Compendium of U.S. Copyright Office Practices, 3205-3212 [2021-00604]

Agencies

• Library of Congress
• Copyright Office

[Federal Register Volume 86, Number 9 (Thursday, January 14, 2021)]
[Notices]
[Pages 3205-3212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-00604]


=======================================================================
-----------------------------------------------------------------------

LIBRARY OF CONGRESS

Copyright Office

[Docket No. 2019-03]


Compendium of U.S. Copyright Office Practices

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

ACTION: Update to Compendium of U.S. Copyright Office Practices, Third 
Edition.

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

SUMMARY: The U.S. Copyright Office is releasing an update to its 
administrative manual, the Compendium of U.S. Copyright Office 
Practices, Third Edition.

DATES: The updated version of the Compendium of U.S. Copyright Office 
Practices, Third Edition is available on the Office's website as of 
January 28, 2021.

FOR FURTHER INFORMATION CONTACT: Robert J. Kasunic, Associate Register 
of Copyrights and Director of Registration Policy and Practice, by 
email at [email protected]; Catherine Zaller Rowland, Associate 
Register of Copyrights and Director of Public Information and 
Education, by email at [email protected]; or Regan A. Smith, 
General Counsel and Associate Register of Copyrights, by email at 
[email protected]. All can be reached by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION: The Compendium of U.S. Copyright Office 
Practices, Third Edition (``Compendium'') is the administrative manual 
of the U.S. Copyright Office. It ``explains many of the practices and 
procedures concerning the Office's mandate and statutory duties under 
title 17 of the United States Code.'' 37 CFR 201.2(b)(7). ``It is both 
a technical manual for the Copyright Office's staff, as well as a 
guidebook for authors, copyright licensees, practitioners, scholars, 
the courts, and members of the general public.'' Id. The Office 
conducted a comprehensive revision of the Compendium beginning in 2011, 
which it released as the Third Edition in December 2014. 79 FR 78911 
(Dec. 31, 2014). The Third Edition was revised in 2017 to ensure that 
its contents were consistent with case law and Office practices. 82 FR 
45625 (Sept. 29, 2017).

[[Page 3206]]

    The Office released the latest draft revision to the Compendium on 
March 15, 2019 (the ``Public Draft''). The Office posted the Public 
Draft on its public website and invited comments until May 31, 2019. 
The draft included proposed revisions to the sections discussing useful 
articles to reflect the Supreme Court's decision in Star Athletica v. 
Varsity Brands, 137 S. Ct. 1002 (2017), as well as to reflect 
rulemakings the Office conducted in the intervening months since the 
last revision. It provided information regarding the new group 
registration options for unpublished works, unpublished photographs, 
published photographs, and serial, newspaper, and newsletter issues. It 
discussed the new deposit requirements for literary monographs, printed 
music, and photographic databases, as well as the changes to 
regulations governing use of the Single Application and Standard 
Application forms and technical upgrades to the electronic registration 
system. It also clarified certain Office practices, including under 
what circumstances the Office communicates with applicants, attempts to 
correct deficiencies in an application, registers claims with 
annotations, and refuses registration. An archived copy of the Public 
Draft is available on the Office's website.\1\
---------------------------------------------------------------------------

    \1\ See https://www.copyright.gov/comp3/docs/compendium-draft.pdf.
---------------------------------------------------------------------------

    The Office received twenty-four comments on the Public Draft.\2\ 
After carefully reviewing these comments, the Office decided to further 
revise a number of sections of the Public Draft. The result is a final 
update (the ``Final Version''), which is discussed in detail below. 
Additionally, the Final Version: reflects the adoption of the Music 
Modernization Act in October 2018, the Marrakesh Treaty Implementation 
Act in October 2018, and the National Defense Authorization Act for 
Fiscal Year 2020; the Supreme Court's recent decisions in Georgia v. 
Public.Resource.Org, Inc., 140 S. Ct. 1498 (2020), and Fourth Estate 
Public Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019); 
the Second Circuit's May 2020 decision in Sohm v. Scholastic Inc., 959 
F.3d 39 (2d Cir. 2020); as well as rulemaking activity that post-dated 
the Public Draft, including changes to the fee schedule and to 
regulations regarding registration of architectural works, the group 
registration option for short online literary works, group registration 
options for serials, newspapers, and newsletters, and changes in Office 
practices regarding the group registration option for unpublished 
works. A complete list of all sections that have been added, amended, 
revised, or removed is available on the Office's website at https://www.copyright.gov/comp3/revisions.html, along with redlines that 
provide a direct comparison between the Final Version and the 2017 
version of the Third Edition of the Compendium.
---------------------------------------------------------------------------

    \2\ The comments can be found at https://regulations.gov/document/COLC-2019-0001-0001/comment.
---------------------------------------------------------------------------

    Key revisions to the Public Draft reflected in the Final Version 
are as follows:

1. Correspondence and Refusals

    Many of the comments regarding the Public Draft related to changes 
in language providing examiners with greater discretion to correspond 
with the applicant regarding deficiencies in an application or to 
refuse registration.\3\ Commenters expressed concern that these 
revisions signaled a change in the Office's procedures that would 
provide fewer opportunities for applicants to correct problems in their 
applications. Some commenters feared that an undue focus on examining 
applications efficiently could come at the expense of providing 
adequate customer service to applicants.
---------------------------------------------------------------------------

