Deferred Registration Examination Study: Notice and Request for Public Comment, 70540-70544 [2021-26710]

Download as PDF jspears on DSK121TN23PROD with NOTICES1 70540 Federal Register / Vol. 86, No. 235 / Friday, December 10, 2021 / Notices proceedings to persons financially unable to afford such assistance.’’ 42 U.S.C. 2996b(a). LSC performs this function primarily through distributing funding appropriated by Congress to independent civil legal aid programs providing legal services to low-income persons throughout the United States and its possessions and territories. 42 U.S.C. 2996e(a)(1)(A). LSC designates geographic service areas and structures grants to support services to the entire eligible population in a service area or to a specified subpopulation of eligible clients. 45 CFR 1634.2(c) & (d), 1634.3(b). LSC awards these grants through a competitive process. 45 CFR part 1634. Congress has mandated that LSC ‘‘insure those grants and contracts are made so as to provide the most economical and effective delivery of legal assistance to persons in both urban and rural areas.’’ 42 U.S.C. 2996f(a)(3). Throughout the United States and U.S. territories, LSC provides Basic Field—General grants to support legal services for eligible clients. LSC provides funding for those grants on a per-capita basis using the poverty population as determined by the U.S. Census Bureau every three years. Public Law 104–134, tit. V, 501(a), 110 Stat. 1321, 1321–50 (1996), as amended by Public Law 113–6, div. B, tit. IV, 127 Stat. 198, 268 (2013) (LSC funding formula adopted in 1996, incorporated by reference in LSC’s appropriations thereafter, and amended in 2013). Since its establishment in 1974, LSC has also provided subpopulation grants to support legal services for the needs of agricultural workers through Basic Field—Agricultural Worker grants under the authority of the LSC Act to structure grants for the most economic and effective delivery of legal assistance. 42 U.S.C. 2996f(a)(3). LSC provides funding for Basic Field—Agricultural Worker grants on a per-capita basis by determining the size of the agricultural worker poverty population and separating that population from the overall poverty population for the applicable geographic area or areas. LSC expects programs receiving these grants to serve the legal needs of a broad range of eligible agricultural workers and their dependents who have specialized legal needs that are most effectively and efficiently served through a dedicated grant program. The United States Department of Labor, Employment and Training Administration (ETA) collects data regarding agricultural workers for federal grants serving the needs of the American agricultural worker population. The U.S. Census Bureau VerDate Sep<11>2014 17:03 Dec 09, 2021 Jkt 256001 does not maintain data regarding agricultural workers. In 2016 LSC contracted with ETA for these data, including state-by-state breakdowns. A description of those data and their development is available at: https:// www.lsc.gov/grants/basic-field-grant/ lsc-service-areas/agricultural-workerpopulation-estimates-2016-update. In 2020 and 2021, LSC began the process of updating this data. LSC sought and obtained input from legal aid programs serving these eligible clients and from the National Legal Aid and Defender Association. More information about that process is available at: https://www.lsc.gov/grants/ basic-field-grant/lsc-service-areas/ agricultural-worker-populationestimate-2021-update. With consideration of the input provided, LSC contracted with ETA to provide more current data regarding agricultural worker population for grants beginning January 1, 2022. ETA has provided updated estimates based on an estimation methodology designed to improve the accuracy and validity of the estimates. The changes in data will result in changes in funding levels for these grants. LSC will begin using these estimates for grant allocations starting January 1, 2022. The updated estimates, the estimation methodology and additional materials are available at: https://www.lsc.gov/ grants/basic-field-grant/lsc-serviceareas/agricultural-worker-populationestimate-2021-update. LSC invites public comment on this issue. Interested parties may submit comments to LSC before the deadline stated above. Dated: December 7, 2021. Mark Freedman, Senior Associate General Counsel. later request by the applicant. To aid in this effort, the Office is soliciting input from interested members of the public. Written comments must be received no later than 11:59 p.m. Eastern Time on January 24, 2022. DATES: For reasons of government efficiency, the Copyright Office is using the regulations.gov system for the submission and posting of public comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. Specific instructions for submitting comments are available on the Copyright Office website at https:// www.copyright.gov/policy/deferredexamination. If electronic submission of comments is not feasible due to lack of access to a computer and/or the internet, please contact the Office using the contact information below for special instructions. ADDRESSES: FOR FURTHER INFORMATION CONTACT: Megan Efthimiadis, Assistant to the General Counsel, by email at meft@ copyright.gov or telephone at (202) 707– 8350. On May 24, 2021, Senator Thom Tillis sent a letter seeking the Copyright Office’s ‘‘expertise and guidance regarding adjusted copyright examination and registration requirements.’’ 1 He requested that the Office complete ‘‘a study regarding the feasibility, benefits, and costs of creating an option for deferring examination of an application.’’ 2 The letter further provides: SUPPLEMENTARY INFORMATION: AGENCY: The study should focus on adding an option for registering a work in which the registrant can obtain an effective date of registration upon submission of an application and deposit, while choosing to defer the examination of the submitted work until the registrant subsequently requests such an examination. It should also consider and address what, if any, statutory changes would be necessary to enable applicants who are given such an effective date of registration to be able to commence a civil lawsuit in light of Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019). . . . [T]his study must also take particular account of the needs of the Library to maintain and grow its collections.3 The U.S. Copyright Office is undertaking a public study to evaluate the merits of providing an option to defer examination of copyright registration application materials until a 1 Letter from Senator Thom Tillis, Ranking Member, S. Comm. on the Judiciary, Subcomm. on Intellectual Prop., to Shira Perlmutter, Register of Copyrights, U.S. Copyright Office at 1 (May 24, 2021), https://www.copyright.gov/policy/deferredexamination. 2 Id. 3 Id. at 1–2. [FR Doc. 2021–26722 Filed 12–9–21; 8:45 am] BILLING CODE 7050–01–P LIBRARY OF CONGRESS Copyright Office [Docket No. 2021–7] Deferred Registration Examination Study: Notice and Request for Public Comment U.S. Copyright Office, Library of Congress. ACTION: Notice of inquiry. SUMMARY: PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 E:\FR\FM\10DEN1.SGM 10DEN1 Federal Register / Vol. 86, No. 235 / Friday, December 10, 2021 / Notices I. Background jspears on DSK121TN23PROD with NOTICES1 A. The Current Registration System Under the Copyright Act, copyright protection attaches automatically to an original work of authorship as soon as it is created and fixed in tangible form.4 Registration of a claim to copyright is not required.5 Although registration is optional, the Copyright Act provides substantial incentives to encourage early registration. First, a certificate of registration issued by the Office after examination constitutes prima facie evidence of the validity of the copyright and of the facts stated in the certificate, if the registration is made before or within five years of the work’s first publication.6 Second, the Act provides that copyright owners are eligible to obtain statutory damages and attorney’s fees only if the effective date of registration (‘‘EDR’’) is within three months of first publication or before the infringement commences.7 Finally, a civil action for copyright infringement involving a United States work may not be instituted until registration has been made or refused by the Office.8 To apply for registration, an applicant must deliver to the Office a completed application form, the applicable filing fee, and a deposit consisting of a complete copy (or copies) of the work to be registered.9 The Office ‘‘examin[es]’’ the ‘‘material deposited’’ to determine whether it ‘‘constitutes copyrightable subject matter’’ and whether ‘‘the other legal and formal requirements of [title 17] have been met.’’ 10 This examination includes confirming that the correct filing fee was submitted and that applicable Office regulations and practices have been complied with (e.g., whether the type of registration used is available for the applicant’s claim).11 It also includes reviewing the application to ensure that the facts stated are not contradicted by each other or by 4 17 U.S.C. 102(a) (‘‘Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression.’’); see id. 302(a) (‘‘Copyright in a work created on or after January 1, 1978, subsists from its creation.’’). 5 Id. 408(a) (‘‘Such registration is not a condition of copyright protection.’’). 6 Id. 410(c). 7 Id. 412. Section 410(d) states that the EDR ‘‘is the day on which an application, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright Office.’’ 8 Id. 411(a); see also Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019). 9 17 U.S.C. 408, 409, 708; see also U.S. Copyright Office, Compendium of U.S. Copyright Office Practices sec. 204 (3d ed. 2021) (‘‘Compendium (Third)’’). 10 17 U.S.C. 410(a). 