Mandatory Deposit of Electronic-Only Books, 71834-71838 [2020-23101]

Download as PDF 71834 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This rule will affect only states that participate in the manufactured housing program, and will have a negligible economic impact. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531– 1538)(UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. This rule does not impose any federal mandates on any state, local, or tribal governments or the private sector within the meaning of the UMRA. Environmental Impact This rule establishes rates and sets forth related fiscal requirements which do not constitute a development decision that affects the physical condition of specific project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6), this rule is categorically excluded from the requirements of the National Environmental Policy Act of 1969 (42 U.S.C. 4321). Federalism Impact Executive Order 13132 (entitled ‘‘Federalism’’) prohibits an agency from publishing any rule that has federalism implications if the rule either (1) imposes substantial direct compliance costs on state and local governments and is not required by statute, or (2) the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order. jbell on DSKJLSW7X2PROD with RULES List of Subjects 24 CFR Part 3282 Manufactured home procedural and enforcement regulations, Administrative practice and procedure, Consumer protection, Intergovernmental relations, Investigations, Manufactured homes, Reporting and recordkeeping requirements. 24 CFR Part 3284 Consumer protection, Intergovernmental relations, Manufactured homes. VerDate Sep<11>2014 15:52 Nov 10, 2020 Jkt 253001 Accordingly, for the reasons discussed in this preamble, HUD amends 24 CFR parts 3282 and 3284 as follows: PART 3282—MANUFACTURED HOME PROCEDURAL AND ENFORCEMENT REGULATIONS 1. The authority citation for part 3282 continues to read as follows: ■ Authority: 15 U.S.C. 2697, 42 U.S.C. 3535(d), 5403, and 5424. manufacturing plant (or $0, if it is not) during the year for which payment is received; and (b) 14.00 for every transportable section that is produced in a manufacturing plant in that State (or $0, if it is not) during the year for which payment is received. Dana T. Wade, Assistant Secretary for Housing, Federal Housing Commissioner. [FR Doc. 2020–24380 Filed 11–10–20; 8:45 am] 2. Revise § 3282.307(b) to read as follows: BILLING CODE 4210–67–P § 3282.307 Monitoring inspection fee establishment and distribution. LIBRARY OF CONGRESS * Copyright Office ■ * * * * (b) The monitoring inspection fee shall be paid by the manufacturer to the Secretary or to the Secretary’s Agent, who shall distribute a portion of the fees collected from all manufactured home manufacturers among the approved and conditionally-approved States in accordance with an agreement between the Secretary and the States and based upon the following formula subject to the availability of appropriations: (1) $9.00 of the monitoring inspection fee collected for each transportable section of each new manufactured housing unit that is first located on the premises of a retailer, distributor, or purchaser in that State; plus (2) $14.00 of the monitoring inspection fee collected for each transportable section of each new manufactured housing unit produced in a manufacturing plant in that State. * * * * * PART 3284—MANUFACTURED HOUSING PROGRAM FEE 3. The authority citation for 24 CFR part 3284 continues to read as follows: ■ Authority: 42 U.S.C. 3535(d), 5419, and 5424. ■ 4. Revise § 3284.10 to read as follows: § 3284.10 Minimum payments to states. For every State that has a State plan fully or conditionally approved pursuant to § 3282.302 of this chapter, and subject to the availability of appropriations, HUD will pay such State annually a total amount that is the greater of either the amount of cumulative payments resulting from production and shipments due to that State for the period between October 1, 2013, and September 30, 2014; or the total amount determined by adding: (a) $9.00 for every transportable section that is first located on the premises of a retailer, distributor, or purchaser in that State after leaving the PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 37 CFR Part 202 [Docket No. 2016–03] Mandatory Deposit of Electronic-Only Books U.S. Copyright Office, Library of Congress. ACTION: Final rule. AGENCY: The Copyright Office is amending its regulations to make electronic-only books published in the United States subject to the Copyright Act’s mandatory deposit provisions if they are affirmatively demanded by the Office. The final rule largely adopts the language set forth in the Office’s June 2020 notice of proposed rulemaking, with one additional clarification regarding the rule’s applicability to print-on-demand books. DATES: Effective December 14, 2020. FOR FURTHER INFORMATION CONTACT: Kevin R. Amer, Deputy General Counsel, kamer@copyright.gov or Mark T. Gray, Attorney-Advisor, mgray@ copyright.gov. They can be reached by telephone at 202–707–3000. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background Under section 407 of title 17, the owner of the copyright or the exclusive right of publication in a work published in the United States must, within three months of publication, deposit ‘‘two complete copies of the best edition’’ with the Copyright Office ‘‘for the use or disposition of the Library of Congress.’’ 1 The ‘‘best edition’’ is defined as ‘‘the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes.’’ 2 These requirements are 1 17 U.S.C. 407(a), (b); see generally 37 CFR 202.19. 2 17 U.S.C. 101; see also 17 U.S.C. 407(b). E:\FR\FM\12NOR1.SGM 12NOR1 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations governed by section 202.19 and Appendix B of part 202 of the Office’s regulations, which set forth rules and criteria, respectively, for the different types of works subject to the mandatory deposit requirement. Under the statute, the Register of Copyrights may issue a written demand for works at any time after they have been published in the United States, and failure to deposit after a demand may subject the recipient to monetary liability.3 Compliance with this section is separate from the copyright registration process, but the Copyright Act provides that deposits made under section 407 may be used to satisfy the registration deposit provisions under section 408, if all other registration conditions are met.4 The Register of Copyrights may, by regulation, exempt categories of works from the mandatory deposit requirement.5 Under this authority, the Office issued an interim rule in 2010 (the ‘‘2010 Interim Rule’’) codifying its established practice of excluding from mandatory deposit requirements all ‘‘[e]lectronic works published in the United States and available only online.’’ 6 The 2010 Interim Rule referred to such works as ‘‘electroniconly.’’ The Office also, however, adopted an exception to this exemption, requiring the deposit of electronic-only serials if affirmatively demanded by the Office.7 In 2016, the Office issued a notice of inquiry (‘‘NOI’’) that proposed adding a new category of online works— electronic-only books—to the mandatory deposit framework. As with electronic-only serials, the Office proposed that electronic-only books would be subject to mandatory deposit only upon demand by the Office.8 In 3 17 U.S.C. 407(d). at 408(b). Although section 408 states that copies deposited pursuant to the mandatory deposit provision in section 407 may be used to satisfy the registration deposit requirement in section 408, in practice the Office treats copies of works submitted for registration as satisfying the mandatory deposit requirement (assuming the deposit requirements are the same), and not vice versa. 37 CFR 202.19(f)(1), 202.20(e); see 43 FR 763, 768 (Jan. 4, 1978). 5 17 U.S.C. 407(c). 6 Mandatory Deposit of Published Electronic Works Available Only Online, 75 FR 3863, 3869 (Jan. 25, 2010) (‘‘2010 Interim Rule’’); 37 CFR 202.19(c)(5). 7 2010 Interim Rule at 3865–66. ‘‘Electronic works’’ are themselves defined as ‘‘works fixed and published solely in an electronic format.’’ 37 CFR 202.24(c)(3). 