    \3\ American Society of Media Photographers Comment at 2-3 (May 
31, 2019); Copyright Alliance Comment at 2-5 (May 31, 2019); Digital 
Media Licensing Association Comment at 2-3 (May 31, 2019); Graphic 
Artists Guild Comment at 2-3 (May 31, 2019); Kernochan Center 
Comment at 1-2 (May 30, 2019); National Music Publishers' 
Association Comment at 2 (May 31, 2019); National Press 
Photographers Association Comment at 3-6 (May 31, 2019); North 
American Nature Photography Association Comment at 2-3 (May 31, 
2019); Shaftel & Schmelzer Comment at 2-3 (May 30, 2019).
---------------------------------------------------------------------------

    The Office has demonstrated a commitment to providing assistance to 
applicants as they navigate the registration process, including by 
publishing the Compendium and Circulars, providing a variety of other 
guidance documents on the Office's website, and through the Office of 
Public Information and Education. Examiners have always had discretion 
to correspond with applicants or refuse registration in appropriate 
cases. In the vast majority of cases, where the issues in an 
application can be fixed, Examiners have corresponded--and will 
continue to correspond--with the applicant to request a clarification 
or to correct information on the application.
    However, correspondence is not always the preferred way to address 
issues. Correspondence can require a great deal of resources in certain 
situations and may not be productive. For example, if an applicant 
submits the incorrect form, transferring the application onto the 
correct form may require collecting additional fees or a different 
deposit, which cannot be done simply through correspondence. Other 
times, an applicant may make the same mistake repeatedly, despite 
guidance from the Office. In these situations, examiners need 
discretion to cease or forego correspondence and refuse registration. 
As explained in sections 608, 1702, and 1703 of the Compendium, if an 
application is refused, the applicant will be informed in writing of 
the refusal, will receive an explanation of the basis for the refusal, 
and will have the option to appeal the refusal.
    To explain how the Office handles correspondence and refusals, and 
to address the concerns described above expressed by commenters, the 
Office has revised numerous sections of the Compendium. First, the 
Office further revised several sections in Chapter 600 to clarify how 
an examiner will respond to a variance in an application. The Office 
uses the term ``variance'' to refer to any instance in which 
registration materials submitted by an applicant provide conflicting 
information. Section 603 explains that there are four types of 
variances: immaterial; material but resolvable by reviewing the 
registration materials; material but potentially resolvable through 
correspondence; and material and not resolvable. The Office added 
definitions of the terms ``variance,'' ``material,'' and ``immaterial'' 
to the Glossary and added links to the sections in which those terms 
are used throughout Chapter 600. The Office removed the term 
``deficiencies'' from sections 603.2(C) and 605.3(D) and replaced it 
with the term ``variances.'' Similarly, the term ``substantial 
variance'' was replaced with ``material variance'' in sections 
610.6(B), 610.6(D)(1), 610.6(D)(4), 613.10(B), 613.10(E)(1)(b), and 
618.8(E).
    Second, the Office revised sections 603 and 603.2(C) to explain 
that only in ``exceptional cases'' will the examiner refuse 
registration based on material variances. Sections 618.1, 618.4(A), 
618.8(A)(1), 618.8(A)(7), 618.8(D), 619.13(K), 621.8(C)(2), 621.9(F), 
and 621.9(H)(2) have been updated to identify specific situations in 
which the Office will typically correspond with an applicant.
    Third, the Office provided representative examples of exceptional 
circumstances in which an examiner will refuse registration without 
providing the applicant an opportunity to correct or clarify 
information in the

[[Page 3207]]

application. Section 603.2(C) provides examples of an applicant who 
repeatedly omits required information despite multiple reminders from 
the Office that the information is required, and an applicant who 
submits the wrong form and filing fee. Other examples of instances in 
which an examiner will refuse registration appear in sections 618.8(C), 
618.8(C)(6), 618.8(D), 618.8(D)(4), 621.9(E)(6), 621.9(F), and 
621.9(F)(4), which clarify that the Office will refuse registration if 
the claim appears to be limited to uncopyrightable or de minimis 
material or if there appears to be no basis for asserting a valid claim 
in the work.
    Fourth, in response to the public comments discussed above, the 
Office revised several sections 204.3 and 609.1 of the Compendium to 
state that an examiner ``may,'' instead of ``will,'' refuse 
registration if the applicant has not satisfied the formal and legal 
requirements for registration or if the applicant selects the wrong 
version of the Standard Application.
    Fifth, some revisions addressed important group registration 
issues. It can be particularly important for examiners to have the 
discretion to refuse registration when applicants fail to comply with 
the requirements for group registrations. The Copyright Office imposes 
requirements for group registration options to streamline the 
examination of multiple works within one application. Group 
registration options are not practicable unless applicants comply with 
the basic requirements for those options. Nevertheless, the Office has 
revised the Compendium to allow examiners discretion to correspond with 
applicants in appropriate circumstances. In response to comments from 
the North American Nature Photography Association,\4\ the Office 
revised section 1105.3 to clarify that examiners may refuse 
registration if the applicant failed to satisfy the eligibility 
requirements for a particular option or may correspond if they 
determine the problem can easily be addressed. Similarly, changes to 
section 1114.1 clarify that if a photographer submits more than 750 
photographs in connection with an application for group registration of 
photographs, the Office may register the first 750 photographs listed 
in the application and remove the rest of the photos from the claim, or 
may refuse registration.
---------------------------------------------------------------------------

    \4\ North American Nature Photography Association Comment at 2-
3.
---------------------------------------------------------------------------

