Access to Electronic Works, 60413-60417 [2023-18664]
Download as PDF
<![CDATA[
lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules
(d)(4) are claimed pursuant to (k)(1) and
(k)(2).
(C) Subsection (e)(1). Additionally,
records within this system may be
properly classified pursuant to
executive order. The collection of
information pertaining to the use of
government information technology and
data systems may include classified
records, and it is not always possible to
conclusively determine the relevance
and necessity of such information in the
early stages of a collection. In some
instances, it will be only after the
collected information is evaluated in
light of other information that its
relevance and necessity can be assessed.
Further, disclosure of classified records
to an individual may cause damage to
national security. Additionally, in the
collection of information for
investigatory or law enforcement
purposes it is not always possible to
conclusively determine the relevance
and necessity of particular information
in the early stages of the investigation or
adjudication. In some instances, it will
be only after the collected information
is evaluated in light of other information
that its relevance and necessity for
effective investigation and adjudication
can be assessed. Collection of such
information permits more informed
decision-making by the Department
when making required investigatory or
law enforcement determinations.
Accordingly, application of exemptions
(k)(1) and (2) may be necessary.
(D) Subsections (e)(4)(G) and (H).
These subsections are inapplicable to
the extent exemption is claimed from
subsections (d)(1) and (2).
(E) Subsection (e)(4)(I). To the extent
that this provision is construed to
require more detailed disclosure than
the broad, generic information currently
published in the system notice, an
exemption from this provision is
necessary to protect national security,
the confidentiality of sources of
information and to protect the privacy
and physical safety of witnesses and
informants. Accordingly, application of
exemptions (k)(1) and (2) may be
necessary.
(F) Subsection (f). The agency’s rules
are inapplicable to those portions of the
system that are exempt. Accordingly,
application of exemptions (k)(1) and (2)
may be necessary.
(iv) Exempt records from other
systems. In the course of carrying out
the overall purpose for this system,
exempt records from other systems of
records may in turn become part of the
records maintained in this system. To
the extent that copies of exempt records
from those other systems of records are
maintained in this system, the DoD
VerDate Sep<11>2014
16:27 Aug 31, 2023
Jkt 259001
60413
claims the same exemptions for the
records from those other systems that
are entered into this system, as claimed
for the prior system(s) of which they are
a part, provided the reason for the
exemption remains valid and necessary.
FOR FURTHER INFORMATION CONTACT:
Dated: August 24, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison
Officer, Department of Defense.
I. Background
The Copyright Act provides two
sources of materials that can be selected
by the Library of Congress for its
collections. The first is the ‘‘mandatory
deposit’’ requirement set forth in section
407 of title 17. Under section 407,
owners of copyright-protected works
published in the United States must
generally deposit two complete copies
of the best edition of the work ‘‘for the
use or disposition of the Library of
Congress.’’ 1 ‘‘The ‘best edition’ of a
work’’ is defined as ‘‘the edition,
published in the United States at any
time before the date of deposit, that the
Library of Congress determines to be
most suitable for its purposes.’’ 2 The
Office’s regulations, including § 202.19
and Appendix B of part 202, set forth
rules and criteria for the different types
of works subject to mandatory deposit.
The second source of materials is
section 408, which requires applicants
seeking to register the copyright in
published works to provide the Office
with ‘‘two complete copies or
phonorecords of the best edition.’’ 3 To
avoid the duplication of deposits,
section 408 specifies that copies or
phonorecords deposited under section
407 ‘‘may be used to satisfy the deposit
provisions’’ of section 408 if they ‘‘are
accompanied by the prescribed
application and fee.’’ 4 Registration
deposits are ‘‘available to the Library of
Congress for its collections,’’ and items
not selected by the Library are retained
by the Office for a period of time.5
Both sections 407 and 408 grant the
Register of Copyrights broad regulatory
authority to specify the nature of the
[FR Doc. 2023–18681 Filed 8–31–23; 8:45 am]
BILLING CODE 5001–06–P
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. 2023–3]
Access to Electronic Works
U.S. Copyright Office, Library
of Congress.
ACTION: Notice of proposed rulemaking.
AGENCY:
The U.S. Copyright Office is
issuing a notice of proposed rulemaking
to update its regulation governing
electronic deposits of published works
submitted to the Office that have been
selected for addition to the collections
of the Library of Congress. The current
regulation permits the Library to collect
and provide limited on-site access to
groups of newspapers electronically
submitted for registration, as well as
electronic serials and books submitted
for mandatory deposit. The proposed
rule expands the categories of electronic
deposits covered by the regulation with
the same limitations on access as are
currently in place. The proposed
changes are part of ongoing steps by the
Library and the Office to encourage the
submission of works in electronic form
and reduce the need for copyright
owners to deposit physical copies.
DATES: Written comments must be
received by no later than 11:59 p.m.
Eastern Time on October 2, 2023. Reply
written comments must be received no
later than 11:59 p.m. Eastern Time on
October 16, 2023.
ADDRESSES: For reasons of government
efficiency, the Copyright Office is using
the regulations.gov system for the
submission and posting of public
comments in this proceeding. All
comments are therefore to be submitted
electronically through regulations.gov.
Specific instructions for submitting
comments are available on the
Copyright Office website at https://
www.copyright.gov/rulemaking/
edeposit-access.
SUMMARY:
PO 00000
Frm 00029
Fmt 4702
Sfmt 4702
Rhea Efthimiadis, Assistant to the
General Counsel, by email at meft@
copyright.gov or telephone at 202–707–
8350.
SUPPLEMENTARY INFORMATION:
1 17
U.S.C. 407, 407(b).
at 101.
3 Id. at 408(b)(2). Section 408(b) also sets out the
deposit requirements for the registration of
unpublished works (id. at 408(b)(1)), works first
published outside of the United States (id. at
408(b)(3)), and contributions to collective works (id.
at 408(b)(4)).
4 Id. at 408(b). Although section 408 states that
copies deposited pursuant to the mandatory deposit
provision in section 407 may be used to satisfy the
registration deposit requirement in section 408, in
practice, the Office treats copies of works submitted
for registration as satisfying the mandatory deposit
requirement (assuming the deposit requirements are
the same), and not vice versa. 37 CFR 202.19(f)(1),
202.20(e); see Registration of Claims to Copyright
Deposit Requirements, 43 FR 763, 768 (Jan. 4, 1978).
5 17 U.S.C. 704(b), 704(d). Deposits of works
submitted under either sections 407 and 408 are
‘‘property of the United States Government’’ and
can be used by the Library for its collections. Id.
at 704(a), 704(b).
2 Id.
E:\FR\FM\01SEP1.SGM
01SEP1
60414
Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules
required deposits, including the ability
to exempt certain works from the
deposit requirements.6 Using this
authority, the Register has permitted the
deposit of only one copy instead of two
for certain classes of works submitted
for registration.7 Similarly, the Register
has issued regulations exempting
specific categories of works from the
mandatory deposit requirements.8
The Office also has used its regulatory
power in sections 407 and 408 to
accommodate the submission of
electronic deposits instead of physical
deposits in certain cases. With respect
to section 407, the Office issued an
interim rule in 2010 generally
exempting electronic works that are
‘‘available only online’’ from the
mandatory deposit requirement, with a
limited exception for electronic-only
serials.9 The Office revised this rule in
2020 to require the mandatory deposit
of electronic-only books in response to
an affirmative demand under section
407(d).10 To date, the Office’s
regulations for registration deposits
have generally required or preferred the
deposit of physical copies. Recently,
however, the Office created new flexible
registration options across a number of
categories that either permit or require
the submission of electronic copies
depending on the work.11 For example,
in 2018, the Office issued a final rule
with respect to the group registration of
newspaper issues, which states that
deposits ‘‘must be submitted in a digital
form.’’ 12
6 Id.
at 407(c); id. at 408(c)(1).