11 Compendium (Third) secs. 206, 602.4. VerDate Sep<11>2014 17:03 Dec 09, 2021 Jkt 256001 information in the deposit or elsewhere in the materials submitted.12 After examination, if the Office determines that the work constitutes copyrightable subject matter and that the other requirements have been met, it will register the claim and issue a certificate of registration.13 The Office will also create an official public record of the registration in its searchable online records catalog and will make the deposit copies available for public inspection.14 This public record includes key facts relating to the authorship and ownership of the claimed work, as well as other information, including the title, year of creation, date of publication, and the type of authorship.15 If the Office determines that a work is not copyrightable or that the claim is invalid for any other reason, the Office will refuse registration and will not issue a certificate or create an entry in the public catalog.16 While the Office offers several registration options,17 there is currently no option to delay or defer examination of the submitted application materials. The Office does, however, offer an option to preregister certain classes of works,18 without the more comprehensive review undertaken as part of the full registration process. Preregistration enables rightsholders to sue in court prior to full registration, if followed later with an application package for full registration within the statutorily allotted time.19 Instead of submitting a deposit copy of the work for examination, preregistration applicants only need to provide a short description of the work, and the Office conducts only a limited review of the application to ascertain whether the 12 Id. at secs. 206, 602.4, 603, 609. U.S.C. 410(a). 14 Id. 705(a)–(b). 15 The Office’s online public records catalog is available at https://cocatalog.loc.gov. 16 17 U.S.C. 410(b). 17 For example, the Office issues basic registrations to register copyright claims in individual works and certain works containing separate and independent works, such as collective works and units of publication; group registrations to register copyright claims in groups of related works, such as photographs and unpublished works; renewal registrations to cover the renewal term for works copyrighted before January 1, 1978; and supplementary registrations to correct or amplify the information in a registration. See Compendium (Third) secs. 202.1, 1402.3. 18 Preregistration is currently available for motion pictures, sound recordings, musical compositions, literary works being prepared for publication in book form, computer programs (including video games), and advertising or marketing photographs. 37 CFR 202.16(b)(1). 19 17 U.S.C. 408(f), 411(a). 13 17 PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 70541 work is in a class for which the preregistration option is available.20 B. Previously Received Public Comments In connection with broader efforts to modernize its technological infrastructure, the Office has solicited public input in prior proceedings concerning the registration process. In some of these proceedings, commenters discussed proposals concerning a deferred examination registration option (which they also sometimes referred to as delayed examination or provisional registration).21 To help inform public comment in the present proceeding, these previous proposals are briefly summarized below.22 While commenters varied in their proposed approaches, they generally envisioned a deferred examination option with the following components: (1) An applicant could submit the application materials for full registration at a discounted fee; 23 (2) the Office 20 37 CFR 202.16(c)(6)–(7). proceedings include: Registration Modernization, Dkt. No. 2018–9 (comments available at https://copyright.gov/rulemaking/regmodernization/); Copyright Office Fees, Dkt. No. 2018–4 (comments available at https:// copyright.gov/rulemaking/feestudy2018/); Group Registration of Photographs, Dkt. No. 2016–10 (comments available at https://copyright.gov/ rulemaking/group-photographs/); and Copyright Protection for Certain Visual Works, Dkt. No. 2015– 1 (comments available at https://copyright.gov/ policy/visualworks/). 22 The Office notes that these comments were all received before the Supreme Court’s decision in Fourth Estate and prior to the significant reduction in registration processing times achieved by the Office over the last few years—from an overall average of about seven months to about three months for all claims, with approximately 70% of all applications now being processed in about 1.9 months on average. U.S. Copyright Office, Registration Processing Times, https:// copyright.gov/registration/docs/processing-timesfaqs.pdf (last visited December 6, 2021); see generally U.S. Copyright Office, Explanation of U.S. Copyright Office Registration Processes and Challenges (May 31, 2019), https:// www.copyright.gov/laws/hearings/response-tomarch-14-2019-senate-letter.pdf. 23 See, e.g., Coalition of Visual Artists (‘‘CVA’’) Registration Modernization 2018 NOI Comments at 3, 18; Copyright Alliance Registration Modernization 2018 NOI Comments at 11 (‘‘[T]he fee associated with the Delayed Examination Registration would be significantly less than the fee paid associated with an examined application.’’); ImageRights International (‘‘ImageRights’’) Registration Modernization 2018 NOI Comments at 4 (explaining that the fees for a deferred examination option should be ‘‘nominal’’ and ‘‘palatable’’ because the option would ‘‘eliminate the need and costs for the specialists to review every single [work] submitted’’); Shaftel & Schmelzer Registration Modernization 2018 NOI Comments at 34 (‘‘Provisional registration should cost less for the first step, and cost the same in total after the second step as a regular complete examination and registration.’’); Professional Photographers of America (‘‘PPA’’) Office Fees Initial Comments at 22; see also CVA Registration 21 These E:\FR\FM\10DEN1.SGM Continued 10DEN1 70542 Federal Register / Vol. 86, No. 235 / Friday, December 10, 2021 / Notices jspears on DSK121TN23PROD with NOTICES1 would not immediately examine any of the materials; 24 (3) the Office would still ingest information about the unregistered work into the public catalog, retain the deposit, and make it available for the Library’s collections; 25 (4) if later requested, for an additional fee, the Office would examine the application materials and decide whether or not to register the work; 26 and (5) if the Office registered the work, Modernization 2018 NOI Comments at 23–24 (stating that ‘‘[s]urvey results indicate broad support for . . . possibly us[ing] online, tiered subscriptions’’ where ‘‘[t]he registrant would opt only to register provisionally, in exchange for a lower subscription fee’’); ImageRights Registration Modernization 2018 NOI Comments at 4 (asking the Office to consider whether the fee should be subscription based, allowing ‘‘a claimant to submit provisional registrations of an unlimited number of photographs’’); CVA Group Registration of Photographs Comments at 59 (‘‘The Copyright Office could create tiered registration fees for specific quantities of images included in a group registration.’’). 24 See, e.g., CVA Registration Modernization 2018 NOI Comments at 18 (‘‘Copyright owners would pay a discounted fee for a registration of works without an immediate examination by the Copyright Office.’’); Copyright Alliance Registration Modernization 2018 NOI Comments at 11 (explaining that the application materials submitted under the deferred examination option ‘‘would not be examined by the Copyright Office’’ when initially submitted ‘‘so no certificate would be issued’’); Graphic Artists Guild (‘‘GA Guild’’) Registration Modernization 2018 NOI Comments at 4–5. 25 See, e.g., Copyright Alliance Registration Modernization 2018 NOI Comments at 14 & n.17 (stating that ‘‘[t]he increase in registrations would improve the public record,’’ ‘‘[t]he Office could easily include a distinction between Delayed Examination Registrations and examined registrations in the database, so as to make clear which works have been examined,’’ and ‘‘[a]n increase in registrations would increase the number of deposits for the Library’’); CVA Registration Modernization 2018 NOI Comments at 20–21; PPA Registration Modernization 2018 NOI Comments at 13 (‘‘Provisional registration could be paired with a self-deposit system in which creators could create their own database of works, which would be open to the Copyright Office and others for interactive searching.’’); Copyright Alliance Office Fees Initial Comments at 19–20; PPA Office Fees Initial Comments at 22; Digital Public Library of America (‘‘DPLA’’) Visual Works Study Initial Comments at 5. 26 See, e.g., CVA Registration Modernization 2018 NOI Comments at 19 (‘‘If a copyright holder subsequently wanted to bring an infringement suit, they would simply pay the Copyright Office a separate fee to have the ‘provisional registration’ examined for originality and other formalities and converted to a regular registration.’’); Copyright Alliance Registration Modernization 2018 NOI Comments at 11–12 (‘‘If a rights holder wants to bring an infringement case, the rights holder would have to convert the Delayed Examination Registration to an examined registration, which would necessitate . . . the Office examining the Delayed Examination and approving its conversion into an examined registration, and . . . paying a conversion fee.’’); ImageRights Registration Modernization 2018 NOI Comments at 4; Shaftel & Schmelzer Registration Modernization 2018 NOI Comments at 34; Shaftel & Schmelzer Office Fees Initial Comments at 27–28; CVA Group Registration of Photographs Comments at 58. VerDate Sep<11>2014 17:03 Dec 09, 2021 Jkt 256001 then the statutory benefits of registration would attach, with an EDR reflecting the date when the original deferred examination application materials were received.27 Commenters generally seemed to contemplate that examination and full registration would primarily be sought in connection with an infringement suit.28 No commenter proposed eliminating the current registration process for those who prefer immediate examination.29 Commenters offered different proposals regarding eligibility for deferred examination. Some recommended that the option only be available for ‘‘high-volume registrations’’ 30 or specific classes of works like photographs,31 while others suggested it be available for all works.32 With respect to who should be eligible to request later examination of a deferred examination claim, the Copyright Alliance suggested that the party should be the ‘‘rights holder,’’ 33 while CVA proposed that ‘‘a party other than the copyright holder’’ who is seeking ‘‘a declaration of noninfringement or other legal proceeding’’ should also ‘‘be permitted to pay the fee and have the Copyright Office undertake a final review of the [deferred examination] application’’ materials.34 27 See, e.g., GA Guild Registration Modernization 2018 NOI Comments 4–5 (‘‘[O]nce the registration is converted to a regular registration, the copyright owner would then have all the statutory benefits of a regular registration, with the effective date of registration being the date the Copyright Office received the provisional registration.’’); CVA Registration Modernization 2018 NOI Comments at 18–19 (‘‘The EDR for determining benefits under copyright law . . . would be the date the Copyright Office received the ‘Provisional Application’ along with the required deposit copy and fee payment.’’); Copyright Alliance Registration Modernization 2018 NOI Comments at 12; PPA Registration Modernization 2018 NOI Comments at 13; CVA Group Registration of Photographs Comments at 59 (‘‘When the application for deferred examination is approved, the effective date of the registration will date back to when the materials were filed, as is the present establishment of date of registration.’’). 