Registration Modernization, 12704-12714 [2020-04435]

Download as PDF 12704 Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules LIBRARY OF CONGRESS Copyright Office 37 CFR Parts 201 and 202 [Docket No. 2018–9] Registration Modernization U.S. Copyright Office, Library of Congress. ACTION: Statement of policy and notification of inquiry. AGENCY: In conjunction with the development of new technological infrastructure for the copyright registration system, on October 17, 2018, the U.S. Copyright Office solicited public input regarding potential regulatory and practice updates to improve the system’s efficiency for both users and the Office. The Office sought and received public comment on three main areas of proposed reform: The administration and substance of the application for registration, the utility of the public record, and the deposit requirements for registration. After reviewing the comments, the Office is announcing intended practice updates, to be adopted in conjunction with the deployment of the new technological system that the Library of Congress is building for the Office. The Office also seeks further comment on two proposals to permit post-registration edits to rights and permissions information, and to permit voluntary submission of additional deposit information to be included in the public record. DATES: Written comments must be received no later than 11:59 p.m. Eastern Time on April 2, 2020. 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/regmodernization/. 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, regans@copyright.gov; Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, rkas@copyright.gov; Kevin lotter on DSKBCFDHB2PROD with PROPOSALS3 SUMMARY: VerDate Sep<11>2014 19:25 Mar 02, 2020 Jkt 250001 Amer, Deputy General Counsel, kamer@ copyright.gov; Erik Bertin, Deputy Director of Registration Policy and Practice, ebertin@copyright.gov; or Jalyce E. Mangum, Attorney-Advisor, jmang@copyright.gov. They can be reached by telephone at 202–707–3000. SUPPLEMENTARY INFORMATION: A highly functional registration system is of paramount importance to the Copyright Office as it administers title 17 for the benefit of the nation’s thriving copyright ecosystem.1 Copyright registration provides valuable benefits to copyright owners, including providing access to federal court to initiate a lawsuit for infringement of a U.S. work,2 serving as prima facie evidence of the validity of the copyright and the facts stated in the certificate of registration,3 and enabling copyright owners to seek statutory damages and attorneys’ fees in litigation for works that are timely registered.4 Registration also benefits users and prospective users of creative works by enabling them to find key facts relating to the authorship and ownership of such works in the Office’s online public record.5 Accordingly, modernizing the technological infrastructure of the copyright registration system is one of the Office’s top priorities. The Office is working with the Library of Congress’s Office of Chief Information Officer (‘‘OCIO’’), which is building an enterprise copyright system (‘‘ECS’’) to improve the Office’s provision of copyright services to the public, including its registration services. Copyright Office information technology (IT) modernization is being implemented in accordance with the overall model of IT centralization at the Library of Congress. Under this model, ‘‘the Copyright Office, with its expertise of both copyright law and its internal systems, provides required business features to the OCIO. The OCIO then uses its expertise to develop technology solutions to support those features for the Copyright Office.’’ 6 To take advantage of forthcoming IT modernization development efforts and promote an efficient and innovative registration system, the Office published 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). 3 17 U.S.C. 410(c). 4 17 U.S.C. 412. 5 Additional information is available at https:// www.copyright.gov/registration/. 6 Library of Congress Modernization Oversight: Hearing Before the S. Comm. on Rules and Admin., 116th Cong. 24 (2019) (Statement of Carla Hayden, Librarian of Congress). PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 a notice of inquiry in October 2018 (‘‘2018 NOI’’) inviting public comment on several potential practice and policy changes to better meet the demands of users of the registration system in the digital age.7 The 2018 NOI previewed technological features that the Office would like to be incorporated into the ECS, including a more dynamic application tracking dashboard, an integrated drag-and-drop submission option for electronic deposits, and an improved messaging system to improve communication between the Office and applicants.8 The Office also announced an intention to display a draft version of the registration certificate before final submission so that applicants can confirm that they have entered the correct information.9 In addition to announcing these intended user features, the Office posed fifteen questions that fell into three categories of possible reform: (1) The administration and substance of the application for registration, (2) the utility of the public record, and (3) the deposit requirements for registration.10 Commenters expressed broad general support for the proposals set forth in the 2018 NOI. The Copyright Alliance was ‘‘pleased that the Office is considering a broad range of legal and policy changes regarding registration, and seeking input from stakeholders early in that process.’’ 11 Noting that ‘‘[a] modernized registration system is key for the healthy functioning of the copyright ecosystem in the 21st century,’’ the Association of American Publishers (‘‘AAP’’) expressed support for many of the Office’s ‘‘innovative proposals to make the registration process more efficient, intuitive, and competitive,’’ 12 and the American Intellectual Property Law Association (‘‘AIPLA’’) specifically praised the proposed updates that would allow ‘‘user-errors [to] be reduced through 7 Registration Modernization, 83 FR 52336 (Oct. 17, 2018). 8 Id. at 52337. 9 Id. A similar display feature will be provided in the forthcoming electronic recordation system pilot. 10 Id. 11 Copyright Alliance Comments, at 1–2 (Jan. 15, 2019); see also, e.g., National Music Publishers’ Association (‘‘NMPA’’) Comments, at 3 (Jan. 15, 2019) (‘‘NMPA appreciates the opportunity to comment on how the Office can design a registration system that will fit the needs of the modern music industry.’’); Recording Industry Association of America, Inc. (‘‘RIAA’’) Comments, at 2 (Jan. 15, 2019) (‘‘RIAA and its members applaud the Copyright Office . . . for thinking broadly about a variety of steps that could be taken to modernize the current copyright registration process.’’). Unless otherwise noted, all comments cited refer to comments submitted in response to the 2018 Notice of Inquiry Regarding Registration Modernization. 12 AAP Comments, at 8 (Jan. 15, 2019). E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules self-correction and proofing prior to filing.’’ 13 Other commenters opined that the Office’s proposals did not address all of the shortcomings of the current registration system. For example, the Coalition of Visual Artists (‘‘CVA’’) cautioned the Office to avoid making incremental improvements when a comprehensive modernization effort is necessary to make the registration system easier and more cost effective for authors to use.14 The Graphic Artists Guild (‘‘GAG’’) similarly contended that the modernization effort should not ‘‘proceed in a piecemeal fashion, without substantive changes to a system that for individual visual artists is broken.’’ 15 It expressed particular concern about registration processing times, highlighting that ‘‘[t]he processing time for the simplest online copyright registrations, requiring no communication, averages six months.’’ 16 The Office takes these comments seriously and is pleased to note that, separate from the IT modernization process, it already has taken significant steps toward addressing a number of commenters’ concerns. For example, the Office has made extensive efforts to reduce registration processing times, particularly in light of the Supreme Court’s 2019 decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, which confirmed that Copyright Office action on an application for registration must be complete before the owner of a U.S. work can bring an infringement suit.17 Since 2018, the average processing time for claims that are received through the electronic registration system and do not require correspondence (which make up seventy-two percent of claims) has been reduced from six months to three months.18 As a second example apart from IT modernization, the Office has also issued a notice of inquiry requesting written comments on issues relating to online publication, including whether and how to amend its registration regulations and other considerations relevant to ensuring continued thorough assistance to Congress.19 This notice seeks to address recent feedback to the lotter on DSKBCFDHB2PROD with PROPOSALS3 13 AIPLA Comments, at 2 (Jan. 15, 2019). Comments, at 2–3 (Jan. 15, 2019). 15 GAG Comments, at 2 (Jan. 15, 2019). 16 Id. at 1. 17 139 S. Ct. 881, 888, 892 (2019). 18 U.S. Copyright Office, Registration Processing Times, https://www.copyright.gov/registration/ docs/processing-times-faqs.pdf. The data is from April 1 through September 30, 2019. 19 See Online Publication, 84 FR 66328 (Dec. 4, 2019). 14 CVA VerDate Sep<11>2014 19:25 Mar 02, 2020 Jkt 250001 12705 Office suggesting that the statutorilydrawn distinction between published and unpublished works is, as Copyright Alliance put it, ‘‘so complex and divergent from an intuitive and colloquial understanding of the terms that it serves as a barrier to registration, especially with respect to works that are disseminated online.’’ 20 The Office will analyze these issues related to online publication, as well as other potential practice changes, contemporaneously with, yet separately from, the OCIO’s efforts to upgrade the IT system through establishment of an ECS. While the Copyright Office remains dedicated to continuously exploring potential regulatory and/or practice changes through public discussion, the current Registration Modernization proceeding focuses on the practices directly relevant to the pending technological upgrades. The Library has committed to an IT development approach that can meet ‘‘the complex and unique mission of the Copyright Office today and for the future,’’ including ‘‘to accommodate possible future legal responsibilities’’ and to meet ‘‘evolving business needs.’’ 21 To the extent the publication proceeding, other pending or future rulemakings, result in regulatory or practice changes that need to be accommodated in the Office’s technology, the Office will communicate those requirements to the OCIO, but such changes will be considered separately from the umbrella of ‘‘modernization.’’ 22 With respect to IT modernization, the Office is prioritizing public outreach to gain additional information about the needs and concerns of users of the registration system. The Office created a dedicated IT modernization web page to keep stakeholders apprised of the status of modernization efforts.23 In early 2019, the Office launched a bimonthly webinar series to report on the progress achieved on IT modernization initiatives and to discuss the overall direction of modernization.24 And the Office continues to meet regularly with stakeholders and deliver presentations to external audiences to provide updates on modernization activities. OCIO user experience (UX) experts are also committed and involved to ensure that development can incorporate public input through robust user participation and feedback.25 To further advance these efforts, and following careful consideration of the comments received in response to the 2018 NOI, the Office is now announcing plans to adopt eleven registration practice updates that it will identify as business needs to the OCIO, so that they may be incorporated into the design of the new ECS to support a more userfriendly and efficient registration process that is simpler, clearer, secure, and adaptable. As detailed below, these updates relate to both the substance of the registration application and the utility of the online public record from a registration-specific perspective. The Office has concluded that each of these intended practice changes or design features can be incorporated into the ECS without adjusting existing regulatory language. As development efforts progress, the Office envisions initiating a pilot program that could permit incorporation of these updates through an iterative process that also takes into account participants’ input, similar to the recently-announced pilot for the electronic recordation system.26 The Office also seeks further input from the public regarding two additional issues: (1) How the Office might implement a system that would allow users to make post-registration amendments to rights and permissions and unique identifier information; and (2) further considerations related to the possibility of permitting the voluntary submission of an additional publicfacing deposit, that may display lowresolution or incomplete portions of the registered work to enhance the public record. 20 84 FR at 66328 (citing Copyright Alliance Comments, at 5 (Jan. 15, 2019)). 21 Letter from Carla Hayden, Librarian of Congress, and Karyn A. Temple, Register of Copyrights & Dir., to Hon. Thom Tillis, United States Senate, 2–3 (Sept. 30, 2019), https:// www.copyright.gov/rulemaking/reg-modernization/ letter-to-senator-thom-tillis.pdf. 22 As one exception; separately, the Office has issued two interim rules connected to the related IT modernization efforts with respect to its Recordation program. See Modernizing Copyright Recordation, 82 FR 52213 (Nov. 13, 2017); 85 FR 3854 (Jan. 23, 2020). 23 U.S. Copyright Office, Copyright Modernization, https://www.copyright.gov/ copyright-modernization/. 24 U.S. Copyright Office, Modernization Webinar, https://www.copyright.gov/copyrightmodernization/webinar/. 25 Letter from Carla Hayden, Librarian of Congress, and Karyn A. Temple, Register of Copyrights & Dir., to Hon. Thom Tillis, United States Senate, 4–5 (Sept. 30, 2019), https:// www.copyright.gov/rulemaking/reg-modernization/ letter-to-senator-thom-tillis.pdf; Letter from Carla Hayden, Librarian of Congress, to Thom Tillis, Chairman, S. Comm. on the Judiciary, Subcomm. on Intellectual Prop., and Christopher A. Coons, Ranking Member, S. Comm. on the Judiciary, Subcomm. on Intellectual Prop., 8–9 (Jan. 7, 2020), https://www.judiciary.senate.gov/imo/media/doc/ Hayden%20Responses%20to%20QFRs.pdf. 26 See 85 FR at 3854. PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\03MRP3.SGM 03MRP3 12706 Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules I. Registration Practice Updates (A) The Application Process: How Users Engage With the Registration System (1) New Application Assistance Tools Recognizing that users approach the system with varying levels of understanding of copyright law and technical experience, the NOI sought input on how the Office should integrate in-application support and assistance to users of the electronic registration system. The Office proposed multi-tiered support options to offer basic, intermediate, or in-depth support based on user experience level.27 All commenters expressed support for some form of improved assistance for users.28 Some encouraged the Office to focus on improving the materials and resources currently available to applicants, with, for example, the AAP and the Motion Picture Association of America, Inc. (‘‘MPAA’’) urging the Office to expand upon its existing Frequently Asked Questions web page.29 The Association of Medical Illustrators (‘‘AMI’’) proposed that the Office provide a service similar to that of the U.S. Patent and Trademark Office (‘‘USPTO’’), which ‘‘maintains an inventor assistance hotline as well as a call center providing live, telephonic assistance in resolving problems of formalities of electronically submitted patent applications.’’ 30 Other commenters recommended the development of new in-application assistance tools. For example, GAG suggested that the Office incorporate frequently asked questions and answers ‘‘throughout the registration application stream (possibly within an interactive widget that won’t clutter or obstruct the interface).’’ 31 The New York Intellectual Property Law Association (‘‘NYIPLA’’) urged the Office to provide ‘‘more information and guidance in the online forms themselves,’’ and suggested that the USPTO’s ‘‘method of providing links to pop-up windows with additional information provides a good 27 83 FR at 52338. AIPLA Comments, at 2 (‘‘AIPLA . . . supports including more embedded links to provide immediate help in completing each section of the online application.’’); Copyright Alliance Comments, at 4 (‘‘As an organization that represents a diverse group of copyright owners—including individual creators, and small and large businesses—the Copyright Alliance supports a multi-tier approach to in-application support and assistance that would more effectively meet the specific needs of both novice and experienced applicants.’’); NMPA Comments, at 3 (‘‘NMPA supports a multi-tiered approach to in-application assistance.’’). 29 AAP Comments, at 4; MPAA Comments, at 2– 3 (Jan. 15, 2019). 30 AMI Comments, at 3 (Jan. 15, 2019). 31 GAG Comments, at 3. lotter on DSKBCFDHB2PROD with PROPOSALS3 28 See VerDate Sep<11>2014 19:25 Mar 02, 2020 Jkt 250001 model for how information can be presented to users.’’ 32 The Office will pursue both approaches. The Office is updating its website to provide additional guidance that applicants can consult before they begin or while they are completing an application. In addition to improving existing FAQs, the Office is updating its questionnaires and adding video tutorials. The Office also will request development of new tools for inapplication assistance, such as the tiered system proposed in the 2018 NOI, subject to usability testing during the OCIO’s ECS development. (2) Electronic Applications The 2018 NOI sought comment on whether the Office should switch to a strictly-electronic system. After considering the feedback received, the Office will continue to encourage the use of electronic applications over paper forms by differentiating the fees for the standard and paper applications. But it will not, at this time, eliminate paper applications. While paper applications remain the most cumbersome for the Office to ingest and examine,33 these forms serve populations that do not have access to a computer or the internet. The Office notes GAG’s comment that ‘‘there will always be a certain portion of the population who, for various reasons (such as disability, distance from libraries, time constraints, etc.) are unable to avail themselves of those resources.’’ 34 Additionally, several commenters expressed concerns about potential technology failures.35 The 2018 NOI also sought input on whether to switch to electronic-only payment methods, eliminating the instances where payments may be made by cash or check. After consideration of these comments and review of the various regulatory provisions regarding 32 NYIPLA Comments, at 2 (Jan. 15, 2019). 83 FR at 52338 (noting that ‘‘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.’’). 34 GAG Comments, at 4. 35 AIPLA Comments, at 2 (‘‘[T]echnology has limitations and suffers downtime and failures. It is often critically important that applicants file within strict time requirements to enforce their rights in court (17 U.S.C. 411) or avoid losing statutory benefits (17 U.S.C. 412).’’); GAG Comments, at 4 (‘‘Paper applications . . . fill in the gap when a system outage or government shutdown make the eCO system unavailable.’’); NMPA Comments, at 6 (‘‘[O]ur members who opt for the paper application largely do so because of negative experiences with the electronic system or interfering outages. Our members have found paper applications a useful backup option for when the electronic system is down.’’). 33 See PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 payments,36 the Office has determined to issue a separate notice to discuss proposed changes to streamline and harmonize its payment processing rules. The Office may separately consider questions related to the feasibility of subscription pricing under its current statutory authority. (3) Electronic Certificates Upon approving an application for registration of a copyright claim, the Office issues a certificate of registration.37 While the Office has traditionally issued certificates in paper form, the 2018 NOI proposed providing electronic certificates in a secure form to ensure authenticity. The cost of the electronic certificate would be included in the registration fee. The Office proposed that it would provide paper certificates upon request for an additional fee.38 All commenters supported the issuance of electronic certificates.39 In response to the Office’s explanation that printing paper certificates ‘‘requires a substantial amount of resources both in terms of employee compensation and the cost of maintaining printing equipment,’’ 40 AMI agreed that ‘‘resources currently utilized for printing and mailing paper certificates should be redirected to other services, such as better application assistance.’’ 41 The Office accordingly will issue electronic certificates in the new ECS as a matter of course. The Office intends to offer paper certificates for an additional fee.42 In addition, as noted below, the Office has determined that it is appropriate for these electronic certificates to be viewable in the public record. Some commenters expressed concern about whether courts would accept 36 See, e.g., 37 CFR 201.6(a), 201.33(e)(2), 201.39(g)(3), 202.12(c)(2)(ii), 202.23(e)(2). 37 17 U.S.C. 410(a), 708(a)(1). 38 83 FR at 52338–39; see 37 CFR 201.3(c)(14) (2019) (fee for obtaining an additional certificate). 39 See, e.g., Author Services, Inc. Comments, at 2 (Jan. 8, 2019) (‘‘We support this proposal’’); Copyright Alliance Comments, at 9 (‘‘The Copyright Alliance supports the Office’s proposal to issue electronic certificates in lieu of paper copies and only offer paper certificates for an additional fee’’); GAG Comments, at 4 (‘‘We agree with the Copyright Office’s proposal that registration certificates be supplied as electronic documents with validating watermarks, etc.’’); MPAA Comments, at 5 (‘‘The MPAA has no objection to the Office issuing electronic certificates in the normal course, with paper certificates available for an additional fee.’’); News Media Alliance (‘‘NMA’’) Comments, at 4 (Jan. 15, 2019) (‘‘The Alliance supports the issuance of electronic certificates, particularly if it would expedite the application process and the resulting savings are used to offset costs to the registrants.’’). 40 83 FR at 52338. 41 AMI Comments, at 4. 42 The Office will issue a notice regarding any additional fees. See 17 U.S.C. 708. E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules electronic certificates.43 The Office will request implementation of visual markers, such as watermarks, to indicate that an Office-issued electronic registration certificate is indeed authentic. (B) Application Information: The Information Requested on the Application for Registration (1) Simplifying the Authorship Statement lotter on DSKBCFDHB2PROD with PROPOSALS3 The Copyright Act does not require registration applicants to describe the type of work for which registration is sought, except in the case of a compilation or derivative work.44 But the Act permits the Register to require ‘‘any other information’’ that bears ‘‘upon the preparation or identification of the work or the existence, ownership, or duration of the copyright.’’ 45 Thus, under current practices, ‘‘[t]o register a work of authorship, the applicant must file an application that clearly identifies the copyrightable authorship that the applicant intends to register.’’ 46 In the online application, the applicant can identify that authorship by ‘‘checking one or more of the boxes in the Author Created field that accurately describe the authorship.’’ 47 The options available vary depending on the type of application in use (e.g., Literary, Visual Arts, or Performing Arts). If registering a literary work, the options are ‘‘text,’’ ‘‘computer program,’’ ‘‘photograph(s),’’ or ‘‘artwork.’’ If registering a visual arts work, the options include ‘‘photograph’’ and ‘‘two-dimensional artwork,’’ among others. If registering a performing arts work, the options include ‘‘music,’’ ‘‘lyrics,’’ ‘‘other text (includes script, screenplay, dramatic work),’’ and ‘‘musical arrangement.’’ As a result, works are described by their individual elements (e.g., text, lyrics, or twodimensional artwork), rather than by a holistic description of the work such as ‘‘children’s book with illustrations,’’ ‘‘research paper,’’ or ‘‘craft book with photographs,’’ which may be more helpful for future identification purposes. Seeking to capture a more complete description of works submitted for registration, the Office proposed to adjust the Author Created section and ask applicants to identify 43 Copyright Alliance Comments, at 9; MPAA Comments, at 5–6; NMPA Comments at 7; NYIPLA Comments, at 2; RIAA Comments, at 3. 44 See 17 U.S.C. 409(1)–(10). 45 Id. at 409(10). 46 U.S. Copyright Office, Compendium of U.S. Copyright Office Practices sec. 618.1 (3d ed. 2017) (‘‘Compendium (Third)’’). 47 Id. at sec. 618.4(A). VerDate Sep<11>2014 19:25 Mar 02, 2020 Jkt 250001 the work as a whole instead of the work’s individual elements.48 Although the Office did not receive comments objecting to the adjustment of this requirement per se, several commenters opposed the wholesale elimination of the online application’s Author Created section.49 For example, AAP argued that it is ‘‘helpful to the public record to have an applicant name the authorship, what is being registered, what is being disclaimed, and other such pertinent information.’’ 