8 Mandatory Deposit of Electronic Books and Sound Recordings Available Only Online: Notice of Inquiry, 81 FR 30505, 30506–08 (May 17, 2016). The NOI also included online sound recordings as a potential additional category of works to subject to mandatory deposit, but the Office has decided to postpone further consideration of this issue until after the conclusion of this rulemaking. jbell on DSKJLSW7X2PROD with RULES 4 Id. VerDate Sep<11>2014 15:52 Nov 10, 2020 Jkt 253001 April 2018, following consideration of public comments received in response to the NOI, the Office issued a notice of proposed rulemaking (‘‘2018 NPRM’’) setting forth regulatory language to implement this change. The 2018 NPRM proposed to define ‘‘electronic-only book’’ as ‘‘an electronic literary work published in one volume or a finite number of volumes published in the United States and available only online,’’ with some exclusions for specific types of works such as serials, audiobooks, websites, blogs, and emails.9 The Office received nine comments in response to the 2018 NPRM. Commenters generally expressed agreement with the broad goal of supporting the Library’s acquisition and preservation of digital materials for the benefit of the American public,10 but they raised questions about what material would be collected 11 and how the Library’s IT security infrastructure would keep deposited materials secure.12 In response to those comments, the Office issued a revised NPRM on June 29, 2020 (‘‘2020 NPRM’’).13 To address questions about the scope of the rule, the 2020 NPRM clarified that short online works such as social media posts would not be subject to demand but that that online-only books preloaded onto electronic devices such as tablets would be covered if otherwise available only 9 Id. at 16272. e.g., Library Copyright Alliance 2018 NPRM Comment at 2 (supported the proposed rule ‘‘because of the critical role of deposit in building the Library’s collection and ensuring long-term preservation’’ of digital materials); Authors Guild 2019 NPRM Comment at 2 (noting Library ‘‘cannot fulfill [its] mission today without collecting books that are published only in electronic form’’); American Association of Publishers 2018 NPRM Comment at 3–4 (stating ‘‘[p]ublishers have long supported the special privilege of the Library to collect works’’). 11 See, e.g., Authors Guild 2018 NPRM Comment at 3–4 (raising questions about the Library’s collections policies and recommending changes to definition of ‘‘electronic-only book’’); National Writers Union 2018 NPRM Comment at 3–4 (expressing uncertainty about what material would be demanded based on Library collections policies); Copyright Alliance 2018 NPRM Comment at 3 (raising questions about Library’s collections strategy). All public comments in this rulemaking may be accessed at https://www.copyright.gov/ rulemaking/ebookdeposit/. 12 Copyright Alliance 2018 NPRM Comment at 4 (requesting the Library ‘‘demonstrat[e] the adequacy of the Library’s IT system’’ before finalizing the rule); Authors Guild 2018 NPRM Comment at 3 (seeking additional specifics about the ‘‘security measures for e-books’’ and requesting more information about Library’s creation of a secure ebook repository); American Association of Publishers 2018 NPRM Comment at 2–3 (seeking additional information about ‘‘the state of the Library’s technology capabilities, protocols, and security measures’’). 13 85 FR 38806 (June 29, 2020) (‘‘2020 NPRM’’). 10 See, PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 71835 online.14 The 2020 NPRM also explained that the rule did not apply to copies of e-books printed by an author, publisher, or distributor in response to purchases by individual consumers. Such books would ‘‘instead remain subject to the general mandatory deposit obligation under section 407.’’ 15 In addition, the 2020 NPRM revised the requirement proposed in the 2018 NPRM that technological protection measures (‘‘TPMs’’) controlling access to or use of deposits be removed. Instead, the Office proposed to update the Best Edition regulations in Appendix B to Part 202 to reflect the Library’s preference for a TPM-free edition, if such a version has been published.16 If no TPM-free edition has been published, the proposed rule would next accept a copy for which the copyright owner has elected to remove such measures.17 If the owner declines to do so, the deposit must otherwise comply with the general requirement that copies can be accessed and reviewed on an ongoing basis.18 Finally, the 2020 NPRM addressed questions raised by commenters regarding the Library’s collections policies and security practices. With respect to digital collections, the Office explained that, since the close of the 2018 NPRM comment period, the Library had provided additional information about its digital strategy and collections plans in several publicly available documents.19 As to concerns about the Library’s IT security, the 2020 NPRM noted the many steps the Library has taken to improve its IT systems in recent years, as reflected in congressional testimony, Inspector General’s reports, and other public materials. Those efforts include hiring a Chief Information Officer, centralizing all IT efforts in a single office, and implementing almost all of the thirtyone public recommendations from a 2015 report by the Government Accountability Office.20 The 2020 NPRM concluded that ‘‘these security upgrades, together with the additional IT-related information made public since the close of the prior comment 14 2020 NPRM at 38809. NPRM at 38809–10. 16 2020 NPRM at 38811. 17 Id. 18 Id. 19 2020 NPRM at 38810 (citing Library of Congress, Enriching the Library Experience: The FY2019–2023 Strategic Plan of the Library of Congress, https://www.loc.gov/static/portals/ strategic-plan/documents/LOC_Strat_Plan_2018.pdf and Library of Congress, Digital Strategy (Apr. 26, 2019), https://www.loc.gov/static/portals/digitalstrategy/documents/Library-of-Congress-DigitalStrategy-v1.1.2.pdf). 20 2020 NPRM at 38812. 15 2020 E:\FR\FM\12NOR1.SGM 12NOR1 71836 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations period, may reasonably address the concerns raised by commenters regarding the security of digital deposits.’’ 21 To ensure, however, that stakeholders had an adequate opportunity to consider and respond to this new information, the Office invited further public comment. II. The Final Rule The Office received four comments on the 2020 NPRM, none of which objected to finalizing the rule. The Authors Guild stated that the revised rule ‘‘adequately addresses almost all of our prior concerns’’ and that it is ‘‘satisfied by the Library of Congress’ progress’’ in securing and managing its IT infrastructure.22 The Library Copyright Alliance also supported making the rule final, noting ‘‘the critical role of deposit in building the Library’s collection and ensuring long-term preservation of these works.’’ 23 An individual commenter, Owen Linback, likewise expressed support for the proposed revisions.24 The University of Michigan Library Copyright Office (‘‘UM Library’’) did not state an objection to finalizing the rule, but it ‘‘strongly urge[d]’’ that the final rule require deposited copies to ‘‘be free from encryptions and digital rights management technologies.’’ 25 In the UM Library’s view, ‘‘[w]hen copies are encumbered with technological protection measures such as encryption or DRMs . . . they obstruct preservation, authorized access to information, and accessibility.’’ 26 The Office appreciates the need to ensure appropriate access to deposit materials, and the 2020 NPRM noted that ‘‘the Library generally prefers TPM-free editions of works to simplify and further its preservation efforts.’’ 27 As the Office discussed, however, that interest must be balanced against the language of section 407, which requires only that copyright owners deposit the best published edition of a work. Additionally, section 1201 separately protects the right of copyright owners to distribute works with TPMs.28 The 21 2020 NPRM at 38814. Guild Comments at 1. 23 Library Copyright Alliance (LCA) Comments at 2. LCA also urged the Office to initiate a rulemaking on access restrictions on deposited electronic materials and expand the proposed rule to sound recordings. Id. at 4–5. As noted in the 2018 NPRM with respect to deposit of electronic-only sound recordings, the Office is ‘‘postponing further consideration of this issue until after the conclusion of the present rulemaking.’’ 2018 NPRM at 16270. 24 Comments of Owen Linback. 25 Univ. of Mich. Library Copyright Office Comments at 1. 26 Id. 27 2020 NPRM at 38811. 28 17 U.S.C. 1201(a). jbell on DSKJLSW7X2PROD with RULES 22 Authors VerDate Sep<11>2014 15:52 Nov 10, 2020 Jkt 253001 Office must implement its regulatory authority against the backdrop of that legal protection. The Office accordingly proposed a more flexible approach under which TPM-free copies of a work, or copies from which the owner has voluntarily removed TPMs, are preferred for best-edition purposes. And, in all events, the rightsholder must comply with the existing requirement that deposits can be ‘‘accessed and reviewed by the Copyright Office, Library of Congress, and the Library’s authorized users on an ongoing basis.’’ 