28 See, e.g., CVA Registration Modernization 2018 NOI Comments at 19; Copyright Alliance Registration Modernization 2018 NOI Comments at 11–12; PPA Office Fees Initial Comments at 22; Shaftel & Schmelzer Office Fees Initial Comments at 27–28. 29 See, e.g., PPA Registration Modernization 2018 NOI Comments at 14; Shaftel & Schmelzer Registration Modernization 2018 NOI Comments at 33 (‘‘We also want the Copyright Office to keep the existing immediate examination system, too, for authors/creators who ask for it.’’). 30 PPA Office Fees Initial Comments at 22. 31 ImageRights Registration Modernization 2018 NOI Comments at 4. 32 CVA Registration Modernization 2018 NOI Comments at 18; Copyright Alliance Registration Modernization 2018 NOI Comments at 11. 33 Copyright Alliance Registration Modernization 2018 NOI Comments at 11–12. 34 CVA Registration Modernization 2018 NOI Comments at 19. PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 Commenters also expressed different opinions regarding the appropriate time limit, if any,35 for examination to be requested. Some commenters suggested that the examination request should be made within a specific time period; if not, the applicant would lose the benefit of having filed the deferred examination application.36 Some proposed that this period be as short as one year, while others proposed that it be as long as the full term of the copyright.37 Comments also diverged with respect to how the deferred examination option would impact the registration prerequisite for instituting a civil action for infringement. While most commenters supported maintaining the existing registration rule,38 CVA asked the Office to consider whether a request to examine the deferred examination application materials ‘‘should be sufficient for filing a lawsuit, or should be moved to the ‘front of the line’ for immediate processing.’’ 39 Commenters encouraged the Office to explore how best to administer a deferred examination option, taking into account its budget and resources.40 35 See Shaftel & Schmelzer Registration Modernization 2018 NOI Comments at 34 (‘‘There should be no deadline to convert the first step of a provisional registration to finalize the completed examined registration, and no sunset on the EDR of works submitted for the first step.’’) 36 Copyright Alliance Registration Modernization 2018 NOI Comments at 12 n.14. 37 CVA Registration Modernization 2018 NOI Comments at 20 (‘‘[W]e believe that a provisional registrant should be able to finalize registration any time in the life of the copyright.’’); Copyright Alliance Registration Modernization 2018 NOI Comments at 12 n.14 (‘‘Some of our members believe the time period should be as long as the term of protection, while others believe it should be as short as 1 year.’’); ImageRights Registration Modernization 2018 NOI Comments at 4 (suggesting claimants would have ‘‘some period’’ of time to request examination). 38 See e.g., PPA Registration Modernization 2018 NOI Comments at 14 (‘‘Those who choose to utilize provisional registration and self-deposit would establish an effective date of registration but would not be considered to have satisfied the Section 411 requirement to bring suit.’’); CVA Registration Modernization 2018 NOI Comments at 19; Copyright Alliance Registration Modernization 2018 NOI Comments at 11–12 (‘‘If a rights holder wants to bring an infringement case, the rights holder would have to convert the Delayed Examination Registration to an examined registration.’’); DPLA Visual Works Study Initial Comments at 5 (stating that deferred examination should ‘‘not carry the full benefits of full registration, such as access to statutory damages and attorney’s fees’’). 39 CVA Registration Modernization 2018 NOI Comments at 19–20. 40 Copyright Alliance Office Fees Initial Comments at 20 (‘‘The Office should also articulate any barriers it believes it faces in implementing innovative fee structures. It’s one thing if the Office is restricted from implementing certain changes because the statute does not provide it the authority to do so, but it’s another if the Office is restricted because of practical or technological limitations— E:\FR\FM\10DEN1.SGM 10DEN1 Federal Register / Vol. 86, No. 235 / Friday, December 10, 2021 / Notices jspears on DSK121TN23PROD with NOTICES1 Commenters also identified a number of potential benefits of offering a deferred examination option, including increasing the number of registrations,41 encouraging timely registrations,42 expanding the public record,43 improving the Office’s efficiency by removing the examination step,44 decreasing processing times,45 lowering the Office’s expenses,46 and increasing the latter being much easier to address. The Office should also explore other ways to reduce examination costs in addition to modernizing.’’). 41 Copyright Alliance Registration Modernization 2018 NOI Comments at 13–14 (stating that deferred examination would ‘‘help incentivize those who want to register but cannot afford to do so under the existing system’’); GA Guild Registration Modernization 2018 NOI Comments at 5 (stating that deferred examination would ‘‘provide individual copyright holders an affordable means to effectively register their works and avail themselves of the protections of registration’’); PPA Office Fees Initial Comments at 22 (‘‘With the lower provisional fee, this approach would encourage creators to register more often.’’); CVA Registration Modernization 2018 NOI Comments at 21 (stating that deferred examination would result in ‘‘lower registration fees, faster processing, and drastically increased limits on the number of works in a single registration’’); DPLA Visual Works Study Initial Comments at 5; Shaftel & Schmelzer Registration Modernization 2018 NOI Comments at 34. 42 Copyright Alliance Registration Modernization 2018 NOI Comments at 13 (stating that deferred examination would ‘‘[e]ncourage rights holders to register more quickly and not wait to determine which of their works are commercially valuable or infringed before registering’’). 43 CVA Registration Modernization 2018 NOI Comments at 21 (‘‘[T]he public record would benefit from the increased registrations.’’); Copyright Alliance Registration Modernization 2018 NOI Comments at 13; PPA Office Fees Initial Comments at 22. 44 Copyright Alliance Registration Modernization 2018 NOI Comments at 12 (stating that deferred examination would ‘‘increase the Office’s efficiency by eliminating the need to fully review every single application that comes through the door and thus also lower the Copyright Office expenses and improve pendency’’); CVA Registration Modernization 2018 NOI Comments at 21 (‘‘Under a provisional registration system, the Copyright Office would eliminate the expensive and inefficient burden of examining all works.’’); Shaftel & Schmelzer Registration Modernization 2018 NOI Comments at 33 (‘‘Provisional registration solves time-consuming examination procedures for the Copyright Office. Very few copyright registrations are actually litigated in courts.’’). 45 CVA Registration Modernization 2018 NOI Comments at 21 (stating that deferred examination would result in ‘‘faster processing’’); PPA Registration Modernization 2018 NOI Comments at 14 (discussing how a deferred examination option creates ‘‘a system for receiving simplified registrations that require a minimum of manpower to process (or none at all in an automated system)’’). 46 Copyright Alliance Registration Modernization 2018 NOI Comments at 14 (‘‘It will be easier for the Copyright Office to balance its budget by allowing the Office to use congressional appropriations on modernization or other expenses, rather than to subsidize registration examination.’’); id. at 12–13 (‘‘If Delayed Examination Registrations were permitted, the Office would could set the fee for a Delayed Examination Registration to be equal to the cost of processing the application, thereby allowing the Office to benefit from increased filings without losing money.’’). VerDate Sep<11>2014 17:03 Dec 09, 2021 Jkt 256001 the number of deposits available for the Library’s collections.47 II. Subjects of Inquiry The Office invites written comments on the subjects below. A party choosing to respond to this Notice of Inquiry need not address every subject, but the Office requests that responding parties clearly identify and separately address each subject for which a response is submitted. The Office also requests that commenters explain their interest in the study and, with respect to each answer, the basis for their knowledge. A. Purpose of Deferred Examination Option 1. What specific perceived deficiencies in the current registration regime could a deferred examination option address? 2. What are the potential benefits and drawbacks to offering a deferred examination option? Responses should consider the positive and negative effects on both copyright owners and users, as well as on the registration system itself, and should include any empirical data or other evidence relevant to your assertions. Responses should also consider whether, or to what extent, a deferred examination option might either further or impede the purposes of registration.48 B. Procedural Issues 3. If you are advocating for a deferred examination option, describe the specific legal or regulatory framework you envision. Would any statutory amendments be necessary? 