50 The Office agrees that authorship descriptions provide pertinent information concerning registered works, and does not intend a complete removal of the Author Created section. Rather, the Office will request that the OCIO explore two complementary methods to obtain more complete and specific descriptions of works. First, the Office will request exploration of using tiers of descriptions that permit the applicant to gradually narrow the identification of their work using a more expanded decision tree format. Under this approach, the system would allow applicants to identify the work submitted for registration by using general and specific pre-populated descriptions, as well as a free-form space allowing applicants to provide more descriptive, non-legal information. General descriptions would include the categories of authorship set forth in section 102 of the Copyright Act, while specific descriptions could include particular types of works within those categories—for example, ‘‘novel,’’ ‘‘poem,’’ ‘‘article’’ or ‘‘podcast.’’ After testing the feasibility of this approach, the Office will provide guidance regarding whether this method is preferable to the current format. Second, and potentially additive of the first approach, the Office will request that the OCIO investigate developing a table of crowdsourced descriptions, using as a model the USPTO’s Trademark Identification Manual, which provides users with acceptable identifications of goods and services for use in trademark applications.51 This option would allow examiners to curate acceptable descriptions encountered through the examination process to add to the database, and for an applicant to rely upon this list for guidance in describing their work. This would allow the Office to consider and adopt industry-specific or specialized descriptors for applications on a going-forward basis. For paper applications, the Office will permit the examiner to provide a description of the work submitted for registration where no description is provided by the applicant. Although commenters were not supportive of examiners providing work descriptions, arguing that it would ‘‘likely increase the workload of examiners and could have the effect of lengthening registration times and increasing costs,’’ 52 on average, paper applications comprise only 4% of all applications that the Office receives.53 A common error that the Office encounters is a blank authorship section. Allowing examiners to provide this information would improve efficiency by reducing the correspondence required to obtain omitted authorship statements, which, as the Office has noted, ‘‘imposes significant burdens on the Office’s limited resources, and has had an adverse effect on the [pendency of] examination of claims submitted on electronic forms.’’ 54 (2) Derivative Works For a compilation or derivative work, the Copyright Act requires copyright registration applicants to identify ‘‘any preexisting work or works that it is based on or incorporates’’ and to provide ‘‘a brief, general statement of the additional material covered by the copyright claim being registered.’’ 55 Generally, the Office attempts to obtain this information in two steps. First, the applicant must ‘‘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 that describe the new material the applicant intends to register, or by providing a descriptive statement in the ‘‘Nature of Authorship’’ space on the paper application.56 Second, if the derivative work contains an appreciable amount of preexisting material that was 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 of the paper application.57 This 52 NMPA 48 83 FR at 52339–40. 49 See, e.g., AIPLA Comments, at 3–4; Authors Guild, Inc. (‘‘Authors Guild’’) Comments, at 3 (Jan. 15, 2019). 50 AAP Comments, at 5. 51 See USPTO, Trademark ID Manual, https:// idm-tmng.uspto.gov/id-master-list-public.html. PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 12707 Comments, at 11. Copyright Office, Registration Processing Times, https://www.copyright.gov/registration/ docs/processing-times-faqs.pdf. 54 83 FR at 52338. 55 17 U.S.C. 409(9). 56 Compendium (Third) sec. 618.5. 57 Id. 53 U.S. E:\FR\FM\03MRP3.SGM 03MRP3 12708 Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules method can lead to gaps in the public record because it ‘‘encourage[s] applicants to identify individual elements of the work that should be excluded from the claim,’’ but it does not require applicants to identify the preexisting work itself.58 Further, in the Office’s experience, the checkboxes provided on the application may limit applicants’ ability to fully describe the nature of their claims, leading to errors in identifying new or preexisting material. For example, using the checkboxes, applicants often mark the ‘‘Material Included’’ as ‘‘text’’ and the ‘‘Material Excluded’’ also as ‘‘text.’’ These descriptions do not add any meaningful information to users of the public record. To avoid this result, the 2018 NOI proposed requiring applicants to identify explicitly whether a work submitted for registration is a derivative work. If the work is identified as derivative, applicants would be directed to identify, in their own words, any elements that should be excluded from the claim. And, assuming that the applicant intends to register all copyrightable aspects of the work that have not been expressly disclaimed, the applicant would not be required to identify the new material that should be ‘‘included’’ in the claim.59 While most commenters acknowledged that it would benefit the public record to require applicants to explicitly identify derivative works submitted for registration,60 some were concerned that such a requirement would cause confusion. For example, the Copyright Alliance had ‘‘concerns that novice applicants might be confused about how to answer such a question,’’ believing that it ‘‘would require an understanding of the nuance between ‘transformation’ as it is used in fair use, and ‘transform’ as it is used to define a derivative work.’’ 61 GAG likewise noted that ‘‘novice users (and even experience[d] users) are often tripped up in interpreting whether a work is derivative.’’ 62 Instead of asking whether a work is a derivative work, commenters argued that the Office 58 83 FR at 52341. lotter on DSKBCFDHB2PROD with PROPOSALS3 59 Id. 60 See, e.g., AIPLA Comments, at 4 (‘‘AIPLA believes that applicants should be required to identify whether the work submitted for registration is a derivative work’’); AMI Comments, at 6 (‘‘The AMI would not object to asking applicants to affirmatively state whether a work submitted is derivative provid[ed] the application form makes it crystal clear as to what constitutes a derivative work.’’); NYIPLA Comments, at 3 (‘‘It is often helpful to know whether a registered work is a derivative work’’). 61 Copyright Alliance Comments, at 17. 62 GAG Comments, at 7. VerDate Sep<11>2014 19:25 Mar 02, 2020 Jkt 250001 should ask ‘‘whether preexisting works have been used, and if yes, what those works are.’’ 63 Some commenters also expressed concern that eliminating the requirement to identify the new material that should be included in the claim would ‘‘wreak havoc with the Copyright Office’s objective to produce as accurate a public record as possible.’’ 64 Others supported this proposed approach. AMI opined that eliminating ‘‘cumbersome checkboxes’’ and allowing applicants ‘‘to more easily explain in their own words the elements that are pre-existing versus the ‘new material to be included’ ’’ would simplify the registration process for such works.65 AIPLA agreed that ‘‘asking the applicant to identify the new authorship is unnecessary . . . and that the Office should assume that the applicant intends to register all copyrightable aspects of the work.’’ 66 After reviewing the comments, the Office continues to believe that the current identification process should be simplified, but agrees that use of the term ‘‘derivative work’’ may cause confusion. Instead, the Office will provide a business requirement that the revised electronic application ask applicants, in plain language, about the facts relating to the authorship of the work (e.g., Is the work based on one or more preexisting works? Does the work incorporate any preexisting work?). The Office will request that the system allow applicants to identify any elements that should be excluded from the claim using their own words, rather than a set of predetermined checkboxes. This approach is intended to streamline the process by which applicants can disclaim preexisting material. (3) Simplifying the Transfer Statement An application for registration must identify the copyright claimant.67 The ‘‘claimant’’ is either the author(s) of the 63 Id.; see American Bar Association Section of Intellectual Property Law (‘‘ABA–IPL’’) Comments, at 5 (Jan. 9, 2019) (‘‘The Section suggests that a simpler process for soliciting factual information about preexisting materials would be to include questions requiring ‘yes/no’ responses’’). 64 AAP Comments, at 6. 65 AMI Comments, at 5 (citation omitted). 66 AIPLA Comments, at 4; see also New Media Rights (‘‘NMR’’) Comments, at 17 (Jan. 15, 2019) (‘‘If the user disclaims content, presumably the rest of the protectable audiovisual work is original content created by the author, so the ‘New Material Included’ category does not seem necessary or relevant unless the work being registered is a new edition of a previously registered work (which is a very specific subset of content).’’); AAP Comments, at 5 (‘‘AAP members are in favor of asking applicants to explicitly identify whether a work submitted for registration is a derivative work and to identify, in their own words, any elements that should be excluded from the claim.’’). 67 17 U.S.C. 409(1). PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 work submitted for registration,68 or an individual or organization that owns all of the rights under copyright.69 To register a claim of copyright, ‘‘if the copyright claimant is not the author,’’ the copyright registration application must include ‘‘a brief statement of how the claimant obtained ownership of the copyright.’’ 70 This ‘‘brief statement’’ is termed a transfer statement. Further, the Copyright Act specifies that copyright may be transferred (1) ‘‘by any means of conveyance,’’ (2) ‘‘by will or . . . by the applicable laws of intestate succession,’’ or (3) ‘‘by operation of law,’’ and so the transfer statement must fit within these statutory guidelines.71 As the 2018 NOI explained, the current online registration application allows applicants to provide a transfer statement by selecting one of three options in a drop-down menu marked ‘‘Transfer Statement.’’ The three options are ‘‘By written agreement,’’ ‘‘By inheritance,’’ and ‘‘Other.’’ The Compendium of U.S. Copyright Office Practices provides that ‘‘[i]f the claimant obtained the copyright through an assignment, contract, or other written agreement, the applicant should select ‘By written agreement.’ ’’ 72 And ‘‘[i]f the claimant obtained the copyright through a will, bequest, or other form of inheritance, the applicant should select ‘By inheritance.’ ’’ 73 The applicant may select ‘‘Other’’ and provide a more specific transfer statement in a blank space marked ‘‘Transfer Statement Other’’ if ‘‘By written agreement’’ or ‘‘By inheritance’’ do not fully describe the transfer. In the 2018 NOI, the Office proposed eliminating the ‘‘Other’’ option both to avoid confusion among applicants and to better align the process with the statutory text. Applicants often provide conflicting information when they select the ‘‘Other’’ option, which requires examiners to expend time to correspond with applicants to correct the application and delays the resolution of claims. Because the methods of transfer are limited by section 201, practically 68 Id. at 201(a) (‘‘Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.’’). 69 Id. at 201(d)(1) (‘‘The 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.’’); 37 CFR 202.3(a)(3) (defining claimant as the author of a work or the person or organization that has obtained all rights under copyright initially belonging to the author). 70 17 U.S.C. 409(5). 71 Id. at 201(d)(1). 72 Compendium (Third) sec. 620.9(A). 73 Id. E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules lotter on DSKBCFDHB2PROD with PROPOSALS3 speaking, the only correct statement that can be provided in the ‘‘Other’’ space is a transfer occurring ‘‘by operation of law,’’ a legal concept referring to rights that arise under specific contingencies such as by court-ordered or bankruptcyrelated transfers, certain forms of acquisitions such as stock sales, or explicit agreements providing for joint ownership with rights of survivorship.74 The Office accordingly proposed to replace the ‘‘Other’’ option with ‘‘By operation of law.’’ 75 Most commenters supported the Office’s proposal, agreeing that it would ‘‘simplify and clarify the process for completing transfer statements.’’ 76 Others, however, expressed concern about the proposed change. For example, the Authors Guild argued that the ‘‘means of acquiring ownership other than by written transfer or inheritance should be spelled out in a dropdown menu in plain English and explained’’ because ‘‘ ‘By operation of law’ is a broad and legal term that nonlawyers won’t necessarily understand.’’ 77 AAP opposed removing the ‘‘Transfer Statement Other’’ field, recommending ‘‘a flexible and open format to accommodate sufficient explanation in cases of complicated transfer statements’’ to support a ‘‘robust and useful public record.’’ 78 As several commenters pointed out, copyright transfer remains a confusing area of law for many applicants.79 While it might at first seem that giving applicants more space to describe their particular transfer scenario would enhance the public record, the Office’s experience indicates that an open format text box can give rise to inconsistent information, while increasing registration processing time due to the need for correspondence. Therefore, the Office tentatively concludes it would be optimal to eliminate the ‘‘Other’’ field and restrict 74 See David Nimmer & Melville Nimmer, 3 Nimmer on Copyright sec. 10.03(A)(6) (2019). 75 83 FR at 52341. 76 NYIPLA Comments, at 3; see also AMI Comments, at 6 (‘‘The AMI supports simplification of transfer statements.’’); International Trademark Association (‘‘INTA’’) Comments, at 7 (Jan. 10, 2019) (‘‘[S]ince Copyright Act Section 201(d)(1) provides for transfer of an author’s interest only by written agreement, inheritance, or operation of law, limiting the transfer statement to these three categories is advisable.’’); MPAA Comments, at 9 (‘‘The only options that should be available to registrants in describing a transfer of ownership are those mentioned in 17 U.S.C. 201: ‘by written agreement,’ ‘by inheritance,’ or ‘by operation of law.’ There is no statutory justification for the ‘Other’ option, which should be eliminated.’’). 77 Authors Guild Comments, at 4. 78 AAP Comments, at 6. 79 See Authors Guild Comments, at 4; Copyright Alliance Comments, at 17; GAG Comments, at 7; INTA Comments, at 7. VerDate Sep<11>2014 19:25 Mar 02, 2020 Jkt 250001 the available fields to ‘‘By written agreement,’’ ‘‘By inheritance,’’ and ‘‘By operation of law’’ to improve efficiency. Rather than requiring applicants to describe the transfer in their own words, the Office intends to provide guidance, such as information icons or other inapplication assistance, to provide a clear definition of each transfer statement option for applicants, including, in particular, to explain what instances may constitute a transfer ‘‘by operation of law.’’ The Office is also exploring the value of providing a space for applicants to add any recordation document numbers that support the transfer statement. While a copy of an agreement, conveyance, or other legal instrument is not an acceptable substitute for a transfer statement,80 if such an instrument has been recorded with the Office, the relevant recordation information may be valuable to the registration record. Should this option prove feasible, the Office will provide in-application guidance on relevant document recordation topics. (4) In-Process Corrections The current online registration system does not permit applicants to make manual corrections once an application is submitted to the Office. The applicant must contact the Public Information Office to ask the Office to make any necessary corrections. For the new ECS, the Office proposed removing this limitation and permitting applicants to make changes to pending applications at any point before an examiner opens the application for review.81 All commenters supported this proposal,82 but several requested that the ECS warn applicants when an amendment would change a work’s Effective Date of Registration.83 ImageRights International, Inc. (‘‘ImageRights’’) recommended that the system ‘‘present a schedule of what 80 Compendium (Third) sec. 620.10(A). FR at 52341. 82 See, e.g., AIPLA Comments, at 5 (‘‘AIPLA supports permitting applicants to make edits to pending applications in most circumstances.’’); AAP Comments, at 6 (‘‘AAP members generally support the proposal of allowing applicants to make in-process edits to open cases prior to the examination of application materials.’’). 83 AAP Comments, at 6 (‘‘We trust the Office would establish clear parameters and practices as to when such corrections would trigger a change in the effective date of registration.’’); Copyright Alliance Comments, at 18 (‘‘The Office should permit applicants to make in-process edits to open cases at any point prior to the examination of the application materials, provided that the Office clearly warns applicants prior to making changes that a modification could alter the effective date depending on the type of change and explains the types of changes that would result in change in the effective date.’’). 81 83 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 12709 types of changes can be made without altering the Effective Date of Registration and which changes would change the Effective Date.’’ 84 In general, to establish an Effective Date of Registration, the Office must receive an acceptable application, a complete deposit copy, and the appropriate filing fee.85 The Effective Date of Registration is the date the Office receives all three of these elements, but ‘‘[w]here the three necessary elements are received at different times the date of receipt of the last of them is controlling.’’ 86 The Compendium sets forth the minimum requirements for an acceptable application, deposit copy, and filing fee.87 In consideration of the comments, the Office envisions that the new ECS will incorporate these current rules to warn applicants when an amendment would alter the Effective Date of Registration. (5) Application Programming Interfaces (‘‘APIs’’) A copyright system of the twenty-first century demands flexibility, agility, and adaptability to technological advancements. The Office believes that the use of APIs—interfaces that permit communication between two systems or software programs—could improve the registration system by enabling programs used in the process of creating works to submit copyright registration applications or extract data from the online public record. To explore possible uses of this technology in the new ECS, the Office invited comment on how it could use APIs to integrate external data into the registration system or allow parties to export internal data from the Office’s registry. The Office also inquired about relevant design considerations, such as establishing a trusted provider framework to minimize spam submissions and deter predatory behavior.88 Commenters generally agreed that using APIs would benefit registration applicants and users of the online public record,89 although some 84 ImageRights Comments, at 6 (Jan. 15, 2019). (Third) sec. 625. 86 H.R. Rep. No. 94–1476, at 157 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5773. 87 Compendium (Third) sec. 625. 88 83 FR at 52342–43. 89 Artists Rights Society Comments, at 4 (Jan. 10, 2019) (‘‘ARS . . . would welcome the opportunity to develop in cooperation with the Office an API that would be tailored to the needs of ARS members so that when members sign up with ARS . . . they also might be able to complete an electronic registration form.’’); CVA Comments, at 27–28 (encouraging the Office ‘‘to develop robust Application Programming Interfaces (APIs) that will 85 Compendium E:\FR\FM\03MRP3.SGM Continued 03MRP3 12710 Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules lotter on DSKBCFDHB2PROD with PROPOSALS3 commenters urged the Office to provide adequate safeguards to protect the security of the data and to guard against abuses by bad actors.90 With stakeholder support, the Office will continue to explore and clarify its business needs related to the use of APIs for two purposes: (1) Ingesting data into the Office online registration system, and (2) extracting information from the online public record. Of course, any new functionality must provide appropriate security for all relevant data. The Office will continue to communicate this need to the OCIO. Initially, the Office will prioritize investigation of ways to allow for the transmission of data between the registration system and the database of musical works information that will be administered by the Mechanical Licensing Collective (‘‘MLC’’) pursuant to the Orrin G. Hatch–Bob Goodlatte Music Modernization Act.91 The MLC database will contain information relating to musical works (and shares of such works) and, to the extent known, the identity and location of the copyright owners of such works and the sound recordings in which the musical works are embodied.92 To reduce the incidence of unmatched works, where the copyright owner has not been identified or located, the MLC will operate a claiming process by which musical work copyright owners may identify their ownership interests in a musical work underlying a specific sound recording, to receive accrued royalties for the usage of that musical work.93 By law, the Copyright Office may access the database in a bulk, machinereadable format, although the Office may not treat the database or any of its information therein as a Government record.94 As some have suggested,95 allow third-party image management software to interface directly with the Copyright Office’s registration system’’); Copyright Alliance Comments, at 21 (expressing support for ‘‘allowing third-parties to interoperate with the Office’s API in a way that would integrate registration into a creator’s workflow to streamline and simplify the registration process’’); GAG Comments, at 8 (expressing support for the ‘‘integration of APIs into the registration system so that registration becomes part of a creator’s workflow’’). 90 See, e.g., Copyright Alliance Comments, at 23 (urging the Office to ‘‘create terms of service for access to its API,’’ which would allow the Office ‘‘to block access . . . [by] third parties who abuse the APIs’’ though spam submissions or predatory behavior); PPA Comments, at 16 (stating that the Office must ensure that ‘‘the process is secure and able to handle the influx of data’’). 91 Public Law 115–264, 132 Stat. 3676 (2018). 92 17 U.S.C. 115(d)(3)(C). 93 Id. at 115(d)(3)(I), (J)(iii); see id. at 115(e)(35). 94 Id. at 115(d)(3)(E)(v). 95 David C. Lowery, Simplifying Registration and Costs for MLC, The Trichordist (Nov. 6, 2019), VerDate Sep<11>2014 19:25 Mar 02, 2020 Jkt 250001 providing a method of access between the copyright and MLC registration systems could permit a copyright owner to verify or update ownership information with respect to musical works listed in the MLC database alongside the process of completing a copyright registration application for that work, or vice versa. The Office has concluded that the MLC database represents an appropriate starting point for API development. While the Office will prioritize this aspect, the Office will also work with the OCIO to explore additional avenues to facilitate the ingestion and exportation of data through APIs, while ensuring the integrity of registration records and safeguarding against abuses. (C) Public Record: How Users Engage and Manage Copyright Office Records (1) The Online Registration Record The Copyright Act charges the Copyright Office with ensuring ‘‘that records of deposits, registrations, recordations, and other actions taken under this title are maintained’’ and are ‘‘open to public inspection.’’ 96 The 2018 NOI proposed to expand the online public record to include records of pending applications, refusals, closures, appeals, and correspondence for completed claims. This proposal received significant support from many commenters. For example, the American Association of Law Libraries (‘‘AALL’’) supported ‘‘publishing refused registration application records, full versions of correspondence records, and associated appeal records in the online public record because we believe it would help the public better understand the originality requirement in copyright law and assist those who wish to register a claim to a copyright understand the contours of what ‘constitute[s] copyrightable subject matter.’ ’’ 97 Similarly, AIPLA noted that ‘‘the need for full information regarding an application and registration is often crucial for litigation, licensing, and corporate diligence, among other circumstances.’’ 98 Some commenters, however, expressed concern that records of correspondence may expose personally identifiable information or informal https://thetrichordist.com/2019/11/06/simplifyregistration-and-costs-for-mlc/ (‘‘It seems like a simple solution for the Copyright Office to harmonize [the online registration system and the MLC database] to . . . have a check box to allow you to sign up with the MLC.’’). 96 17 U.S.C. 705. 97 AALL Comments, at 1 (Jan. 14, 2019) (citing 17 U.S.C. 410(b)). 98 AIPLA Comments, at 6. PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 communications that applicants may not wish to make public. Explaining that ‘‘[c]orrespondence between applicants and the Office is often informal,’’ AAP argued that including such materials ‘‘would not be appropriate [or] useful for the Public Record and could be misused by persons who have no claim to the work in question.’’ 99 Other commenters argued that the public record should be limited to records of what has been registered by the Copyright Office.100 NMPA, for example, contended that ‘‘[o]nly a subset of copyrights would benefit from the inclusion of . . . additional information in the Online Public Record’’ and that ‘‘[i]ncluding large amounts of administrative information concerning a registration would likely slow the system down and be an inefficient use of the Office’s resources.’’ 