    Finally, the Office carefully considered a proposal relating to 
proper deposits but determined that the proposal would not be 
beneficial to the copyright system. The National Music Publishers' 
Association expressed concern about an examiner's discretion to refuse 
to register a work if the deposit was submitted in the wrong format, as 
discussed in section 625.2(B).\5\ The Office cannot register a work 
unless a proper deposit has been submitted. See section 204.3. Nor can 
the Office examine a work unless it is submitted in a form that can be 
opened and displayed by the Office's system. The Office added new 
technology to the electronic system in December 2017 that prevents the 
submission of deposits in an incorrect format except in cases where the 
applicant uploads the deposit on a zip file or submits an electronic 
application and mails a physical copy that contains unacceptable file 
formats.\6\ The Office also updated the automated emails sent in 
response to applicants when they submit applications and the 
instructions on the deposit submission screen to indicate that deposits 
must be submitted in an acceptable file format, with a link to the list 
of acceptable formats.\7\ In light of these improvements, the Office 
believes it is appropriate to refuse registration if an applicant 
submits a deposit in an incorrect format.
---------------------------------------------------------------------------

    \5\ National Music Publishers' Association Comment at 2.
    \6\ See https://www.copyright.gov/eco/updates/eco-updates.pdf.
    \7\ See https://www.copyright.gov/eco/help-file-types.html.
---------------------------------------------------------------------------

2. New Topics Reflecting Court Decisions

    The Public Draft has been updated in light of the Supreme Court's 
decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 
139 S. Ct. 881 (2019), which held that the owner of a copyright for a 
U.S. work must have received a registration decision from the Office 
prior to instituting a claim for infringement in a U.S. court. Prior to 
this decision, the Office had maintained in the Compendium that this 
was the correct reading of the Copyright Act rather than the 
``application rule,'' which would have required only the submission of 
an application to register the copyright. The Court confirmed that the 
Office's interpretation was correct. The Compendium was revised in 
several places to delete references to courts that applied the 
``application rule.'' Several sections in Chapter 1600 were also 
revised to reflect the Supreme Court's discussion of preregistration in 
the Fourth Estate decision.
    The Public Draft has also been revised to account for the Supreme 
Court's decision in Georgia v. Public.Resource.Org, Inc., 140 S. Ct. 
1498 (2020), regarding the government edicts doctrine. Section 
313.6(C)(2) was revised in light of the Court's holding that any ``work 
that [a] judge or legislator produces in the course of his [or her] 
judicial or legislative duties is not copyrightable.'' Id. at 1506. 
This section has also been revised to include several quotations from 
the decision that explain the Court's reasoning. Section 717 was also 
revised in light of the Court's decision to clarify that annotated 
codes or compilations of legal documents may be copyrightable if they 
contain sufficient original authorship and were prepared by a private 
party or non-lawmaking official not acting under the control of a 
legislative or judicial body.
    The Office also revised the Public Draft to account for the Second 
Circuit's May 2020 decision in Sohm v. Scholastic Inc., 959 F.3d 39 (2d 
Cir. 2020), holding that a registration for a collective work may cover 
the component works in certain circumstances even if the authors and 
titles of those works are not listed in the application. The Office 
added a citation to this case in section 613.10(F) and removed the 
citation to Muench v. Houghton Mifflin, a decision from the Southern 
District of New York that was abrogated by the decision in Sohm.

3. THREAD-ID

    When an examiner sends an email concerning an application, the 
Office assigns a ``THREAD ID'' to that communication. Several 
commenters objected to the sections in the Public Draft that indicated 
that a claim would be closed if an applicant did not include the THEAD-
ID in the body of an email replying to email correspondence from the 
examiner. Commenters suggested that it should be sufficient if the 
THREAD-ID or case number is included either in the subject line of a 
response email or the body of the response message.\8\ While the Office 
understands this concern, the current system requires the inclusion of 
the THREAD-ID in the body of an email reply for the Office to be able 
to connect correspondence received from applicants with the relevant 
claims. As mentioned in a recent Statement of Policy and Notification 
of Inquiry regarding registration modernization, the Office intends to 
simplify the system

[[Page 3208]]

for claims and correspondence when designing the next system.\9\
---------------------------------------------------------------------------

    \8\ Copyright Alliance Comment at 7; Digital Media Licensing 
Association Comment at 4; Graphic Artists Guild, Inc. Comment at 3; 
National Press Photographers Association Comment at 5; Shaftel & 
Schmelzer Comment at 2.
    \9\ 85 FR 12704, 12711 (Mar. 3, 2020).
---------------------------------------------------------------------------

    In response to public comments, the Office updated sections 
605.3(A), 605.4, and 605.6(B) in the Final Version to clarify that the 
THREAD-ID must be included in the body, not the subject line, of any 
email reply from an applicant in order to connect the reply with the 
appropriate record. In November 2019, the Office also amended its 
correspondence templates so that all outgoing emails contain a clear 
warning at the beginning of the message instructing applicants that the 
THREAD-ID must be included in the body of any reply and explaining that 
the examiner will not receive the reply if the applicant does not 
comply with these instructions. The amended text found in all outgoing 
emails can be found in section 605.4 of the Final Version. The Office 
believes the revised text in the Compendium and in outgoing 
correspondence provide clear notice to applicants about the requirement 
to include the THREAD-ID in all email correspondence with examiners.

