Group Registration of Unpublished Works
| Published date | 13 February 2019 |
| Citation | 84 FR 3693 |
| Record Number | 2019-02185 |
| Section | Rules and Regulations |
| Court | Copyright Office,Library Of Congress |
Federal Register, Volume 84 Issue 30 (Wednesday, February 13, 2019)
[Federal Register Volume 84, Number 30 (Wednesday, February 13, 2019)]
[Rules and Regulations]
[Pages 3693-3698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02185]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Parts 201 and 202
[Docket No. 2017-15]
Group Registration of Unpublished Works
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Final rule.
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SUMMARY: The U.S. Copyright Office is modernizing its practices and
procedures to increase the efficiency and quality of the registration
process. As part of this effort, this final rule establishes a new
group registration option for a limited number of unpublished works,
replacing the prior accommodation for ``unpublished collections.'' The
new group registration option will allow the Office to examine each
work for copyrightable authorship, create a more robust record of the
claim, and improve the overall efficiency of the registration process.
In addition, the final rule makes certain technical amendments to the
regulations governing the group registration option for photographs.
DATES: Effective March 15, 2019.
FOR FURTHER INFORMATION CONTACT: Robert J. Kasunic, Associate Register
of Copyrights and Director of Registration Policy and Practice by email
at rkas@copyright.gov; Erik Bertin, Deputy Director of Registration
Policy and Practice by email at ebertin@copyright.gov; or Mark Gray,
Attorney-Advisor, by email at mgray@copyright.gov; all can be reached
by telephone at 202-707-8040.
SUPPLEMENTARY INFORMATION:
I. Background
The Copyright Act authorizes the Register of Copyrights to specify
by regulation the administrative classes of works available for the
purpose of seeking a registration and the nature of the deposits
required for each class. The Register also has discretion to allow
groups of related works to be registered with one application and one
filing fee, a procedure known as ``group registration.'' \1\ Pursuant
to this authority, the Register has issued regulations permitting the
Copyright Office to issue group registrations for certain limited
categories of works, provided that certain conditions have been met.\2\
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\1\ See 17 U.S.C. 408(c)(1).
\2\ See generally 37 CFR 202.3(b)(5), 202.4.
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On October 12, 2017, the Office issued a notice of proposed
rulemaking (NPRM) proposing to create a new group registration option
for unpublished works, labeled ``GRUW,'' to replace a longstanding
registration accommodation known as the ``unpublished collection''
option.\3\ Applicants have been able to use the unpublished collection
option to register an unlimited number of unpublished works with one
application and filing fee.\4\ The regulation governing the existing
option, however, was based on longstanding Office practices, and it was
not specifically adopted under the Office's authority to issue group
registrations under section 408(c)(1) of the Copyright Act.
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\3\ See 82 FR 47415 (Oct. 12, 2017).
\4\ 37 CFR 202.3(b)(4)(i)(B).
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The NPRM explained the rationale for replacing the unpublished
collection option with a new group registration option and described
key aspects of the proposal. First, applicants would be required to use
a new online application specifically designed for registering groups
of unpublished works, in lieu of the Standard Application or a paper
application. Second, applicants would be required to upload an
electronic copy or phonorecord of each work, in lieu of providing a
physical deposit. Third, the filing fee for this option would be $55,
the same fee that currently applies to individual works claims
submitted on the Standard Application. Fourth, applicants could include
no more than five works in each claim, with a limited exception to
allow applicants to register up to five sound recordings together with
the musical work, dramatic work, or literary work embodied in each
recording. Fifth, the author and claimant for each work in the group
must be the same. Sixth, the works must be registered in the same
administrative class, and the authorship statement for each work must
be exactly the same. Seventh, the proposed rule confirmed that a
registration for a group of unpublished works will cover each work in
the group and each one would be registered as a separate work. Finally,
it clarified that applicants could not assert a claim in the selection,
coordination, or arrangement of the works within the group, and that
the group as a whole will not be considered a compilation, a collective
work, or a derivative work.