101 Current law and regulations require the Office to make available for public inspection any ‘‘[o]fficial correspondence, including preliminary applications, between copyright claimants or their agents and the Copyright Office, and directly relating to a completed registration, a recorded document, a rejected application for registration, or a document for which recordation was refused.’’ 102 Further, the current registration application displays a privacy notice stating that the information collected for registration ‘‘will appear in the Office’s online catalog.’’ 103 Given that registration records are already available for public inspection and copying,104 the Office does not see a persuasive basis for categorically excluding them from online availability, although the Office will approach historical materials sensitively to address any potential notice or privacy considerations. 99 AAP Comments, at 7. e.g., RIAA Comments, at 8 (‘‘The online public record should support its primary purpose to notify the public of which works have been registered, and not be appended in a manner that detracts or dilutes from this important function.’’). 101 NMPA Comments, at 17–18. 102 37 CFR 201.2(c)(1); see also 17 U.S.C. 705. 103 U.S. Copyright Office, eCO Registration System Standard Application, https:// eco.copyright.gov/ (‘‘Privacy Act Notice: Sections 408–410 of title 17 of the United States Code authorize the Copyright Office to collect the personally identifying information requested on this form in order to process the application for copyright registration. By providing this information you are agreeing to routine uses of the information that include publication to give legal notice of your copyright claim as required by 17 U.S.C. 705. It will appear in the Office’s online catalog. If you do not provide the information requested, registration may be refused or delayed, and you may not be entitled to certain relief, remedies, and benefits under the copyright law.’’). 104 Compendium (Third) sec. 2407.1(B)(1). 100 See, E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules Expanding the online public record to include these materials would advance the Office’s goal to ‘‘[e]xpand access to Copyright Office records’’ and ‘‘[e]nhance services’’ to make it ‘‘easier and more convenient for users to transact business with the Copyright Office.’’ 105 As such, on a prospective basis, the Office will request that the ECS include records of pending applications, refusals, closures, appeals, and correspondence for completed claims in the new online public record. The Office’s PII removal rule will remain in place to provide for removal of extraneous PII from the public record upon request.106 Similarly, the Office will work with the OCIO to make digital copies of registration certificates available in the online public record. (2) Linking Registration and Recordation Records lotter on DSKBCFDHB2PROD with PROPOSALS3 Arising out of historical practice, registration and recordation records are currently maintained as discrete data sets. Because these records are not linked, it can be difficult to identify chain-of-title information for particular works contained in the Office’s records. All commenters supported the Office’s proposal to link registration and recordation records, so that information about registered claims, recorded transfers, and/or other chain of title information can be viewed together to facilitate access to information about copyrighted works, including updated ownership information.107 Because the registration and recordation processes are voluntary, however, commenters also highlighted some areas of caution, which the Office itself is taking into account when developing requirements for the new ECS. For example, RIAA noted that 105 U.S. Copyright Office, Strategic Plan 2019– 2023, Copyright: The Engine of Free Expression 13 (2019), https://www.copyright.gov/reports/strategicplan/USCO-strategic2019-2023.pdf. 106 See 37 CFR 201.2(f). 107 AALL Comments, at 3 (noting that the proposal ‘‘would assist users who are attempting to obtain permission to use a work with accurately identifying and contacting the current copyright owner’’); ABA–IPL Comments, at 7 (‘‘The Section strongly supports connecting registration and recordation records.’’); Authors Alliance Comments, at 5 (Jan. 15, 2019) (noting that the proposal would ‘‘increase[] the likelihood that users will be able to locate current and accurate contact information for copyright holders, better facilitating licensing and permissions requests’’); INTA Comments, at 15 (expressing support for ‘‘provid[ing] chain of title information’’); NMPA Comments, at 18 (‘‘The registration and recordation systems should be fully integrated and should be part of the same database.’’); Nanette Petruzzelli Comments, at 5 (Jan. 14, 2019) (supporting the proposal so that ‘‘public inquiry about the current copyright status of a work can be found in one record/file’’). VerDate Sep<11>2014 19:25 Mar 02, 2020 Jkt 250001 while linking records would be useful, it could ‘‘create confusion where the records are incomplete or the chain of title is unclear.’’ 108 RIAA also expressed concern about ‘‘what legal presumptions may be made based on the chain of title in a recordation record where there is no obligation for a subsequent rights holder to file a transfer or security interest with the Office.’’ 109 The MPAA cautioned that the Office should not ‘‘itself engage in chain-of-title analysis.’’ 110 The Copyright Office appreciates the need for the ECS to clearly communicate the limitations of the public record to users of the system. Currently, the Office warns that while ‘‘[s]earches of the Copyright Office catalogs and records are useful in helping to determine the copyright status of a work . . . they cannot be regarded as conclusive in all cases.’’ 111 The Office will continue to explore ways to minimize confusion on the part of users. For example, the Office may request that the ECS begin by linking only future registration and recordation records. Second, commenters discussed how the Office should display assignment information and documentation within public registration records. The ABA– IPL suggested that the USPTO’s system, which consists of an ‘‘Assignment Abstract of Title’’ linked to the database entry for a mark identified in a search, could be a model for the Copyright Office’s system.112 The NYIPLA similarly suggested that ‘‘the Trademark Office offers a good model in that the application/registration data is directly linked to the chain of title information.’’ 113 The Office found these comments helpful and hopes to work with the OCIO to explore the specific manner of display for the new online public record system. (3) Unified Case Number The Office currently administers and tracks separate numbers for applications, correspondence, and registrations, which creates challenges for the Office and users. To streamline identification methods, the 2018 NOI proposed to unify the Office’s identification numbers to create a clear 108 RIAA Comments, at 8. Comments, at 8. 110 MPAA Comments, at 13. 111 U.S. Copyright Office, Circular 22: How to Investigate the Copyright Status of a Work 3 (Feb. 2013), https://www.copyright.gov/circs/circ22.pdf; see also U.S. Copyright Office, Request a Search Estimate, https://www.copyright.gov/forms/search_ estimate.html. 112 ABA–IPL Comments, at 7. 113 NYIPLA Comments, at 5. 109 RIAA PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 12711 relationship between an application for registration, any correspondence, and any associated request for reconsideration.114 There was a general consensus among commenters in support of the Office’s proposal.115 Accordingly, for future applications, the Office would like the system to adopt one number for any pending application and registration record completed from that application. The Office envisions that the number assigned to an application (the ‘‘case number’’) and the registration number will have an identical base, but the registration number will be distinguished by a prefix that indicates the administrative class or type of registration. For example, case number 12345678 for a performing arts work would become PA12345678, if registered. To further simplify the registration process, the Office will also retire correspondence identification numbers. (D) Digital Deposits In the 2018 NOI, the Office requested comment on whether applicants should be permitted to submit electronic deposit copies, phonorecords, or identifying materials, rather than physical copies or phonorecords, unless the Office requests a physical copy.116 While commenters expressed general support for providing greater flexibility in complying with deposit requirements, the comments raised a number of concerns. The Library of Congress’s Library Services unit expressed concern over the potential effect of such a change on Library collections. Noting that ‘‘[t]he Library depends on the continuing flow of items acquired via Copyright deposit to help build its collection,’’ it noted that ‘‘implementation of this strategy would require that a duplicative process be established to obtain deposit copies for the Library’s collection.’’ 117 Subsequently, in response to a question raised by the Senate Judiciary’s IP Subcommittee, the Librarian of Congress noted that ‘‘a change to a default digital deposit requirement would critically affect our ability to serve some of our 114 83 FR at 52344. generally AIPLA Comments, at 7 (‘‘AIPLA strongly supports this proposal.’’); AAP Comments, at 8 (‘‘AAP members are in favor of unified case numbers to track and identify a work or group of works through the registration and appeals process’’); PPA Comments, at 16 (‘‘PPA supports a single case number which remains with the application through the registration process and after the registration is issued. This will help with tracking and consistency.’’). 116 83 FR at 52344–45. 117 Library of Congress Library Services Comments, at 1–2 (Jan. 15, 2019). 115 See E:\FR\FM\03MRP3.SGM 03MRP3 12712 Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules lotter on DSKBCFDHB2PROD with PROPOSALS3 largest user groups, either by not meeting their preferences or by denying service altogether.’’ 118 Other commenters representing copyright owner interests raised potential security concerns. For example, the Copyright Alliance pointed to the possibility of cyberattacks resulting in unauthorized access to deposit copies.119 AAP stated that ‘‘[p]ublishers would welcome a registration deposit regime that is less burdensome, but only if it is operated in a wholly secure IT system and kept wholly separate from the collections of the Library and its access or interlibrary lending or surplus books policies.’’ 120 In its view, such changes are ‘‘premature and will remain so until the Copyright Office is permitted and able to develop the necessary IT systems and security.’’ 121 The Copyright Office is committed to pursuing any updates to the registration deposit system in a reasonable and conscientious manner. At the same time, due to the wide variety of expressive works that can be registered, spanning physical and digital formats, from individual to large corporate authors, the ECS must be designed in a manner to accommodate submission of both physical and electronic deposits.122 Under the current framework, the Office has recently noted that ‘‘[a]ny future expansion of electronic deposits to additional categories of works will require careful consideration of several factors, including the Library’s collection needs, technological capabilities, and security and access issues.’’ 123 Meanwhile, the Office notes that these issues may overlap with ongoing legislative discussion.124 The Office therefore has 118 Carla Hayden, Librarian of Congress, Responses to Questions for the Record, Subcomm. on Intell. Prop. of the S. Comm. on the Judiciary at 3–4 (Jan. 7, 2020), https:// www.judiciary.senate.gov/imo/media/doc/ Hayden%20Responses%20to%20QFRs.pdf. 119 Copyright Alliance Comments, at 25. 120 AAP Comments, at 2. 121 Id. at 3. 122 The current statutory default instructs owners to submit a deposit of a complete copy of the work and, for works published in the U.S., the best edition of that work (unless regulations permit the deposit of alternate identifying material). 17 U.S.C. 407, 408; 83 FR at 52344. But the statute does not compel authors or publishers to create a special copy for the purpose of copyright registration or to fulfill the separate obligation under section 407. See Mandatory Deposit of Electronic-Only Books, 83 FR 16269, 16274 (notice of proposed rulemaking). 123 Jody Harry, Chief Financial Officer, U.S. Copyright Office, Responses to Questions for the Record, Subcomm. on Intell. Prop. of the S. Comm. on the Judiciary at 13 (Dec. 17, 2019), https:// www.judiciary.senate.gov/imo/media/doc/ Harry%20Responses%20to%20QFRs.pdf. 124 Carla Hayden, Librarian of Congress, Responses to Questions for the Record, Subcomm. VerDate Sep<11>2014 19:25 Mar 02, 2020 Jkt 250001 concluded that consideration of changes to the deposit requirements are beyond the scope of this current notice. As noted, however, the Office and the Library will work collaboratively to develop alternative deposit options ‘‘that appropriately balance security with ease of use. These kinds of important issues will be addressed using transparent processes that invite public comment and participation.’’ 125 II. Additional Subjects of Inquiry In addition to the foregoing practice changes, the Office is continuing to consider additional issues raised in the 2018 NOI and now seeks further comment on the following topics. (A) The Rights and Permissions Field Presently, at the conclusion of an online registration application, the applicant is asked to provide Rights and Permissions information, which may include ‘‘the name, address, and other contact information for the person and/ or organization that should be contacted for permission to use the work.’’ 126 Currently, applicants may provide only one name and address. This information appears in the online public record for the work to facilitate licensing and similar transactions.127 Once a certificate of registration is issued, interested parties may update the Rights and Permissions information by either (1) requesting that the Office remove certain personally identifiable information from the online public record and replace it with substitute information,128 or (2) submitting an application for a supplementary registration.129 To achieve a more flexible amendment process, the 2018 NOI proposed allowing users to 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.130 The on Intell. Prop. of the S. Comm. on the Judiciary at 3 (Jan. 7, 2020), https://www.judiciary.senate.gov/ imo/media/doc/ Hayden%20Responses%20to%20QFRs.pdf (responding to question about draft legislation on the deposit requirement). 125 Id.; see also id. at 4 (‘‘The Library would like to work closely with the Copyright Office to update the best edition statement on a consistent and regular basis.’’). 126 Compendium (Third) sec. 622.1. There is no corresponding space for providing Rights and Permissions information in a paper application. 127 Id. 128 37 CFR 201.2(e)(1); Compendium (Third) sec. 622.1. See generally Removal of Personally Identifiable Information from Registration Records, 82 FR 9004 (Feb. 2, 2017) (final rule). 129 37 CFR 202.6(d), (e); Compendium (Third) sec. 1802. 130 83 FR at 52341–42. PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 overwhelming majority of commenters supported this proposal.131 AALL noted that it would ‘‘better ensure that the information remains up-to-date, thereby reducing the risk of a work becoming an orphan work, encouraging proper attribution by others, and facilitating users [in] properly obtaining permission or a license to use a work.’’ 132 Authors Alliance similarly noted that ‘‘the costs associated with updating the Rights and Permissions field discourages users from updating contact information, leading to inaccurate records and contributing to the orphan works problem.’’ 133 While there was general support for this proposed change, several commenters noted the importance of implementing a corresponding method for authenticating or confirming the identity of registrants, assignees, or their authorized representatives. RIAA stated there must be ‘‘robust security and authentication surrounding the authorized user’s credentials and access to the registration database.’’ 134 Likewise, the Copyright Alliance suggested that ‘‘[t]he ability to make these changes should be restricted to accounts belonging to the rights holder (including a previous rights holder’s verified successor in interest) or their agent’’ to protect ‘‘rights holders and users of the public record from fraud, misrepresentation, inadvertent mistakes and unauthorized changes to the record by third parties.’’ 135 In principle, the Office agrees that the ECS should be designed to encourage copyright owners to keep their contact information up to date, including in cases of transfer, and also that security and access controls will be key to implementing self-service edits.136 The 131 ABA–IPL Comments, at 6 (‘‘[T]he Section supports allowing registrants to update the Rights and Permissions information for their works posted on the public record in a simplified manner’’); AIPLA Comments, at 5 (‘‘AIPLA supports allowing authorized users to make changes to this field’’); Authors Alliance Comments, at 4 (‘‘Authors Alliance supports the Office’s efforts to build a registration interface that allows users to update Rights and Permissions information without having to submit a supplementary registration together with the associated fee’’); INTA Comments, at 9 (‘‘INTA strongly supports making the Online Public Record a more dynamic system by allowing authorized representatives to update rights and permission information’’); NMA Comments, at 5 (‘‘The Alliance supports the proposal to allow authorized users to make changes to the Rights and Permissions field in a completed registration’’). 132 AALL Comments, at 3. 133 Authors Alliance Comments, at 4. 134 RIAA Comments, at 6. 135 Copyright Alliance Comments, at 19. 136 The option to edit Rights and Permissions information will not affect the recordation of documents pertaining to copyright. Rights and Permissions information is limited to contact information (e.g., mailing and/or email addresses). E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules Office seeks additional stakeholder feedback on how the ECS might administer such a service. Specifically, what eligibility criteria should be considered in evaluating the parties seeking to edit Rights and Permissions information? Should this service be limited to users with access to the account through which the original registration was made, or should those users be able to consent or transfer account authorizations associated with individual registrations? Should this service be limited to parties named on the registration certificate and their authorized agents? The Office also seeks stakeholder feedback on whether to expand the Rights and Permissions field to allow users to provide more than one name and address. The Office will share this information with the OCIO to explore technological feasibility, and both the Office and the OCIO have committed to facilitating communication and outreach with users of the prospective system. lotter on DSKBCFDHB2PROD with PROPOSALS3 (B) Additional Data The 2018 NOI invited comment on what additional data could or should be included in the online registration record on a voluntary basis in order to enhance the functionality and value of the system.137 The 2018 NOI noted that the current system already allows applicants to include a number of unique identifiers, 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’’).138 The 2018 NOI inquired whether the Office should consider expanding the number of unique identifiers that may be included on an application, requiring inclusion of unique identifiers if they have been assigned, or establishing a procedure for adding unique identifiers to completed registration records, similar to the proposed procedure for updating the Rights and Permission field.139 Commenters were in favor of having the option to submit additional data as part of the registration application, as long as adding such information is not 137 83 FR at 52342. 138 Id. 139 Id. VerDate Sep<11>2014 19:25 Mar 02, 2020 Jkt 250001 made mandatory.140 Commenters were also in favor of being able to provide unique identifiers to pending and completed registration records, on an optional basis.141 The Office agrees that any new requests for information should not be mandatory. Recognizing that certain standard identifiers may not always be available at the time of the registration application, the Office also appreciates the desire to add identifiers to the record after submission of a registration application, provided the online public record identifies when such amendments are made to completed registration records. The acceptance of post-registration unique identifiers would seem to potentially raise eligibility questions similarly presented with post-registration updates to the rights and permissions field, discussed above. Subject to additional public comment, the Office will work with the OCIO to explore the best ways to enable these types of voluntary submissions in the ECS. In addition, the Office sought comment on whether it should allow applicants to voluntarily upload publicfacing deposit material, such as lowresolution images or sound bites, as part of the registration application.142 The option to include this information would be additive of the existing registration deposit requirement. Such public-facing material might assist in the identification of a work to serve licensing, or even enforcement, purposes. Commenters generally were supportive of this proposal. INTA opined that ‘‘developing a more robust Online Public Record through the uploading of these images and clips will be beneficial by enhancing recognition of the work registered and will also aid in the licensing of those works.’’ 143 NMPA observed that ‘‘[a]llowing applicants to include small sound bites of their works in their application could improve the public record and assist the public in identifying copyright owners.’’ 144 Public Knowledge (‘‘PK’’) and the Association of Real Estate Photographers (‘‘AREP’’) suggested that ‘‘[i]mplementing reverse image search capabilities . . . —and linking those results to rightsholder information— would prov[ide] significant benefits for 140 See ABA–IPL Comments, at 6; AIPLA Comments, at 6; AAP Comments, at 7; AMI Comments, at 7; Copyright Alliance Comments, at 20; Copyright Clearance Center, Inc. Comments, at 2 (Jan. 14, 2019); GAG Comments, at 8; INTA Comments, at 9; Shaftel & Schmelzer Comments, at 17 (Jan. 11, 2019). 141 See Copyright Alliance Comments, at 20; INTA Comments, at 9; MPAA Comments, at 10. 142 83 FR at 52342. 143 INTA Comments, at 9–10. 144 NMPA Comments, at 15. PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 12713 both users and rightsholders.’’ 145 Noting that ‘‘[t[he technology to search by images . . . is widely commercially available,’’ PK and AREP stated that the ability to ‘‘reverse image search existing registrations would assist photographers . . . in protecting their rights online.’’ 146 Other commenters, however, noted that there may be complications in accepting low-resolution or incomplete deposits. Specifically, RIAA argued that collecting sound clips ‘‘would create additional burdens (including, but not limited to, the need to provide ever expanding storage resources for clips) on the Office with, at best, marginal increased utility.’’ 147 It also expressed concern that ‘‘the collection and inclusion of sound clips in the Office’s registration database could turn the database into a de facto, on-demand streaming service that would effectively compete against commercial services licensed by our member companies.’’ 148 Still others discussed the availability of technology to create low-resolution or incomplete copies. For example, ImageRights suggested that there would be ‘‘little point in asking users to provide’’ low-resolution images and sound bites because they ‘‘can be created sufficiently well in an automated way.’’ 149 GiantSteps Media Technology Strategies suggested that the Office use digital finger printing technology to ‘‘allow registrants to deposit digital fingerprints of works, perhaps in addition to low-resolution images, audio clips, and the like.’’ 150 To more fully explore these issues, the Office is interested in receiving additional input on whether and how the new ECS might be designed to include the option to deposit lowresolution or incomplete copies of works for the online public record. Are there certain available technologies that should be considered to automate creation of lower-resolution or shortened clips works to be made available to the public for identification purposes but that would not serve as a substitute for the work? Should the Office establish specifications, such as a 15-second limit on sound clips, or a specific resolution format, with respect to the acceptance of additional, voluntarily submitted data, to minimize interactions with licensing markets? Should this feature be preliminarily 145 PK & AREP Comments, at 3 (Jan. 15, 2019). 146 Id. 147 RIAA Comments, at 6–7. at 7. 149 ImageRights Comments, at 8. 150 GiantSteps Media Technology Strategies Comments, at 3 (Jan. 15, 2019). 148 Id. E:\FR\FM\03MRP3.SGM 03MRP3 12714 Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / Proposed Rules explored in a pilot limited to certain type(s) of works, and if so, which type(s)? The Office invites comment on any additional considerations it should take into account relating to these topics. Dated: February 28, 2020. Regan A. Smith, General Counsel and Associate Register of Copyrights. [FR Doc. 2020–04435 Filed 3–2–20; 8:45 am] lotter on DSKBCFDHB2PROD with PROPOSALS3 BILLING CODE 1410–30–P VerDate Sep<11>2014 19:25 Mar 02, 2020 Jkt 250001 PO 00000 Frm 00012 Fmt 4701 Sfmt 9990 E:\FR\FM\03MRP3.SGM 03MRP3