29 The Office continues to believe that this framework will adequately serve the Library’s collection needs in a manner consistent with the statute. The final rule therefore retains the Office’s proposed language. The Authors Guild raised three additional issues. First, it suggested that further guidance from the Office on the definition of ‘‘publication’’ in the online context would be helpful ‘‘before or in concert with’’ the proposed rule.30 As the Authors Guild’s comment notes, the Office is currently conducting a separate proceeding to consider potential regulatory updates interpreting the meaning of publication for purposes of copyright registration, and to provide policy guidance regarding the concept of publication more generally.31 A work’s publication status, however, presents somewhat less of a concern for copyright owners under this rule than in the registration context, as electroniconly books must first be affirmatively identified and demanded by the Office before a copyright owner must deposit them. Thus, as the Authors Guild acknowledges, publication ‘‘need not be specifically defined in this particular rule.’’ 32 For that reason, the Office believes that its separate proceeding on online publication is the more appropriate forum through which to provide additional guidance on the meaning of that term. Second, the Authors Guild suggested clarifying edits to the language regarding the rule’s applicability to print-on-demand books. The 2020 NPRM provided that ‘‘[a] work shall be deemed to be available only online even if copies have been made available to individual consumers to print on demand, so long as the work is otherwise available only online.’’ 33 The Authors Guild suggested the phrase ‘‘individual consumers to print on CFR 202.24(a)(4). Guild Comments at 1–2. 31 See Online Publication Notification of Inquiry, 84 FR 66328 (Dec. 4, 2019). 32 Authors Guild Comments at 2. 33 2020 NPRM at 38814–15. demand’’ may be ambiguous and proposed revising the language to instead read: ‘‘made available to individual consumers by print on demand services.’’ 34 The Authors Guild did not identify the specific ambiguity that this suggested change is intended to clarify, but the Office does not agree that it reflects the rule’s intended scope. The reference to copies made available to consumers ‘‘by print on demand services’’ could be read to encompass physical copies printed by a service and distributed to individual purchasers. As discussed in the 2020 NPRM, ‘‘[t]hese books are outside the scope of this rule, and instead remain subject to the general mandatory deposit obligation under section 407.’’ 35 As an alternative, or in addition to the foregoing suggestion, the Authors Guild suggested that ‘‘it might add clarity’’ to refer to ‘‘individual’’ copies, such that the language would read: ‘‘A work shall be deemed to be available only online even if individual copies have been made available to individual consumers to print on demand, so long as the work is otherwise available only online.’’ 36 In its view, ‘‘[i]t is possible that the emphasis on individual consumers could create confusion with respect to print-on-demand copies purchased by institutional consumers for their use (a school or a library for instance).’’ 37 It is not clear, however, that a reference to ‘‘individual copies’’ would address that concern, which relates to the phrase ‘‘individual consumers.’’ As to the latter phrase, the Office agrees that there could be uncertainty over whether the provision covers copies made available to institutional purchasers such as libraries. In the Office’s view, these entities are similarly situated to individual consumers in that they typically purchase a fixed number of copies of a given e-book, and the number of physical copies they may print and circulate to patrons is dictated by the terms of the purchasing agreement. That arrangement is distinguishable from a model in which a retailer continues to print copies as additional orders are received. To clarify that the definition is not intended to exclude e-books purchased by libraries and similar institutions, the final rule thus provides: ‘‘A work shall be deemed to be available only online even if copies have been made available to individual consumers or other end users to print on demand, so long as the 29 37 30 Authors PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 34 Authors Guild Comments at 2 (bolding in original). 35 2020 NPRM at 38809–10. 36 See Authors Guild Comments at 2. 37 Id. E:\FR\FM\12NOR1.SGM 12NOR1 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations work is otherwise available only online.’’ The Office intends the reference to ‘‘end users’’ to cover institutions such as libraries and universities who are the actual users of these works and not intermediate distributors such as online booksellers. Finally, the Authors Guild suggested that the final rule provide for periodic consultations between the Library and publishers ‘‘to ensure that the Library’s recommended formats and preferences—and the Office’s adherence thereto—are aligned with the most commonly used as-published formats.’’ 38 The Office appreciates that conversations between the Library and publishers can help the Library’s collections preferences align with industry practice. Although the Office would welcome such consultations to be ongoing (and itself maintains an open door to receive stakeholder feedback), it does not believe including a mandate in the regulatory text is appropriate. As explained in the 2020 NPRM, the Library consistently seeks stakeholder input when crafting its policies,39 and the Office expects that the Library will be open to continued outreach from publishers to that effect. List of Subjects in 37 CFR Part 202 Claims, Copyright. For the reasons set forth in the preamble, the Copyright Office amends 37 CFR part 202 as follows: PART 202—GENERAL PROVISIONS 1. The authority citation for part 202 continues to read as follows: ■ Authority: 17 U.S.C. 408(f), 702. 2. Amend § 202.18 by: a. In paragraph (a) in the first sentence adding the words ‘‘and § 202.19, and transferred into the Library of Congress’s collections,’’ after ‘‘under § 202.4(e)’’; ■ b. In paragraph (b) in the first sentence adding the words ‘‘and § 202.19’’ after ‘‘under § 202.4(e)’’; ■ c. In paragraph (c) in the first sentence adding the words ‘‘and § 202.19’’ after ‘‘under § 202.4(e)’’; and ■ d. Adding paragraph (f). The addition reads as follows: ■ ■ § 202.18 Access to electronic works. jbell on DSKJLSW7X2PROD with RULES * * * * * (f) Except as provided under special relief agreements entered into pursuant to § 202.19(e) or § 202.20(d), electronic works will be transferred to the Library of Congress for its collections and made 38 Authors 39 2020 Guild Comments at 2. NPRM at 38814. VerDate Sep<11>2014 15:52 Nov 10, 2020 Jkt 253001 available only under the conditions specified by this section. ■ 3. Amend § 202.19 by: ■ a. Revising paragraph (b)(4). ■ b. In paragraph (c)(5), adding the phrase ‘‘electronic-only books and’’ after the phrase ‘‘This exemption includes’’. The revision reads as follows: § 202.19 Deposit of published copies or phonorecords for the Library of Congress. * * * * * (b) * * * (4) For purposes of paragraph (c)(5) of this section: (i) An electronic-only serial is a serial as defined in § 202.3(b)(1)(v) that is published in electronic form in the United States and available only online. (ii) An electronic-only book is an electronic literary work published in one volume or a finite number of volumes published in the United States and available only online. This class excludes literary works distributed solely in phonorecords (e.g., audiobooks), serials (as defined in § 202.3(b)(1)(v)), computer programs, websites, blogs, emails, and short online literary works such as social media posts. (iii) A work shall be deemed to be available only online even if copies have been made available to individual consumers or other end users to print on demand, so long as the work is otherwise available only online. A work also shall be deemed to be available only online even if copies have been loaded onto electronic devices, such as tablets or e-readers, in advance of sale to individual consumers, so long as the work is otherwise available only online. * * * * * ■ 4. Amend § 202.24 as follows: ■ a. In paragraph (a)(2), remove the word ‘‘works’’ and add in its place ‘‘electronic-only serials’’; ■ b. Redesignate paragraphs (a)(3) and (4) as paragraphs (a)(4) and (5), and add a new paragraph (a)(3); ■ c. In paragraph (b), remove ‘‘onlineonly’’ and add in its place ‘‘electroniconly’’; and ■ d. Revise paragraph (c)(3). The addition and revision reads as follows: § 202.24 Deposit of published electronic works available only online. (a) * * * (3) Demands may be made only for electronic-only books published on or after December 14, 2020. * * * * * (c) * * * (3) ‘‘Electronic-only’’ works are electronic works that are published and available only online. PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 71837 6. Amend Appendix B to Part 202 by revising section IX to read as follows: ■ Appendix B to Part 202 ‘‘Best Edition’’ of Published Copyrighted Works for the Collections of the Library of Congress * * * * * IX. Electronic-Only Works Published in the United States and Available Only Online The following encodings are listed in descending order of preference for all deposits in all categories below: 1. UTF–8. 2. UTF–16 (with BOM). 3. US–ASCII. 4. ISO 8859. 