The Office received 113 comments in response to the NPRM, discussed
in more detail below. The majority of comments were submitted by
individuals, including photographers, illustrators, graphic designers,
and other visual artists. The Office also received comments from (1)
Author Services, Inc., representing the literary, theatrical, and
musical works of the late L. Ron Hubbard; (2) the law firm of Browning-
Smith, which represents artists, sculptors, and illustrators; (3) the
Copyright Alliance; (4) the Graphic Artists Guild, Inc.; (5) the
Kernochan Center for Law, Media and the Arts at Columbia Law School
(``Kernochan Center''); (6) Science Fiction and Fantasy Writers of
America, Inc. (``SFWA''), American Society of Journalists and Authors
(``ASJA''), and The National Writers Union (``NWU'') (collectively the
``SFWA Commenters''); (7) NWU, ASJA, SFWA, and the Textbook & Academic
Authors Association (collectively the ``NWU Commenters''); and (8) The
Authors Guild, Inc., SFWA, The Association of Garden Communicators,
Society of Children's Book Writers and Illustrators,
[[Page 3694]]
and Songwriters Guild of America, Inc. (collectively the ``Authors
Guild Commenters'').\5\
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\5\ All of the comments received in response to the NPRM can be
found on the Copyright Office's website at https://www.copyright.gov/rulemaking/group-unpublished/.
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While no commenter fully opposed the Office's proposal to eliminate
the unpublished collections option, nearly all objected to the proposed
limit on the number of works that may be included in each claim.\6\
Another common concern was the perceived difficulty of determining
whether a particular work is published or unpublished, especially for
works distributed online. Those concerns are discussed in more detail
below.
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\6\ Though most commenters did not support retaining the
unpublished collections option on its own merits, the Authors Guild
Commenters requested that unpublished collections remain a
registration option if the five-work limit is not dramatically
increased. Authors Guild et al. Comment at 3.
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Having carefully considered each of the comments, the Office now
issues a final rule that closely follows the proposed rule, with some
modifications. First, the final rule increases the number of works that
may be included in each submission from five to ten. The final rule
also makes other minor adjustments, including clarifying that
applicants must obtain guidance from the Office of Registration Policy
& Practice before correcting or amplifying the information in a
registration for a group of unpublished works and making several
technical amendments to streamline group registration of photographs by
removing some prior technical limitations.
II. The Final Rule
A. The Number of Works in the Group
The NPRM proposed to limit the number of works that may be included
in each claim to five works. The Office acknowledged that this would be
a significant change, given that applicants currently may register an
unlimited number of works as an unpublished collection. The Office
explained that limiting the number of works in the group would allow
the Office to efficiently examine each work for copyrightable
authorship and improve the quality of the public registration
record.\7\
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\7\ 82 FR at 447417.
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A majority of commenters objected to this proposal. Only two
organizations--the Kernochan Center \8\ and Author Services--supported
the five-work limit. While some of the commenters sympathized with the
Office's rationale for limiting the number of works allowable in each
claim, they contested the proposed limit. Several suggested that the
proposal was unfair, given that photographers may register up to 750
unpublished photos with one application, while other creators would be
limited to five.\9\ The Copyright Alliance, Graphic Artists Guild, and
Authors Guild Commenters, and several individuals argued that it would
be cost-prohibitive for authors who create a large volume of material
to file multiple applications to register their works, and suggested
the limit would discourage authors from seeking registration.\10\
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\8\ The Kernochan Center supported the proposal based on the
(correct) assumption that the limit would not apply to unpublished
photographs, which are eligible for registration under a separate
group registration option. Kernochan Ctr. Comment at 3; Final Rule:
Group Registration of Photographs, 83 FR 2542 (Jan. 18, 2018).
\9\ See, e.g., Browning-Smith Comment at 1; NWU et al. Comment
at 5; Judy Sorrels Comment at 1; Benjamin Hummel Comment at 1;
Cherish Flieder Comment at 1.
\10\ See, e.g., Authors Guild et al. Comment at 4-5; Copyright
Alliance Comment at 2; Graphics Artists Guild Comment at 2; Barbara
Tourtillotte Comment at 1; Megan D. Comment at 1; Laura Matthews
Comment at 1.