Agencies

[Federal Register Volume 85, Number 42 (Tuesday, March 3, 2020)]
[Proposed Rules]
[Pages 12704-12714]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-04435]



[[Page 12703]]

Vol. 85

Tuesday,

No. 42

March 3, 2020

Part III





Library of Congress





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Copyright Office





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37 CFR Parts 201 and 202





Registration Modernization; Proposed Rule

Federal Register / Vol. 85, No. 42 / Tuesday, March 3, 2020 / 
Proposed Rules

[[Page 12704]]


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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: Statement of policy and notification of inquiry.

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SUMMARY: In conjunction with the development of new technological 
infrastructure for the copyright registration system, on October 17, 
2018, the U.S. Copyright Office solicited public input regarding 
potential regulatory and practice updates to improve the system's 
efficiency for both users and the Office. The Office sought and 
received public comment on three main areas of proposed reform: The 
administration and substance of the application for registration, the 
utility of the public record, and the deposit requirements for 
registration. After reviewing the comments, the Office is announcing 
intended practice updates, to be adopted in conjunction with the 
deployment of the new technological system that the Library of Congress 
is building for the Office. The Office also seeks further comment on 
two proposals to permit post-registration edits to rights and 
permissions information, and to permit voluntary submission of 
additional deposit information to be included in the public record.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on April 2, 2020.

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, [email protected]; Robert J. 
Kasunic, Associate Register of Copyrights and Director of Registration 
Policy and Practice, [email protected]; Kevin Amer, Deputy General 
Counsel, [email protected]; Erik Bertin, Deputy Director of 
Registration Policy and Practice, [email protected]; or Jalyce E. 
Mangum, Attorney-Advisor, [email protected]. They can be reached by 
telephone at 202-707-3000.