4. Should a deferred examination option have any work-based, applicantbased, or other eligibility restrictions? For example, should the availability of the option depend on whether the work belongs to a specific class of works (e.g., photographs), is published or unpublished, and/or is deposited in physical or electronic form? 5. How should deferred examination operate in connection with an application to register multiple works? 6. How should the filing fees be determined for a deferred examination option, including both for the initial 47 Copyright Alliance Registration Modernization 2018 NOI Comments at 14 (‘‘An increase in registrations would increase the number of deposits for the Library.’’); CVA Registration Modernization 2018 NOI Comments at 20 (noting that the proposal ‘‘would generate a significant upsurge in the public record surrounding copyrighted works as well as deposits to the Library of Congress’’). 48 See U.S. Copyright Office, Explanation of U.S. Copyright Office Registration Processes and Challenges at 3–6 (May 31, 2019), https:// www.copyright.gov/laws/hearings/response-tomarch-14-2019-senate-letter.pdf. PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 70543 submission and later examination, and how should they compare with fees where examination is not deferred? 7. Should applications for deferred examination undergo any kind of initial review (e.g., to verify the accuracy of the filing fee, that the application is complete, that the deposit is in the correct form, etc.)? 8. Who should be permitted to request examination of a deferred examination application package? For example, should such a request be limited to an author or copyright owner, or should other interested parties also be permitted to request examination? 9. Should there be a time limit for requesting examination (e.g., one year)? If so, what should be the ramifications of failing to request examination within the prescribed period? Responses should consider the implications for the Office’s administration of the registration system, including the retention and storage of deposits and other application materials, as well as the governing principles that should apply to an eventual examination. 10. How, if at all, should a deferred examination option account for any changes in the required application information that occur between submission and examination (e.g., a change in ownership or publication status)? 11. How, if at all, should any deficiencies in the application materials discovered during examination be addressed with respect to the EDR and the current requirements of section 410? 49 C. Impact 12. How, if at all, would a deferred examination option affect the public records maintained by the Office? For example, should information about a work submitted for registration using a deferred examination option be indexed into the public catalog prior to the claim being examined and registered? What are the potential benefits and drawbacks to such an approach? For example, how, if at all, may it affect the integrity and reliability of the public record? 13. How, if at all, might a deferred examination option affect the ability of the Library of Congress to maintain and grow its collections? 50 For example, 49 See CVA Registration Modernization 2018 NOI Comments at 20 (‘‘There should be a stop-gap that allows errors in registration to be fixed with the EDR being preserved and warns registrants of the risks.’’). 50 See 17 U.S.C. 704(b) (‘‘In the case of published works, all copies, phonorecords, and identifying material deposited are available to the Library of Congress for its collections, or for exchange or transfer to any other library. In the case of E:\FR\FM\10DEN1.SGM Continued 10DEN1 70544 Federal Register / Vol. 86, No. 235 / Friday, December 10, 2021 / Notices should a work submitted for registration using a deferred examination option when the claim has not yet been examined and registered be eligible for selection for the Library’s collections? What are the potential benefits and drawbacks to such an approach? 14. How, if at all, might a deferred examination option affect the ability to bring suit in light of the Supreme Court’s decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC? For example, should a later request for examination be sufficient to bring suit? 51 What are the potential benefits and drawbacks to such an approach? 15. Could a deferred examination option be used for improper purposes, such as to obtain an official record for material that is non-copyrightable in an effort to harass or defraud others? If so, how might such abuses be prevented? 16. How, if at all, might a deferred examination option affect enforcement of a copyright by the U.S. Customs and Border Protection? 52 D. Alternative Approaches 17. Could the same goals that a deferred examination option is meant to achieve be accomplished through alternative means, such as by amending the preregistration regime or the eligibility for statutory damages, or by reducing filing fees or adding new or expanded group registration options? Responses should discuss the potential benefits and drawbacks of any alternatives and why they may or may not be preferable. E. Other Issues jspears on DSK121TN23PROD with NOTICES1 18. Please identify any pertinent issues not referenced above that the Office should consider in conducting its study. unpublished works, the Library is entitled, under regulations that the Register of Copyrights shall prescribe, to select any deposits for its collections.’’). 51 See CVA Registration Modernization 2018 NOI Comments at 19 (‘‘The Copyright Office should consider whether an application to finalize a provisional registration should be sufficient for filing a lawsuit.’’). 52 U.S. Customs and Border Protection (‘‘CBP’’) has the authority to detain, seize, forfeit, and ultimately destroy merchandise seeking entry into the United States if it bears an infringing copyright that has been registered with the Office, and has subsequently been recorded with CBP. U.S. Customs & Border Protection, Intellectual Property Rights e-Recordation, https://iprr.cbp.gov/ (last visited Dec. 6, 2021). Congress has further required the CBP to implement a process by which it will ‘‘enforce a copyright for which the owner has submitted an application for registration under title 17 with the United States Copyright Office, to the same extent and in the same manner as if the copyright were registered with the Copyright Office.’’ 19 U.S.C. 4343 (emphasis added). VerDate Sep<11>2014 17:03 Dec 09, 2021 Jkt 256001 Dated: December 6, 2021. Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office. [FR Doc. 2021–26710 Filed 12–9–21; 8:45 am] BILLING CODE 1410–30–P NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES National Endowment for the Arts Arts Advisory Panel Meetings National Endowment for the Arts, National Foundation on the Arts and the Humanities. ACTION: Notice of meetings. AGENCY: Pursuant to the Federal Advisory Committee Act, as amended, notice is hereby given that 7 meetings of the Arts Advisory Panel to the National Council on the Arts will be held by teleconference or videoconference. DATES: See the SUPPLEMENTARY INFORMATION section for individual meeting times and dates. All meetings are Eastern time and ending times are approximate: ADDRESSES: National Endowment for the Arts, Constitution Center, 400 7th St. SW, Washington, DC 20506. FOR FURTHER INFORMATION CONTACT: Further information with reference to these meetings can be obtained from Ms. Sherry Hale, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506; hales@arts.gov, or call 202/682–5696. SUPPLEMENTARY INFORMATION: The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of September 10, 2019, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of title 5, United States Code. The upcoming meetings are: Our Town (review of applications): This meeting will be closed. Date and time: January 12, 2022; 11:00 a.m. to 1:00 p.m. Our Town (review of applications): This meeting will be closed. Date and time: January 12, 2022; 2:30 p.m. to 4:30 p.m. National Heritage Fellowships (review of applications): This meeting will be closed. Date and time: January 13, 2022; 1:00 p.m. to 3:00 p.m. SUMMARY: PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 Our Town (review of applications): This meeting will be closed. Date and time: January 13, 2022; 11:00 a.m. to 1:00 p.m. Jazz Masters Tribute Concert (review of applications): This meeting will be closed. Date and time: February 3, 2022; 12:00 p.m. to 2:00 p.m. Jazz Masters Fellowships (review of applications): This meeting will be closed. Date and time: February 10, 2022; 2:00 p.m. to 3:00 p.m. Jazz Masters Fellowships (review of applications): This meeting will be closed. Date and time: February 10, 2022; 3:00 p.m. to 4:00 p.m. Dated: December 7, 2021. Sherry P. Hale, Staff Assistant, National Endowment for the Arts. [FR Doc. 2021–26742 Filed 12–9–21; 8:45 am] BILLING CODE 7537–01–P NATIONAL SCIENCE FOUNDATION Agency Information Collection Activities: Comment Request; Antarctic Emergency Response Plan and Environmental Protection Information National Science Foundation. Notice. AGENCY: ACTION: The National Science Foundation (NSF) is announcing plans to renew this collection. In accordance with the requirements of the Paperwork Reduction Act of 1995, we are providing opportunity for public comment on this action. After obtaining and considering public comment, NSF will prepare the submission requesting Office of Management and Budget (OMB) clearance of this collection for no longer than 3 years. DATES: Written comments on this notice must be received by February 8, 2022 to be assured consideration. Comments received after that date will be considered to the extent practicable. Send comments to address below. FOR FURTHER INFORMATION CONTACT: Suzanne H. Plimpton, Reports Clearance Officer, National Science Foundation, 2415 Eisenhower Avenue, Suite W18200, Alexandria, Virginia 22314; telephone (703) 292–7556; or send email to splimpto@nsf.gov. Individuals who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339, which is accessible 24 hours a day, 7 days a week, 365 days a year (including Federal holidays). SUMMARY: E:\FR\FM\10DEN1.SGM 10DEN1