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As an alternative, one commenter suggested a limit of 20 works
would be appropriate for claims involving sound recordings and musical
works, as the average compact disc can hold up to 20 songs.\11\ But the
Authors Guild Commenters encouraged the Office to allow ``at least
several hundred in the case of text-based works, perhaps more depending
on the nature of the work,'' or preferably ``all works created in a
calendar quarter.'' \12\
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\11\ Sergey Vernyuk Comment at 1.
\12\ Authors Guild et al. Comment at 6.
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As an initial matter, the Office emphasizes that the general rule
requires each individual work--whether unpublished or not--to be
submitted with a separate registration application and a separate
fee.\13\ The Standard and Single Applications can be used to register
individual works. The Office has adopted certain narrow exceptions to
this general rule, where it has determined that, absent the ability to
file multiple works on one application with one filing fee,
registration would not be made. In nearly every such circumstance, the
Office has created a group registration option for a particular kind of
work--e.g., serials, newspapers, photographs.\14\ But the existing
unpublished collections option is not a group registration option,\15\
and is not limited to certain kinds of works. These features have
``always made it an oddity in Copyright Office practice'' \16\ and
complicated the Office's efforts to efficiently administer the
registration system.
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\13\ See U.S. Copyright Office, Compendium of U.S. Copyright
Office Practices, Third Edition sec. 511 (``As a general rule, a
registration covers one individual work, and an applicant should
prepare a separate application, filing fee, and deposit for each
work that is submitted for registration.'') (``Compendium'').
\14\ See generally 37 CFR 202.4.
\15\ See 82 FR at 47416.
\16\ Id.
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While the Office considered eliminating the unpublished collections
option entirely, it ultimately determined that creating a group
registration option for unpublished works would be beneficial for a
particular class of copyright owners: ``[i]ndividual creators or small
businesses who might not otherwise use the more expensive standard
registration application to register their unpublished works on an
individual basis.'' \17\ The group registration option aims to do that,
without undermining the general rule of ``one work per registration.''
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\17\ See 82 FR at 47418.
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After carefully reviewing the comments and weighing the issues
involved, the Office has decided to increase the limit on the number of
works that can be included in the group from five to ten. As stated in
the NPRM, the Office is committed to conducting a complete and thorough
examination of each work that is submitted under this group
registration option.\18\ To maintain reasonable fees for this service,
this requires an appropriate limit on the number of works included in
each claim. The final rule also provides a limited exception for sound
recordings, allowing applicants to include up to ten sound recordings
in each claim, together with the musical work, dramatic work, or
literary work embodied in each recording.
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\18\ The commenters supported this objective. For example, the
Authors Guild Commenters acknowledged that examining each work and
documenting its findings in the record ``will facilitate licensing
of works while reducing the potential for works to become
orphaned.'' Authors Guild et al. Comment at 4.
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In increasing the limit, the Office considered several factors.
First, the rule must anticipate the amount of effort required to
examine the wide-range of claims that may be included in this group. As
noted, under the GRUW option, applicants may register nearly any type
of work.\19\ But as the Authors Guild Commenters acknowledged, the
amount of time needed to examine each
[[Page 3695]]
work for copyrightable authorship, will vary depending on the ``class
and nature of the work.'' \20\ For example, sound recordings, musical
works, audiovisual works, and choreographic works take significantly
more time to examine than literary or photographic works, because each
file must be opened, buffered, and played to determine if the work
contains a sufficient amount of creative expression. An examiner can
more easily review a large set of photographs for copyrightable
authorship than a large quantity of software or other visual works.
These important differences between claims involving unpublished
photographs and other types of works justify differential treatment in
registration.\21\ Because the GRUW registration option will not be
limited in the categories of works that can be included, the GRUW
option instead accommodates the full range of potential categories of
works and resource demands on the Office.