SUPPLEMENTARY INFORMATION: A highly functional registration system is 
of paramount importance to the Copyright Office as it administers title 
17 for the benefit of the nation's thriving copyright ecosystem.\1\ 
Copyright registration provides valuable benefits to copyright owners, 
including providing access to federal court to initiate a lawsuit for 
infringement of a U.S. work,\2\ serving as prima facie evidence of the 
validity of the copyright and the facts stated in the certificate of 
registration,\3\ and enabling copyright owners to seek statutory 
damages and attorneys' fees in litigation for works that are timely 
registered.\4\ Registration also benefits users and prospective users 
of creative works by enabling them to find key facts relating to the 
authorship and ownership of such works in the Office's online public 
record.\5\
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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).
    \3\ 17 U.S.C. 410(c).
    \4\ 17 U.S.C. 412.
    \5\ Additional information is available at https://www.copyright.gov/registration/.
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    Accordingly, modernizing the technological infrastructure of the 
copyright registration system is one of the Office's top priorities. 
The Office is working with the Library of Congress's Office of Chief 
Information Officer (``OCIO''), which is building an enterprise 
copyright system (``ECS'') to improve the Office's provision of 
copyright services to the public, including its registration services. 
Copyright Office information technology (IT) modernization is being 
implemented in accordance with the overall model of IT centralization 
at the Library of Congress. Under this model, ``the Copyright Office, 
with its expertise of both copyright law and its internal systems, 
provides required business features to the OCIO. The OCIO then uses its 
expertise to develop technology solutions to support those features for 
the Copyright Office.'' \6\
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    \6\ Library of Congress Modernization Oversight: Hearing Before 
the S. Comm. on Rules and Admin., 116th Cong. 24 (2019) (Statement 
of Carla Hayden, Librarian of Congress).
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    To take advantage of forthcoming IT modernization development 
efforts and promote an efficient and innovative registration system, 
the Office published a notice of inquiry in October 2018 (``2018 NOI'') 
inviting public comment on several potential practice and policy 
changes to better meet the demands of users of the registration system 
in the digital age.\7\ The 2018 NOI previewed technological features 
that the Office would like to be incorporated into the ECS, including a 
more dynamic application tracking dashboard, an integrated drag-and-
drop submission option for electronic deposits, and an improved 
messaging system to improve communication between the Office and 
applicants.\8\ The Office also announced an intention to display a 
draft version of the registration certificate before final submission 
so that applicants can confirm that they have entered the correct 
information.\9\ In addition to announcing these intended user features, 
the Office posed fifteen questions that fell into three categories of 
possible reform: (1) The administration and substance of the 
application for registration, (2) the utility of the public record, and 
(3) the deposit requirements for registration.\10\
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    \7\ Registration Modernization, 83 FR 52336 (Oct. 17, 2018).
    \8\ Id. at 52337.
    \9\ Id. A similar display feature will be provided in the 
forthcoming electronic recordation system pilot.
    \10\ Id.
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    Commenters expressed broad general support for the proposals set 
forth in the 2018 NOI. The Copyright Alliance was ``pleased that the 
Office is considering a broad range of legal and policy changes 
regarding registration, and seeking input from stakeholders early in 
that process.'' \11\ Noting that ``[a] modernized registration system 
is key for the healthy functioning of the copyright ecosystem in the 
21st century,'' the Association of American Publishers (``AAP'') 
expressed support for many of the Office's ``innovative proposals to 
make the registration process more efficient, intuitive, and 
competitive,'' \12\ and the American Intellectual Property Law 
Association (``AIPLA'') specifically praised the proposed updates that 
would allow ``user-errors [to] be reduced through

[[Page 12705]]

self-correction and proofing prior to filing.'' \13\
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    \11\ Copyright Alliance Comments, at 1-2 (Jan. 15, 2019); see 
also, e.g., National Music Publishers' Association (``NMPA'') 
Comments, at 3 (Jan. 15, 2019) (``NMPA appreciates the opportunity 
to comment on how the Office can design a registration system that 
will fit the needs of the modern music industry.''); Recording 
Industry Association of America, Inc. (``RIAA'') Comments, at 2 
(Jan. 15, 2019) (``RIAA and its members applaud the Copyright Office 
. . . for thinking broadly about a variety of steps that could be 
taken to modernize the current copyright registration process.''). 
Unless otherwise noted, all comments cited refer to comments 
submitted in response to the 2018 Notice of Inquiry Regarding 
Registration Modernization.
    \12\ AAP Comments, at 8 (Jan. 15, 2019).
    \13\ AIPLA Comments, at 2 (Jan. 15, 2019).
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    Other commenters opined that the Office's proposals did not address 
all of the shortcomings of the current registration system. For 
example, the Coalition of Visual Artists (``CVA'') cautioned the Office 
to avoid making incremental improvements when a comprehensive 
modernization effort is necessary to make the registration system 
easier and more cost effective for authors to use.\14\ The Graphic 
Artists Guild (``GAG'') similarly contended that the modernization 
effort should not ``proceed in a piecemeal fashion, without substantive 
changes to a system that for individual visual artists is broken.'' 
\15\ It expressed particular concern about registration processing 
times, highlighting that ``[t]he processing time for the simplest 
online copyright registrations, requiring no communication, averages 
six months.'' \16\
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    \14\ CVA Comments, at 2-3 (Jan. 15, 2019).
    \15\ GAG Comments, at 2 (Jan. 15, 2019).
    \16\ Id. at 1.
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    The Office takes these comments seriously and is pleased to note 
that, separate from the IT modernization process, it already has taken 
significant steps toward addressing a number of commenters' concerns. 
For example, the Office has made extensive efforts to reduce 
registration processing times, particularly in light of the Supreme 
Court's 2019 decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, which confirmed that Copyright Office action on an 
application for registration must be complete before the owner of a 
U.S. work can bring an infringement suit.\17\ Since 2018, the average 
processing time for claims that are received through the electronic 
registration system and do not require correspondence (which make up 
seventy-two percent of claims) has been reduced from six months to 
three months.\18\
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    \17\ 139 S. Ct. 881, 888, 892 (2019).
    \18\ U.S. Copyright Office, Registration Processing Times, 
https://www.copyright.gov/registration/docs/processing-times-faqs.pdf. The data is from April 1 through September 30, 2019.
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    As a second example apart from IT modernization, the Office has 
also issued a notice of inquiry requesting written comments on issues 
relating to online publication, including whether and how to amend its 
registration regulations and other considerations relevant to ensuring 
continued thorough assistance to Congress.\19\ This notice seeks to 
address recent feedback to the Office suggesting that the statutorily-
drawn distinction between published and unpublished works is, as 
Copyright Alliance put it, ``so complex and divergent from an intuitive 
and colloquial understanding of the terms that it serves as a barrier 
to registration, especially with respect to works that are disseminated 
online.'' \20\ The Office will analyze these issues related to online 
publication, as well as other potential practice changes, 
contemporaneously with, yet separately from, the OCIO's efforts to 
upgrade the IT system through establishment of an ECS. While the 
Copyright Office remains dedicated to continuously exploring potential 
regulatory and/or practice changes through public discussion, the 
current Registration Modernization proceeding focuses on the practices 
directly relevant to the pending technological upgrades. The Library 
has committed to an IT development approach that can meet ``the complex 
and unique mission of the Copyright Office today and for the future,'' 
including ``to accommodate possible future legal responsibilities'' and 
to meet ``evolving business needs.'' \21\ To the extent the publication 
proceeding, other pending or future rulemakings, result in regulatory 
or practice changes that need to be accommodated in the Office's 
technology, the Office will communicate those requirements to the OCIO, 
but such changes will be considered separately from the umbrella of 
``modernization.'' \22\
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    \19\ See Online Publication, 84 FR 66328 (Dec. 4, 2019).
    \20\ 84 FR at 66328 (citing Copyright Alliance Comments, at 5 
(Jan. 15, 2019)).
    \21\ Letter from Carla Hayden, Librarian of Congress, and Karyn 
A. Temple, Register of Copyrights & Dir., to Hon. Thom Tillis, 
United States Senate, 2-3 (Sept. 30, 2019), https://www.copyright.gov/rulemaking/reg-modernization/letter-to-senator-thom-tillis.pdf.
    \22\ As one exception; separately, the Office has issued two 
interim rules connected to the related IT modernization efforts with 
respect to its Recordation program. See Modernizing Copyright 
Recordation, 82 FR 52213 (Nov. 13, 2017); 85 FR 3854 (Jan. 23, 
2020).
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    With respect to IT modernization, the Office is prioritizing public 
outreach to gain additional information about the needs and concerns of 
users of the registration system. The Office created a dedicated IT 
modernization web page to keep stakeholders apprised of the status of 
modernization efforts.\23\ In early 2019, the Office launched a 
bimonthly webinar series to report on the progress achieved on IT 
modernization initiatives and to discuss the overall direction of 
modernization.\24\ And the Office continues to meet regularly with 
stakeholders and deliver presentations to external audiences to provide 
updates on modernization activities. OCIO user experience (UX) experts 
are also committed and involved to ensure that development can 
incorporate public input through robust user participation and 
feedback.\25\
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    \23\ U.S. Copyright Office, Copyright Modernization, https://www.copyright.gov/copyright-modernization/.
    \24\ U.S. Copyright Office, Modernization Webinar, https://www.copyright.gov/copyright-modernization/webinar/.
    \25\ Letter from Carla Hayden, Librarian of Congress, and Karyn 
A. Temple, Register of Copyrights & Dir., to Hon. Thom Tillis, 
United States Senate, 4-5 (Sept. 30, 2019), https://www.copyright.gov/rulemaking/reg-modernization/letter-to-senator-thom-tillis.pdf; Letter from Carla Hayden, Librarian of Congress, to 
Thom Tillis, Chairman, S. Comm. on the Judiciary, Subcomm. on 
Intellectual Prop., and Christopher A. Coons, Ranking Member, S. 
Comm. on the Judiciary, Subcomm. on Intellectual Prop., 8-9 (Jan. 7, 
2020), https://www.judiciary.senate.gov/imo/media/doc/Hayden%20Responses%20to%20QFRs.pdf.
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    To further advance these efforts, and following careful 
consideration of the comments received in response to the 2018 NOI, the 
Office is now announcing plans to adopt eleven registration practice 
updates that it will identify as business needs to the OCIO, so that 
they may be incorporated into the design of the new ECS to support a 
more user-friendly and efficient registration process that is simpler, 
clearer, secure, and adaptable. As detailed below, these updates relate 
to both the substance of the registration application and the utility 
of the online public record from a registration-specific perspective. 
The Office has concluded that each of these intended practice changes 
or design features can be incorporated into the ECS without adjusting 
existing regulatory language. As development efforts progress, the 
Office envisions initiating a pilot program that could permit 
incorporation of these updates through an iterative process that also 
takes into account participants' input, similar to the recently-
announced pilot for the electronic recordation system.\26\
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    \26\ See 85 FR at 3854.
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    The Office also seeks further input from the public regarding two 
additional issues: (1) How the Office might implement a system that 
would allow users to make post-registration amendments to rights and 
permissions and unique identifier information; and (2) further 
considerations related to the possibility of permitting the voluntary 
submission of an additional public-facing deposit, that may display 
low-resolution or incomplete portions of the registered work to enhance 
the public record.

[[Page 12706]]

I. Registration Practice Updates

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

(1) New Application Assistance Tools
    Recognizing that users approach the system with varying levels of 
understanding of copyright law and technical experience, the NOI sought 
input on how the Office should integrate in-application support and 
assistance to users of the electronic registration system. The Office 
proposed multi-tiered support options to offer basic, intermediate, or 
in-depth support based on user experience level.\27\
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    \27\ 83 FR at 52338.
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    All commenters expressed support for some form of improved 
assistance for users.\28\ Some encouraged the Office to focus on 
improving the materials and resources currently available to 
applicants, with, for example, the AAP and the Motion Picture 
Association of America, Inc. (``MPAA'') urging the Office to expand 
upon its existing Frequently Asked Questions web page.\29\ The 
Association of Medical Illustrators (``AMI'') proposed that the Office 
provide a service similar to that of the U.S. Patent and Trademark 
Office (``USPTO''), which ``maintains an inventor assistance hotline as 
well as a call center providing live, telephonic assistance in 
resolving problems of formalities of electronically submitted patent 
applications.'' \30\
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    \28\ See AIPLA Comments, at 2 (``AIPLA . . . supports including 
more embedded links to provide immediate help in completing each 
section of the online application.''); Copyright Alliance Comments, 
at 4 (``As an organization that represents a diverse group of 
copyright owners--including individual creators, and small and large 
businesses--the Copyright Alliance supports a multi-tier approach to 
in-application support and assistance that would more effectively 
meet the specific needs of both novice and experienced 
applicants.''); NMPA Comments, at 3 (``NMPA supports a multi-tiered 
approach to in-application assistance.'').
    \29\ AAP Comments, at 4; MPAA Comments, at 2-3 (Jan. 15, 2019).
    \30\ AMI Comments, at 3 (Jan. 15, 2019).
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    Other commenters recommended the development of new in-application 
assistance tools. For example, GAG suggested that the Office 
incorporate frequently asked questions and answers ``throughout the 
registration application stream (possibly within an interactive widget 
that won't clutter or obstruct the interface).'' \31\ The New York 
Intellectual Property Law Association (``NYIPLA'') urged the Office to 
provide ``more information and guidance in the online forms 
themselves,'' and suggested that the USPTO's ``method of providing 
links to pop-up windows with additional information provides a good 
model for how information can be presented to users.'' \32\
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    \31\ GAG Comments, at 3.
    \32\ NYIPLA Comments, at 2 (Jan. 15, 2019).
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    The Office will pursue both approaches. The Office is updating its 
website to provide additional guidance that applicants can consult 
before they begin or while they are completing an application. In 
addition to improving existing FAQs, the Office is updating its 
questionnaires and adding video tutorials. The Office also will request 
development of new tools for in-application assistance, such as the 
tiered system proposed in the 2018 NOI, subject to usability testing 
during the OCIO's ECS development.
(2) Electronic Applications
    The 2018 NOI sought comment on whether the Office should switch to 
a strictly-electronic system. After considering the feedback received, 
the Office will continue to encourage the use of electronic 
applications over paper forms by differentiating the fees for the 
standard and paper applications. But it will not, at this time, 
eliminate paper applications.
    While paper applications remain the most cumbersome for the Office 
to ingest and examine,\33\ these forms serve populations that do not 
have access to a computer or the internet. The Office notes GAG's 
comment that ``there will always be a certain portion of the population 
who, for various reasons (such as disability, distance from libraries, 
time constraints, etc.) are unable to avail themselves of those 
resources.'' \34\ Additionally, several commenters expressed concerns 
about potential technology failures.\35\ The 2018 NOI also sought input 
on whether to switch to electronic-only payment methods, eliminating 
the instances where payments may be made by cash or check. After 
consideration of these comments and review of the various regulatory 
provisions regarding payments,\36\ the Office has determined to issue a 
separate notice to discuss proposed changes to streamline and harmonize 
its payment processing rules. The Office may separately consider 
questions related to the feasibility of subscription pricing under its 
current statutory authority.
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    \33\ See 83 FR at 52338 (noting that ``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.'').
    \34\ GAG Comments, at 4.
    \35\ AIPLA Comments, at 2 (``[T]echnology has limitations and 
suffers downtime and failures. It is often critically important that 
applicants file within strict time requirements to enforce their 
rights in court (17 U.S.C. 411) or avoid losing statutory benefits 
(17 U.S.C. 412).''); GAG Comments, at 4 (``Paper applications . . . 
fill in the gap when a system outage or government shutdown make the 
eCO system unavailable.''); NMPA Comments, at 6 (``[O]ur members who 
opt for the paper application largely do so because of negative 
experiences with the electronic system or interfering outages. Our 
members have found paper applications a useful backup option for 
when the electronic system is down.'').
    \36\ See, e.g., 37 CFR 201.6(a), 201.33(e)(2), 201.39(g)(3), 
202.12(c)(2)(ii), 202.23(e)(2).
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(3) Electronic Certificates
    Upon approving an application for registration of a copyright 
claim, the Office issues a certificate of registration.\37\ While the 
Office has traditionally issued certificates in paper form, the 2018 
NOI proposed providing electronic certificates in a secure form to 
ensure authenticity. The cost of the electronic certificate would be 
included in the registration fee. The Office proposed that it would 
provide paper certificates upon request for an additional fee.\38\
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    \37\ 17 U.S.C. 410(a), 708(a)(1).
    \38\ 83 FR at 52338-39; see 37 CFR 201.3(c)(14) (2019) (fee for 
obtaining an additional certificate).
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    All commenters supported the issuance of electronic 
certificates.\39\ In response to the Office's explanation that printing 
paper certificates ``requires a substantial amount of resources both in 
terms of employee compensation and the cost of maintaining printing 
equipment,'' \40\ AMI agreed that ``resources currently utilized for 
printing and mailing paper certificates should be redirected to other 
services, such as better application assistance.'' \41\ The Office 
accordingly will issue electronic certificates in the new ECS as a 
matter of course. The Office intends to offer paper certificates for an 
additional fee.\42\ In addition, as noted below, the Office has 
determined that it is appropriate for these electronic certificates to 
be viewable in the public record.
---------------------------------------------------------------------------

    \39\ See, e.g., Author Services, Inc. Comments, at 2 (Jan. 8, 
2019) (``We support this proposal''); Copyright Alliance Comments, 
at 9 (``The Copyright Alliance supports the Office's proposal to 
issue electronic certificates in lieu of paper copies and only offer 
paper certificates for an additional fee''); GAG Comments, at 4 
(``We agree with the Copyright Office's proposal that registration 
certificates be supplied as electronic documents with validating 
watermarks, etc.''); MPAA Comments, at 5 (``The MPAA has no 
objection to the Office issuing electronic certificates in the 
normal course, with paper certificates available for an additional 
fee.''); News Media Alliance (``NMA'') Comments, at 4 (Jan. 15, 
2019) (``The Alliance supports the issuance of electronic 
certificates, particularly if it would expedite the application 
process and the resulting savings are used to offset costs to the 
registrants.'').
    \40\ 83 FR at 52338.
    \41\ AMI Comments, at 4.
    \42\ The Office will issue a notice regarding any additional 
fees. See 17 U.S.C. 708.
---------------------------------------------------------------------------