CFR 202.20(c)(2)(i).
8 Id. § 202.19(c) (listing ‘‘categories of material
[that] are exempt from the deposit requirements of
section 407’’).
9 Mandatory Deposit of Published Electronic
Works Available Only Online, 75 FR 3863, 3869
(Jan. 25, 2010); 37 CFR 202.19(c)(5). The interim
rule codified the Office’s preexisting practice of not
demanding copies of electronic-only works such as
website content. See Mandatory Deposit of
Electronic Books and Sound Recordings Available
Only Online, 81 FR 30505, 30506 (May 17, 2016).
Under the interim rule and current regulations,
copyright owners are not obligated to deposit
electronic-serials unless and until the Office
affirmatively makes a demand. See 37 CFR
202.24(a).
10 Mandatory Deposit of Electronic-Only Books,
85 FR 71834 (Nov. 12, 2020).
11 See, e.g., Group Registration of Contributions to
Periodicals, 82 FR 29410 (June 29, 2017); Group
Registration of Photographs, 83 FR 2542 (Jan. 18,
2018); Group Registration of Newspapers, 83 FR
4144, 4146 (Jan. 30, 2018); Group Registration of
Serials, 84 FR 60918 (Nov. 12, 2019); Group
Registration of Newsletters, 85 FR 31981 (May 28,
2020); Group Registration of Short Online Literary
Works, 85 FR 37341 (June 22, 2020); Liberalizing
the Deposit Requirements for Registering a Single
Issue of a Serial Publication, 87 FR 43744 (July 22,
2022).
12 37 CFR 202.4(e)(6)(ii) (for group newspaper
deposits, ‘‘[t]he issues must be submitted in a
lotter on DSK11XQN23PROD with PROPOSALS1
7 37
VerDate Sep<11>2014
16:27 Aug 31, 2023
Jkt 259001
Under its current regulation, the
Office places strict limits on access to
electronic deposits selected by the
Library of Congress for its collections.13
Electronic deposits received by the
Library from the Office can only be
accessed by specific authorized users at
limited locations, and only two such
users may access a particular deposit at
a time. ‘‘Authorized users’’ are defined
as (i) Members of the U.S. House of
Representatives and the U.S. Senate, as
well as their officers and staff, (ii) the
Library of Congress’s staff and
contractors, and (iii) registered
researchers who are authorized to use
the Library of Congress’s public reading
rooms and the collections that are
accessible there.14 Authorized users
may access the Library’s electronic
collections only on the Library’s
premises at terminals connected to a
secure network.15 The only exception to
the on-site requirement is for Library
staff, who are permitted to access
electronic deposits ‘‘off-site as part of
their assigned duties via a secure
connection.’’ 16 These limitations on
access would not be changed by the
proposed rule.
Although the Copyright Act provides
that the Library may select any deposit
received by the Office, current
regulations authorize the Library’s
acquisition of only two types of
electronic deposits: those received
through mandatory deposit pursuant to
section 407 and those submitted for
group registrations of newspapers.17
When the regulations were enacted,
technical limitations prevented the
Library from selecting and transferring
other types of electronic copies to its
collections. As a result of technical
developments since that time, the
Library has systems now capable of
ingesting and preserving online-only
serials deposited under section 407.18 In
addition, technical development of the
Office’s electronic registration system
(‘‘eCO’’) now provides the ability for the
Library to select and transfer other
digital form, and each issue must be contained in
a separate electronic file’’).
13 Id. § 202.18.
14 Id. § 202.18(d). The process for becoming a
registered researcher is available at https://
www.loc.gov/rr/readerregistration.html.
15 Id. § 202.18(b); id. § 202.18(d) (‘‘Authorized
user’ means Library of Congress staff, contractors,
and registered researchers, and Members, staff and
officers of the U.S. House of Representatives and
the U.S. Senate for the purposes of this section.’’).
16 Id. § 202.18(a).
17 Id.
18 See 75 FR 3863, 3865 (explaining that ‘‘the
Library is currently developing technological
systems that will allow it to ingest electronic works,
including those available exclusively online, and
maintain them in formats suitable for long-term
preservation’’).
PO 00000
Frm 00030
Fmt 4702
Sfmt 4702
electronic deposits to its collections.
The Library’s selection decisions will
remain limited, however, to registration
deposits for group newspapers and
mandatory deposits for eSerials and
eBooks absent amendment of the
Office’s regulations. The proposed rule
will expand the electronic deposits of
published works that the Library can
select.19
As the Office reported to Congress in
December 2022, the Library is
‘‘increasing its focus on collecting works
in digital form.’’ 20 The proposed rule
expands the Library’s ability to select
and transfer to its collections additional
categories of published works in
electronic form submitted to the Office.
Accordingly, it provides the regulatory
authority necessary for the Library to
meet this goal, while maintaining the
current limits on public access to the
works. Additional intended
beneficiaries of the proposed rule will
be those copyright owners who wish to
satisfy their deposit requirements under
sections 407 and 408 through the
submission of electronic rather than
physical deposits.
II. Proposed Rule
The Library and Office propose to
expand the current regulations
governing the transfer of electronic
deposits for the Library’s collections. As
the Office’s recent study on the best
edition requirement explained, the
Library has determined that in many
cases its collections needs can be met
using electronic deposits of textual
works,21 and it is studying other types
of works for which that is true.
A. The Proposed Rule’s Expansion of
Existing Categories
This Notice of Proposed Rulemaking
updates the regulation governing the
addition of electronic copyright deposits
to the Library’s collections. Specifically,
the proposed rule will expand the
Library’s authority to select electronic
deposits of published works for addition
to its collections.22 This change is
19 Neither the current regulation nor the proposed
changes allow access to unpublished works in
electronic form. See also 37 CFR 201.23 (governing
the transfer of unpublished deposits to the Library
of Congress, requiring the Library maintain
‘‘appropriate safeguards against unauthorized
copying or other unauthorized use of the deposits
which would be contrary to the rights of the
copyright owner’’).
20 Letter from Shira Perlmutter, Reg. of
Copyrights, U.S. Copyright Office, Sen. Thom Tillis,
Ranking Member, S. Comm. on the Judiciary,
Subcomm. on Intell. Prop. at 7 (Dec. 1, 2022) (‘‘Best
Edition Study’’).
21 Id. at 13.
22 The rule will not affect the Library’s inability
to provide public access to unpublished electronic
E:\FR\FM\01SEP1.SGM
01SEP1
Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules
effected by replacing the current
regulatory language limiting this
authority to electronic deposits received
through group newspaper registrations
and mandatory deposits with language
encompassing all published works
covered by the following existing
regulations: §§ 202.4 (d) through (g) and
(i) through (k) (certain group
registrations), 202.19 (deposit of
published copies or phonorecords for
the Library of Congress), 202.20 (deposit
of copies and phonorecords for
copyright registration).