Agencies

[Federal Register Volume 86, Number 235 (Friday, December 10, 2021)]
[Notices]
[Pages 70540-70544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26710]


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LIBRARY OF CONGRESS

Copyright Office

[Docket No. 2021-7]


Deferred Registration Examination Study: Notice and Request for 
Public Comment

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

ACTION: Notice of inquiry.

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SUMMARY: The U.S. Copyright Office is undertaking a public study to 
evaluate the merits of providing an option to defer examination of 
copyright registration application materials until a later request by 
the applicant. To aid in this effort, the Office is soliciting input 
from interested members of the public.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on January 24, 2022.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office website 
at https://www.copyright.gov/policy/deferred-examination. If electronic 
submission of comments is not feasible due to lack of access to a 
computer and/or the internet, please contact the Office using the 
contact information below for special instructions.

FOR FURTHER INFORMATION CONTACT: Megan Efthimiadis, Assistant to the 
General Counsel, by email at [email protected] or telephone at (202) 
707-8350.

SUPPLEMENTARY INFORMATION: On May 24, 2021, Senator Thom Tillis sent a 
letter seeking the Copyright Office's ``expertise and guidance 
regarding adjusted copyright examination and registration 
requirements.'' \1\ He requested that the Office complete ``a study 
regarding the feasibility, benefits, and costs of creating an option 
for deferring examination of an application.'' \2\ The letter further 
provides:
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    \1\ Letter from Senator Thom Tillis, Ranking Member, S. Comm. on 
the Judiciary, Subcomm. on Intellectual Prop., to Shira Perlmutter, 
Register of Copyrights, U.S. Copyright Office at 1 (May 24, 2021), 
https://www.copyright.gov/policy/deferred-examination.
    \2\ Id.

    The study should focus on adding an option for registering a 
work in which the registrant can obtain an effective date of 
registration upon submission of an application and deposit, while 
choosing to defer the examination of the submitted work until the 
registrant subsequently requests such an examination. It should also 
consider and address what, if any, statutory changes would be 
necessary to enable applicants who are given such an effective date 
of registration to be able to commence a civil lawsuit in light of 
Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 
881 (2019). . . . [T]his study must also take particular account of 
the needs of the Library to maintain and grow its collections.\3\
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    \3\ Id. at 1-2.

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[[Page 70541]]

I. Background

A. The Current Registration System

    Under the Copyright Act, copyright protection attaches 
automatically to an original work of authorship as soon as it is 
created and fixed in tangible form.\4\ Registration of a claim to 
copyright is not required.\5\ Although registration is optional, the 
Copyright Act provides substantial incentives to encourage early 
registration. First, a certificate of registration issued by the Office 
after examination constitutes prima facie evidence of the validity of 
the copyright and of the facts stated in the certificate, if the 
registration is made before or within five years of the work's first 
publication.\6\ Second, the Act provides that copyright owners are 
eligible to obtain statutory damages and attorney's fees only if the 
effective date of registration (``EDR'') is within three months of 
first publication or before the infringement commences.\7\ Finally, a 
civil action for copyright infringement involving a United States work 
may not be instituted until registration has been made or refused by 
the Office.\8\
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    \4\ 17 U.S.C. 102(a) (``Copyright protection subsists . . . in 
original works of authorship fixed in any tangible medium of 
expression.''); see id. 302(a) (``Copyright in a work created on or 
after January 1, 1978, subsists from its creation.'').
    \5\ Id. 408(a) (``Such registration is not a condition of 
copyright protection.'').
    \6\ Id. 410(c).
    \7\ Id. 412. Section 410(d) states that the EDR ``is the day on 
which an application, deposit, and fee, which are later determined 
by the Register of Copyrights or by a court of competent 
jurisdiction to be acceptable for registration, have all been 
received in the Copyright Office.''
    \8\ Id. 411(a); see also Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019).
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    To apply for registration, an applicant must deliver to the Office 
a completed application form, the applicable filing fee, and a deposit 
consisting of a complete copy (or copies) of the work to be 
registered.\9\ The Office ``examin[es]'' the ``material deposited'' to 
determine whether it ``constitutes copyrightable subject matter'' and 
whether ``the other legal and formal requirements of [title 17] have 
been met.'' \10\ This examination includes confirming that the correct 
filing fee was submitted and that applicable Office regulations and 
practices have been complied with (e.g., whether the type of 
registration used is available for the applicant's claim).\11\ It also 
includes reviewing the application to ensure that the facts stated are 
not contradicted by each other or by information in the deposit or 
elsewhere in the materials submitted.\12\
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    \9\ 17 U.S.C. 408, 409, 708; see also U.S. Copyright Office, 
Compendium of U.S. Copyright Office Practices sec. 204 (3d ed. 2021) 
(``Compendium (Third)'').
    \10\ 17 U.S.C. 410(a).
    \11\ Compendium (Third) secs. 206, 602.4.
    \12\ Id. at secs. 206, 602.4, 603, 609.
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    After examination, if the Office determines that the work 
constitutes copyrightable subject matter and that the other 
requirements have been met, it will register the claim and issue a 
certificate of registration.\13\ The Office will also create an 
official public record of the registration in its searchable online 
records catalog and will make the deposit copies available for public 
inspection.\14\ This public record includes key facts relating to the 
authorship and ownership of the claimed work, as well as other 
information, including the title, year of creation, date of 
publication, and the type of authorship.\15\ If the Office determines 
that a work is not copyrightable or that the claim is invalid for any 
other reason, the Office will refuse registration and will not issue a 
certificate or create an entry in the public catalog.\16\
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    \13\ 17 U.S.C. 410(a).
    \14\ Id. 705(a)-(b).
    \15\ The Office's online public records catalog is available at 
https://cocatalog.loc.gov.
    \16\ 17 U.S.C. 410(b).
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    While the Office offers several registration options,\17\ there is 
currently no option to delay or defer examination of the submitted 
application materials. The Office does, however, offer an option to 
preregister certain classes of works,\18\ without the more 
comprehensive review undertaken as part of the full registration 
process. Preregistration enables rightsholders to sue in court prior to 
full registration, if followed later with an application package for 
full registration within the statutorily allotted time.\19\ Instead of 
submitting a deposit copy of the work for examination, preregistration 
applicants only need to provide a short description of the work, and 
the Office conducts only a limited review of the application to 
ascertain whether the work is in a class for which the preregistration 
option is available.\20\
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    \17\ For example, the Office issues basic registrations to 
register copyright claims in individual works and certain works 
containing separate and independent works, such as collective works 
and units of publication; group registrations to register copyright 
claims in groups of related works, such as photographs and 
unpublished works; renewal registrations to cover the renewal term 
for works copyrighted before January 1, 1978; and supplementary 
registrations to correct or amplify the information in a 
registration. See Compendium (Third) secs. 202.1, 1402.3.
    \18\ Preregistration is currently available for motion pictures, 
sound recordings, musical compositions, literary works being 
prepared for publication in book form, computer programs (including 
video games), and advertising or marketing photographs. 37 CFR 
202.16(b)(1).
    \19\ 17 U.S.C. 408(f), 411(a).
    \20\ 37 CFR 202.16(c)(6)-(7).
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B. Previously Received Public Comments