5. All other character encodings. A. Electronic-Only Serials: 1. Content Format: a. Serials-specific structured/markup format: i. Content compliant with the NLM Journal Archiving (XML) Document Type Definition (DTD), with presentation stylesheet(s), rather than without NISO JATS: Journal Article Tag Suite (NISO Z39.96–201x) with XSD/XSL presentation stylesheet(s) and explicitly stated character encoding. ii. Other widely used serials or journal XML DTDs/schemas, with presentation stylesheet(s), rather than without. iii. Proprietary XML format for serials or journals (with documentation), with DTD/ schema and presentation stylesheet(s), rather than without. b. Page-oriented rendition: i. PDF/UA (Portable Document Format/ Universal Accessibility; compliant with ISO 14289–1). ii. PDF/A (Portable Document Format/ Archival; compliant with ISO 19005). iii. PDF (Portable Document Format, with searchable text, rather than without; highest quality available, with features such as searchable text, embedded fonts, lossless compression, high resolution images, deviceindependent specification of colorspace; content tagging; includes document formats such as PDF/X). c. Other structured or markup formats: i. Widely-used serials or journal nonproprietary XML-based DTDs/schemas with presentation stylesheet(s). ii. Proprietary XML-based format for serials or journals (with documentation) with DTD/ schema and presentation stylesheet(s). iii. XHTML or HTML, with DOCTYPE declaration and presentation stylesheet(s). iv. XML-based document formats (widely used and publicly documented). With presentation stylesheets, if applicable. Includes ODF (ISO/IEC 26300) and OOXML (ISO/IEC 29500). d. PDF (web-optimized with searchable text). e. Other formats: i. Rich text format. ii. Plain text. iii. Widely-used proprietary word processing or page-layout formats. iv. Other text formats not listed here. 2. Metadata Elements: If included with published version of work, descriptive data (metadata) as described below should accompany the deposited material: E:\FR\FM\12NOR1.SGM 12NOR1 jbell on DSKJLSW7X2PROD with RULES 71838 Federal Register / Vol. 85, No. 219 / Thursday, November 12, 2020 / Rules and Regulations a. Title level metadata: serial or journal title, ISSN, publisher, frequency, place of publication. b. Article level metadata, as relevant/or applicable: volume(s), number(s), issue dates(s), article title(s), article author(s), article identifier (DOI, etc.). c. With other descriptive metadata (e.g., subject heading(s), descriptor(s), abstract(s)), rather than without. 3. Completeness: a. All elements considered integral to the publication and offered for sale or distribution must be deposited—e.g., articles, table(s) of contents, front matter, back matter, etc. Includes all associated external files and fonts considered integral to or necessary to view the work as published. b. All updates, supplements, releases, and supersessions published as part of the work and offered for sale or distribution must be deposited and received in a regular and timely manner for proper maintenance of the deposit. 4. Technological measures that control access to or use of the work should be removed. B. Electronic-Only Books: 1. Content Format: a. Book-specific structured/markup format, i.e., XML-based markup formats, with included or accessible DTD/schema, XSD/ XSL presentation stylesheet(s), and explicitly stated character encoding: i. BITS-compliant (NLM Book DTD). ii. EPUB-compliant. iii. Other widely-used book DTD/schemas (e.g., TEI, DocBook, etc.). b. Page-oriented rendition: i. PDF/UA (Portable Document Format/ Universal Accessibility; compliant with ISO 14289–1). ii. PDF/A (Portable Document Format/ Archival; compliant with ISO 19005). ii. PDF (Portable Document Format; highest quality available, with features such as searchable text, embedded fonts, lossless compression, high resolution images, deviceindependent specification of colorspace; content tagging; includes document formats such as PDF/X). c. Other structured markup formats: i. XHTML or HTML, with DOCTYPE declaration and presentation stylesheet(s). ii. XML-based document formats (widelyused and publicly-documented), with presentation style sheet(s) if applicable. Includes ODF (ISO/IEC 26300) and OOXML (ISO/IEC 29500). iii. SGML, with included or accessible DTD. iv. Other XML-based non-proprietary formats, with presentation stylesheet(s). v. XML-based formats that use proprietary DTDs or schemas, with presentation stylesheet(s). d. PDF (web-optimized with searchable text). e. Other formats: i. Rich text format. ii. Plain text. iii. Widely-used proprietary word processing formats. iv. Other text formats not listed here. 2. Metadata Elements: If included with published version of work, descriptive data VerDate Sep<11>2014 15:52 Nov 10, 2020 Jkt 253001 (metadata) as described below should accompany the deposited material: a. As supported by format (e.g., standardsbased formats such as ONIX, XMP, MODS, or MARCXML either embedded in or accompanying the digital item): title, creator, creation date, place of publication, publisher/ producer/distributor, ISBN, contact information. b. Include if part of published version of work: language of work, other relevant identifiers (e.g., DOI, LCCN, etc.), edition, subject descriptors, abstracts. 3. Rarity and Special Features: a. Limited editions (including those with special features such as high resolution images.) b. Editions with the greatest number of unique features (such as additional content, multimedia, interactive elements.) 4. Completeness: a. For items published in a finite number of separate components, all elements published as part of the work and offered for sale or distribution must be deposited. Includes all associated external files and fonts considered integral to or necessary to view the work as published. b. All updates, supplements, releases, and supersessions published as part of the work and offered for sale or distribution must be submitted and received in a regular and timely manner for proper maintenance of the deposit. 5. Technological Protection Measures: a. Copies published in formats that do not contain technological measures controlling access to or use of the work. b. Copies published with technological measures that control access to or use of the work, and for which the owner has elected to remove such technological measures. c. Copies otherwise provided in a manner that meets the requirements of § 202.24(a)(5). Dated: October 5, 2020. Maria Strong, Acting Register of Copyrights and Director of the U.S. Copyright Office. Approved by: Carla D. Hayden, Librarian of Congress. [FR Doc. 2020–23101 Filed 11–10–20; 8:45 am] BILLING CODE 1410–30–P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900–AQ94 Authority of VA Professionals To Practice Health Care Department of Veterans Affairs. Interim final rule. AGENCY: ACTION: The Department of Veterans Affairs (VA) is issuing this interim final rule to confirm that its health care professionals may practice their health care profession consistent with the SUMMARY: PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 scope and requirements of their VA employment, notwithstanding any State license, registration, certification, or other requirements that unduly interfere with their practice. Specifically, this rulemaking confirms VA’s current practice of allowing VA health care professionals to deliver health care services in a State other than the health care professional’s State of licensure, registration, certification, or other State requirement, thereby enhancing beneficiaries’ access to critical VA health care services. This rulemaking also confirms VA’s authority to establish national standards of practice for health care professionals which will standardize a health care professional’s practice in all VA medical facilities. DATES: Effective Date: This rule is effective on November 12, 2020. Comments: Comments must be received on or before January 11, 2021. ADDRESSES: Comments may be submitted through www.Regulations.gov or mailed to, Beth Taylor, 10A1, 810 Vermont Avenue NW, Washington, DC 20420. Comments should indicate that they are submitted in response to [‘‘RIN 2900–AQ94—Authority of VA Professionals to Practice Health Care.’’] Comments received will be available at regulations.gov for public viewing, inspection, or copies. FOR FURTHER INFORMATION CONTACT: Beth Taylor, Chief Nursing Officer, Veterans Health Administration. 810 Vermont Avenue NW, Washington, DC 20420, (202) 461–7250. (This is not a toll-free number.) SUPPLEMENTARY INFORMATION: On January 30, 2020, the World Health Organization (WHO) declared the COVID–19 outbreak to be a Public Health Emergency of International Concern. On January 31, 2020, the Secretary of the Department of Health and Human Services declared a Public Health Emergency pursuant to 42 United States Code (U.S.C.) 247d, for the entire United States to aid in the nation’s health care community response to the COVID–19 outbreak. On March 11, 2020, in light of new data and the rapid spread in Europe, WHO declared COVID–19 to be a pandemic. On March 13, 2020, the President declared a National Emergency due to COVID–19 under sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.) and consistent with section 1135 of the Social Security Act (SSA), as amended (42 U.S.C. 1320b–5). As a result of responding to the needs of our veteran population and other non-veteran beneficiaries during the COVID–19 National Emergency, where VA has had to shift health care E:\FR\FM\12NOR1.SGM 12NOR1