The proposed rule does not alter the
current strict limits on access to these
works after their selection and
acquisition by the Library: electronic
deposits covered by the proposed rule
will be available only to authorized
users on the Library’s premises via a
secure system. Library staff will
continue to have authorization for
remote access, but only through a secure
server and network limited to serving
the Library. In all cases, access to any
individual electronic deposit received
under sections 407 and 408 will be
limited to two simultaneous authorized
users.
lotter on DSK11XQN23PROD with PROPOSALS1
B. The Library’s Digital Collections
Strategy
As part of its Digital Collections
Strategy, the Library is making a gradual
shift towards an ‘‘e-preferred’’ approach,
in which digital formats will be
preferred over traditional physical
formats across its major acquisitions
streams, including deposits received
from the Office.23 Because of the
increased prevalence of digital content,
the Library’s plan encompasses ‘‘all
aspects of born digital collecting and
curation, end-to-end.’’ 24 This will
involve policies and workflows that
support digital content acquisition and
curation, developing ‘‘an agile technical
infrastructure [to] allow for the routine
and efficient acquisition of desired
digital materials,’’ and establishing and
implementing appropriate methods to
‘‘ensure that rights-restricted digital
content remains secure.’’ 25 A key
component of the Library’s strategy is
expanding the acquisition for its
collections of digital content deposited
with the Copyright Office.26 But before
deposits submitted to the Office for copyright
registration.
23 U.S. Library of Congress, Digital Collections
Strategy Overview 2022–2026 at 4–5 (Oct. 2021)
(‘‘Digital Collections Strategy’’), https://
www.loc.gov/acq/devpol/
Digital%20Collections%20Strategy%20Overview_
final.pdf.
24 Id. at 1.
25 Id. at 1–2.
26 Id. at 4 (Library plans to ‘‘[w]ork with the
Copyright Office to explore and strategically plan
VerDate Sep<11>2014
16:27 Aug 31, 2023
Jkt 259001
the Library can begin to make
operational changes, it must have the
legal authority to do so. The Office’s
proposed regulatory amendment will
further this goal.
The proposed rule is designed to offer
long-term benefits to the Library and its
authorized users by expanding its
collections of digital content. By
reducing the need for physical deposits,
the revised rule is also intended to
benefit copyright owners. When the
Library’s needs can be met with digital
copies, the Office will be able to provide
additional opportunities for applicants
to submit electronic deposits with their
registration materials.27 This will lower
the overall cost for applicants who
would otherwise need to produce and
mail physical copies to the Office, and
will be particularly helpful for small
businesses and independent creators
who may have limited resources.28
In turn, the Office’s Registration
Program will benefit from the expansion
of copyright owners’ ability to submit
electronic deposits. The Office spends
significantly more time and resources to
process registrations with physical
deposits than those with electronic
ones.29 The most significant reason for
this disparity is the time required to
receive mailed deposits. When an
application includes an electronic
deposit, the Office can typically review
the registration file as soon as it is
assigned. But when an applicant mails
physical copies, it may take weeks or
longer for the deposit to reach the Office
the possible implementation of regulatory updates’’
that help ‘‘[e]xpand the depth and breadth of digital
content acquisition via the Copyright Office.’’).
27 To be clear, the Office does not plan to require
applicants to submit electronic deposits. Instead,
applicants will choose whether to submit an
electronic or physical deposit. Applicants who
prefer to submit physical copies will have the
ability to do so. See Best Edition Study at 8 (Office
plans to ‘‘provide digital options for additional
types of works, although deposits in physical form
will still be permitted.’’).
28 Best Edition Study: Notice and Request for
Public Comment, 87 FR 33836, 33839 (June 3, 2022)
(‘‘[w]hile the submission of e-copies as opposed to
print copies for purposes of registration would pose
some difficulties in terms of service to Congress and
other user groups, having access to e-copies of the
content will be beneficial in the long term’’); see
also Best Edition Study at 5–7 (discussing Office’s
efforts to reduce burden on copyright owners from
compliance with the best edition requirement,
particularly from submission of physical best
edition copies).
29 The current average processing time for
registrations with uploaded digital deposits is 1.2
months if no correspondence is needed, or 3.3
months in cases of correspondence. Registrations
with physical deposits are much longer—an online
application with a physical deposit takes an average
of 2.7 months to resolve with no correspondence or
6.6 months with correspondence. Updated
registration processing times can be found on the
Office’s website at https://www.copyright.gov/
registration/docs/processing-times-faqs.pdf.
PO 00000
Frm 00031
Fmt 4702
Sfmt 4702
60415
and be connected with the
corresponding application.30 Because
the effective date of a registration is the
date that the Office receives the
application, filing fee, and deposit in
proper form, the delay associated with
physical deposits can cause copyright
applicants to have an effective date
much later than the date they submitted
an electronic application through eCO.
The proposed rule will pave the way for
the Office to increase opportunities for
electronic deposits, and will allow
copyright owners to avoid the delays
caused by physical deposits and benefit
from faster decisions and earlier
effective dates of registration.
Finally, the rule will provide
significant benefits to the Office’s
retention and preservation of works.
Currently, the Library often acquires all
physical copies of the registration
deposits for its collections, and no
copies are retained by the Office. If a
selected work is subsequently needed in
connection with litigation or another
records request, the Office must seek to
retrieve a copy from the Library.31 By
contrast, digital deposits can be used by
the Library for its needs without
affecting the Office’s records. When a
digital copy of a work is uploaded into
the electronic registration system, the
copy automatically becomes part of the
Office’s administrative record. If the
Library selects an electronically
submitted work, the Office can retain a
digital ‘‘record’’ copy,32 meaning that
work would remain available for the
applicable retention period as an Office
30 In addition to the time consumed by mail
delivery, physical deposits consume additional
resources to process. Copyright deposits, like all
material sent to the Capitol Complex, are first
redirected offsite to be screened and
decontaminated for possible pathogens. Once the
deposit has been screened and delivered to the
Office, the Materials Control and Analysis Division
(‘‘MCAD’’) manually matches the deposit to the
corresponding application. To facilitate this
process, applicants are supposed to include a
‘‘shipping slip’’ containing a barcode generated by
eCO for tracking purposes. But many applicants
omit the shipping slip with their deposits, requiring
MCAD to correspond with the applicant, obtain the
application case number, search for the application
in the electronic registration system, and manually
generate a new shipping slip and barcode.
Electronic deposits bypass all of these steps and
avoid the rare occasions where a deposit either does
not reach the Office at all or is misplaced.
31 The Office cannot certify copies of works
transferred to the Library’s collection. Its
regulations provide that the Office will make a
certified copy of a registered work if it is needed
for litigation or other legitimate purposes, provided
it has retained a copy of that work. 37 CFR
201.2(d)(2). But the Office cannot issue a certified
copy of a work transferred to the Library or another
institution. See U.S. Copyright Office, Compendium
of U.S. Copyright Office Practices, secs. 2405.3,
2409.5 (3d ed. 2021) (‘‘Compendium (Third)’’).
32 17 U.S.C. 704(c).
E:\FR\FM\01SEP1.SGM
01SEP1
60416
Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules
record.33 Digital copies are also easier to
track, store, and retrieve than physical
copies, allowing the Office to more
readily provide a copy for use in
litigation or in responding to other
public records requests.
Ultimately, the proposed rule will
provide significant benefits by reducing
the Office’s and Library’s reliance on
physical deposits and their
accompanying logistical challenges. In
addition, it will support the Library’s
strategic objective to ‘‘[e]xpand the
depth and breadth of digital content
acquisition via the Copyright Office.’’ 34
lotter on DSK11XQN23PROD with PROPOSALS1
C. Information Technology and Security
Considerations
The Office recognizes that because
this rule expands the Library’s authority
to select and transfer to its collections
electronic deposits of published works
submitted for registration, copyright
owners may have questions about the
Library’s information technology (‘‘IT’’)
security practices. The security of
electronic deposits is a shared priority
of copyright owners, the Office, and the
Library. The Library is committed to
‘‘the need to ensure the security of the
digital content in [its] care’’ 35 and takes
careful steps to address concerns about
the protection of electronic copyright
deposits. Critically, it employs the same
level of encryption to protect copyright
deposits as other highly sensitive
information it holds, such as
congressional material.36 The Office is
not aware of any security threats to date
with respect to the eSerials and eBooks
that have been submitted for mandatory
deposit. In the last decade, the Library
has received tens of millions of digital
files from copyright owners,37 and it
reports that there have been no known
instances of a breach in its security or
theft from its digital collections.