    In connection with broader efforts to modernize its technological 
infrastructure, the Office has solicited public input in prior 
proceedings concerning the registration process. In some of these 
proceedings, commenters discussed proposals concerning a deferred 
examination registration option (which they also sometimes referred to 
as delayed examination or provisional registration).\21\ To help inform 
public comment in the present proceeding, these previous proposals are 
briefly summarized below.\22\
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    \21\ These proceedings include: Registration Modernization, Dkt. 
No. 2018-9 (comments available at https://copyright.gov/rulemaking/reg-modernization/); Copyright Office Fees, Dkt. No. 2018-4 
(comments available at https://copyright.gov/rulemaking/feestudy2018/); Group Registration of Photographs, Dkt. No. 2016-10 
(comments available at https://copyright.gov/rulemaking/group-photographs/); and Copyright Protection for Certain Visual Works, 
Dkt. No. 2015-1 (comments available at https://copyright.gov/policy/visualworks/).
    \22\ The Office notes that these comments were all received 
before the Supreme Court's decision in Fourth Estate and prior to 
the significant reduction in registration processing times achieved 
by the Office over the last few years--from an overall average of 
about seven months to about three months for all claims, with 
approximately 70% of all applications now being processed in about 
1.9 months on average. U.S. Copyright Office, Registration 
Processing Times, https://copyright.gov/registration/docs/processing-times-faqs.pdf (last visited December 6, 2021); see 
generally U.S. Copyright Office, Explanation of U.S. Copyright 
Office Registration Processes and Challenges (May 31, 2019), https://www.copyright.gov/laws/hearings/response-to-march-14-2019-senate-letter.pdf.
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    While commenters varied in their proposed approaches, they 
generally envisioned a deferred examination option with the following 
components: (1) An applicant could submit the application materials for 
full registration at a discounted fee; \23\ (2) the Office

[[Page 70542]]