Agencies

[Federal Register Volume 85, Number 219 (Thursday, November 12, 2020)]
[Rules and Regulations]
[Pages 71834-71838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23101]


=======================================================================
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LIBRARY OF CONGRESS

 Copyright Office

37 CFR Part 202

[Docket No. 2016-03]


Mandatory Deposit of Electronic-Only Books

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Copyright Office is amending its regulations to make 
electronic-only books published in the United States subject to the 
Copyright Act's mandatory deposit provisions if they are affirmatively 
demanded by the Office. The final rule largely adopts the language set 
forth in the Office's June 2020 notice of proposed rulemaking, with one 
additional clarification regarding the rule's applicability to print-
on-demand books.

DATES: Effective December 14, 2020.

FOR FURTHER INFORMATION CONTACT: Kevin R. Amer, Deputy General Counsel, 
[email protected] or Mark T. Gray, Attorney-Advisor, 
[email protected]. They can be reached by telephone at 202-707-3000.

SUPPLEMENTARY INFORMATION:

I. Background

    Under section 407 of title 17, the owner of the copyright or the 
exclusive right of publication in a work published in the United States 
must, within three months of publication, deposit ``two complete copies 
of the best edition'' with the Copyright Office ``for the use or 
disposition of the Library of Congress.'' \1\ The ``best edition'' is 
defined as ``the edition, published in the United States at any time 
before the date of deposit, that the Library of Congress determines to 
be most suitable for its purposes.'' \2\ These requirements are

[[Page 71835]]

governed by section 202.19 and Appendix B of part 202 of the Office's 
regulations, which set forth rules and criteria, respectively, for the 
different types of works subject to the mandatory deposit requirement.
---------------------------------------------------------------------------

    \1\ 17 U.S.C. 407(a), (b); see generally 37 CFR 202.19.
    \2\ 17 U.S.C. 101; see also 17 U.S.C. 407(b).
---------------------------------------------------------------------------

    Under the statute, the Register of Copyrights may issue a written 
demand for works at any time after they have been published in the 
United States, and failure to deposit after a demand may subject the 
recipient to monetary liability.\3\ Compliance with this section is 
separate from the copyright registration process, but the Copyright Act 
provides that deposits made under section 407 may be used to satisfy 
the registration deposit provisions under section 408, if all other 
registration conditions are met.\4\
---------------------------------------------------------------------------

    \3\ 17 U.S.C. 407(d).
    \4\ Id. at 408(b). Although section 408 states that copies 
deposited pursuant to the mandatory deposit provision in section 407 
may be used to satisfy the registration deposit requirement in 
section 408, in practice the Office treats copies of works submitted 
for registration as satisfying the mandatory deposit requirement 
(assuming the deposit requirements are the same), and not vice 
versa. 37 CFR 202.19(f)(1), 202.20(e); see 43 FR 763, 768 (Jan. 4, 
1978).
---------------------------------------------------------------------------

    The Register of Copyrights may, by regulation, exempt categories of 
works from the mandatory deposit requirement.\5\ Under this authority, 
the Office issued an interim rule in 2010 (the ``2010 Interim Rule'') 
codifying its established practice of excluding from mandatory deposit 
requirements all ``[e]lectronic works published in the United States 
and available only online.'' \6\ The 2010 Interim Rule referred to such 
works as ``electronic-only.'' The Office also, however, adopted an 
exception to this exemption, requiring the deposit of electronic-only 
serials if affirmatively demanded by the Office.\7\
---------------------------------------------------------------------------

    \5\ 17 U.S.C. 407(c).
    \6\ Mandatory Deposit of Published Electronic Works Available 
Only Online, 75 FR 3863, 3869 (Jan. 25, 2010) (``2010 Interim 
Rule''); 37 CFR 202.19(c)(5).
    \7\ 2010 Interim Rule at 3865-66. ``Electronic works'' are 
themselves defined as ``works fixed and published solely in an 
electronic format.'' 37 CFR 202.24(c)(3).
---------------------------------------------------------------------------

    In 2016, the Office issued a notice of inquiry (``NOI'') that 
proposed adding a new category of online works--electronic-only books--
to the mandatory deposit framework. As with electronic-only serials, 
the Office proposed that electronic-only books would be subject to 
mandatory deposit only upon demand by the Office.\8\ In April 2018, 
following consideration of public comments received in response to the 
NOI, the Office issued a notice of proposed rulemaking (``2018 NPRM'') 
setting forth regulatory language to implement this change. The 2018 
NPRM proposed to define ``electronic-only book'' as ``an electronic 
literary work published in one volume or a finite number of volumes 
published in the United States and available only online,'' with some 
exclusions for specific types of works such as serials, audiobooks, 
websites, blogs, and emails.\9\
---------------------------------------------------------------------------

    \8\ Mandatory Deposit of Electronic Books and Sound Recordings 
Available Only Online: Notice of Inquiry, 81 FR 30505, 30506-08 (May 
17, 2016). The NOI also included online sound recordings as a 
potential additional category of works to subject to mandatory 
deposit, but the Office has decided to postpone further 
consideration of this issue until after the conclusion of this 
rulemaking.
    \9\ Id. at 16272.
---------------------------------------------------------------------------

    The Office received nine comments in response to the 2018 NPRM. 
Commenters generally expressed agreement with the broad goal of 
supporting the Library's acquisition and preservation of digital 
materials for the benefit of the American public,\10\ but they raised 
questions about what material would be collected \11\ and how the 
Library's IT security infrastructure would keep deposited materials 
secure.\12\
---------------------------------------------------------------------------