The Office encourages commenters to
review its recent policy study on the
best edition requirements, which
addressed IT security concerns in
connection with the storage of
electronic deposits.38 As that study
explains, the Library has invested
33 The Office retains published deposit materials
for a period of twenty years. Compendium (Third)
sec. 1510.1 (‘‘Published deposit materials are
currently stored for twenty years.’’). If the Office
closes a file for a published work without issuing
a registration or refuses to register the work, the
deposit materials are retained subject to the
disposition schedules set by the National Archives
and Records Administration. Id.
34 Digital Collections Strategy at 4.
35 Mandatory Deposit of Electronic-Only Books,
85 FR 38806, 38812, n.88 (June 29, 2020).
36 See id. at 38811–14 (detailed explanation of the
Library’s IT security improvements and upgrades).
37 Best Edition Study at 18.
38 See id. at 16–19.
VerDate Sep<11>2014
16:27 Aug 31, 2023
Jkt 259001
substantially in its IT security capacity
in recent years, including centralizing
IT security under a Chief Information
Officer and enacting policies and
practices to secure Library and Office
data.39 The Library also obtains ongoing
public feedback on its practices in part
through the Copyright Public
Modernization Committee (‘‘CPMC’’)
and a vulnerability disclosure
program.40
The proposed rule’s expansion of the
categories of published electronic
deposits that will be available for the
Library’s selection, combined with the
current limits on access, will not
increase the risk that these deposits will
be stolen or misused. Any electronic
registration deposits that are added to
the Library’s collections will be
protected by the same technical
measures that currently secure 236
million electronic serials and 1.2
million e-books.41 These security
measures are extensive—at a recent
CPMC meeting, the Library’s Chief
Information Officer detailed the
continuous security measures for
eDeposit material. Among other steps,
the data is protected both at rest and in
transit, with over 300 IT security
controls.42 These controls are subject to
repeated testing per the Library’s
continuous monitoring schedule.43
Just as with current treatment of
electronic deposits, access will be
restricted to authorized users as defined
in the regulation and only permitted on
the Library’s physical premises, with a
narrow exception for Library staff
working offsite over a secure
connection.44 This limited onsite access
for authorized users occurs through
computer terminals located in the
Library’s reading rooms.45 The reading
room terminals are not connected to the
internet, have USB and other ports
disabled, and are under the supervision
of Library staff.
The Library takes seriously its
responsibilities as a steward of the
cultural works in its collections,
39 Id.
at 17–18.
at 19–20.
41 Id. at 18.
42 U.S. Copyright Office, Library of Congress,
CPMC Public Meeting (Mar. 2, 2023), https://
www.loc.gov/item/webcast-10761/.
43 Id.
44 Library staff have limited offsite access to
deposits ‘‘as part of their assigned duties via a
secure connection.’’ 37 CFR 202.18(a). This allows
employees working remotely to fulfill work duties
but does not permit access for other purposes.
45 Access to Rights-Restricted Content, Library of
Congress, https://catalog.loc.gov/vwebv/ui/en_US/
htdocs/help/eDepositAccess.html (Access to rights
restricted content is available on dedicated Stacks
terminals located in Library reading rooms.). While
onsite, Library staff may also access these materials
through their workstations.
40 Id.
PO 00000
Frm 00032
Fmt 4702
Sfmt 4702
including safeguarding deposits
received from the Office. The Office is
confident that the current security
measures and practices provide robust
security for electronic deposits in the
Library’s collection. To the extent there
remain comments or questions about the
security of deposits, the Office is
prepared to address them in the final
rule.
III. Conclusion
As the Library implements its Digital
Collections Strategy, it will increase the
digital works held in its collections,
including through the selection of
digital deposits submitted to the
Copyright Office. The proposed rule
facilitates this by providing the Library
the authority to select and transfer
digital deposits for all types of
published works submitted to the Office
through the registration process. Access
to these materials will remain limited
and subject to the existing regulation’s
restrictions. These changes will help the
Library fulfill its mission as the Nation’s
library and the research arm of
Congress.
The Copyright Office welcomes
public feedback and seeks comments on
the regulatory amendments presented in
this Notice of Proposed Rulemaking, as
well as related issues discussed within.
List of Subjects in 37 CFR Part 202
Claims, Copyright.
For the reasons set forth in the
preamble, the Copyright Office proposes
amending 37 CFR part 202 as follows:
PART 202—PREREGISTRATION AND
REGISTRATION OF CLAIMS TO
COPYRIGHT
1. The authority citation for part 202
continues to read as follows:
■
Authority: 17 U.S.C. 408(f), 702.
2. Amend § 202.18 by:
a. In paragraph (a), removing ‘‘Access
to electronic works received under
§ 202.4(e) and § 202.19’’ and adding in
its place ‘‘Access to published
electronic works received under
§ 202.4(d) through (g), § 202.4(i) through
(k), § 202.19, or § 202.20’’;
■ b. In paragraph (a), removing ‘‘only to
authorized users at Library of Congress
premises’’ and adding in its place ‘‘at
Library of Congress premises only to
authorized users’’;
■ c. In paragraph (b), removing ‘‘Access
to each individual electronic work
received under § 202.4(e) and § 202.19’’
and adding in its place ‘‘Access to each
individual electronic work received
pursuant to paragraph (a) of this
section’’; and
■
■
E:\FR\FM\01SEP1.SGM
01SEP1
Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules
d. In paragraph (c), removing
‘‘electronic works received under
§ 202.4(e) and § 202.19’’ and adding in
its place ‘‘electronic works received
pursuant to paragraph (a) of this
section’’.
■
Dated: August 24, 2023.
Suzanne V. Wilson,
General Counsel and Associate Register of
Copyrights.
[FR Doc. 2023–18664 Filed 8–31–23; 8:45 am]
BILLING CODE 1410–30–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Parts 17 and 51
RIN 2900–AR61
Determining Eligibility for Domiciliary
Care
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) proposes to amend its
medical regulations and State Veterans
Home (State home) regulations. VA
proposes to update the criteria used by
VA in determining whether a veteran
has no adequate means of support
relative to eligibility for domiciliary
care, and to shift the focus of the
regulatory language from the veterans’
ability to pursue substantially gainful
employment to a broader consideration
of available support systems and
medical conditions or disabilities that
might impact the veteran’s ability to live
independently. In addition, we propose
amending our State home regulations to
implement VA’s authority to waive
certain eligibility requirements for
receipt of State home domiciliary care
per diem.
DATES: Comments must be received by
VA on or before October 31, 2023.
ADDRESSES: Comments must be
submitted through www.regulations.gov.
Except as provided below, comments
received before the close of the
comment period will be available at
www.regulations.gov for public viewing,
inspection, or copying, including any
personally identifiable or confidential
business information that is included in
a comment. We post the comments
received before the close of the
comment period on the following
website as soon as possible after they
have been received: https://
www.regulations.gov. VA will not post
on Regulations.gov public comments
that make threats to individuals or
institutions or suggest that the
commenter will take actions to harm an
lotter on DSK11XQN23PROD with PROPOSALS1
SUMMARY:
VerDate Sep<11>2014
16:27 Aug 31, 2023
Jkt 259001
individual. VA encourages individuals
not to submit duplicative comments. We
will post acceptable comments from
multiple unique commenters even if the
content is identical or nearly identical
to other comments. Any public
comment received after the comment
period’s closing date is considered late
and will not be considered in the final
rulemaking.