    Some commenters expressed concern about whether courts would accept

[[Page 12707]]

electronic certificates.\43\ The Office will request implementation of 
visual markers, such as watermarks, to indicate that an Office-issued 
electronic registration certificate is indeed authentic.
---------------------------------------------------------------------------

    \43\ Copyright Alliance Comments, at 9; MPAA Comments, at 5-6; 
NMPA Comments at 7; NYIPLA Comments, at 2; RIAA Comments, at 3.
---------------------------------------------------------------------------

(B) Application Information: The Information Requested on the 
Application for Registration

(1) Simplifying the Authorship Statement
    The Copyright Act does not require registration applicants to 
describe the type of work for which registration is sought, except in 
the case of a compilation or derivative work.\44\ But the Act permits 
the Register to require ``any other information'' that bears ``upon the 
preparation or identification of the work or the existence, ownership, 
or duration of the copyright.'' \45\ Thus, under current practices, 
``[t]o register a work of authorship, the applicant must file an 
application that clearly identifies the copyrightable authorship that 
the applicant intends to register.'' \46\ In the online application, 
the applicant can identify that authorship by ``checking one or more of 
the boxes in the Author Created field that accurately describe the 
authorship.'' \47\ The options available vary depending on the type of 
application in use (e.g., Literary, Visual Arts, or Performing Arts). 
If registering a literary work, the options are ``text,'' ``computer 
program,'' ``photograph(s),'' or ``artwork.'' If registering a visual 
arts work, the options include ``photograph'' and ``two-dimensional 
artwork,'' among others. If registering a performing arts work, the 
options include ``music,'' ``lyrics,'' ``other text (includes script, 
screenplay, dramatic work),'' and ``musical arrangement.'' As a result, 
works are described by their individual elements (e.g., text, lyrics, 
or two-dimensional artwork), rather than by a holistic description of 
the work such as ``children's book with illustrations,'' ``research 
paper,'' or ``craft book with photographs,'' which may be more helpful 
for future identification purposes. Seeking to capture a more complete 
description of works submitted for registration, the Office proposed to 
adjust the Author Created section and ask applicants to identify the 
work as a whole instead of the work's individual elements.\48\
---------------------------------------------------------------------------

    \44\ See 17 U.S.C. 409(1)-(10).
    \45\ Id. at 409(10).
    \46\ U.S. Copyright Office, Compendium of U.S. Copyright Office 
Practices sec. 618.1 (3d ed. 2017) (``Compendium (Third)'').
    \47\ Id. at sec. 618.4(A).
    \48\ 83 FR at 52339-40.
---------------------------------------------------------------------------

    Although the Office did not receive comments objecting to the 
adjustment of this requirement per se, several commenters opposed the 
wholesale elimination of the online application's Author Created 
section.\49\ For example, AAP argued that it is ``helpful to the public 
record to have an applicant name the authorship, what is being 
registered, what is being disclaimed, and other such pertinent 
information.'' \50\
---------------------------------------------------------------------------

    \49\ See, e.g., AIPLA Comments, at 3-4; Authors Guild, Inc. 
(``Authors Guild'') Comments, at 3 (Jan. 15, 2019).
    \50\ AAP Comments, at 5.
---------------------------------------------------------------------------

    The Office agrees that authorship descriptions provide pertinent 
information concerning registered works, and does not intend a complete 
removal of the Author Created section. Rather, the Office will request 
that the OCIO explore two complementary methods to obtain more complete 
and specific descriptions of works. First, the Office will request 
exploration of using tiers of descriptions that permit the applicant to 
gradually narrow the identification of their work using a more expanded 
decision tree format. Under this approach, the system would allow 
applicants to identify the work submitted for registration by using 
general and specific pre-populated descriptions, as well as a free-form 
space allowing applicants to provide more descriptive, non-legal 
information. General descriptions would include the categories of 
authorship set forth in section 102 of the Copyright Act, while 
specific descriptions could include particular types of works within 
those categories--for example, ``novel,'' ``poem,'' ``article'' or 
``podcast.'' After testing the feasibility of this approach, the Office 
will provide guidance regarding whether this method is preferable to 
the current format.
    Second, and potentially additive of the first approach, the Office 
will request that the OCIO investigate developing a table of 
crowdsourced descriptions, using as a model the USPTO's Trademark 
Identification Manual, which provides users with acceptable 
identifications of goods and services for use in trademark 
applications.\51\ This option would allow examiners to curate 
acceptable descriptions encountered through the examination process to 
add to the database, and for an applicant to rely upon this list for 
guidance in describing their work. This would allow the Office to 
consider and adopt industry-specific or specialized descriptors for 
applications on a going-forward basis.
---------------------------------------------------------------------------

    \51\ See USPTO, Trademark ID Manual, https://idm-tmng.uspto.gov/id-master-list-public.html.
---------------------------------------------------------------------------

    For paper applications, the Office will permit the examiner to 
provide a description of the work submitted for registration where no 
description is provided by the applicant. Although commenters were not 
supportive of examiners providing work descriptions, arguing that it 
would ``likely increase the workload of examiners and could have the 
effect of lengthening registration times and increasing costs,'' \52\ 
on average, paper applications comprise only 4% of all applications 
that the Office receives.\53\ A common error that the Office encounters 
is a blank authorship section. Allowing examiners to provide this 
information would improve efficiency by reducing the correspondence 
required to obtain omitted authorship statements, which, as the Office 
has noted, ``imposes significant burdens on the Office's limited 
resources, and has had an adverse effect on the [pendency of] 
examination of claims submitted on electronic forms.'' \54\
---------------------------------------------------------------------------

    \52\ NMPA Comments, at 11.
    \53\ U.S. Copyright Office, Registration Processing Times, 
https://www.copyright.gov/registration/docs/processing-times-faqs.pdf.
    \54\ 83 FR at 52338.
---------------------------------------------------------------------------

(2) Derivative Works
    For a compilation or derivative work, the Copyright Act requires 
copyright registration applicants to identify ``any preexisting work or 
works that it is based on or incorporates'' and to provide ``a brief, 
general statement of the additional material covered by the copyright 
claim being registered.'' \55\ Generally, the Office attempts to obtain 
this information in two steps. First, the applicant must ``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 that describe the new material the applicant intends 
to register, or by providing a descriptive statement in the ``Nature of 
Authorship'' space on the paper application.\56\ Second, if the 
derivative work contains an appreciable amount of preexisting material 
that was 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 of the paper application.\57\ This

[[Page 12708]]

method can lead to gaps in the public record because it ``encourage[s] 
applicants to identify individual elements of the work that should be 
excluded from the claim,'' but it does not require applicants to 
identify the preexisting work itself.\58\ Further, in the Office's 
experience, the checkboxes provided on the application may limit 
applicants' ability to fully describe the nature of their claims, 
leading to errors in identifying new or preexisting material. For 
example, using the checkboxes, applicants often mark the ``Material 
Included'' as ``text'' and the ``Material Excluded'' also as ``text.'' 
These descriptions do not add any meaningful information to users of 
the public record.
---------------------------------------------------------------------------

    \55\ 17 U.S.C. 409(9).
    \56\ Compendium (Third) sec. 618.5.
    \57\ Id.
    \58\ 83 FR at 52341.
---------------------------------------------------------------------------

    To avoid this result, the 2018 NOI proposed requiring applicants to 
identify explicitly whether a work submitted for registration is a 
derivative work. If the work is identified as derivative, applicants 
would be directed to identify, in their own words, any elements that 
should be excluded from the claim. And, assuming that the applicant 
intends to register all copyrightable aspects of the work that have not 
been expressly disclaimed, the applicant would not be required to 
identify the new material that should be ``included'' in the claim.\59\
---------------------------------------------------------------------------

    \59\ Id.
---------------------------------------------------------------------------

    While most commenters acknowledged that it would benefit the public 
record to require applicants to explicitly identify derivative works 
submitted for registration,\60\ some were concerned that such a 
requirement would cause confusion. For example, the Copyright Alliance 
had ``concerns that novice applicants might be confused about how to 
answer such a question,'' believing that it ``would require an 
understanding of the nuance between `transformation' as it is used in 
fair use, and `transform' as it is used to define a derivative work.'' 
\61\ GAG likewise noted that ``novice users (and even experience[d] 
users) are often tripped up in interpreting whether a work is 
derivative.'' \62\ Instead of asking whether a work is a derivative 
work, commenters argued that the Office should ask ``whether 
preexisting works have been used, and if yes, what those works are.'' 
\63\ Some commenters also expressed concern that eliminating the 
requirement to identify the new material that should be included in the 
claim would ``wreak havoc with the Copyright Office's objective to 
produce as accurate a public record as possible.'' \64\
---------------------------------------------------------------------------

    \60\ See, e.g., AIPLA Comments, at 4 (``AIPLA believes that 
applicants should be required to identify whether the work submitted 
for registration is a derivative work''); AMI Comments, at 6 (``The 
AMI would not object to asking applicants to affirmatively state 
whether a work submitted is derivative provid[ed] the application 
form makes it crystal clear as to what constitutes a derivative 
work.''); NYIPLA Comments, at 3 (``It is often helpful to know 
whether a registered work is a derivative work'').
    \61\ Copyright Alliance Comments, at 17.
    \62\ GAG Comments, at 7.
    \63\ Id.; see American Bar Association Section of Intellectual 
Property Law (``ABA-IPL'') Comments, at 5 (Jan. 9, 2019) (``The 
Section suggests that a simpler process for soliciting factual 
information about preexisting materials would be to include 
questions requiring `yes/no' responses'').
    \64\ AAP Comments, at 6.
---------------------------------------------------------------------------

    Others supported this proposed approach. AMI opined that 
eliminating ``cumbersome checkboxes'' and allowing applicants ``to more 
easily explain in their own words the elements that are pre-existing 
versus the `new material to be included' '' would simplify the 
registration process for such works.\65\ AIPLA agreed that ``asking the 
applicant to identify the new authorship is unnecessary . . . and that 
the Office should assume that the applicant intends to register all 
copyrightable aspects of the work.'' \66\
---------------------------------------------------------------------------

    \65\ AMI Comments, at 5 (citation omitted).
    \66\ AIPLA Comments, at 4; see also New Media Rights (``NMR'') 
Comments, at 17 (Jan. 15, 2019) (``If the user disclaims content, 
presumably the rest of the protectable audiovisual work is original 
content created by the author, so the `New Material Included' 
category does not seem necessary or relevant unless the work being 
registered is a new edition of a previously registered work (which 
is a very specific subset of content).''); AAP Comments, at 5 (``AAP 
members are in favor of asking applicants to explicitly identify 
whether a work submitted for registration is a derivative work and 
to identify, in their own words, any elements that should be 
excluded from the claim.'').
---------------------------------------------------------------------------

    After reviewing the comments, the Office continues to believe that 
the current identification process should be simplified, but agrees 
that use of the term ``derivative work'' may cause confusion. Instead, 
the Office will provide a business requirement that the revised 
electronic application ask applicants, in plain language, about the 
facts relating to the authorship of the work (e.g., Is the work based 
on one or more preexisting works? Does the work incorporate any 
preexisting work?). The Office will request that the system allow 
applicants to identify any elements that should be excluded from the 
claim using their own words, rather than a set of predetermined 
checkboxes. This approach is intended to streamline the process by 
which applicants can disclaim preexisting material.
(3) Simplifying the Transfer Statement
    An application for registration must identify the copyright 
claimant.\67\ The ``claimant'' is either the author(s) of the work 
submitted for registration,\68\ or an individual or organization that 
owns all of the rights under copyright.\69\ To register a claim of 
copyright, ``if the copyright claimant is not the author,'' the 
copyright registration application must include ``a brief statement of 
how the claimant obtained ownership of the copyright.'' \70\ This 
``brief statement'' is termed a transfer statement. Further, the 
Copyright Act specifies that copyright may be transferred (1) ``by any 
means of conveyance,'' (2) ``by will or . . . by the applicable laws of 
intestate succession,'' or (3) ``by operation of law,'' and so the 
transfer statement must fit within these statutory guidelines.\71\
---------------------------------------------------------------------------

    \67\ 17 U.S.C. 409(1).
    \68\ Id. at 201(a) (``Copyright in a work protected under this 
title vests initially in the author or authors of the work. The 
authors of a joint work are coowners of copyright in the work.'').
    \69\ Id. at 201(d)(1) (``The 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.''); 37 CFR 
202.3(a)(3) (defining claimant as the author of a work or the person 
or organization that has obtained all rights under copyright 
initially belonging to the author).
    \70\ 17 U.S.C. 409(5).
    \71\ Id. at 201(d)(1).
---------------------------------------------------------------------------

    As the 2018 NOI explained, the current online registration 
application allows applicants to provide a transfer statement by 
selecting one of three options in a drop-down menu marked ``Transfer 
Statement.'' The three options are ``By written agreement,'' ``By 
inheritance,'' and ``Other.'' The Compendium of U.S. Copyright Office 
Practices provides that ``[i]f the claimant obtained the copyright 
through an assignment, contract, or other written agreement, the 
applicant should select `By written agreement.' '' \72\ And ``[i]f the 
claimant obtained the copyright through a will, bequest, or other form 
of inheritance, the applicant should select `By inheritance.' '' \73\ 
The applicant may select ``Other'' and provide a more specific transfer 
statement in a blank space marked ``Transfer Statement Other'' if ``By 
written agreement'' or ``By inheritance'' do not fully describe the 
transfer.
---------------------------------------------------------------------------

    \72\ Compendium (Third) sec. 620.9(A).
    \73\ Id.
---------------------------------------------------------------------------

    In the 2018 NOI, the Office proposed eliminating the ``Other'' 
option both to avoid confusion among applicants and to better align the 
process with the statutory text. Applicants often provide conflicting 
information when they select the ``Other'' option, which requires 
examiners to expend time to correspond with applicants to correct the 
application and delays the resolution of claims. Because the methods of 
transfer are limited by section 201, practically

[[Page 12709]]

speaking, the only correct statement that can be provided in the 
``Other'' space is a transfer occurring ``by operation of law,'' a 
legal concept referring to rights that arise under specific 
contingencies such as by court-ordered or bankruptcy-related transfers, 
certain forms of acquisitions such as stock sales, or explicit 
agreements providing for joint ownership with rights of 
survivorship.\74\ The Office accordingly proposed to replace the 
``Other'' option with ``By operation of law.'' \75\
---------------------------------------------------------------------------

    \74\ See David Nimmer & Melville Nimmer, 3 Nimmer on Copyright 
sec. 10.03(A)(6) (2019).
    \75\ 83 FR at 52341.
---------------------------------------------------------------------------

    Most commenters supported the Office's proposal, agreeing that it 
would ``simplify and clarify the process for completing transfer 
statements.'' \76\ Others, however, expressed concern about the 
proposed change. For example, the Authors Guild argued that the ``means 
of acquiring ownership other than by written transfer or inheritance 
should be spelled out in a dropdown menu in plain English and 
explained'' because `` `By operation of law' is a broad and legal term 
that non-lawyers won't necessarily understand.'' \77\ AAP opposed 
removing the ``Transfer Statement Other'' field, recommending ``a 
flexible and open format to accommodate sufficient explanation in cases 
of complicated transfer statements'' to support a ``robust and useful 
public record.'' \78\
---------------------------------------------------------------------------

    \76\ NYIPLA Comments, at 3; see also AMI Comments, at 6 (``The 
AMI supports simplification of transfer statements.''); 
International Trademark Association (``INTA'') Comments, at 7 (Jan. 
10, 2019) (``[S]ince Copyright Act Section 201(d)(1) provides for 
transfer of an author's interest only by written agreement, 
inheritance, or operation of law, limiting the transfer statement to 
these three categories is advisable.''); MPAA Comments, at 9 (``The 
only options that should be available to registrants in describing a 
transfer of ownership are those mentioned in 17 U.S.C. 201: `by 
written agreement,' `by inheritance,' or `by operation of law.' 
There is no statutory justification for the `Other' option, which 
should be eliminated.'').
    \77\ Authors Guild Comments, at 4.
    \78\ AAP Comments, at 6.
---------------------------------------------------------------------------