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\19\ The Office explained in the NPRM that compilations,
collective works, databases, and websites will not be eligible for
this group registration option, because they typically contain
multiple works of authorship. Similarly, architectural works cannot
be registered with this option, because the regulations expressly
prohibit the Office from registering multiple architectural works
with one application. 82 FR at 47417 n.6.
\20\ Authors Guild et al. Comment at 4 & n.2.
\21\ Many comments pointed to the difference in the number of
works registrable under GRUW and the 750-work limit for group
registrations of photographs. See, e.g., Cherish Flieder Comments
wat 1 (pointing to disparity and requesting equal rules for all
visual works); Browning-Smith Comment at 1 (characterizing 750-work
limit for photographs as ``special treatment''). But other comments
support the Office's flexibility in crafting registration options
tailored to the nuances of the works at issue. See Jeffrey West
Comment at 1-2 (proposing higher limit for illustrations, graphic
designs, and fine artwork based on the ``reasonable number of
images'' created in a professional practice); Graphic Artists Guild
Comment at 1-2 (member survey showed artists generate average of 15
works in the process of designing a logo).
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Second, the Office must consider the impact of the group option on
the overall registration scheme, in light of current staffing levels
and the capabilities of the current registration system. In contrast to
claims involving a single work, claims involving dozens, hundreds, or
even thousands of unpublished works may require several hours or more
to complete. Allowing more than ten works to be registered with one
application and one basic filing fee would burden the Office's
resources, and the additional workload associated with those claims
would have an adverse effect on pendency times for other types of works
throughout the Registration Program.
Third, and relatedly, the Office must account for the financial
impact of permitting a greater number of works to be filed on one
application with one filing fee. In seeking an increase in the number
of works filed in a single GRUW application, commenters presumably
request that the Office maintain the same fee. There is no fiscally
responsible way to do that. If the Office increases the number of works
permitted on one application, the Office's examination costs will
increase commensurately. Indeed, as the Authors Guild Commenters
acknowledged, the resources required to adequately examine an
application involving many different works ``cannot be supported with
the fee for a single registration.'' \22\ Those costs must be covered
in some fashion, likely by raising the fee for GRUW applications. But
that result would discriminate against creators trying to register
relatively few works, since the same fee would apply whether creators
register 5, 10, 20, or 100 works. In light of these considerations, the
Office has determined that limiting the GRUW application to ten
copyrighted works strikes the appropriate balance.
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\22\ Authors Guild et al. Comment at 3.
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The Office recognizes that applicants previously submitted dozens,
hundreds, or even thousands of works through the unpublished
collections option, and that going forward, some applicants will need
to file multiple applications instead of registering all of their works
with one submission. The Office takes seriously the additional cost and
burden this may impose, especially on individual filers and small
businesses. But the Office never intended unpublished collections
claims to include such a large quantity of works, and this new limit is
necessary to ensure that the Office can reasonably and efficiently
fulfill its statutory obligations to ensure that each work constitutes
copyrightable subject matter and meets the other legal and formal
requirements for registration.
While the Office has determined that ten is the most appropriate
limit for the GRUW option, it will continue exploring whether
additional group options (or other accommodations) are necessary to
ensure that the standard rule of one application per work does not
drive certain creators to forgo registration altogether.\23\ For
example, since the proposed GRUW option was published, the Office not
only finalized its proposed rule regarding group registration of
published and unpublished photographs, with a limit of up to 750
photographs per application, it also issued a separate NPRM proposing
to create a group registration option for qualifying short online
literary works; under that proposed rule, applicants may submit up to
50 works with the same application.\24\ The Office is also preparing a
proposed group option for musical works and sound recordings included
as part of a music album.\25\ These separate proposals should address
some of the concerns raised by commenters about the limit for this
unpublished option.\26\
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\23\ See 82 FR at 47416-17 (citing H.R. Rep. No. 94-1476, at 154
(1976), as reprinted in 1976 U.S.C.C.A.N. 5659, 5770; S. Rep. No.
94-473, at 136 (1975) (regulatory authority to create group
registration of related works is because such options are ``needed
and important'').
\24\ 83 FR 65612 (Dec. 21, 2018).