FOR FURTHER INFORMATION CONTACT:
Jennifer Burden, Ph.D., National Mental
Health Director, Mental Health
Residential Rehabilitation and
Treatment Programs (11MHSP),
Veterans Health Administration,
Department of Veterans Affairs, 810
Vermont Avenue NW, Washington, DC
20420; (540) 819–1190 (This is not a
toll-free number.)
SUPPLEMENTARY INFORMATION: Section
1710(b)(2) of title 38, United States Code
(U.S.C.) authorizes VA to provide
needed domiciliary care to veterans
whose annual income does not exceed
the applicable maximum annual rate of
VA pension and to veterans VA
determines have no adequate means of
support. Historically, domiciliary care
in VA has primarily been focused on
delivering care to older residents who
cannot live independently but who do
not require admission to a nursing
home, although the scope of domiciliary
care provided by VA has expanded over
the decades to meet the changing needs
of veterans.
The term domiciliary care is defined
in § 17.30(b) of title 38, Code of Federal
Regulations (CFR), which reflects the
two alternative models of domiciliary
care VA is authorized to provide to
eligible veterans. Domiciliary care is
defined at § 17.30(b)(1)(i) to mean the
furnishing of a temporary home to a
veteran, embracing the furnishing of
shelter, food, clothing, and other
comforts of home, including necessary
medical services. This model focuses on
the needs of veterans eligible for VA
domiciliary care who cannot live
independently but who do not require
admission to a nursing home. While VA
retains the authority to directly provide
domiciliary care under this model, it
currently pays a per diem to State
homes to provide this model of
domiciliary care to eligible veterans.
The statutory authority for the payment
program is set forth at 38 U.S.C. 1741–
43. VA has published regulations
governing this program at 38 CFR part
51. VA regulates eligibility for VA
payment of State home domiciliary care
per diem at § 51.51.
The second model for providing
domiciliary care is defined in
§ 17.30(b)(1)(ii). There, domiciliary care
PO 00000
Frm 00033
Fmt 4702
Sfmt 4702
60417
is defined to mean the furnishing of a
day hospital program consisting of
intensive supervised rehabilitation and
treatment provided in a therapeutic
residential setting for residents with
mental health or substance use
disorders and co-occurring medical or
psychosocial needs such as
homelessness and unemployment. This
model focuses on the needs of veterans
eligible for domiciliary care and who are
receiving care through VA’s Mental
Health Residential Rehabilitation
Treatment Program, including
Domiciliary Care for Homeless Veterans
Program; General Domiciliary;
Domiciliary Substance Use Programs;
and Domiciliary Post-Traumatic Stress
Disorder Programs. Today, a VA
domiciliary consists of intensive
supervised rehabilitation and treatment
provided in a therapeutic residential
setting that is aligned with VA medical
facilities.
Veterans must meet the eligibility
criteria found in 38 CFR 17.46(b) as well
as §§ 17.47(b)(2) and 17.47(c) to receive
domiciliary care in a VA domiciliary.
Per § 17.46(b) domiciliary care may be
furnished when needed to any veteran
whose annual income does not exceed
the maximum annual rate of pension
payable to a veteran in need of regular
aid and attendance, or any veteran who
VA determines had no adequate means
of support. There is an additional
requirement in that paragraph that the
veteran must be able to perform certain
listed activities related to self-care. In
turn, 38 CFR 17.47(b)(2) addresses how
VA determines whether a veteran has no
adequate means of support for purposes
of eligibility for domiciliary care.
Finally, 38 CFR 17.47(c) establishes that
to be provided domiciliary care, the
veteran must have a disability, disease,
or defect which is essentially chronic in
type and is producing disablement of
such degree and probable persistency as
will incapacitate from earning a living
for a prospective period. Eligibility
criteria found in §§ 17.46 and 17.47 are
applicable to domiciliary care provided
by VA in residential rehabilitation
treatment venues. The same eligibility
criteria generally are reflected in current
38 CFR 51.51 and are applicable to State
home domiciliary veterans for purposes
of per diem payment eligibility.
We propose multiple changes to our
regulations. Initially, we propose to
make a technical change in part 17 to
remove the word domiciliary from a
regulation that does not address
domiciliary care. VA also proposes
amending both Part 17 and 51
regulations that address how VA
determines whether a veteran has no
adequate means of support for purposes
E:\FR\FM\01SEP1.SGM
01SEP1
]]>Agencies
[Federal Register Volume 88, Number 169 (Friday, September 1, 2023)]
[Proposed Rules]
[Pages 60413-60417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18664]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. 2023-3]
Access to Electronic Works
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The U.S. Copyright Office is issuing a notice of proposed
rulemaking to update its regulation governing electronic deposits of
published works submitted to the Office that have been selected for
addition to the collections of the Library of Congress. The current
regulation permits the Library to collect and provide limited on-site
access to groups of newspapers electronically submitted for
registration, as well as electronic serials and books submitted for
mandatory deposit. The proposed rule expands the categories of
electronic deposits covered by the regulation with the same limitations
on access as are currently in place. The proposed changes are part of
ongoing steps by the Library and the Office to encourage the submission
of works in electronic form and reduce the need for copyright owners to
deposit physical copies.
DATES: Written comments must be received by no later than 11:59 p.m.
Eastern Time on October 2, 2023. Reply written comments must be
received no later than 11:59 p.m. Eastern Time on October 16, 2023.
ADDRESSES: For reasons of government efficiency, the Copyright Office
is using the regulations.gov system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through regulations.gov. Specific instructions
for submitting comments are available on the Copyright Office website
at https://www.copyright.gov/rulemaking/edeposit-access.
FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the
General Counsel, by email at [email protected] or telephone at 202-
707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
The Copyright Act provides two sources of materials that can be
selected by the Library of Congress for its collections. The first is
the ``mandatory deposit'' requirement set forth in section 407 of title
17. Under section 407, owners of copyright-protected works published in
the United States must generally deposit two complete copies of the
best edition of the work ``for the use or disposition of the Library of
Congress.'' \1\ ``The `best edition' of a work'' is defined as ``the
edition, published in the United States at any time before the date of
deposit, that the Library of Congress determines to be most suitable
for its purposes.'' \2\ The Office's regulations, including Sec.
202.19 and Appendix B of part 202, set forth rules and criteria for the
different types of works subject to mandatory deposit.
---------------------------------------------------------------------------
\1\ 17 U.S.C. 407, 407(b).
\2\ Id. at 101.
---------------------------------------------------------------------------
The second source of materials is section 408, which requires
applicants seeking to register the copyright in published works to
provide the Office with ``two complete copies or phonorecords of the
best edition.'' \3\ To avoid the duplication of deposits, section 408
specifies that copies or phonorecords deposited under section 407 ``may
be used to satisfy the deposit provisions'' of section 408 if they
``are accompanied by the prescribed application and fee.'' \4\
Registration deposits are ``available to the Library of Congress for
its collections,'' and items not selected by the Library are retained
by the Office for a period of time.\5\
---------------------------------------------------------------------------
\3\ Id. at 408(b)(2). Section 408(b) also sets out the deposit
requirements for the registration of unpublished works (id. at
408(b)(1)), works first published outside of the United States (id.
at 408(b)(3)), and contributions to collective works (id. at
408(b)(4)).