would not immediately examine any of the materials; \24\ (3) the Office 
would still ingest information about the unregistered work into the 
public catalog, retain the deposit, and make it available for the 
Library's collections; \25\ (4) if later requested, for an additional 
fee, the Office would examine the application materials and decide 
whether or not to register the work; \26\ and (5) if the Office 
registered the work, then the statutory benefits of registration would 
attach, with an EDR reflecting the date when the original deferred 
examination application materials were received.\27\ Commenters 
generally seemed to contemplate that examination and full registration 
would primarily be sought in connection with an infringement suit.\28\ 
No commenter proposed eliminating the current registration process for 
those who prefer immediate examination.\29\
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    \23\ See, e.g., Coalition of Visual Artists (``CVA'') 
Registration Modernization 2018 NOI Comments at 3, 18; Copyright 
Alliance Registration Modernization 2018 NOI Comments at 11 (``[T]he 
fee associated with the Delayed Examination Registration would be 
significantly less than the fee paid associated with an examined 
application.''); ImageRights International (``ImageRights'') 
Registration Modernization 2018 NOI Comments at 4 (explaining that 
the fees for a deferred examination option should be ``nominal'' and 
``palatable'' because the option would ``eliminate the need and 
costs for the specialists to review every single [work] 
submitted''); Shaftel & Schmelzer Registration Modernization 2018 
NOI Comments at 34 (``Provisional registration should cost less for 
the first step, and cost the same in total after the second step as 
a regular complete examination and registration.''); Professional 
Photographers of America (``PPA'') Office Fees Initial Comments at 
22; see also CVA Registration Modernization 2018 NOI Comments at 23-
24 (stating that ``[s]urvey results indicate broad support for . . . 
possibly us[ing] online, tiered subscriptions'' where ``[t]he 
registrant would opt only to register provisionally, in exchange for 
a lower subscription fee''); ImageRights Registration Modernization 
2018 NOI Comments at 4 (asking the Office to consider whether the 
fee should be subscription based, allowing ``a claimant to submit 
provisional registrations of an unlimited number of photographs''); 
CVA Group Registration of Photographs Comments at 59 (``The 
Copyright Office could create tiered registration fees for specific 
quantities of images included in a group registration.'').
    \24\ See, e.g., CVA Registration Modernization 2018 NOI Comments 
at 18 (``Copyright owners would pay a discounted fee for a 
registration of works without an immediate examination by the 
Copyright Office.''); Copyright Alliance Registration Modernization 
2018 NOI Comments at 11 (explaining that the application materials 
submitted under the deferred examination option ``would not be 
examined by the Copyright Office'' when initially submitted ``so no 
certificate would be issued''); Graphic Artists Guild (``GA Guild'') 
Registration Modernization 2018 NOI Comments at 4-5.
    \25\ See, e.g., Copyright Alliance Registration Modernization 
2018 NOI Comments at 14 & n.17 (stating that ``[t]he increase in 
registrations would improve the public record,'' ``[t]he Office 
could easily include a distinction between Delayed Examination 
Registrations and examined registrations in the database, so as to 
make clear which works have been examined,'' and ``[a]n increase in 
registrations would increase the number of deposits for the 
Library''); CVA Registration Modernization 2018 NOI Comments at 20-
21; PPA Registration Modernization 2018 NOI Comments at 13 
(``Provisional registration could be paired with a self-deposit 
system in which creators could create their own database of works, 
which would be open to the Copyright Office and others for 
interactive searching.''); Copyright Alliance Office Fees Initial 
Comments at 19-20; PPA Office Fees Initial Comments at 22; Digital 
Public Library of America (``DPLA'') Visual Works Study Initial 
Comments at 5.
    \26\ See, e.g., CVA Registration Modernization 2018 NOI Comments 
at 19 (``If a copyright holder subsequently wanted to bring an 
infringement suit, they would simply pay the Copyright Office a 
separate fee to have the `provisional registration' examined for 
originality and other formalities and converted to a regular 
registration.''); Copyright Alliance Registration Modernization 2018 
NOI Comments at 11-12 (``If a rights holder wants to bring an 
infringement case, the rights holder would have to convert the 
Delayed Examination Registration to an examined registration, which 
would necessitate . . . the Office examining the Delayed Examination 
and approving its conversion into an examined registration, and . . 
. paying a conversion fee.''); ImageRights Registration 
Modernization 2018 NOI Comments at 4; Shaftel & Schmelzer 
Registration Modernization 2018 NOI Comments at 34; Shaftel & 
Schmelzer Office Fees Initial Comments at 27-28; CVA Group 
Registration of Photographs Comments at 58.
    \27\ See, e.g., GA Guild Registration Modernization 2018 NOI 
Comments 4-5 (``[O]nce the registration is converted to a regular 
registration, the copyright owner would then have all the statutory 
benefits of a regular registration, with the effective date of 
registration being the date the Copyright Office received the 
provisional registration.''); CVA Registration Modernization 2018 
NOI Comments at 18-19 (``The EDR for determining benefits under 
copyright law . . . would be the date the Copyright Office received 
the `Provisional Application' along with the required deposit copy 
and fee payment.''); Copyright Alliance Registration Modernization 
2018 NOI Comments at 12; PPA Registration Modernization 2018 NOI 
Comments at 13; CVA Group Registration of Photographs Comments at 59 
(``When the application for deferred examination is approved, the 
effective date of the registration will date back to when the 
materials were filed, as is the present establishment of date of 
registration.'').
    \28\ See, e.g., CVA Registration Modernization 2018 NOI Comments 
at 19; Copyright Alliance Registration Modernization 2018 NOI 
Comments at 11-12; PPA Office Fees Initial Comments at 22; Shaftel & 
Schmelzer Office Fees Initial Comments at 27-28.
    \29\ See, e.g., PPA Registration Modernization 2018 NOI Comments 
at 14; Shaftel & Schmelzer Registration Modernization 2018 NOI 
Comments at 33 (``We also want the Copyright Office to keep the 
existing immediate examination system, too, for authors/creators who 
ask for it.'').
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    Commenters offered different proposals regarding eligibility for 
deferred examination. Some recommended that the option only be 
available for ``high-volume registrations'' \30\ or specific classes of 
works like photographs,\31\ while others suggested it be available for 
all works.\32\ With respect to who should be eligible to request later 
examination of a deferred examination claim, the Copyright Alliance 
suggested that the party should be the ``rights holder,'' \33\ while 
CVA proposed that ``a party other than the copyright holder'' who is 
seeking ``a declaration of non-infringement or other legal proceeding'' 
should also ``be permitted to pay the fee and have the Copyright Office 
undertake a final review of the [deferred examination] application'' 
materials.\34\
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    \30\ PPA Office Fees Initial Comments at 22.
    \31\ ImageRights Registration Modernization 2018 NOI Comments at 
4.
    \32\ CVA Registration Modernization 2018 NOI Comments at 18; 
Copyright Alliance Registration Modernization 2018 NOI Comments at 
11.
    \33\ Copyright Alliance Registration Modernization 2018 NOI 
Comments at 11-12.
    \34\ CVA Registration Modernization 2018 NOI Comments at 19.
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    Commenters also expressed different opinions regarding the 
appropriate time limit, if any,\35\ for examination to be requested. 
Some commenters suggested that the examination request should be made 
within a specific time period; if not, the applicant would lose the 
benefit of having filed the deferred examination application.\36\ Some 
proposed that this period be as short as one year, while others 
proposed that it be as long as the full term of the copyright.\37\
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    \35\ See Shaftel & Schmelzer Registration Modernization 2018 NOI 
Comments at 34 (``There should be no deadline to convert the first 
step of a provisional registration to finalize the completed 
examined registration, and no sunset on the EDR of works submitted 
for the first step.'')
    \36\ Copyright Alliance Registration Modernization 2018 NOI 
Comments at 12 n.14.
    \37\ CVA Registration Modernization 2018 NOI Comments at 20 
(``[W]e believe that a provisional registrant should be able to 
finalize registration any time in the life of the copyright.''); 
Copyright Alliance Registration Modernization 2018 NOI Comments at 
12 n.14 (``Some of our members believe the time period should be as 
long as the term of protection, while others believe it should be as 
short as 1 year.''); ImageRights Registration Modernization 2018 NOI 
Comments at 4 (suggesting claimants would have ``some period'' of 
time to request examination).
---------------------------------------------------------------------------

    Comments also diverged with respect to how the deferred examination 
option would impact the registration prerequisite for instituting a 
civil action for infringement. While most commenters supported 
maintaining the existing registration rule,\38\ CVA asked the Office to 
consider whether a request to examine the deferred examination 
application materials ``should be sufficient for filing a lawsuit, or 
should be moved to the `front of the line' for immediate processing.'' 
\39\
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    \38\ See e.g., PPA Registration Modernization 2018 NOI Comments 
at 14 (``Those who choose to utilize provisional registration and 
self-deposit would establish an effective date of registration but 
would not be considered to have satisfied the Section 411 
requirement to bring suit.''); CVA Registration Modernization 2018 
NOI Comments at 19; Copyright Alliance Registration Modernization 
2018 NOI Comments at 11-12 (``If a rights holder wants to bring an 
infringement case, the rights holder would have to convert the 
Delayed Examination Registration to an examined registration.''); 
DPLA Visual Works Study Initial Comments at 5 (stating that deferred 
examination should ``not carry the full benefits of full 
registration, such as access to statutory damages and attorney's 
fees'').
    \39\ CVA Registration Modernization 2018 NOI Comments at 19-20.
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    Commenters encouraged the Office to explore how best to administer 
a deferred examination option, taking into account its budget and 
resources.\40\

[[Page 70543]]

Commenters also identified a number of potential benefits of offering a 
deferred examination option, including increasing the number of 
registrations,\41\ encouraging timely registrations,\42\ expanding the 
public record,\43\ improving the Office's efficiency by removing the 
examination step,\44\ decreasing processing times,\45\ lowering the 
Office's expenses,\46\ and increasing the number of deposits available 
for the Library's collections.\47\
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    \40\ Copyright Alliance Office Fees Initial Comments at 20 
(``The Office should also articulate any barriers it believes it 
faces in implementing innovative fee structures. It's one thing if 
the Office is restricted from implementing certain changes because 
the statute does not provide it the authority to do so, but it's 
another if the Office is restricted because of practical or 
technological limitations--the latter being much easier to address. 
The Office should also explore other ways to reduce examination 
costs in addition to modernizing.'').
    \41\ Copyright Alliance Registration Modernization 2018 NOI 
Comments at 13-14 (stating that deferred examination would ``help 
incentivize those who want to register but cannot afford to do so 
under the existing system''); GA Guild Registration Modernization 
2018 NOI Comments at 5 (stating that deferred examination would 
``provide individual copyright holders an affordable means to 
effectively register their works and avail themselves of the 
protections of registration''); PPA Office Fees Initial Comments at 
22 (``With the lower provisional fee, this approach would encourage 
creators to register more often.''); CVA Registration Modernization 
2018 NOI Comments at 21 (stating that deferred examination would 
result in ``lower registration fees, faster processing, and 
drastically increased limits on the number of works in a single 
registration''); DPLA Visual Works Study Initial Comments at 5; 
Shaftel & Schmelzer Registration Modernization 2018 NOI Comments at 
34.
    \42\ Copyright Alliance Registration Modernization 2018 NOI 
Comments at 13 (stating that deferred examination would 
``[e]ncourage rights holders to register more quickly and not wait 
to determine which of their works are commercially valuable or 
infringed before registering'').
    \43\ CVA Registration Modernization 2018 NOI Comments at 21 
(``[T]he public record would benefit from the increased 
registrations.''); Copyright Alliance Registration Modernization 
2018 NOI Comments at 13; PPA Office Fees Initial Comments at 22.
    \44\ Copyright Alliance Registration Modernization 2018 NOI 
Comments at 12 (stating that deferred examination would ``increase 
the Office's efficiency by eliminating the need to fully review 
every single application that comes through the door and thus also 
lower the Copyright Office expenses and improve pendency''); CVA 
Registration Modernization 2018 NOI Comments at 21 (``Under a 
provisional registration system, the Copyright Office would 
eliminate the expensive and inefficient burden of examining all 
works.''); Shaftel & Schmelzer Registration Modernization 2018 NOI 
Comments at 33 (``Provisional registration solves time-consuming 
examination procedures for the Copyright Office. Very few copyright 
registrations are actually litigated in courts.'').
    \45\ CVA Registration Modernization 2018 NOI Comments at 21 
(stating that deferred examination would result in ``faster 
processing''); PPA Registration Modernization 2018 NOI Comments at 
14 (discussing how a deferred examination option creates ``a system 
for receiving simplified registrations that require a minimum of 
manpower to process (or none at all in an automated system)'').
    \46\ Copyright Alliance Registration Modernization 2018 NOI 
Comments at 14 (``It will be easier for the Copyright Office to 
balance its budget by allowing the Office to use congressional 
appropriations on modernization or other expenses, rather than to 
subsidize registration examination.''); id. at 12-13 (``If Delayed 
Examination Registrations were permitted, the Office would could set 
the fee for a Delayed Examination Registration to be equal to the 
cost of processing the application, thereby allowing the Office to 
benefit from increased filings without losing money.'').
    \47\ Copyright Alliance Registration Modernization 2018 NOI 
Comments at 14 (``An increase in registrations would increase the 
number of deposits for the Library.''); CVA Registration 
Modernization 2018 NOI Comments at 20 (noting that the proposal 
``would generate a significant upsurge in the public record 
surrounding copyrighted works as well as deposits to the Library of 
Congress'').
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II. Subjects of Inquiry