    \10\ See, e.g., Library Copyright Alliance 2018 NPRM Comment at 
2 (supported the proposed rule ``because of the critical role of 
deposit in building the Library's collection and ensuring long-term 
preservation'' of digital materials); Authors Guild 2019 NPRM 
Comment at 2 (noting Library ``cannot fulfill [its] mission today 
without collecting books that are published only in electronic 
form''); American Association of Publishers 2018 NPRM Comment at 3-4 
(stating ``[p]ublishers have long supported the special privilege of 
the Library to collect works'').
    \11\ See, e.g., Authors Guild 2018 NPRM Comment at 3-4 (raising 
questions about the Library's collections policies and recommending 
changes to definition of ``electronic-only book''); National Writers 
Union 2018 NPRM Comment at 3-4 (expressing uncertainty about what 
material would be demanded based on Library collections policies); 
Copyright Alliance 2018 NPRM Comment at 3 (raising questions about 
Library's collections strategy). All public comments in this 
rulemaking may be accessed at https://www.copyright.gov/rulemaking/ebookdeposit/.
    \12\ Copyright Alliance 2018 NPRM Comment at 4 (requesting the 
Library ``demonstrat[e] the adequacy of the Library's IT system'' 
before finalizing the rule); Authors Guild 2018 NPRM Comment at 3 
(seeking additional specifics about the ``security measures for e-
books'' and requesting more information about Library's creation of 
a secure e-book repository); American Association of Publishers 2018 
NPRM Comment at 2-3 (seeking additional information about ``the 
state of the Library's technology capabilities, protocols, and 
security measures'').
---------------------------------------------------------------------------

    In response to those comments, the Office issued a revised NPRM on 
June 29, 2020 (``2020 NPRM'').\13\ To address questions about the scope 
of the rule, the 2020 NPRM clarified that short online works such as 
social media posts would not be subject to demand but that that online-
only books preloaded onto electronic devices such as tablets would be 
covered if otherwise available only online.\14\ The 2020 NPRM also 
explained that the rule did not apply to copies of e-books printed by 
an author, publisher, or distributor in response to purchases by 
individual consumers. Such books would ``instead remain subject to the 
general mandatory deposit obligation under section 407.'' \15\
---------------------------------------------------------------------------

    \13\ 85 FR 38806 (June 29, 2020) (``2020 NPRM'').
    \14\ 2020 NPRM at 38809.
    \15\ 2020 NPRM at 38809-10.
---------------------------------------------------------------------------

    In addition, the 2020 NPRM revised the requirement proposed in the 
2018 NPRM that technological protection measures (``TPMs'') controlling 
access to or use of deposits be removed. Instead, the Office proposed 
to update the Best Edition regulations in Appendix B to Part 202 to 
reflect the Library's preference for a TPM-free edition, if such a 
version has been published.\16\ If no TPM-free edition has been 
published, the proposed rule would next accept a copy for which the 
copyright owner has elected to remove such measures.\17\ If the owner 
declines to do so, the deposit must otherwise comply with the general 
requirement that copies can be accessed and reviewed on an ongoing 
basis.\18\
---------------------------------------------------------------------------

    \16\ 2020 NPRM at 38811.
    \17\ Id.
    \18\ Id.
---------------------------------------------------------------------------

    Finally, the 2020 NPRM addressed questions raised by commenters 
regarding the Library's collections policies and security practices. 
With respect to digital collections, the Office explained that, since 
the close of the 2018 NPRM comment period, the Library had provided 
additional information about its digital strategy and collections plans 
in several publicly available documents.\19\ As to concerns about the 
Library's IT security, the 2020 NPRM noted the many steps the Library 
has taken to improve its IT systems in recent years, as reflected in 
congressional testimony, Inspector General's reports, and other public 
materials. Those efforts include hiring a Chief Information Officer, 
centralizing all IT efforts in a single office, and implementing almost 
all of the thirty-one public recommendations from a 2015 report by the 
Government Accountability Office.\20\ The 2020 NPRM concluded that 
``these security upgrades, together with the additional IT-related 
information made public since the close of the prior comment

[[Page 71836]]

period, may reasonably address the concerns raised by commenters 
regarding the security of digital deposits.'' \21\ To ensure, however, 
that stakeholders had an adequate opportunity to consider and respond 
to this new information, the Office invited further public comment.
---------------------------------------------------------------------------

    \19\ 2020 NPRM at 38810 (citing Library of Congress, Enriching 
the Library Experience: The FY2019-2023 Strategic Plan of the 
Library of Congress, https://www.loc.gov/static/portals/strategic-plan/documents/LOC_Strat_Plan_2018.pdf and Library of Congress, 
Digital Strategy (Apr. 26, 2019), https://www.loc.gov/static/portals/digital-strategy/documents/Library-of-Congress-Digital-Strategy-v1.1.2.pdf).
    \20\ 2020 NPRM at 38812.
    \21\ 2020 NPRM at 38814.
---------------------------------------------------------------------------

II. The Final Rule

    The Office received four comments on the 2020 NPRM, none of which 
objected to finalizing the rule. The Authors Guild stated that the 
revised rule ``adequately addresses almost all of our prior concerns'' 
and that it is ``satisfied by the Library of Congress' progress'' in 
securing and managing its IT infrastructure.\22\ The Library Copyright 
Alliance also supported making the rule final, noting ``the critical 
role of deposit in building the Library's collection and ensuring long-
term preservation of these works.'' \23\ An individual commenter, Owen 
Linback, likewise expressed support for the proposed revisions.\24\
---------------------------------------------------------------------------

    \22\ Authors Guild Comments at 1.
    \23\ Library Copyright Alliance (LCA) Comments at 2. LCA also 
urged the Office to initiate a rulemaking on access restrictions on 
deposited electronic materials and expand the proposed rule to sound 
recordings. Id. at 4-5. As noted in the 2018 NPRM with respect to 
deposit of electronic-only sound recordings, the Office is 
``postponing further consideration of this issue until after the 
conclusion of the present rulemaking.'' 2018 NPRM at 16270.
    \24\ Comments of Owen Linback.
---------------------------------------------------------------------------

    The University of Michigan Library Copyright Office (``UM 
Library'') did not state an objection to finalizing the rule, but it 
``strongly urge[d]'' that the final rule require deposited copies to 
``be free from encryptions and digital rights management 
technologies.'' \25\ In the UM Library's view, ``[w]hen copies are 
encumbered with technological protection measures such as encryption or 
DRMs . . . they obstruct preservation, authorized access to 
information, and accessibility.'' \26\ The Office appreciates the need 
to ensure appropriate access to deposit materials, and the 2020 NPRM 
noted that ``the Library generally prefers TPM-free editions of works 
to simplify and further its preservation efforts.'' \27\ As the Office 
discussed, however, that interest must be balanced against the language 
of section 407, which requires only that copyright owners deposit the 
best published edition of a work. Additionally, section 1201 separately 
protects the right of copyright owners to distribute works with 
TPMs.\28\ The Office must implement its regulatory authority against 
the backdrop of that legal protection. The Office accordingly proposed 
a more flexible approach under which TPM-free copies of a work, or 
copies from which the owner has voluntarily removed TPMs, are preferred 
for best-edition purposes. And, in all events, the rightsholder must 
comply with the existing requirement that deposits can be ``accessed 
and reviewed by the Copyright Office, Library of Congress, and the 
Library's authorized users on an ongoing basis.'' \29\ The Office 
continues to believe that this framework will adequately serve the 
Library's collection needs in a manner consistent with the statute. The 
final rule therefore retains the Office's proposed language.
---------------------------------------------------------------------------