\25\ See Update to Compendium of U.S. Copyright Office
Practices, 82 FR 45625, 45628 (Sept. 29, 2017) (explaining plans in
response to comments regarding registering music on an album).
\26\ See, e.g., Sergey Vernyuk Comment at 1 (suggesting raising
the GRUW limit to 20 works to allow for group registration of ``an
unpublished CD's-worth of music''); Copyright Alliance Comment at 2
(outlining needs for a group registration for musical works and
sound recordings as well as new options for bloggers and other
online creators); Authors Guild et al. Comment at 8 (requesting
creation of additional group registration options for various
classes of works).
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The Office similarly recognizes that visual artists other than
photographers are often prolific, and the comments provided useful
information about the needs of these artists and the volume of material
they typically create.\27\ The comments suggest that--from an artist
perspective--a group option for graphic and other visual art works
could be limited to between 20-100 works, but the Office does not have
currently sufficient information on the length of time that would be
needed to examine these types of works if they were grouped
together.\28\ Consequently, the Office will monitor the amount of time
needed to examine visual art claims submitted under GRUW. The Office
will use that information to determine whether it would be appropriate
to create a separate group registration option for visual art works
other than photographs.
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\27\ See, e.g., Rachel Fritz Comment at 1; Barbara Tourtillotte
Comment at 1; Shari Warren Comment at 1; Jeffrey West.
\28\ See, e.g., Jeffrey West Comment at 1-2 (estimating creation
of fine art works to be several hundred images per year and
suggesting limit of 250-300); Benjamin Hummel Comment at 1
(children's book illustrators generally require creation of 20-40
images); Graphic Artists Guild Comment at 1 (citing survey that
creating logo results in average of 15 works and noting that some
logos require close to 50 sketches).
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B. Distinguishing Between Published and Unpublished Works
The final rule confirms that this group registration option may
only be used to register unpublished works. The Office recognizes that
applicants may struggle with determining whether a work is published or
unpublished, and this determination can be less than straightforward in
many instances. But ``publication'' is a statutorily defined term, and
the Office is required under section 409 to ask for the publication
status of works on the registration
[[Page 3696]]
application.\29\ As noted in the Compendium and other publications, the
applicant is responsible for determining whether a work is unpublished,
and the Office generally accepts that determination unless it is
contradicted by information contained within the registration
materials.\30\
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\29\ See 17 U.S.C. 409(8) (requiring copyright application to
include ``the date and nation of [ ] first publication'' if a work
has been published).
\30\ See, e.g., Compendium sec. 1904.1; U.S. Copyright Office,
Circular 1: Copyright Basics, at 7 (Sept. 2017), https://www.copyright.gov/circs/circ01.pdf.
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Several commenters expressed concern about this requirement. The
Copyright Alliance, Graphic Artists Guild, and Authors Guild Commenters
noted that applicants find it difficult to determine whether a work is
published or unpublished, especially for works distributed online.\31\
To that end, the Graphic Artists Guild requested that the Office issue
further guidance ``on what constitutes publication for online works.''
\32\ Similarly, the Authors Guild Commenters suggested that the
``explanations of the meaning of `publication' and associated terms''
in the Compendium ``requires a knowledge of copyright law that few
applicants'' possess, particularly with respect to ``works disseminated
online.'' \33\ The Authors Guild Commenters acknowledged that the
Office ``cannot unilaterally amend the definition of `publication' ''
because it is ``embodied'' in the Copyright Act.\34\ But they suggested
that the Office could promulgate a regulatory definition for ``online
publication'' through an administrative rulemaking, which would give
interested parties the opportunity to ``weigh in and ensure that all
issues are properly vetted,'' or perhaps replace the ``published/
unpublished distinction'' with a ``concept such as `disseminated to the
public' or `made available to the public.' '' \35\
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\31\ Authors Guild et al. Comment at 6; Copyright Alliance
Comment at 2 n.2, Graphic Artists Guild Comment at 1-2.
\32\ Graphic Artists Guild Comment at 2.
\33\ Authors Guild et al. Comment at 7.