    The Office invites written comments on the subjects below. A party 
choosing to respond to this Notice of Inquiry need not address every 
subject, but the Office requests that responding parties clearly 
identify and separately address each subject for which a response is 
submitted. The Office also requests that commenters explain their 
interest in the study and, with respect to each answer, the basis for 
their knowledge.

A. Purpose of Deferred Examination Option

    1. What specific perceived deficiencies in the current registration 
regime could a deferred examination option address?
    2. What are the potential benefits and drawbacks to offering a 
deferred examination option? Responses should consider the positive and 
negative effects on both copyright owners and users, as well as on the 
registration system itself, and should include any empirical data or 
other evidence relevant to your assertions. Responses should also 
consider whether, or to what extent, a deferred examination option 
might either further or impede the purposes of registration.\48\
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    \48\ See U.S. Copyright Office, Explanation of U.S. Copyright 
Office Registration Processes and Challenges at 3-6 (May 31, 2019), 
https://www.copyright.gov/laws/hearings/response-to-march-14-2019-senate-letter.pdf.
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B. Procedural Issues

    3. If you are advocating for a deferred examination option, 
describe the specific legal or regulatory framework you envision. Would 
any statutory amendments be necessary?
    4. Should a deferred examination option have any work-based, 
applicant-based, or other eligibility restrictions? For example, should 
the availability of the option depend on whether the work belongs to a 
specific class of works (e.g., photographs), is published or 
unpublished, and/or is deposited in physical or electronic form?
    5. How should deferred examination operate in connection with an 
application to register multiple works?
    6. How should the filing fees be determined for a deferred 
examination option, including both for the initial submission and later 
examination, and how should they compare with fees where examination is 
not deferred?
    7. Should applications for deferred examination undergo any kind of 
initial review (e.g., to verify the accuracy of the filing fee, that 
the application is complete, that the deposit is in the correct form, 
etc.)?
    8. Who should be permitted to request examination of a deferred 
examination application package? For example, should such a request be 
limited to an author or copyright owner, or should other interested 
parties also be permitted to request examination?
    9. Should there be a time limit for requesting examination (e.g., 
one year)? If so, what should be the ramifications of failing to 
request examination within the prescribed period? Responses should 
consider the implications for the Office's administration of the 
registration system, including the retention and storage of deposits 
and other application materials, as well as the governing principles 
that should apply to an eventual examination.
    10. How, if at all, should a deferred examination option account 
for any changes in the required application information that occur 
between submission and examination (e.g., a change in ownership or 
publication status)?
    11. How, if at all, should any deficiencies in the application 
materials discovered during examination be addressed with respect to 
the EDR and the current requirements of section 410? \49\
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    \49\ See CVA Registration Modernization 2018 NOI Comments at 20 
(``There should be a stop-gap that allows errors in registration to 
be fixed with the EDR being preserved and warns registrants of the 
risks.'').
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C. Impact

    12. How, if at all, would a deferred examination option affect the 
public records maintained by the Office? For example, should 
information about a work submitted for registration using a deferred 
examination option be indexed into the public catalog prior to the 
claim being examined and registered? What are the potential benefits 
and drawbacks to such an approach? For example, how, if at all, may it 
affect the integrity and reliability of the public record?
    13. How, if at all, might a deferred examination option affect the 
ability of the Library of Congress to maintain and grow its 
collections? \50\ For example,

[[Page 70544]]

should a work submitted for registration using a deferred examination 
option when the claim has not yet been examined and registered be 
eligible for selection for the Library's collections? What are the 
potential benefits and drawbacks to such an approach?
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    \50\ See 17 U.S.C. 704(b) (``In the case of published works, all 
copies, phonorecords, and identifying material deposited are 
available to the Library of Congress for its collections, or for 
exchange or transfer to any other library. In the case of 
unpublished works, the Library is entitled, under regulations that 
the Register of Copyrights shall prescribe, to select any deposits 
for its collections.'').
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    14. How, if at all, might a deferred examination option affect the 
ability to bring suit in light of the Supreme Court's decision in 
Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC? For 
example, should a later request for examination be sufficient to bring 
suit? \51\ What are the potential benefits and drawbacks to such an 
approach?
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    \51\ See CVA Registration Modernization 2018 NOI Comments at 19 
(``The Copyright Office should consider whether an application to 
finalize a provisional registration should be sufficient for filing 
a lawsuit.'').
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    15. Could a deferred examination option be used for improper 
purposes, such as to obtain an official record for material that is 
non-copyrightable in an effort to harass or defraud others? If so, how 
might such abuses be prevented?
    16. How, if at all, might a deferred examination option affect 
enforcement of a copyright by the U.S. Customs and Border Protection? 
\52\
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    \52\ U.S. Customs and Border Protection (``CBP'') has the 
authority to detain, seize, forfeit, and ultimately destroy 
merchandise seeking entry into the United States if it bears an 
infringing copyright that has been registered with the Office, and 
has subsequently been recorded with CBP. U.S. Customs & Border 
Protection, Intellectual Property Rights e-Recordation, https://iprr.cbp.gov/ (last visited Dec. 6, 2021). Congress has further 
required the CBP to implement a process by which it will ``enforce a 
copyright for which the owner has submitted an application for 
registration under title 17 with the United States Copyright Office, 
to the same extent and in the same manner as if the copyright were 
registered with the Copyright Office.'' 19 U.S.C. 4343 (emphasis 
added).
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D. Alternative Approaches

    17. Could the same goals that a deferred examination option is 
meant to achieve be accomplished through alternative means, such as by 
amending the preregistration regime or the eligibility for statutory 
damages, or by reducing filing fees or adding new or expanded group 
registration options? Responses should discuss the potential benefits 
and drawbacks of any alternatives and why they may or may not be 
preferable.

E. Other Issues

    18. Please identify any pertinent issues not referenced above that 
the Office should consider in conducting its study.

    Dated: December 6, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
[FR Doc. 2021-26710 Filed 12-9-21; 8:45 am]
BILLING CODE 1410-30-P

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