4. No Replies

    One commenter urged the Office to reconsider its practice of 
closing a claim if there has been no response to written correspondence 
from the Office within forty-five days. The commenter noted that the 
original message could have been caught in a spam filter or overlooked 
by the applicant due to a variety of circumstances. The commenter 
requested that the Office call and send a second email to each 
applicant who has not responded to written correspondence within thirty 
days.\10\
---------------------------------------------------------------------------

    \10\ Shaftel & Schmelzer Comment at 2-3.
---------------------------------------------------------------------------

    It would be burdensome for the Office to call and send an email to 
every applicant who has not responded to written correspondence and 
technical constraints do not allow for that process to be automated 
within the current system. The Office will consider whether to include 
that functionality in the next system. Applicants bear the 
responsibility of providing the Office with accurate contact 
information and monitoring their email inboxes for correspondence. In 
the event that an applicant's failure to reply to written 
correspondence was caused by extraordinary circumstances outside the 
applicant's control, the applicant may use the process outlined in 
section 605.8 of the Compendium to request that a claim be reopened.

5. Publication

    Several commenters requested additional guidance in the Compendium 
regarding the distinction between published and unpublished works.\11\ 
The Office issued a Notification of Inquiry in December 2019 seeking 
comments from the public about possible strategies through which the 
Office can provide additional guidance regarding the determination as 
to whether a work has been published, particularly in the online 
context.\12\ The Office is in the process of reviewing the 71 comments 
and reply comments it received in response to that Notification to 
determine the appropriate next steps. In the meantime, as suggested by 
commenters,\13\ the Office has provided additional examples of 
published and unpublished works in various sections of the Compendium. 
Specifically, the Office added several examples to sections 1114.1, 
1114.5, and 1114.6(G) to clarify that both the distribution of 
photographs and the offering of one or more copies of a photograph to 
someone for the purpose of further distribution or public display 
constitute publication. These new examples should also assist 
applicants in determining the date of first publication of their 
photographs. One of the examples explicitly discusses the scenario 
raised by the National Press Photographers Association (``NPPA'') in 
which a photographer posts photographs in a password-protected site 
with authorization for clients to download and distribute the 
photographs, and clarifies that this constitutes publication. The 
Office also revised section 1906.1, as requested by NPPA, to clarify 
that sending an image to any client, as opposed to only newspapers, 
magazines or websites, with a license authorizing further distribution 
constitutes publication.\14\ The Office revised the definition of 
``copies'' and ``phonorecords'' in the Glossary to clarify that they 
include the singulars ``copy'' and ``phonorecord,'' so that 
distributing a single copy or phonorecord of a work can constitute 
publication. The Office made a similar revision to sections 1905 and 
1905.1, which discuss distribution to the public. The Office also 
revised section 1008.3 to clarify that streaming is a performance, 
which may not constitute publication of the streamed work absent the 
distribution or offering of copies of the work, including for purposes 
of furthering the performance or enjoyment of the work.\15\
---------------------------------------------------------------------------

    \11\ Graphic Artists Guild, Inc. Comment at 3-4; National Press 
Photographers Association Comment at 10-11; North American Nature 
Photography Association Comment at 4.
    \12\ 84 FR 66328 (Dec. 4, 2019).
    \13\ National Press Photographers Association Comment at 7-9; 
American Society of Media Photographers Comment at 3.
    \14\ National Press Photographers Association Comment at 8.
    \15\ 17 U.S.C. 115.
---------------------------------------------------------------------------

    The Office declined the request of one commenter to revise language 
in section 1906.1 that ``[o]ffering a work directly to the public 
constitutes publication where the offeror has completed all the steps 
necessary for distribution to the public, such that the only further 
action required is an offeree's action in obtaining a copy or 
phonorecord.'' \16\ This sentence in section 1906.1 and the examples 
that follow focus on defining what constitutes an offer. The definition 
of publication in the statute and the language in the surrounding 
paragraphs of this section of the Compendium make it sufficiently clear 
that an offer to distribute copies of a work only constitutes 
publication if the purpose is for the copies to be further distributed, 
publicly performed, or publicly displayed.
---------------------------------------------------------------------------

    \16\ Daniel Ballard Comment at 1 (June 3, 2019).
---------------------------------------------------------------------------

6. Duplicate Submissions

    Two commenters raised a concern regarding perceived inconsistent 
implementation of the Office's policy to not knowingly issue multiple 
registrations for the same claim, described in section 602.4(E) of the 
Compendium. Because the system does not allow the public to access 
information about pending applications, more than one music publisher 
may attempt to register the same composition without knowing that 
another application was filed previously. The commenters claimed that, 
in this situation, the Office has refused some applications and 
directed applicants to seek a supplementary registration that 
identifies additional authors and claimants, while the Office has 
instructed other applicants to remove the co-author/co-claimant 
identified on the first application from the second application, which 
results in the same work being registered twice.\17\ The commenters 
requested that applicants in this situation be permitted to file 
applications for supplementary registrations at no cost.\18\
---------------------------------------------------------------------------

    \17\ The Office is not aware of any instances in which it has 
instructed an applicant seeking to register a work that has already 
been registered to remove the name of a co-author or co-claimant 
from an application, but it would be happy to discuss any such 
instances with applicants.
    \18\ National Music Publishers' Association Comment at 2-3; 
Copyright Alliance Comment at 7.
---------------------------------------------------------------------------

    The Office is aware that multiple registrations for the same work 
can be issued if the examiner is not aware of

[[Page 3209]]

the prior registration at the time of the examination. There are also 
adverse claims, in which a second applicant claims to be the true 
author or owner of the copyright rather than the first applicant. If 
the examiner is aware of the prior registration and the applicant 
claims to be a co-claimant, the examiner should generally advise the 
applicant to seek a supplementary registration to identify additional 
authors and claimants, which would require payment of an additional 
fee. Additionally, recordation can be used to establish the filer's co-
ownership in the previously registered work. To the extent the 
application is filed by a new owner after a transfer from a previous 
owner, that is established in the public catalog by recording the 
transfer rather than amending the registration.