\34\ Id.
\35\ Id. at 7-8. The Authors Guild Comment did not specify
whether it was advocating for statutory change or suggesting that
the Office could somehow ``replace'' the concept of publication with
``made available to the public'' through a rulemaking.
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In light of section 409's statutory requirement, and the Office's
longstanding existing guidance and practices regarding the need for
applicants to specify whether their works are published or unpublished,
the Office concludes that it is not necessary to delay implementation
of the new group registration option due to any uncertainty regarding
the definition of publication.\36\ Indeed, since this NPRM was
published, the Office has adopted a final rule regarding group
registration options for published and unpublished photographs that
grappled with many of the same issues.\37\ But the Office appreciates
that applicants have raised important questions about their challenges
in applying the definition of publication, particularly in the context
of works that are only made available online, and plans to issue a
notice of inquiry to solicit comments regarding issues related to
online publication, and ultimately to provide additional guidance for
applicants. Meanwhile, the Office believes that prompt promulgation of
this final rule will aid the Office in fulfilling its statutory
obligations and administering the copyright registration system.
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\36\ Contra id. at 8.
\37\ 83 FR 2542 (Jan. 18, 2018).
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C. Filing Fee
The NPRM proposed a $55 filing fee for registering a group of
unpublished works, the same fee that currently applies to clams
submitted on the Standard Application.\38\ The Office stated that it
would monitor the cost of examining these claims once the final rule
had been implemented. Since the NPRM, the Office has conducted a fee
study that proposed a filing fee of $85 for each GRUW submission, the
same as the fee that currently applies to claims involving the group
registration option for contributions to periodicals.\39\ Until the
proposed fees in the fee study go into effect, the Office has adopted
the noticed $55 fee for GRUW claims. In this regard, the Office notes
that the GRUW option updates and replaces the unpublished collection
option, which was also available for the same $55 fee pursuant to the
Standard Application. Accordingly, the Office does not consider the
availability of the GRUW option for the same rate as the Standard
Application to constitute an ``adjustment'' of fees.\40\
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\38\ See 82 FR at 47419.
\39\ See 83 FR 24054, 24059 (May 24, 2018).
\40\ See 37 CFR 201.3 (listing current registration fees); 17
U.S.C. 708(b) (describing process for adjustment of registration
fees); see also Booz Allen Hamilton, U.S. Copyright Office, Fee
Study, Questions and Answers at 6 (Dec. 2017), https://www.copyright.gov/rulemaking/feestudy2018/fee_study_q&a.pdf
(Question 3 discussing propriety of charging certain group
registration options the same rate as the Standard Application if
they required similar resources for processing).
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In response to the proposed $55 fee, several commenters encouraged
the Office to develop alternate fee structure for unpublished works in
order to expand the number of works that may be included in each claim.
Browning-Smith and the Copyright Alliance urged the Office to offer a
sliding fee schedule, where the amount of the fee would vary depending
on the number of works submitted.\41\ The SFWA Commenters noted that
the Office uses a similar sliding-fee structure for recordation, where
remitters pay extra for each additional group of ten titles listed in
the document.\42\ The Copyright Alliance also encouraged the Office to
adopt a subscription-based fee that would allow applicants to pay a
periodic fee for registering all the works they produce during a given
timeframe.\43\ The Office welcomes these suggestions and will take them
into account in developing the business requirements for its next
generation registration system.\44\ The current registration system,
however, does not permit the Office to adopt these types of alternative
fee structures.
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\41\ See Browning-Smith Comment at 1-2; Copyright Alliance
Comment at 2.
\42\ SFWA et al. Comment at 3.
\43\ Copyright Alliance Comment at 2.
\44\ See Notification of Inquiry: Registration Modernization, 83
FR 52336, 52339 (Oct. 17, 2018) (seeking input on whether the Office
should adopt scaled fees based on the number and types of works
registered).