    As several commenters pointed out, copyright transfer remains a 
confusing area of law for many applicants.\79\ While it might at first 
seem that giving applicants more space to describe their particular 
transfer scenario would enhance the public record, the Office's 
experience indicates that an open format text box can give rise to 
inconsistent information, while increasing registration processing time 
due to the need for correspondence. Therefore, the Office tentatively 
concludes it would be optimal to eliminate the ``Other'' field and 
restrict the available fields to ``By written agreement,'' ``By 
inheritance,'' and ``By operation of law'' to improve efficiency. 
Rather than requiring applicants to describe the transfer in their own 
words, the Office intends to provide guidance, such as information 
icons or other in-application assistance, to provide a clear definition 
of each transfer statement option for applicants, including, in 
particular, to explain what instances may constitute a transfer ``by 
operation of law.''
---------------------------------------------------------------------------

    \79\ See Authors Guild Comments, at 4; Copyright Alliance 
Comments, at 17; GAG Comments, at 7; INTA Comments, at 7.
---------------------------------------------------------------------------

    The Office is also exploring the value of providing a space for 
applicants to add any recordation document numbers that support the 
transfer statement. While a copy of an agreement, conveyance, or other 
legal instrument is not an acceptable substitute for a transfer 
statement,\80\ if such an instrument has been recorded with the Office, 
the relevant recordation information may be valuable to the 
registration record. Should this option prove feasible, the Office will 
provide in-application guidance on relevant document recordation 
topics.
---------------------------------------------------------------------------

    \80\ Compendium (Third) sec. 620.10(A).
---------------------------------------------------------------------------

(4) In-Process Corrections
    The current online registration system does not permit applicants 
to make manual corrections once an application is submitted to the 
Office. The applicant must contact the Public Information Office to ask 
the Office to make any necessary corrections. For the new ECS, the 
Office proposed removing this limitation and permitting applicants to 
make changes to pending applications at any point before an examiner 
opens the application for review.\81\
---------------------------------------------------------------------------

    \81\ 83 FR at 52341.
---------------------------------------------------------------------------

    All commenters supported this proposal,\82\ but several requested 
that the ECS warn applicants when an amendment would change a work's 
Effective Date of Registration.\83\ ImageRights International, Inc. 
(``ImageRights'') recommended that the system ``present a schedule of 
what types of changes can be made without altering the Effective Date 
of Registration and which changes would change the Effective Date.'' 
\84\
---------------------------------------------------------------------------

    \82\ See, e.g., AIPLA Comments, at 5 (``AIPLA supports 
permitting applicants to make edits to pending applications in most 
circumstances.''); AAP Comments, at 6 (``AAP members generally 
support the proposal of allowing applicants to make in-process edits 
to open cases prior to the examination of application materials.'').
    \83\ AAP Comments, at 6 (``We trust the Office would establish 
clear parameters and practices as to when such corrections would 
trigger a change in the effective date of registration.''); 
Copyright Alliance Comments, at 18 (``The Office should permit 
applicants to make in-process edits to open cases at any point prior 
to the examination of the application materials, provided that the 
Office clearly warns applicants prior to making changes that a 
modification could alter the effective date depending on the type of 
change and explains the types of changes that would result in change 
in the effective date.'').
    \84\ ImageRights Comments, at 6 (Jan. 15, 2019).
---------------------------------------------------------------------------

    In general, to establish an Effective Date of Registration, the 
Office must receive an acceptable application, a complete deposit copy, 
and the appropriate filing fee.\85\ The Effective Date of Registration 
is the date the Office receives all three of these elements, but 
``[w]here the three necessary elements are received at different times 
the date of receipt of the last of them is controlling.'' \86\ The 
Compendium sets forth the minimum requirements for an acceptable 
application, deposit copy, and filing fee.\87\ In consideration of the 
comments, the Office envisions that the new ECS will incorporate these 
current rules to warn applicants when an amendment would alter the 
Effective Date of Registration.
---------------------------------------------------------------------------

    \85\ Compendium (Third) sec. 625.
    \86\ H.R. Rep. No. 94-1476, at 157 (1976), reprinted in 1976 
U.S.C.C.A.N. 5659, 5773.
    \87\ Compendium (Third) sec. 625.
---------------------------------------------------------------------------

(5) Application Programming Interfaces (``APIs'')
    A copyright system of the twenty-first century demands flexibility, 
agility, and adaptability to technological advancements. The Office 
believes that the use of APIs--interfaces that permit communication 
between two systems or software programs--could improve the 
registration system by enabling programs used in the process of 
creating works to submit copyright registration applications or extract 
data from the online public record. To explore possible uses of this 
technology in the new ECS, the Office invited comment on how it could 
use APIs to integrate external data into the registration system or 
allow parties to export internal data from the Office's registry. The 
Office also inquired about relevant design considerations, such as 
establishing a trusted provider framework to minimize spam submissions 
and deter predatory behavior.\88\ Commenters generally agreed that 
using APIs would benefit registration applicants and users of the 
online public record,\89\ although some

[[Page 12710]]

commenters urged the Office to provide adequate safeguards to protect 
the security of the data and to guard against abuses by bad actors.\90\ 
With stakeholder support, the Office will continue to explore and 
clarify its business needs related to the use of APIs for two purposes: 
(1) Ingesting data into the Office online registration system, and (2) 
extracting information from the online public record. Of course, any 
new functionality must provide appropriate security for all relevant 
data. The Office will continue to communicate this need to the OCIO.
---------------------------------------------------------------------------

    \88\ 83 FR at 52342-43.
    \89\ Artists Rights Society Comments, at 4 (Jan. 10, 2019) 
(``ARS . . . would welcome the opportunity to develop in cooperation 
with the Office an API that would be tailored to the needs of ARS 
members so that when members sign up with ARS . . . they also might 
be able to complete an electronic registration form.''); CVA 
Comments, at 27-28 (encouraging the Office ``to develop robust 
Application Programming Interfaces (APIs) that will allow third-
party image management software to interface directly with the 
Copyright Office's registration system''); Copyright Alliance 
Comments, at 21 (expressing support for ``allowing third-parties to 
interoperate with the Office's API in a way that would integrate 
registration into a creator's workflow to streamline and simplify 
the registration process''); GAG Comments, at 8 (expressing support 
for the ``integration of APIs into the registration system so that 
registration becomes part of a creator's workflow'').
    \90\ See, e.g., Copyright Alliance Comments, at 23 (urging the 
Office to ``create terms of service for access to its API,'' which 
would allow the Office ``to block access . . . [by] third parties 
who abuse the APIs'' though spam submissions or predatory behavior); 
PPA Comments, at 16 (stating that the Office must ensure that ``the 
process is secure and able to handle the influx of data'').
---------------------------------------------------------------------------

    Initially, the Office will prioritize investigation of ways to 
allow for the transmission of data between the registration system and 
the database of musical works information that will be administered by 
the Mechanical Licensing Collective (``MLC'') pursuant to the Orrin G. 
Hatch-Bob Goodlatte Music Modernization Act.\91\ The MLC database will 
contain information relating to musical works (and shares of such 
works) and, to the extent known, the identity and location of the 
copyright owners of such works and the sound recordings in which the 
musical works are embodied.\92\ To reduce the incidence of unmatched 
works, where the copyright owner has not been identified or located, 
the MLC will operate a claiming process by which musical work copyright 
owners may identify their ownership interests in a musical work 
underlying a specific sound recording, to receive accrued royalties for 
the usage of that musical work.\93\
---------------------------------------------------------------------------

    \91\ Public Law 115-264, 132 Stat. 3676 (2018).
    \92\ 17 U.S.C. 115(d)(3)(C).
    \93\ Id. at 115(d)(3)(I), (J)(iii); see id. at 115(e)(35).
---------------------------------------------------------------------------

    By law, the Copyright Office may access the database in a bulk, 
machine-readable format, although the Office may not treat the database 
or any of its information therein as a Government record.\94\ As some 
have suggested,\95\ providing a method of access between the copyright 
and MLC registration systems could permit a copyright owner to verify 
or update ownership information with respect to musical works listed in 
the MLC database alongside the process of completing a copyright 
registration application for that work, or vice versa. The Office has 
concluded that the MLC database represents an appropriate starting 
point for API development. While the Office will prioritize this 
aspect, the Office will also work with the OCIO to explore additional 
avenues to facilitate the ingestion and exportation of data through 
APIs, while ensuring the integrity of registration records and 
safeguarding against abuses.
---------------------------------------------------------------------------

    \94\ Id. at 115(d)(3)(E)(v).
    \95\ David C. Lowery, Simplifying Registration and Costs for 
MLC, The Trichordist (Nov. 6, 2019), https://thetrichordist.com/2019/11/06/simplify-registration-and-costs-for-mlc/ (``It seems like 
a simple solution for the Copyright Office to harmonize [the online 
registration system and the MLC database] to . . . have a check box 
to allow you to sign up with the MLC.'').
---------------------------------------------------------------------------

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

(1) The Online Registration Record
    The Copyright Act charges the Copyright Office with ensuring ``that 
records of deposits, registrations, recordations, and other actions 
taken under this title are maintained'' and are ``open to public 
inspection.'' \96\ The 2018 NOI proposed to expand the online public 
record to include records of pending applications, refusals, closures, 
appeals, and correspondence for completed claims.
---------------------------------------------------------------------------

    \96\ 17 U.S.C. 705.
---------------------------------------------------------------------------

    This proposal received significant support from many commenters. 
For example, the American Association of Law Libraries (``AALL'') 
supported ``publishing refused registration application records, full 
versions of correspondence records, and associated appeal records in 
the online public record because we believe it would help the public 
better understand the originality requirement in copyright law and 
assist those who wish to register a claim to a copyright understand the 
contours of what `constitute[s] copyrightable subject matter.' '' \97\ 
Similarly, AIPLA noted that ``the need for full information regarding 
an application and registration is often crucial for litigation, 
licensing, and corporate diligence, among other circumstances.'' \98\
---------------------------------------------------------------------------

    \97\ AALL Comments, at 1 (Jan. 14, 2019) (citing 17 U.S.C. 
410(b)).
    \98\ AIPLA Comments, at 6.
---------------------------------------------------------------------------

    Some commenters, however, expressed concern that records of 
correspondence may expose personally identifiable information or 
informal communications that applicants may not wish to make public. 
Explaining that ``[c]orrespondence between applicants and the Office is 
often informal,'' AAP argued that including such materials ``would not 
be appropriate [or] useful for the Public Record and could be misused 
by persons who have no claim to the work in question.'' \99\ Other 
commenters argued that the public record should be limited to records 
of what has been registered by the Copyright Office.\100\ NMPA, for 
example, contended that ``[o]nly a subset of copyrights would benefit 
from the inclusion of . . . additional information in the Online Public 
Record'' and that ``[i]ncluding large amounts of administrative 
information concerning a registration would likely slow the system down 
and be an inefficient use of the Office's resources.'' \101\
---------------------------------------------------------------------------

    \99\ AAP Comments, at 7.
    \100\ See, e.g., RIAA Comments, at 8 (``The online public record 
should support its primary purpose to notify the public of which 
works have been registered, and not be appended in a manner that 
detracts or dilutes from this important function.'').
    \101\ NMPA Comments, at 17-18.
---------------------------------------------------------------------------

    Current law and regulations require the Office to make available 
for public inspection any ``[o]fficial correspondence, including 
preliminary applications, between copyright claimants or their agents 
and the Copyright Office, and directly relating to a completed 
registration, a recorded document, a rejected application for 
registration, or a document for which recordation was refused.'' \102\ 
Further, the current registration application displays a privacy notice 
stating that the information collected for registration ``will appear 
in the Office's online catalog.'' \103\ Given that registration records 
are already available for public inspection and copying,\104\ the 
Office does not see a persuasive basis for categorically excluding them 
from online availability, although the Office will approach historical 
materials sensitively to address any potential notice or privacy 
considerations.

[[Page 12711]]

Expanding the online public record to include these materials would 
advance the Office's goal to ``[e]xpand access to Copyright Office 
records'' and ``[e]nhance services'' to make it ``easier and more 
convenient for users to transact business with the Copyright Office.'' 
\105\ As such, on a prospective basis, the Office will request that the 
ECS include records of pending applications, refusals, closures, 
appeals, and correspondence for completed claims in the new online 
public record. The Office's PII removal rule will remain in place to 
provide for removal of extraneous PII from the public record upon 
request.\106\
---------------------------------------------------------------------------

    \102\ 37 CFR 201.2(c)(1); see also 17 U.S.C. 705.
    \103\ U.S. Copyright Office, eCO Registration System Standard 
Application, https://eco.copyright.gov/ (``Privacy Act Notice: 
Sections 408-410 of title 17 of the United States Code authorize the 
Copyright Office to collect the personally identifying information 
requested on this form in order to process the application for 
copyright registration. By providing this information you are 
agreeing to routine uses of the information that include publication 
to give legal notice of your copyright claim as required by 17 
U.S.C. 705. It will appear in the Office's online catalog. If you do 
not provide the information requested, registration may be refused 
or delayed, and you may not be entitled to certain relief, remedies, 
and benefits under the copyright law.'').
    \104\ Compendium (Third) sec. 2407.1(B)(1).
    \105\ U.S. Copyright Office, Strategic Plan 2019-2023, 
Copyright: The Engine of Free Expression 13 (2019), https://www.copyright.gov/reports/strategic-plan/USCO-strategic2019-2023.pdf.
    \106\ See 37 CFR 201.2(f).
---------------------------------------------------------------------------

    Similarly, the Office will work with the OCIO to make digital 
copies of registration certificates available in the online public 
record.
(2) Linking Registration and Recordation Records
    Arising out of historical practice, registration and recordation 
records are currently maintained as discrete data sets. Because these 
records are not linked, it can be difficult to identify chain-of-title 
information for particular works contained in the Office's records. All 
commenters supported the Office's proposal to link registration and 
recordation records, so that information about registered claims, 
recorded transfers, and/or other chain of title information can be 
viewed together to facilitate access to information about copyrighted 
works, including updated ownership information.\107\
---------------------------------------------------------------------------

    \107\ AALL Comments, at 3 (noting that the proposal ``would 
assist users who are attempting to obtain permission to use a work 
with accurately identifying and contacting the current copyright 
owner''); ABA-IPL Comments, at 7 (``The Section strongly supports 
connecting registration and recordation records.''); Authors 
Alliance Comments, at 5 (Jan. 15, 2019) (noting that the proposal 
would ``increase[] the likelihood that users will be able to locate 
current and accurate contact information for copyright holders, 
better facilitating licensing and permissions requests''); INTA 
Comments, at 15 (expressing support for ``provid[ing] chain of title 
information''); NMPA Comments, at 18 (``The registration and 
recordation systems should be fully integrated and should be part of 
the same database.''); Nanette Petruzzelli Comments, at 5 (Jan. 14, 
2019) (supporting the proposal so that ``public inquiry about the 
current copyright status of a work can be found in one record/
file'').
---------------------------------------------------------------------------

    Because the registration and recordation processes are voluntary, 
however, commenters also highlighted some areas of caution, which the 
Office itself is taking into account when developing requirements for 
the new ECS. For example, RIAA noted that while linking records would 
be useful, it could ``create confusion where the records are incomplete 
or the chain of title is unclear.'' \108\ RIAA also expressed concern 
about ``what legal presumptions may be made based on the chain of title 
in a recordation record where there is no obligation for a subsequent 
rights holder to file a transfer or security interest with the 
Office.'' \109\ The MPAA cautioned that the Office should not ``itself 
engage in chain-of-title analysis.'' \110\
---------------------------------------------------------------------------

    \108\ RIAA Comments, at 8.
    \109\ RIAA Comments, at 8.
    \110\ MPAA Comments, at 13.
---------------------------------------------------------------------------

    The Copyright Office appreciates the need for the ECS to clearly 
communicate the limitations of the public record to users of the 
system. Currently, the Office warns that while ``[s]earches of the 
Copyright Office catalogs and records are useful in helping to 
determine the copyright status of a work . . . they cannot be regarded 
as conclusive in all cases.'' \111\ The Office will continue to explore 
ways to minimize confusion on the part of users. For example, the 
Office may request that the ECS begin by linking only future 
registration and recordation records.
---------------------------------------------------------------------------

    \111\ U.S. Copyright Office, Circular 22: How to Investigate the 
Copyright Status of a Work 3 (Feb. 2013), https://www.copyright.gov/circs/circ22.pdf; see also U.S. Copyright Office, Request a Search 
Estimate, https://www.copyright.gov/forms/search_estimate.html.
---------------------------------------------------------------------------

    Second, commenters discussed how the Office should display 
assignment information and documentation within public registration 
records. The ABA-IPL suggested that the USPTO's system, which consists 
of an ``Assignment Abstract of Title'' linked to the database entry for 
a mark identified in a search, could be a model for the Copyright 
Office's system.\112\ The NYIPLA similarly suggested that ``the 
Trademark Office offers a good model in that the application/
registration data is directly linked to the chain of title 
information.'' \113\ The Office found these comments helpful and hopes 
to work with the OCIO to explore the specific manner of display for the 
new online public record system.
---------------------------------------------------------------------------

    \112\ ABA-IPL Comments, at 7.
    \113\ NYIPLA Comments, at 5.
---------------------------------------------------------------------------

(3) Unified Case Number
    The Office currently administers and tracks separate numbers for 
applications, correspondence, and registrations, which creates 
challenges for the Office and users. To streamline identification 
methods, the 2018 NOI proposed to unify the Office's identification 
numbers to create a clear relationship between an application for 
registration, any correspondence, and any associated request for 
reconsideration.\114\ There was a general consensus among commenters in 
support of the Office's proposal.\115\
---------------------------------------------------------------------------

    \114\ 83 FR at 52344.
    \115\ See generally AIPLA Comments, at 7 (``AIPLA strongly 
supports this proposal.''); AAP Comments, at 8 (``AAP members are in 
favor of unified case numbers to track and identify a work or group 
of works through the registration and appeals process''); PPA 
Comments, at 16 (``PPA supports a single case number which remains 
with the application through the registration process and after the 
registration is issued. This will help with tracking and 
consistency.'').
---------------------------------------------------------------------------

    Accordingly, for future applications, the Office would like the 
system to adopt one number for any pending application and registration 
record completed from that application. The Office envisions that the 
number assigned to an application (the ``case number'') and the 
registration number will have an identical base, but the registration 
number will be distinguished by a prefix that indicates the 
administrative class or type of registration. For example, case number 
12345678 for a performing arts work would become PA12345678, if 
registered. To further simplify the registration process, the Office 
will also retire correspondence identification numbers.