\4\ Id. at 408(b). Although section 408 states that copies
deposited pursuant to the mandatory deposit provision in section 407
may be used to satisfy the registration deposit requirement in
section 408, in practice, the Office treats copies of works
submitted for registration as satisfying the mandatory deposit
requirement (assuming the deposit requirements are the same), and
not vice versa. 37 CFR 202.19(f)(1), 202.20(e); see Registration of
Claims to Copyright Deposit Requirements, 43 FR 763, 768 (Jan. 4,
1978).
\5\ 17 U.S.C. 704(b), 704(d). Deposits of works submitted under
either sections 407 and 408 are ``property of the United States
Government'' and can be used by the Library for its collections. Id.
at 704(a), 704(b).
---------------------------------------------------------------------------
Both sections 407 and 408 grant the Register of Copyrights broad
regulatory authority to specify the nature of the
[[Page 60414]]
required deposits, including the ability to exempt certain works from
the deposit requirements.\6\ Using this authority, the Register has
permitted the deposit of only one copy instead of two for certain
classes of works submitted for registration.\7\ Similarly, the Register
has issued regulations exempting specific categories of works from the
mandatory deposit requirements.\8\
---------------------------------------------------------------------------
\6\ Id. at 407(c); id. at 408(c)(1).
\7\ 37 CFR 202.20(c)(2)(i).
\8\ Id. Sec. 202.19(c) (listing ``categories of material [that]
are exempt from the deposit requirements of section 407'').
---------------------------------------------------------------------------
The Office also has used its regulatory power in sections 407 and
408 to accommodate the submission of electronic deposits instead of
physical deposits in certain cases. With respect to section 407, the
Office issued an interim rule in 2010 generally exempting electronic
works that are ``available only online'' from the mandatory deposit
requirement, with a limited exception for electronic-only serials.\9\
The Office revised this rule in 2020 to require the mandatory deposit
of electronic-only books in response to an affirmative demand under
section 407(d).\10\ To date, the Office's regulations for registration
deposits have generally required or preferred the deposit of physical
copies. Recently, however, the Office created new flexible registration
options across a number of categories that either permit or require the
submission of electronic copies depending on the work.\11\ For example,
in 2018, the Office issued a final rule with respect to the group
registration of newspaper issues, which states that deposits ``must be
submitted in a digital form.'' \12\
---------------------------------------------------------------------------
\9\ Mandatory Deposit of Published Electronic Works Available
Only Online, 75 FR 3863, 3869 (Jan. 25, 2010); 37 CFR 202.19(c)(5).
The interim rule codified the Office's preexisting practice of not
demanding copies of electronic-only works such as website content.
See Mandatory Deposit of Electronic Books and Sound Recordings
Available Only Online, 81 FR 30505, 30506 (May 17, 2016). Under the
interim rule and current regulations, copyright owners are not
obligated to deposit electronic-serials unless and until the Office
affirmatively makes a demand. See 37 CFR 202.24(a).
\10\ Mandatory Deposit of Electronic-Only Books, 85 FR 71834
(Nov. 12, 2020).
\11\ See, e.g., Group Registration of Contributions to
Periodicals, 82 FR 29410 (June 29, 2017); Group Registration of
Photographs, 83 FR 2542 (Jan. 18, 2018); Group Registration of
Newspapers, 83 FR 4144, 4146 (Jan. 30, 2018); Group Registration of
Serials, 84 FR 60918 (Nov. 12, 2019); Group Registration of
Newsletters, 85 FR 31981 (May 28, 2020); Group Registration of Short
Online Literary Works, 85 FR 37341 (June 22, 2020); Liberalizing the
Deposit Requirements for Registering a Single Issue of a Serial
Publication, 87 FR 43744 (July 22, 2022).
\12\ 37 CFR 202.4(e)(6)(ii) (for group newspaper deposits,
``[t]he issues must be submitted in a digital form, and each issue
must be contained in a separate electronic file'').
---------------------------------------------------------------------------
Under its current regulation, the Office places strict limits on
access to electronic deposits selected by the Library of Congress for
its collections.\13\ Electronic deposits received by the Library from
the Office can only be accessed by specific authorized users at limited
locations, and only two such users may access a particular deposit at a
time. ``Authorized users'' are defined as (i) Members of the U.S. House
of Representatives and the U.S. Senate, as well as their officers and
staff, (ii) the Library of Congress's staff and contractors, and (iii)
registered researchers who are authorized to use the Library of
Congress's public reading rooms and the collections that are accessible
there.\14\ Authorized users may access the Library's electronic
collections only on the Library's premises at terminals connected to a
secure network.\15\ The only exception to the on-site requirement is
for Library staff, who are permitted to access electronic deposits
``off-site as part of their assigned duties via a secure connection.''
\16\ These limitations on access would not be changed by the proposed
rule.
---------------------------------------------------------------------------
\13\ Id. Sec. 202.18.
\14\ Id. Sec. 202.18(d). The process for becoming a registered
researcher is available at https://www.loc.gov/rr/readerregistration.html.
\15\ Id. Sec. 202.18(b); id. Sec. 202.18(d) (``Authorized
user' means Library of Congress staff, contractors, and registered
researchers, and Members, staff and officers of the U.S. House of
Representatives and the U.S. Senate for the purposes of this
section.'').
\16\ Id. Sec. 202.18(a).
---------------------------------------------------------------------------
Although the Copyright Act provides that the Library may select any
deposit received by the Office, current regulations authorize the
Library's acquisition of only two types of electronic deposits: those
received through mandatory deposit pursuant to section 407 and those
submitted for group registrations of newspapers.\17\ When the
regulations were enacted, technical limitations prevented the Library
from selecting and transferring other types of electronic copies to its
collections. As a result of technical developments since that time, the
Library has systems now capable of ingesting and preserving online-only
serials deposited under section 407.\18\ In addition, technical
development of the Office's electronic registration system (``eCO'')
now provides the ability for the Library to select and transfer other
electronic deposits to its collections. The Library's selection
decisions will remain limited, however, to registration deposits for
group newspapers and mandatory deposits for eSerials and eBooks absent
amendment of the Office's regulations. The proposed rule will expand
the electronic deposits of published works that the Library can
select.\19\
---------------------------------------------------------------------------
\17\ Id.
\18\ See 75 FR 3863, 3865 (explaining that ``the Library is
currently developing technological systems that will allow it to
ingest electronic works, including those available exclusively
online, and maintain them in formats suitable for long-term
preservation'').
\19\ Neither the current regulation nor the proposed changes
allow access to unpublished works in electronic form. See also 37
CFR 201.23 (governing the transfer of unpublished deposits to the
Library of Congress, requiring the Library maintain ``appropriate
safeguards against unauthorized copying or other unauthorized use of
the deposits which would be contrary to the rights of the copyright
owner'').
---------------------------------------------------------------------------
As the Office reported to Congress in December 2022, the Library is
``increasing its focus on collecting works in digital form.'' \20\ The
proposed rule expands the Library's ability to select and transfer to
its collections additional categories of published works in electronic
form submitted to the Office. Accordingly, it provides the regulatory
authority necessary for the Library to meet this goal, while
maintaining the current limits on public access to the works.
Additional intended beneficiaries of the proposed rule will be those
copyright owners who wish to satisfy their deposit requirements under
sections 407 and 408 through the submission of electronic rather than
physical deposits.
---------------------------------------------------------------------------
\20\ Letter from Shira Perlmutter, Reg. of Copyrights, U.S.
Copyright Office, Sen. Thom Tillis, Ranking Member, S. Comm. on the
Judiciary, Subcomm. on Intell. Prop. at 7 (Dec. 1, 2022) (``Best
Edition Study'').