7. Copyright Protection and Other Forms of Legal Protection

    As suggested by the Kernochan Center,\19\ the Office revised 
sections 310.11, 905, and 924.5 to clarify that a work may be eligible 
for copyright protection, regardless of whether it may or may not be 
protected by other forms of legal protection.
---------------------------------------------------------------------------

    \19\ Kernochan Center Comment at 2.
---------------------------------------------------------------------------

8. Useful Articles and Works of Artistic Craftsmanship

    Chapter 900 of the Compendium has been updated to reflect the 
Supreme Court's decision in Star Athletica v. Varsity Brands, 137 S. 
Ct. 1002 (2017). In providing new guidance for claims involving useful 
articles, the chapter also addresses claims concerning works of 
artistic craftsmanship. In light of our new guidance, the Kernochan 
Center and attorney Daan Erikson requested additional guidance on how 
to determine whether a work is a useful article.\20\
---------------------------------------------------------------------------

    \20\ Id. at 2-3; Daan Erikson Comment at 1-2 (May 31, 2019).
---------------------------------------------------------------------------

    In reviewing Chapter 900, the Kernochan Center noted that ``there 
are no examples of useful articles that in their entirety might be 
perceived as [pictorial, graphic, or sculptural] works.'' \21\ It 
advised the Office ``to say up front that separability analysis doesn't 
apply to the entire shape of the article.'' \22\ In consideration of 
this comment, the Office revised several sections, including sections 
924, 924.2, 924.3(B), 924.3(E), 924.3(F), and 925.3, to confirm that 
copyright does not protect the overall shape of a useful article. 
Rather, copyright protects the design features that can be conceptually 
separated from a useful article.
---------------------------------------------------------------------------

    \21\ Kernochan Center Comment at 2.
    \22\ Id.
---------------------------------------------------------------------------

    In addition, the Office revised the draft to provide guidance on 
how to determine whether an item has an intrinsic utilitarian function 
and thus should be treated as a ``useful article.'' The Compendium 
makes clear that the Office does not consider the intended use of 
articles in industry when deciding whether a design is copyrightable. 
The Kernochan Center probed, however, ``[d]oesn't `intended use' bear 
on whether the article has an `intrinsic utilitarian purpose'?'' \23\ 
In response, the Office revised sections 924.1 and 924.3(D) to confirm 
that when determining whether an article has an intrinsic utilitarian 
function, the Office focuses on the inherent, observable 
characteristics of the article, but will not consider the subjective 
intent or subjective reaction of any person in relation to that 
article. The Office also expanded sections 911, 920.2, 924.1, and 
924.3(A) to list additional examples of two- and three-dimensional 
useful articles and confirmed that templates, stencils, and many 
costume designs are useful articles.\24\
---------------------------------------------------------------------------

    \23\ Id. at 3.
    \24\ Daan Erikson Comment at 2.
---------------------------------------------------------------------------

    Even if an article has an intrinsic utilitarian function, it will 
not necessarily be considered a useful article. Copyright law defines a 
useful article as ``an article having an intrinsic utilitarian function 
that is not merely to portray the appearance of the article or to 
convey information.'' \25\ In response to a comment,\26\ the Office 
revised several sections to explain that certain articles, including 
maps, x-rays, and technical drawings, are not useful articles because 
their only utilitarian function is to convey information.
---------------------------------------------------------------------------

    \25\ 17 U.S.C. 101 (defining ``useful article'').
    \26\ Daan Erikson Comment at 1-2.
---------------------------------------------------------------------------

    The Office has made other revisions to clarify the two-step test to 
determine whether the design of a useful article may be eligible for 
copyright protection.\27\ Regarding the first prong, the Compendium 
further explains that the artistic feature that is extracted must 
``qualify as a nonuseful pictorial, graphic, or sculptural work on its 
own.'' Star Athletica, 137 S. Ct. at 1013. Because prior to the 
imaginary removal of the feature the work was a useful article and the 
removed feature must not be a useful article, at least some portion of 
the useful article must remain in the viewer's mind after the artistic 
feature has been imaginatively removed from the article. The Kernochan 
Center asked the Office to confirm whether ```some portion' needs to 
remain physically or imaginatively,'' and, ``if the latter,'' whether 
the Office is adopting the test proposed in Kieselstein Cord v. 
Accessories by Pearl.\28\ 632 F.2d 989 (2d Cir. 1980). The Office 
revised the Compendium to specify that the Supreme Court explicitly 
declined to adopt alternate tests that had previously been applied by 
lower courts, and therefore the Office only applies the separability 
test set forth in Star Athletica, 137 S. Ct. at 1010-12. The Kernochan 
Center also suggested revisions to sections 924.3(A) and (B), which the 
Office adopted for clarity.\29\
---------------------------------------------------------------------------

    \27\ See id. at 2.
    \28\ Kernochan Center Comment at 3.
    \29\ Id. at 2.
---------------------------------------------------------------------------

