current IT infrastructure to 
handle an increase in digital deposits, as well as the Office's 
mechanisms for securing these deposits.
    The Office currently utilizes a multi-level security design to 
ensure the confidentiality, integrity, and availability of the data 
within the eCO system. The system is certified to operate at the 
National Institute of Standards and Technology (``NIST'') Moderate 
security level.\83\ The entire eCO system operates on hardware and 
software dedicated to this system and it does not share any computer or 
storage resources. Strict access controls are in place throughout the 
system for public users, staff, and system administrators, enforcing 
the principle of least privilege, which means that users in each role 
may only access what is needed for their role. The system is also 
protected by multiple levels of network firewalls and other network-
based security, such as anti-malware protection. Finally, the eCO 
system is under continuous monitoring, both operational and security, 
to ensure that these security controls are and remain effective.
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    \83\ See National Institute of Standards and Technology, Minimum 
Security Requirements for Federal Information and Information 
Systems, FIPS PUB 200, available at https://nvlpubs.nist.gov/nistpubs/FIPS/NIST.FIPS.200.pdf; National Institute of Standards and 
Technology, Security and Privacy Controls for Information Systems 
and Organizations, SP 800-53, available at https://csrc.nist.gov/CSRC/media//Publications/sp/800-53/rev-5/draft/documents/sp800-53r5-draft.pdf.
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    The Office, working with OCIO, plans to implement these same 
controls in the new online registration system. Additionally, the 
Office's IT infrastructure is being updated to support increased 
numbers of digital deposits. The Office welcomes comment on the current 
and future state of the Office's deposit security as well as any 
additional approaches to this issue.

E. Additional Considerations

    The Office is dedicated to developing a robust and efficient 
registration system and invites comment on any additional 
considerations that it should take into account during its 
modernization process.

    Dated: October 11, 2018.
Karyn Temple,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.
[FR Doc. 2018-22486 Filed 10-16-18; 8:45 am]
 BILLING CODE 1410-30-P