---------------------------------------------------------------------------
II. Proposed Rule
The Library and Office propose to expand the current regulations
governing the transfer of electronic deposits for the Library's
collections. As the Office's recent study on the best edition
requirement explained, the Library has determined that in many cases
its collections needs can be met using electronic deposits of textual
works,\21\ and it is studying other types of works for which that is
true.
---------------------------------------------------------------------------
\21\ Id. at 13.
---------------------------------------------------------------------------
A. The Proposed Rule's Expansion of Existing Categories
This Notice of Proposed Rulemaking updates the regulation governing
the addition of electronic copyright deposits to the Library's
collections. Specifically, the proposed rule will expand the Library's
authority to select electronic deposits of published works for addition
to its collections.\22\ This change is
[[Page 60415]]
effected by replacing the current regulatory language limiting this
authority to electronic deposits received through group newspaper
registrations and mandatory deposits with language encompassing all
published works covered by the following existing regulations:
Sec. Sec. 202.4 (d) through (g) and (i) through (k) (certain group
registrations), 202.19 (deposit of published copies or phonorecords for
the Library of Congress), 202.20 (deposit of copies and phonorecords
for copyright registration).
---------------------------------------------------------------------------
\22\ The rule will not affect the Library's inability to provide
public access to unpublished electronic deposits submitted to the
Office for copyright registration.
---------------------------------------------------------------------------
The proposed rule does not alter the current strict limits on
access to these works after their selection and acquisition by the
Library: electronic deposits covered by the proposed rule will be
available only to authorized users on the Library's premises via a
secure system. Library staff will continue to have authorization for
remote access, but only through a secure server and network limited to
serving the Library. In all cases, access to any individual electronic
deposit received under sections 407 and 408 will be limited to two
simultaneous authorized users.
B. The Library's Digital Collections Strategy
As part of its Digital Collections Strategy, the Library is making
a gradual shift towards an ``e-preferred'' approach, in which digital
formats will be preferred over traditional physical formats across its
major acquisitions streams, including deposits received from the
Office.\23\ Because of the increased prevalence of digital content, the
Library's plan encompasses ``all aspects of born digital collecting and
curation, end-to-end.'' \24\ This will involve policies and workflows
that support digital content acquisition and curation, developing ``an
agile technical infrastructure [to] allow for the routine and efficient
acquisition of desired digital materials,'' and establishing and
implementing appropriate methods to ``ensure that rights-restricted
digital content remains secure.'' \25\ A key component of the Library's
strategy is expanding the acquisition for its collections of digital
content deposited with the Copyright Office.\26\ But before the Library
can begin to make operational changes, it must have the legal authority
to do so. The Office's proposed regulatory amendment will further this
goal.
---------------------------------------------------------------------------
\23\ U.S. Library of Congress, Digital Collections Strategy
Overview 2022-2026 at 4-5 (Oct. 2021) (``Digital Collections
Strategy''), https://www.loc.gov/acq/devpol/Digital%20Collections%20Strategy%20Overview_final.pdf.
\24\ Id. at 1.
\25\ Id. at 1-2.
\26\ Id. at 4 (Library plans to ``[w]ork with the Copyright
Office to explore and strategically plan the possible implementation
of regulatory updates'' that help ``[e]xpand the depth and breadth
of digital content acquisition via the Copyright Office.'').
---------------------------------------------------------------------------
The proposed rule is designed to offer long-term benefits to the
Library and its authorized users by expanding its collections of
digital content. By reducing the need for physical deposits, the
revised rule is also intended to benefit copyright owners. When the
Library's needs can be met with digital copies, the Office will be able
to provide additional opportunities for applicants to submit electronic
deposits with their registration materials.\27\ This will lower the
overall cost for applicants who would otherwise need to produce and
mail physical copies to the Office, and will be particularly helpful
for small businesses and independent creators who may have limited
resources.\28\
---------------------------------------------------------------------------
\27\ To be clear, the Office does not plan to require applicants
to submit electronic deposits. Instead, applicants will choose
whether to submit an electronic or physical deposit. Applicants who
prefer to submit physical copies will have the ability to do so. See
Best Edition Study at 8 (Office plans to ``provide digital options
for additional types of works, although deposits in physical form
will still be permitted.'').
\28\ Best Edition Study: Notice and Request for Public Comment,
87 FR 33836, 33839 (June 3, 2022) (``[w]hile the submission of e-
copies as opposed to print copies for purposes of registration would
pose some difficulties in terms of service to Congress and other
user groups, having access to e-copies of the content will be
beneficial in the long term''); see also Best Edition Study at 5-7
(discussing Office's efforts to reduce burden on copyright owners
from compliance with the best edition requirement, particularly from
submission of physical best edition copies).
---------------------------------------------------------------------------
In turn, the Office's Registration Program will benefit from the
expansion of copyright owners' ability to submit electronic deposits.
The Office spends significantly more time and resources to process
registrations with physical deposits than those with electronic
ones.\29\ The most significant reason for this disparity is the time
required to receive mailed deposits. When an application includes an
electronic deposit, the Office can typically review the registration
file as soon as it is assigned. But when an applicant mails physical
copies, it may take weeks or longer for the deposit to reach the Office
and be connected with the corresponding application.\30\ Because the
effective date of a registration is the date that the Office receives
the application, filing fee, and deposit in proper form, the delay
associated with physical deposits can cause copyright applicants to
have an effective date much later than the date they submitted an
electronic application through eCO. The proposed rule will pave the way
for the Office to increase opportunities for electronic deposits, and
will allow copyright owners to avoid the delays caused by physical
deposits and benefit from faster decisions and earlier effective dates
of registration.
---------------------------------------------------------------------------
\29\ The current average processing time for registrations with
uploaded digital deposits is 1.2 months if no correspondence is
needed, or 3.3 months in cases of correspondence. Registrations with
physical deposits are much longer--an online application with a
physical deposit takes an average of 2.7 months to resolve with no
correspondence or 6.6 months with correspondence. Updated
registration processing times can be found on the Office's website
at https://www.copyright.gov/registration/docs/processing-times-faqs.pdf.
\30\ In addition to the time consumed by mail delivery, physical
deposits consume additional resources to process. Copyright
deposits, like all material sent to the Capitol Complex, are first
redirected offsite to be screened and decontaminated for possible
pathogens. Once the deposit has been screened and delivered to the
Office, the Materials Control and Analysis Division (``MCAD'')
manually matches the deposit to the corresponding application. To
facilitate this process, applicants are supposed to include a
``shipping slip'' containing a barcode generated by eCO for tracking
purposes. But many applicants omit the shipping slip with their
deposits, requiring MCAD to correspond with the applicant, obtain
the application case number, search for the application in the
electronic registration system, and manually generate a new shipping
slip and barcode. Electronic deposits bypass all of these steps and
avoid the rare occasions where a deposit either does not reach the
Office at all or is misplaced.
---------------------------------------------------------------------------
Finally, the rule will provide significant benefits to the Office's
retention and preservation of works. Currently, the Library often
acquires all physical copies of the registration deposits for its
collections, and no copies are retained by the Office. If a selected
work is subsequently needed in connection with litigation or another
records request, the Office must seek to retrieve a copy from the
Library.\31\ By contrast, digital deposits can be used by the Library
for its needs without affecting the Office's records. When a digital
copy of a work is uploaded into the electronic registration system, the
copy automatically becomes part of the Office's administrative record.