    \25\ Univ. of Mich. Library Copyright Office Comments at 1.
    \26\ Id.
    \27\ 2020 NPRM at 38811.
    \28\ 17 U.S.C. 1201(a).
    \29\ 37 CFR 202.24(a)(4).
---------------------------------------------------------------------------

    The Authors Guild raised three additional issues. First, it 
suggested that further guidance from the Office on the definition of 
``publication'' in the online context would be helpful ``before or in 
concert with'' the proposed rule.\30\ As the Authors Guild's comment 
notes, the Office is currently conducting a separate proceeding to 
consider potential regulatory updates interpreting the meaning of 
publication for purposes of copyright registration, and to provide 
policy guidance regarding the concept of publication more 
generally.\31\ A work's publication status, however, presents somewhat 
less of a concern for copyright owners under this rule than in the 
registration context, as electronic-only books must first be 
affirmatively identified and demanded by the Office before a copyright 
owner must deposit them. Thus, as the Authors Guild acknowledges, 
publication ``need not be specifically defined in this particular 
rule.'' \32\ For that reason, the Office believes that its separate 
proceeding on online publication is the more appropriate forum through 
which to provide additional guidance on the meaning of that term.
---------------------------------------------------------------------------

    \30\ Authors Guild Comments at 1-2.
    \31\ See Online Publication Notification of Inquiry, 84 FR 66328 
(Dec. 4, 2019).
    \32\ Authors Guild Comments at 2.
---------------------------------------------------------------------------

    Second, the Authors Guild suggested clarifying edits to the 
language regarding the rule's applicability to print-on-demand books. 
The 2020 NPRM provided that ``[a] work shall be deemed to be available 
only online even if copies have been made available to individual 
consumers to print on demand, so long as the work is otherwise 
available only online.'' \33\ The Authors Guild suggested the phrase 
``individual consumers to print on demand'' may be ambiguous and 
proposed revising the language to instead read: ``made available to 
individual consumers by print on demand services.'' \34\ The Authors 
Guild did not identify the specific ambiguity that this suggested 
change is intended to clarify, but the Office does not agree that it 
reflects the rule's intended scope. The reference to copies made 
available to consumers ``by print on demand services'' could be read to 
encompass physical copies printed by a service and distributed to 
individual purchasers. As discussed in the 2020 NPRM, ``[t]hese books 
are outside the scope of this rule, and instead remain subject to the 
general mandatory deposit obligation under section 407.'' \35\
---------------------------------------------------------------------------

    \33\ 2020 NPRM at 38814-15.
    \34\ Authors Guild Comments at 2 (bolding in original).
    \35\ 2020 NPRM at 38809-10.
---------------------------------------------------------------------------

    As an alternative, or in addition to the foregoing suggestion, the 
Authors Guild suggested that ``it might add clarity'' to refer to 
``individual'' copies, such that the language would read: ``A work 
shall be deemed to be available only online even if individual copies 
have been made available to individual consumers to print on demand, so 
long as the work is otherwise available only online.'' \36\ In its 
view, ``[i]t is possible that the emphasis on individual consumers 
could create confusion with respect to print-on-demand copies purchased 
by institutional consumers for their use (a school or a library for 
instance).'' \37\ It is not clear, however, that a reference to 
``individual copies'' would address that concern, which relates to the 
phrase ``individual consumers.'' As to the latter phrase, the Office 
agrees that there could be uncertainty over whether the provision 
covers copies made available to institutional purchasers such as 
libraries. In the Office's view, these entities are similarly situated 
to individual consumers in that they typically purchase a fixed number 
of copies of a given e-book, and the number of physical copies they may 
print and circulate to patrons is dictated by the terms of the 
purchasing agreement. That arrangement is distinguishable from a model 
in which a retailer continues to print copies as additional orders are 
received. To clarify that the definition is not intended to exclude e-
books purchased by libraries and similar institutions, the final rule 
thus provides: ``A work shall be deemed to be available only online 
even if copies have been made available to individual consumers or 
other end users to print on demand, so long as the

[[Page 71837]]

work is otherwise available only online.'' The Office intends the 
reference to ``end users'' to cover institutions such as libraries and 
universities who are the actual users of these works and not 
intermediate distributors such as online booksellers.
---------------------------------------------------------------------------

    \36\ See Authors Guild Comments at 2.
    \37\ Id.
---------------------------------------------------------------------------

    Finally, the Authors Guild suggested that the final rule provide 
for periodic consultations between the Library and publishers ``to 
ensure that the Library's recommended formats and preferences--and the 
Office's adherence thereto--are aligned with the most commonly used as-
published formats.'' \38\ The Office appreciates that conversations 
between the Library and publishers can help the Library's collections 
preferences align with industry practice. Although the Office would 
welcome such consultations to be ongoing (and itself maintains an open 
door to receive stakeholder feedback), it does not believe including a 
mandate in the regulatory text is appropriate. As explained in the 2020 
NPRM, the Library consistently seeks stakeholder input when crafting 
its policies,\39\ and the Office expects that the Library will be open 
to continued outreach from publishers to that effect.
---------------------------------------------------------------------------

    \38\ Authors Guild Comments at 2.
    \39\ 2020 NPRM at 38814.
---------------------------------------------------------------------------

List of Subjects in 37 CFR Part 202

    Claims, Copyright.

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

PART 202--GENERAL PROVISIONS

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

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


0
2. Amend Sec.  202.18 by:
0
a. In paragraph (a) in the first sentence adding the words ``and Sec.  
202.19, and transferred into the Library of Congress's collections,'' 
after ``under Sec.  202.4(e)'';
0
b. In paragraph (b) in the first sentence adding the words ``and Sec.  
202.19'' after ``under Sec.  202.4(e)'';
0
c. In paragraph (c) in the first sentence adding the words ``and Sec.  
202.19'' after ``under Sec.  202.4(e)''; and
0
d. Adding paragraph (f).
    The addition reads as follows:


Sec.  202.18  Access to electronic works.

* * * * *
    (f) Except as provided under special relief agreements entered into 
pursuant to Sec.  202.19(e) or Sec.  202.20(d), electronic works will 
be transferred to the Library of Congress for its collections and made 
available only under the conditions specified by this section.

0
3. Amend Sec.  202.19 by:
0
a. Revising paragraph (b)(4).
0
b. In paragraph (c)(5), adding the phrase ``electronic-only books and'' 
after the phrase ``This exemption includes''.
    The revision reads as follows:


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

* * * * *
    (b) * * *
    (4) For purposes of paragraph (c)(5) of this section:
    (i) An electronic-only serial is a serial as defined in Sec.  
202.3(b)(1)(v) that is published in electronic form in the United 
States and available only online.
    (ii) An electronic-only book is an electronic literary work 
published in one volume or a finite number of volumes published in the 
United States and available only online. This class excludes literary 
works distributed solely in phonorecords (e.g., audiobooks), serials 
(as defined in Sec.  202.3(b)(1)(v)), computer programs, websites, 
blogs, emails, and short online literary works such as social media 
posts.
    (iii) A work shall be deemed to be available only online even if 
copies have been made available to individual consumers or other end 
users to print on demand, so long as the work is otherwise available 
only online. A work also shall be deemed to be available only online 
even if copies have been loaded onto electronic devices, such as 
tablets or e-readers, in advance of sale to individual consumers, so 
long as the work is otherwise available only online.
* * * * *

0
4. Amend Sec.  202.24 as follows:
0
a. In paragraph (a)(2), remove the word ``works'' and add in its place 
``electronic-only serials'';
0
b. Redesignate paragraphs (a)(3) and (4) as paragraphs (a)(4) and (5), 
and add a new paragraph (a)(3);
0
c. In paragraph (b), remove ``online-only'' and add in its place 
``electronic-only''; and
0
d. Revise paragraph (c)(3).
    The addition and revision reads as follows:


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

    (a) * * *
    (3) Demands may be made only for electronic-only books published on 
or after December 14, 2020.
* * * * *
    (c) * * *
    (3) ``Electronic-only'' works are electronic works that are 
published and available only online.