    In addition to revising chapter 900 to provide additional guidance 
on useful articles, the Office also revised several sections addressing 
works of artistic craftsmanship. The Kernochan Center requested 
clarification on how the Office distinguished a useful article from a 
work of artistic craftsmanship.\30\ In response, the Office revised 
sections 925.1, 925.2, and 925.3 to modify the definition of works of 
artistic craftsmanship, add context from legislative history and 
examples of works with mechanical or utilitarian aspects, and provide 
additional information about the test the Office uses to determine if a 
work of artistic craftsmanship is copyrightable. The Office also 
clarified in section 908.1 that jewelry may be registered as works of 
artistic craftsmanship in certain circumstances (such as earrings, 
necklaces, rings), but jewelry designs affixed to useful articles are 
subject to the separability test.
---------------------------------------------------------------------------

    \30\ Id. at 3-4.
---------------------------------------------------------------------------

9. Puppets

    Shaftel & Schmelzer suggested that the Compendium explicitly 
address how puppets are examined and whether applicants should classify 
them as works of artistic craftsmanship or sculptures.\31\ The Office 
edited several sections of the Compendium, including sections 503.1(B), 
618.4(C), 808.11(D), 904, 910, to clarify that toys, dolls, stuffed 
animals, and puppets are typically treated as three-dimensional 
sculptural works.
---------------------------------------------------------------------------

    \31\ Shaftel & Schmelzer Comment at 4.
---------------------------------------------------------------------------

10. Short Online Literary Work

    The Final Version includes several sections that discuss the short 
online literary work group registration option, which was announced in 
the Federal Register on June 22, 2020.\32\ Sections 1111.1 through 
1111.7(R) discuss the

[[Page 3210]]

eligibility requirements for this group registration option, as well as 
the filing fee and deposit requirements, and provide guidance on 
completing the application. The Office revised sections 1407 and 1802 
to add the new procedure for correcting or amending the information in 
a registration for short online literary works. This group registration 
option is also now listed as one of the available group registration 
options in numerous sections of the Compendium.
---------------------------------------------------------------------------

    \32\ See 85 FR 37341 (June 22, 2020).
---------------------------------------------------------------------------

11. Architectural Works

    The Final Version reflects the new requirements for registering 
architectural works, as described in the final rule published on April 
23, 2019.\33\ Section 503.1(B) includes updated examples of what 
constitutes an architectural work. Sections 609.2, 618.4(B), 619.13(E) 
and 1509.3(D) have been updated to reflect the requirement to submit an 
online application and provide a digital deposit when applying to 
register an architectural work. Sections 1404 and 1411 clarify that 
paper applications may not generally be used to register architectural 
works and describe the procedure for requesting a waiver to permit a 
paper application.
---------------------------------------------------------------------------

    \33\ See 84 FR 16784 (Apr. 23, 2019).
---------------------------------------------------------------------------

12. Group Newspapers

    The Office amended several parts of section 1108 to reflect the 
changes to the regulations for the group registration option for 
newspapers that were finalized in November 2019.\34\ The Office revised 
sections 1108.5 and 1116 to reflect the requirement to upload digital 
deposits and the phase-out of the option to submit microfilm as a 
deposit. The Office also updated section 1108.5(B) to explain the new 
procedure for requesting special relief from the digital deposit 
requirement.
---------------------------------------------------------------------------

    \34\ See 84 FR 60917 (Nov. 12, 2019).
---------------------------------------------------------------------------

13. Group Newsletters

    The Final Version reflects the changes to the group registration 
option for newsletters, as described in the final rule published in May 
2020.\35\ The Office revised sections 1109 and 1116 and the Glossary to 
remove the requirement that newsletters be published at least two days 
per week to qualify for this registration option. Section 1109.5(B) was 
edited to clarify that special characters should not be included in the 
file name for the deposits. Section 1109.5(D) was updated to reflect 
the new procedure for requesting special relief from the digital 
deposit requirement.
---------------------------------------------------------------------------

    \35\ See 85 FR 31981 (May 28, 2020).
---------------------------------------------------------------------------

14. Group Serials

    The Office amended the Public Draft to reflect the changes to 
regulations for the group registration option for serials that were 
finalized in November 2019.\36\ The Office revised several parts of 
sections 1107.5, 1107.6, 1116 and the Glossary to reflect the 
requirement to upload digital deposits and the phase-out of paper 
applications and physical deposits. The Office also updated section 
1107.5(B) to explain the new procedure for requesting special relief 
from the digital deposit requirement.
---------------------------------------------------------------------------

    \36\ See 84 FR 60918 (Nov. 12, 2019).
---------------------------------------------------------------------------

15. Group Photographs

    The NPPA requested clarification regarding a few points relating to 
group registration options for photographs. First, with respect to 
registration of a group of published photographs, the NPPA requested 
that the Compendium state more clearly that each photograph in the 
group must have been first published in the same calendar year, and 
that the applicant must specify the date each photograph was first 
published.\37\ The Office revised section 1114.1 of the Compendium to 
make that point more clearly.
---------------------------------------------------------------------------

    \37\ National Press Photographers Association Comment at 5-6.
---------------------------------------------------------------------------

    NPPA also requested clarification on the title and file names for 
specific photographs.\38\ The Office revised section 1114.6(A) to 
specify that the title and file name for a particular photograph can be 
the same or different and that the file names provided with the list of 
titles must correspond to the file names included in the deposit. It is 
essential that the applicant provide title and file names and that each 
file name correspond to the file name of a photograph included in the 
deposit. If there is a discrepancy between the file names listed in the 
application and/or title list and those included in the deposit, 
section 1114.6 provides that the examiner may ask the applicant to 
exclude certain photographs from the claim or may refuse registration 
for the entire group, depending on the scope of the discrepancy.
---------------------------------------------------------------------------