If the Library selects an electronically submitted work, the Office can
retain a digital ``record'' copy,\32\ meaning that work would remain
available for the applicable retention period as an Office
[[Page 60416]]
record.\33\ Digital copies are also easier to track, store, and
retrieve than physical copies, allowing the Office to more readily
provide a copy for use in litigation or in responding to other public
records requests.
---------------------------------------------------------------------------
\31\ The Office cannot certify copies of works transferred to
the Library's collection. Its regulations provide that the Office
will make a certified copy of a registered work if it is needed for
litigation or other legitimate purposes, provided it has retained a
copy of that work. 37 CFR 201.2(d)(2). But the Office cannot issue a
certified copy of a work transferred to the Library or another
institution. See U.S. Copyright Office, Compendium of U.S. Copyright
Office Practices, secs. 2405.3, 2409.5 (3d ed. 2021) (``Compendium
(Third)'').
\32\ 17 U.S.C. 704(c).
\33\ The Office retains published deposit materials for a period
of twenty years. Compendium (Third) sec. 1510.1 (``Published deposit
materials are currently stored for twenty years.''). If the Office
closes a file for a published work without issuing a registration or
refuses to register the work, the deposit materials are retained
subject to the disposition schedules set by the National Archives
and Records Administration. Id.
---------------------------------------------------------------------------
Ultimately, the proposed rule will provide significant benefits by
reducing the Office's and Library's reliance on physical deposits and
their accompanying logistical challenges. In addition, it will support
the Library's strategic objective to ``[e]xpand the depth and breadth
of digital content acquisition via the Copyright Office.'' \34\
---------------------------------------------------------------------------
\34\ Digital Collections Strategy at 4.
---------------------------------------------------------------------------
C. Information Technology and Security Considerations
The Office recognizes that because this rule expands the Library's
authority to select and transfer to its collections electronic deposits
of published works submitted for registration, copyright owners may
have questions about the Library's information technology (``IT'')
security practices. The security of electronic deposits is a shared
priority of copyright owners, the Office, and the Library. The Library
is committed to ``the need to ensure the security of the digital
content in [its] care'' \35\ and takes careful steps to address
concerns about the protection of electronic copyright deposits.
Critically, it employs the same level of encryption to protect
copyright deposits as other highly sensitive information it holds, such
as congressional material.\36\ The Office is not aware of any security
threats to date with respect to the eSerials and eBooks that have been
submitted for mandatory deposit. In the last decade, the Library has
received tens of millions of digital files from copyright owners,\37\
and it reports that there have been no known instances of a breach in
its security or theft from its digital collections.
---------------------------------------------------------------------------
\35\ Mandatory Deposit of Electronic-Only Books, 85 FR 38806,
38812, n.88 (June 29, 2020).
\36\ See id. at 38811-14 (detailed explanation of the Library's
IT security improvements and upgrades).
\37\ Best Edition Study at 18.
---------------------------------------------------------------------------
The Office encourages commenters to review its recent policy study
on the best edition requirements, which addressed IT security concerns
in connection with the storage of electronic deposits.\38\ As that
study explains, the Library has invested substantially in its IT
security capacity in recent years, including centralizing IT security
under a Chief Information Officer and enacting policies and practices
to secure Library and Office data.\39\ The Library also obtains ongoing
public feedback on its practices in part through the Copyright Public
Modernization Committee (``CPMC'') and a vulnerability disclosure
program.\40\
---------------------------------------------------------------------------
\38\ See id. at 16-19.
\39\ Id. at 17-18.
\40\ Id. at 19-20.
---------------------------------------------------------------------------
The proposed rule's expansion of the categories of published
electronic deposits that will be available for the Library's selection,
combined with the current limits on access, will not increase the risk
that these deposits will be stolen or misused. Any electronic
registration deposits that are added to the Library's collections will
be protected by the same technical measures that currently secure 236
million electronic serials and 1.2 million e-books.\41\ These security
measures are extensive--at a recent CPMC meeting, the Library's Chief
Information Officer detailed the continuous security measures for
eDeposit material. Among other steps, the data is protected both at
rest and in transit, with over 300 IT security controls.\42\ These
controls are subject to repeated testing per the Library's continuous
monitoring schedule.\43\
---------------------------------------------------------------------------
\41\ Id. at 18.
\42\ U.S. Copyright Office, Library of Congress, CPMC Public
Meeting (Mar. 2, 2023), https://www.loc.gov/item/webcast-10761/.
\43\ Id.
---------------------------------------------------------------------------
Just as with current treatment of electronic deposits, access will
be restricted to authorized users as defined in the regulation and only
permitted on the Library's physical premises, with a narrow exception
for Library staff working offsite over a secure connection.\44\ This
limited onsite access for authorized users occurs through computer
terminals located in the Library's reading rooms.\45\ The reading room
terminals are not connected to the internet, have USB and other ports
disabled, and are under the supervision of Library staff.
---------------------------------------------------------------------------
\44\ Library staff have limited offsite access to deposits ``as
part of their assigned duties via a secure connection.'' 37 CFR
202.18(a). This allows employees working remotely to fulfill work
duties but does not permit access for other purposes.
\45\ Access to Rights-Restricted Content, Library of Congress,
https://catalog.loc.gov/vwebv/ui/en_US/htdocs/help/eDepositAccess.html (Access to rights restricted content is
available on dedicated Stacks terminals located in Library reading
rooms.). While onsite, Library staff may also access these materials
through their workstations.
---------------------------------------------------------------------------
The Library takes seriously its responsibilities as a steward of
the cultural works in its collections, including safeguarding deposits
received from the Office. The Office is confident that the current
security measures and practices provide robust security for electronic
deposits in the Library's collection. To the extent there remain
comments or questions about the security of deposits, the Office is
prepared to address them in the final rule.
III. Conclusion
As the Library implements its Digital Collections Strategy, it will
increase the digital works held in its collections, including through
the selection of digital deposits submitted to the Copyright Office.
The proposed rule facilitates this by providing the Library the
authority to select and transfer digital deposits for all types of
published works submitted to the Office through the registration
process. Access to these materials will remain limited and subject to
the existing regulation's restrictions. These changes will help the
Library fulfill its mission as the Nation's library and the research
arm of Congress.
The Copyright Office welcomes public feedback and seeks comments on
the regulatory amendments presented in this Notice of Proposed
Rulemaking, as well as related issues discussed within.
List of Subjects in 37 CFR Part 202
Claims, Copyright.
For the reasons set forth in the preamble, the Copyright Office
proposes amending 37 CFR part 202 as follows:
PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
0
1. The authority citation for part 202 continues to read as follows:
Authority: 17 U.S.C. 408(f), 702.
0
2. Amend Sec. 202.18 by:
0
a. In paragraph (a), removing ``Access to electronic works received
under Sec. 202.4(e) and Sec. 202.19'' and adding in its place
``Access to published electronic works received under Sec. 202.4(d)
through (g), Sec. 202.4(i) through (k), Sec. 202.19, or Sec.
202.20'';
0
b. In paragraph (a), removing ``only to authorized users at Library of
Congress premises'' and adding in its place ``at Library of Congress
premises only to authorized users'';
0
c. In paragraph (b), removing ``Access to each individual electronic
work received under Sec. 202.4(e) and Sec. 202.19'' and adding in its
place ``Access to each individual electronic work received pursuant to
paragraph (a) of this section''; and
[[Page 60417]]
0
d. In paragraph (c), removing ``electronic works received under Sec.
202.4(e) and Sec. 202.19'' and adding in its place ``electronic works
received pursuant to paragraph (a) of this section''.
Dated: August 24, 2023.
Suzanne V. Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2023-18664 Filed 8-31-23; 8:45 am]
BILLING CODE 1410-30-P