0
6. Amend Appendix B to Part 202 by revising section IX to read as 
follows:

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

* * * * *
    IX. Electronic-Only Works Published in the United States and 
Available Only Online
    The following encodings are listed in descending order of 
preference for all deposits in all categories below:
    1. UTF-8.
    2. UTF-16 (with BOM).
    3. US-ASCII.
    4. ISO 8859.
    5. All other character encodings.
    A. Electronic-Only Serials:
    1. Content Format:
    a. Serials-specific structured/markup format:
    i. Content compliant with the NLM Journal Archiving (XML) 
Document Type Definition (DTD), with presentation stylesheet(s), 
rather than without NISO JATS: Journal Article Tag Suite (NISO 
Z39.96-201x) with XSD/XSL presentation stylesheet(s) and explicitly 
stated character encoding.
    ii. Other widely used serials or journal XML DTDs/schemas, with 
presentation stylesheet(s), rather than without.
    iii. Proprietary XML format for serials or journals (with 
documentation), with DTD/schema and presentation stylesheet(s), 
rather than without.
    b. Page-oriented rendition:
    i. PDF/UA (Portable Document Format/Universal Accessibility; 
compliant with ISO 14289-1).
    ii. PDF/A (Portable Document Format/Archival; compliant with ISO 
19005).
    iii. PDF (Portable Document Format, with searchable text, rather 
than without; highest quality available, with features such as 
searchable text, embedded fonts, lossless compression, high 
resolution images, device-independent specification of colorspace; 
content tagging; includes document formats such as PDF/X).
    c. Other structured or markup formats:
    i. Widely-used serials or journal non-proprietary XML-based 
DTDs/schemas with presentation stylesheet(s).
    ii. Proprietary XML-based format for serials or journals (with 
documentation) with DTD/schema and presentation stylesheet(s).
    iii. XHTML or HTML, with DOCTYPE declaration and presentation 
stylesheet(s).
    iv. XML-based document formats (widely used and publicly 
documented). With presentation stylesheets, if applicable. Includes 
ODF (ISO/IEC 26300) and OOXML (ISO/IEC 29500).
    d. PDF (web-optimized with searchable text).
    e. Other formats:
    i. Rich text format.
    ii. Plain text.
    iii. Widely-used proprietary word processing or page-layout 
formats.
    iv. Other text formats not listed here.
    2. Metadata Elements: If included with published version of 
work, descriptive data (metadata) as described below should 
accompany the deposited material:

[[Page 71838]]

    a. Title level metadata: serial or journal title, ISSN, 
publisher, frequency, place of publication.
    b. Article level metadata, as relevant/or applicable: volume(s), 
number(s), issue dates(s), article title(s), article author(s), 
article identifier (DOI, etc.).
    c. With other descriptive metadata (e.g., subject heading(s), 
descriptor(s), abstract(s)), rather than without.
    3. Completeness:
    a. All elements considered integral to the publication and 
offered for sale or distribution must be deposited--e.g., articles, 
table(s) of contents, front matter, back matter, etc. Includes all 
associated external files and fonts considered integral to or 
necessary to view the work as published.
    b. All updates, supplements, releases, and supersessions 
published as part of the work and offered for sale or distribution 
must be deposited and received in a regular and timely manner for 
proper maintenance of the deposit.
    4. Technological measures that control access to or use of the 
work should be removed.
    B. Electronic-Only Books:
    1. Content Format:
    a. Book-specific structured/markup format, i.e., XML-based 
markup formats, with included or accessible DTD/schema, XSD/XSL 
presentation stylesheet(s), and explicitly stated character 
encoding:
    i. BITS-compliant (NLM Book DTD).
    ii. EPUB-compliant.
    iii. Other widely-used book DTD/schemas (e.g., TEI, DocBook, 
etc.).
    b. Page-oriented rendition:
    i. PDF/UA (Portable Document Format/Universal Accessibility; 
compliant with ISO 14289-1).
    ii. PDF/A (Portable Document Format/Archival; compliant with ISO 
19005).
    ii. PDF (Portable Document Format; highest quality available, 
with features such as searchable text, embedded fonts, lossless 
compression, high resolution images, device-independent 
specification of colorspace; content tagging; includes document 
formats such as PDF/X).
    c. Other structured markup formats:
    i. XHTML or HTML, with DOCTYPE declaration and presentation 
stylesheet(s).
    ii. XML-based document formats (widely-used and publicly-
documented), with presentation style sheet(s) if applicable. 
Includes ODF (ISO/IEC 26300) and OOXML (ISO/IEC 29500).
    iii. SGML, with included or accessible DTD.
    iv. Other XML-based non-proprietary formats, with presentation 
stylesheet(s).
    v. XML-based formats that use proprietary DTDs or schemas, with 
presentation stylesheet(s).
    d. PDF (web-optimized with searchable text).
    e. Other formats:
    i. Rich text format.
    ii. Plain text.
    iii. Widely-used proprietary word processing formats.
    iv. Other text formats not listed here.
    2. Metadata Elements: If included with published version of 
work, descriptive data (metadata) as described below should 
accompany the deposited material:
    a. As supported by format (e.g., standards-based formats such as 
ONIX, XMP, MODS, or MARCXML either embedded in or accompanying the 
digital item): title, creator, creation date, place of publication, 
publisher/producer/distributor, ISBN, contact information.
    b. Include if part of published version of work: language of 
work, other relevant identifiers (e.g., DOI, LCCN, etc.), edition, 
subject descriptors, abstracts.
    3. Rarity and Special Features:
    a. Limited editions (including those with special features such 
as high resolution images.)
    b. Editions with the greatest number of unique features (such as 
additional content, multimedia, interactive elements.)
    4. Completeness:
    a. For items published in a finite number of separate 
components, all elements published as part of the work and offered 
for sale or distribution must be deposited. Includes all associated 
external files and fonts considered integral to or necessary to view 
the work as published.
    b. All updates, supplements, releases, and supersessions 
published as part of the work and offered for sale or distribution 
must be submitted and received in a regular and timely manner for 
proper maintenance of the deposit.
    5. Technological Protection Measures:
    a. Copies published in formats that do not contain technological 
measures controlling access to or use of the work.
    b. Copies published with technological measures that control 
access to or use of the work, and for which the owner has elected to 
remove such technological measures.
    c. Copies otherwise provided in a manner that meets the 
requirements of Sec.  202.24(a)(5).

    Dated: October 5, 2020.
Maria Strong,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.
    Approved by:

Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2020-23101 Filed 11-10-20; 8:45 am]
BILLING CODE 1410-30-P

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