    \38\ Id. at 7.
---------------------------------------------------------------------------

16. Unpublished Works

    The Office recently created a new group registration option for 
Unpublished Works. Since it issued the Public Draft, the Office 
developed new practices relating to the most common problems it has 
observed relating to these applications. The new practices are 
reflected in sections 1106, 1106.2, 1106.4, 1106.5, 1106.5(B), and 
1106.5(E).
    Specifically, sections 1106.4 and 1106.5(B) explain that, if the 
titles provided in the application do not match the file names shown in 
the deposit, the examiner may remove the mismatched titles and files 
from the record. These sections also include new examples that 
illustrate this practice. Section 1106.5(B) explains that if the 
applicant fails to provide titles of the works, the examiner may 
correspond with the applicant or may refuse registration. It also 
indicates that if an applicant provides a ``collection'' title (in 
addition to providing separate titles for each work), the collection 
title will be removed.
    Section 1106 has been revised to specify that if any of the works 
are uncopyrightable, the examiner will refuse to register those works 
and issue a registration for any remaining works in the group, rather 
than requesting permission to remove the uncopyrightable works. This 
section also provides that applicants may appeal the examiner's 
decision.
    Section 1106.2 explains that an application for a group 
registration for unpublished works must be filed using the online 
application designated for a ``Group of Unpublished Works.'' This 
section has been revised to clarify that if an applicant attempts to 
use the Standard Application or a paper application to register a group 
of unpublished works, the examiner may register the first copyrightable 
work listed in the application or the first copyrightable work uploaded 
to the electronic registration system. The examiner may notify the 
applicant that the registration extends only to the title listed in the 
certificate and explain how the remaining works may be registered. The 
examiner may also add an annotation stating that the registration only 
extends to the title listed in the certificate and remove the titles 
and deposits for the remaining works from the record.
    The Office removed the language in section 1106.4 that encouraged 
applicants to submit their files in a zip folder. The Office has 
determined that PA/SR claims account for the majority of GRUW 
submissions, and it is difficult to examine these claims if they are 
submitted in a zip folder.
    Sections 1802.4 and 1802.7(C) were revised to clarify that a 
supplementary registration may not be used to transform a registration 
for a group of unpublished works into a registration for a single 
published work. This is similar to the rule that applies to a

[[Page 3211]]

registration for an unpublished collection.
    In addition to these changes in the Compendium, the Office plans to 
create a new landing page with links to a new circular, a set of FAQs, 
video tutorials, and help text for this new group registration option. 
The Office believes these new practices and updated materials will 
clarify the application procedures for this group registration option, 
making it easier for applicants to comply with the requirements.

17. Unpublished Collections

    Chapter 1100 of the Compendium notes in several places that the 
unpublished collections registration option was eliminated as of March 
15, 2019. Graphic Artists Guild commented that visual artists used that 
registration option frequently in the past and requested that the note 
regarding its elimination appear as a separate section for ease of 
reference.\39\ The Office added section 1106.6, which discusses the 
elimination of the unpublished collections registration option in 
detail.
---------------------------------------------------------------------------

    \39\ Graphic Artists Guild Comment at 4.
---------------------------------------------------------------------------

    The Office also added cross-references in section 901 to the 
sections in the Compendium discussing the group registration option for 
unpublished works, as well as all other available registration options 
for visual art works.\40\
---------------------------------------------------------------------------

    \40\ Shaftel & Schmelzer Comment at 4.
---------------------------------------------------------------------------

18. Collective Works

    The Copyright Alliance criticized the description of the 
originality requirement for compilations in section 312.2 of the 
Compendium, which states that the Office ``generally will not register 
a compilation containing only two or three elements, because the 
selection is necessarily de minimis.'' The Copyright Alliance claims 
the Office relies on this language to refuse to register compilations 
containing fewer than four works.\41\
---------------------------------------------------------------------------

    \41\ Copyright Alliance Comment at 6.
---------------------------------------------------------------------------

    The Office has not revised this section of the Compendium. Section 
312.2 clearly states that a compilation is registrable if there is 
``some minimal degree of creativity'' in the selection, coordination, 
or arrangement of the component materials. The Office believes it is 
helpful to inform the public that, in general, the selection of fewer 
than four elements will not satisfy the originality requirement. 
However, the Office does not have a bright line rule, either in the 
Compendium or in practice, regarding the number of works that must be 
included in a compilation to be registrable. Each application is 
examined individually to determine if the work displays the requisite 
originality.

19. Sound Recording/Recorded Work

    Section 1104 discusses the option to register a sound recording and 
a musical work embodied in that recording in one application with one 
filing fee. It explains that if the Office determines the works are 
eligible to be registered in one application, it will issue one 
certificate of registration for both works with a registration number 
beginning with the prefix SR or SRu, depending on whether the works are 
published or unpublished. NMPA expressed concern that the policy of 
registering a sound recording and a musical work with only an SR 
registration number may confuse those seeking to locate a musical work 
copyright owner and suggested that the Office grant two separate 
registration numbers in this situation, one for the sound recording and 
one for the musical work.\42\ The Office appreciates this concern, but 
longstanding regulations only permit the Office to issue one 
registration based on one application. Applicants who want to have 
separate registration numbers for a sound recording and the musical 
work may submit separate applications on Form PA and Form SR.
---------------------------------------------------------------------------