(D) Digital Deposits

    In the 2018 NOI, the Office requested comment on whether applicants 
should be permitted to submit electronic deposit copies, phonorecords, 
or identifying materials, rather than physical copies or phonorecords, 
unless the Office requests a physical copy.\116\ While commenters 
expressed general support for providing greater flexibility in 
complying with deposit requirements, the comments raised a number of 
concerns. The Library of Congress's Library Services unit expressed 
concern over the potential effect of such a change on Library 
collections. Noting that ``[t]he Library depends on the continuing flow 
of items acquired via Copyright deposit to help build its collection,'' 
it noted that ``implementation of this strategy would require that a 
duplicative process be established to obtain deposit copies for the 
Library's collection.'' \117\ Subsequently, in response to a question 
raised by the Senate Judiciary's IP Subcommittee, the Librarian of 
Congress noted that ``a change to a default digital deposit requirement 
would critically affect our ability to serve some of our

[[Page 12712]]

largest user groups, either by not meeting their preferences or by 
denying service altogether.'' \118\
---------------------------------------------------------------------------

    \116\ 83 FR at 52344-45.
    \117\ Library of Congress Library Services Comments, at 1-2 
(Jan. 15, 2019).
    \118\ Carla Hayden, Librarian of Congress, Responses to 
Questions for the Record, Subcomm. on Intell. Prop. of the S. Comm. 
on the Judiciary at 3-4 (Jan. 7, 2020), https://www.judiciary.senate.gov/imo/media/doc/Hayden%20Responses%20to%20QFRs.pdf.
---------------------------------------------------------------------------

    Other commenters representing copyright owner interests raised 
potential security concerns. For example, the Copyright Alliance 
pointed to the possibility of cyberattacks resulting in unauthorized 
access to deposit copies.\119\ AAP stated that ``[p]ublishers would 
welcome a registration deposit regime that is less burdensome, but only 
if it is operated in a wholly secure IT system and kept wholly separate 
from the collections of the Library and its access or interlibrary 
lending or surplus books policies.'' \120\ In its view, such changes 
are ``premature and will remain so until the Copyright Office is 
permitted and able to develop the necessary IT systems and security.'' 
\121\
---------------------------------------------------------------------------

    \119\ Copyright Alliance Comments, at 25.
    \120\ AAP Comments, at 2.
    \121\ Id. at 3.
---------------------------------------------------------------------------

    The Copyright Office is committed to pursuing any updates to the 
registration deposit system in a reasonable and conscientious manner. 
At the same time, due to the wide variety of expressive works that can 
be registered, spanning physical and digital formats, from individual 
to large corporate authors, the ECS must be designed in a manner to 
accommodate submission of both physical and electronic deposits.\122\ 
Under the current framework, the Office has recently noted that ``[a]ny 
future expansion of electronic deposits to additional categories of 
works will require careful consideration of several factors, including 
the Library's collection needs, technological capabilities, and 
security and access issues.'' \123\ Meanwhile, the Office notes that 
these issues may overlap with ongoing legislative discussion.\124\ The 
Office therefore has concluded that consideration of changes to the 
deposit requirements are beyond the scope of this current notice. As 
noted, however, the Office and the Library will work collaboratively to 
develop alternative deposit options ``that appropriately balance 
security with ease of use. These kinds of important issues will be 
addressed using transparent processes that invite public comment and 
participation.'' \125\
---------------------------------------------------------------------------

    \122\ The current statutory default instructs owners to submit a 
deposit of a complete copy of the work and, for works published in 
the U.S., the best edition of that work (unless regulations permit 
the deposit of alternate identifying material). 17 U.S.C. 407, 408; 
83 FR at 52344. But the statute does not compel authors or 
publishers to create a special copy for the purpose of copyright 
registration or to fulfill the separate obligation under section 
407. See Mandatory Deposit of Electronic-Only Books, 83 FR 16269, 
16274 (notice of proposed rulemaking).
    \123\ Jody Harry, Chief Financial Officer, U.S. Copyright 
Office, Responses to Questions for the Record, Subcomm. on Intell. 
Prop. of the S. Comm. on the Judiciary at 13 (Dec. 17, 2019), 
https://www.judiciary.senate.gov/imo/media/doc/Harry%20Responses%20to%20QFRs.pdf.
    \124\ Carla Hayden, Librarian of Congress, Responses to 
Questions for the Record, Subcomm. on Intell. Prop. of the S. Comm. 
on the Judiciary at 3 (Jan. 7, 2020), https://www.judiciary.senate.gov/imo/media/doc/Hayden%20Responses%20to%20QFRs.pdf (responding to question about 
draft legislation on the deposit requirement).
    \125\ Id.; see also id. at 4 (``The Library would like to work 
closely with the Copyright Office to update the best edition 
statement on a consistent and regular basis.'').
---------------------------------------------------------------------------

II. Additional Subjects of Inquiry

    In addition to the foregoing practice changes, the Office is 
continuing to consider additional issues raised in the 2018 NOI and now 
seeks further comment on the following topics.

(A) The Rights and Permissions Field

    Presently, at the conclusion of an online registration application, 
the applicant is asked to provide Rights and Permissions information, 
which may include ``the name, address, and other contact information 
for the person and/or organization that should be contacted for 
permission to use the work.'' \126\ Currently, applicants may provide 
only one name and address. This information appears in the online 
public record for the work to facilitate licensing and similar 
transactions.\127\ Once a certificate of registration is issued, 
interested parties may update the Rights and Permissions information by 
either (1) requesting that the Office remove certain personally 
identifiable information from the online public record and replace it 
with substitute information,\128\ or (2) submitting an application for 
a supplementary registration.\129\
---------------------------------------------------------------------------

    \126\ Compendium (Third) sec. 622.1. There is no corresponding 
space for providing Rights and Permissions information in a paper 
application.
    \127\ Id.
    \128\ 37 CFR 201.2(e)(1); Compendium (Third) sec. 622.1. See 
generally Removal of Personally Identifiable Information from 
Registration Records, 82 FR 9004 (Feb. 2, 2017) (final rule).
    \129\ 37 CFR 202.6(d), (e); Compendium (Third) sec. 1802.
---------------------------------------------------------------------------

    To achieve a more flexible amendment process, the 2018 NOI proposed 
allowing users to 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.\130\ 
The overwhelming majority of commenters supported this proposal.\131\ 
AALL noted that it would ``better ensure that the information remains 
up-to-date, thereby reducing the risk of a work becoming an orphan 
work, encouraging proper attribution by others, and facilitating users 
[in] properly obtaining permission or a license to use a work.'' \132\ 
Authors Alliance similarly noted that ``the costs associated with 
updating the Rights and Permissions field discourages users from 
updating contact information, leading to inaccurate records and 
contributing to the orphan works problem.'' \133\
---------------------------------------------------------------------------

    \130\ 83 FR at 52341-42.
    \131\ ABA-IPL Comments, at 6 (``[T]he Section supports allowing 
registrants to update the Rights and Permissions information for 
their works posted on the public record in a simplified manner''); 
AIPLA Comments, at 5 (``AIPLA supports allowing authorized users to 
make changes to this field''); Authors Alliance Comments, at 4 
(``Authors Alliance supports the Office's efforts to build a 
registration interface that allows users to update Rights and 
Permissions information without having to submit a supplementary 
registration together with the associated fee''); INTA Comments, at 
9 (``INTA strongly supports making the Online Public Record a more 
dynamic system by allowing authorized representatives to update 
rights and permission information''); NMA Comments, at 5 (``The 
Alliance supports the proposal to allow authorized users to make 
changes to the Rights and Permissions field in a completed 
registration'').
    \132\ AALL Comments, at 3.
    \133\ Authors Alliance Comments, at 4.
---------------------------------------------------------------------------

    While there was general support for this proposed change, several 
commenters noted the importance of implementing a corresponding method 
for authenticating or confirming the identity of registrants, 
assignees, or their authorized representatives. RIAA stated there must 
be ``robust security and authentication surrounding the authorized 
user's credentials and access to the registration database.'' \134\ 
Likewise, the Copyright Alliance suggested that ``[t]he ability to make 
these changes should be restricted to accounts belonging to the rights 
holder (including a previous rights holder's verified successor in 
interest) or their agent'' to protect ``rights holders and users of the 
public record from fraud, misrepresentation, inadvertent mistakes and 
unauthorized changes to the record by third parties.'' \135\
---------------------------------------------------------------------------

    \134\ RIAA Comments, at 6.
    \135\ Copyright Alliance Comments, at 19.
---------------------------------------------------------------------------

    In principle, the Office agrees that the ECS should be designed to 
encourage copyright owners to keep their contact information up to 
date, including in cases of transfer, and also that security and access 
controls will be key to implementing self-service edits.\136\ The

[[Page 12713]]

Office seeks additional stakeholder feedback on how the ECS might 
administer such a service. Specifically, what eligibility criteria 
should be considered in evaluating the parties seeking to edit Rights 
and Permissions information? Should this service be limited to users 
with access to the account through which the original registration was 
made, or should those users be able to consent or transfer account 
authorizations associated with individual registrations? Should this 
service be limited to parties named on the registration certificate and 
their authorized agents? The Office also seeks stakeholder feedback on 
whether to expand the Rights and Permissions field to allow users to 
provide more than one name and address. The Office will share this 
information with the OCIO to explore technological feasibility, and 
both the Office and the OCIO have committed to facilitating 
communication and outreach with users of the prospective system.
---------------------------------------------------------------------------

    \136\ The option to edit Rights and Permissions information will 
not affect the recordation of documents pertaining to copyright. 
Rights and Permissions information is limited to contact information 
(e.g., mailing and/or email addresses).
---------------------------------------------------------------------------

(B) Additional Data
    The 2018 NOI invited comment on what additional data could or 
should be included in the online registration record on a voluntary 
basis in order to enhance the functionality and value of the 
system.\137\ The 2018 NOI noted that the current system already allows 
applicants to include a number of unique identifiers, 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'').\138\ The 2018 NOI inquired whether the Office should 
consider expanding the number of unique identifiers that may be 
included on an application, requiring inclusion of unique identifiers 
if they have been assigned, or establishing a procedure for adding 
unique identifiers to completed registration records, similar to the 
proposed procedure for updating the Rights and Permission field.\139\
---------------------------------------------------------------------------

    \137\ 83 FR at 52342.
    \138\ Id.
    \139\ Id.
---------------------------------------------------------------------------

    Commenters were in favor of having the option to submit additional 
data as part of the registration application, as long as adding such 
information is not made mandatory.\140\ Commenters were also in favor 
of being able to provide unique identifiers to pending and completed 
registration records, on an optional basis.\141\ The Office agrees that 
any new requests for information should not be mandatory. Recognizing 
that certain standard identifiers may not always be available at the 
time of the registration application, the Office also appreciates the 
desire to add identifiers to the record after submission of a 
registration application, provided the online public record identifies 
when such amendments are made to completed registration records. The 
acceptance of post-registration unique identifiers would seem to 
potentially raise eligibility questions similarly presented with post-
registration updates to the rights and permissions field, discussed 
above. Subject to additional public comment, the Office will work with 
the OCIO to explore the best ways to enable these types of voluntary 
submissions in the ECS.
---------------------------------------------------------------------------

    \140\ See ABA-IPL Comments, at 6; AIPLA Comments, at 6; AAP 
Comments, at 7; AMI Comments, at 7; Copyright Alliance Comments, at 
20; Copyright Clearance Center, Inc. Comments, at 2 (Jan. 14, 2019); 
GAG Comments, at 8; INTA Comments, at 9; Shaftel & Schmelzer 
Comments, at 17 (Jan. 11, 2019).
    \141\ See Copyright Alliance Comments, at 20; INTA Comments, at 
9; MPAA Comments, at 10.
---------------------------------------------------------------------------

    In addition, the Office sought comment on whether it should allow 
applicants to voluntarily upload public-facing deposit material, such 
as low-resolution images or sound bites, as part of the registration 
application.\142\ The option to include this information would be 
additive of the existing registration deposit requirement. Such public-
facing material might assist in the identification of a work to serve 
licensing, or even enforcement, purposes. Commenters generally were 
supportive of this proposal. INTA opined that ``developing a more 
robust Online Public Record through the uploading of these images and 
clips will be beneficial by enhancing recognition of the work 
registered and will also aid in the licensing of those works.'' \143\ 
NMPA observed that ``[a]llowing applicants to include small sound bites 
of their works in their application could improve the public record and 
assist the public in identifying copyright owners.'' \144\ Public 
Knowledge (``PK'') and the Association of Real Estate Photographers 
(``AREP'') suggested that ``[i]mplementing reverse image search 
capabilities . . . --and linking those results to rightsholder 
information--would prov[ide] significant benefits for both users and 
rightsholders.'' \145\ Noting that ``[t[he technology to search by 
images . . . is widely commercially available,'' PK and AREP stated 
that the ability to ``reverse image search existing registrations would 
assist photographers . . . in protecting their rights online.'' \146\
---------------------------------------------------------------------------

    \142\ 83 FR at 52342.
    \143\ INTA Comments, at 9-10.
    \144\ NMPA Comments, at 15.
    \145\ PK & AREP Comments, at 3 (Jan. 15, 2019).
    \146\ Id.
---------------------------------------------------------------------------

    Other commenters, however, noted that there may be complications in 
accepting low-resolution or incomplete deposits. Specifically, RIAA 
argued that collecting sound clips ``would create additional burdens 
(including, but not limited to, the need to provide ever expanding 
storage resources for clips) on the Office with, at best, marginal 
increased utility.'' \147\ It also expressed concern that ``the 
collection and inclusion of sound clips in the Office's registration 
database could turn the database into a de facto, on-demand streaming 
service that would effectively compete against commercial services 
licensed by our member companies.'' \148\
---------------------------------------------------------------------------

    \147\ RIAA Comments, at 6-7.
    \148\ Id. at 7.
---------------------------------------------------------------------------

    Still others discussed the availability of technology to create 
low-resolution or incomplete copies. For example, ImageRights suggested 
that there would be ``little point in asking users to provide'' low-
resolution images and sound bites because they ``can be created 
sufficiently well in an automated way.'' \149\ GiantSteps Media 
Technology Strategies suggested that the Office use digital finger 
printing technology to ``allow registrants to deposit digital 
fingerprints of works, perhaps in addition to low-resolution images, 
audio clips, and the like.'' \150\
---------------------------------------------------------------------------

    \149\ ImageRights Comments, at 8.
    \150\ GiantSteps Media Technology Strategies Comments, at 3 
(Jan. 15, 2019).
---------------------------------------------------------------------------

    To more fully explore these issues, the Office is interested in 
receiving additional input on whether and how the new ECS might be 
designed to include the option to deposit low-resolution or incomplete 
copies of works for the online public record. Are there certain 
available technologies that should be considered to automate creation 
of lower-resolution or shortened clips works to be made available to 
the public for identification purposes but that would not serve as a 
substitute for the work? Should the Office establish specifications, 
such as a 15-second limit on sound clips, or a specific resolution 
format, with respect to the acceptance of additional, voluntarily 
submitted data, to minimize interactions with licensing markets? Should 
this feature be preliminarily

[[Page 12714]]

explored in a pilot limited to certain type(s) of works, and if so, 
which type(s)?
    The Office invites comment on any additional considerations it 
should take into account relating to these topics.

    Dated: February 28, 2020.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2020-04435 Filed 3-2-20; 8:45 am]
 BILLING CODE 1410-30-P

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