    \42\ National Music Publishers' Association Comment at 4.
---------------------------------------------------------------------------

20. Musical Works

    The Final Version includes changes to the sections discussing the 
deposit requirements for musical works, which were updated in January 
2018.\43\ The Office revised Circular 50 (Musical Compositions) to 
reflect this change prior to releasing the Public Draft, but it 
inadvertently failed to make similar edits to the Compendium. Several 
parts of section 1509.2 were updated to explain that ``best edition'' 
copies are required if a musical work is published in printed form, but 
are not required if the work is published solely on phonorecords or in 
a motion picture.
---------------------------------------------------------------------------

    \43\ See 83 FR 2371 (Jan. 17, 2018).
---------------------------------------------------------------------------

21. Artificial Intelligence

    Engine Advocacy and the Cyberlaw Clinic offered suggestions for 
evaluating the registrability of works created using artificial 
intelligence.\44\ The Office recognizes that the increasing use of 
artificial intelligence in developing creative works raises important 
copyright issues. This is an evolving area of copyright law, and the 
Office is participating in and monitoring discussions on these issues. 
For example, the Office held a symposium with the World Intellectual 
Property Organization (WIPO) entitled Copyright in the Age of 
Artificial Intelligence in February 2020. The Office has no plans to 
amend the relevant sections of the Compendium at this time.
---------------------------------------------------------------------------

    \44\ Engine Advocacy Comment at 8-11 (May 14, 2019); Cyberlaw 
Clinic Comment at 1-8 (May 31, 2019).
---------------------------------------------------------------------------

22. Statutory Developments

    The Copyright Alliance noted that the Public Draft did not mention 
many new procedures the Office has established under the Music 
Modernization Act, including procedures for filing schedules for pre-
1972 sound recordings, notices of noncommercial use, or opt-outs, and 
that references to pre-1972 sound recordings are inaccurate or out of 
date.\45\ The Office is considering updating the Compendium to reflect 
all changes made in response to the passage of the Music Modernization 
Act, including new procedures adopted by the Office in connection with 
pre-1972 sound recordings and other procedures noted by the Copyright 
Alliance. Those changes would be made in a future revision of the 
Compendium. In the meantime, the Office added the Music Modernization 
Act to the list of major copyright legislation, explained that it 
provides remedies for unauthorized use of pre-1972 sound recordings if 
certain schedules are filed, revised its discussion of preemption, and 
provided a link to the Copyright Office's web page discussing pre-1972 
sound recordings. Sections 102.5, 102.7, 202.1, 313.5, 608, 803.5(D), 
1702.
---------------------------------------------------------------------------

    \45\ Copyright Alliance Comment at 8.
---------------------------------------------------------------------------

    The Final Version adds the Marrakesh Treaty to the list of 
copyright treaties the United States has ratified in sections 102.7 and 
2004.1. And section 313.6(C)(1) indicates that certain literary works 
created by civilian faculty members of U.S. military academies and 
institutions are not ``U.S. Government Works,'' based on the National 
Defense Authorization Act for Fiscal Year 2020.

23. Other Issues

    The Office revised various sections of the Public Draft to reflect 
new fees or new terminology added to the fee schedule adopted on 
February 19, 2020.\46\ The Office made a number of additional changes 
in the Final Version to ensure that the contents are consistent with 
regulatory requirements and that the Compendium is internally 
consistent. These changes include revisions to:
---------------------------------------------------------------------------

    \46\ See 85 FR 9374 (Feb. 19, 2020).

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

[[Page 3212]]

     Section 611.2(B) to use language that matches language 
used in the eCo application;
     section 617.3 to clarify that an organization need not 
provide its country of citizenship if it has completed the domicile 
space;
     section 618.4 to remove language suggesting that 
``direction'' is an acceptable authorship statement for a dramatic 
work;
     section 609 to clarify that Form SE may not be used to 
register an unpublished serial and to clarify which administrative 
classes the Office has established for registration purposes;
     sections 607, 1509.1(F) and 1509.1(F)(4)(b) to clarify 
that a computer program containing trade secrets may be registered with 
object code, but the applicant must include at least ten pages of 
source code in the deposit;
     sections 1010.3 and 1010.4 to clarify that, although 
digital uploads are preferred, physical deposits for claims involving 
online works may be sent to the Office by a commercial carrier, such as 
FedEx or UPS;
     section 1509.2(B)(4) to summarize the deposit requirements 
for sound recordings first published in a foreign country;
     sections 624.3, 1802.8(B)(6) and 1802.9(F) to explain that 
a typed or printed signature will be accepted on a paper application;
     section 625.3 to clarify that if there is a ``short fee,'' 
the effective date of registration will be the date the full fee is 
received;
     section 1807.4(B) to clarify that if the payment for a 
registration application ``bounces,'' the Office will cancel the 
registration and notify the applicant, as required by regulation;
     sections 618.4(A), 1010.4, and 1508.1 to reflect technical 
upgrades that have been made to the eCO system; and
     various sections to reflect a new format used for 
annotating registration certificates and to include commonly-used 
annotations.
    The Final Version also corrects typographical errors and errors in 
citations or cross-references, replaces outdated terminology, and makes 
formatting changes. The Table of Authorities has been updated to 
reflect new citations used in or removed from the Compendium. Finally, 
the Office has added references to additional court decisions that have 
cited the Compendium since the 2017 version was released.

    Dated: January 8, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
[FR Doc. 2021-00604 Filed 1-13-21; 8:45 am]
BILLING CODE 1410-30-P