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D. Other Eligibility Requirements
While the remaining eligibility requirements sparked little or no
opposition, the Office offers the following points of clarification:
The final rule provides that the works must be registered in the
same administrative class, and the authorship statement for each work
must be exactly the same. The Authors Guild Commenters and the
Kernochan Center supported this idea, noting that it would eliminate
the need to have examiners in different divisions review the same
works.\45\ By contrast, the Graphic Artists Guild expressed concern
that it would prevent visual artists from registering unpublished works
that contain multiple forms of authorship, such as children's books,
graphic novels, comics and cartoons, or illustrated short stories
containing text and artwork.\46\
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\45\ Authors Guild et al. Comment at 9; Kernochan Ctr. Comment
at 3.
\46\ Graphic Artists Guild Comment at 3.
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To be clear, applicants will be able to register unpublished works
that contain different types of authorship. When completing the
application, applicants should select the administrative class that
would be most appropriate for the predominant form of authorship in
each work, and the authorship term that best describes the work as a
whole. For example, when registering a group of comic strips that
contain a substantial amount of artwork combined with some
[[Page 3697]]
text, applicants should select the class for ``visual arts works'' and
should use the term ``unpublished pictorial or graphic works'' to
describe those works. When registering a group of illustrated short
stories that contain a substantial amount of text combined with some
illustrations, applicants should select the class for ``literary
works'' and should use the term ``unpublished literary works'' to
describe those works. If the types of authorship in each work are
roughly equal--as is often the case with a children's book--applicants
may select ``literary works'' or ``visual arts works,'' and depending
on which class has been selected, they may use the term ``unpublished
literary works'' or ``unpublished pictorial or graphic works'' to
describe those works.
Perhaps because it represents an author who is deceased, Author
Services said it would be unable to use the group registration option,
because the author and claimant for each work must be the same person
or organization.\47\ To be clear, an author may always be named as the
copyright claimant for purposes of this group registration option, even
if that individual has transferred their copyright or has died.\48\ But
if Author Services prefers to list itself as the claimant, it would be
ineligible for this group registration option and could instead
register the works individually; as noted, entities to which copyrights
have been transferred are not intended to be the primary beneficiary of
this rule.
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\47\ Author Services Comment at 1.
\48\ See Compendium sec. 619.7 (``The author may always be named
as the copyright claimant . . . even if the author does not own any
of the rights under copyright when the application is filed.'');
Notice of Proposed Rulemaking: Registration of Copyright: Definition
of Claimant, 77 FR 29257, 29258 (May 17, 2012) (author may always be
listed as a copyright claimant ``because an author may always have a
reversionary or beneficial interest in the work''); see also
Compendium sec. 619.13(Q) (``If the author is the only party who is
eligible to be named as the copyright claimant, and if the author is
deceased . . . the U.S. Copyright Office will accept an application
that names the author as the copyright claimant.'').
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E. Supplementary Registration
A supplementary registration is a special type of registration that
may be used ``to correct an error in a copyright registration or to
amplify the information given in a registration.'' \49\ The NPRM
explained that if applicants need to correct or amplify the information
appearing in a registration for a group of unpublished works, they will
be required to use the online application for supplementary
registration.\50\
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\49\ 17 U.S.C. 408(d).
\50\ 82 FR at 47419.
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The Office created multiple versions of this form that may be used
to correct or amplify the information in a registration for a group of
photographs, serials, newspapers, newsletters, or contributions to
periodicals. But the Office has not yet created a similar version for a
registration for a group of unpublished works. Therefore, the final
rule clarifies that applicants should contact the Office of
Registration Policy & Practice to obtain instructions before seeking a
supplementary registration involving these types of claims.
F. Technical Amendments
The final rule makes a few technical changes intended to clarify
the regulations, update cross-references, and simplify the registration
of photographs by accepting more formats and material. Specifically,
the final rule removes a superfluous sentence from Sec. 202.4(h) which
states that a group of unpublished photographs cannot be registered as
an unpublished collection and removes a provision from Sec. 202.4(h)
and (i), and Sec. 202.20(c), stating that photographers should not
include any form of punctuation in the file names that they upload to
the electronic registration system.\51\ The Office was concerned that
punctuation in the file names might cause a technical error that could
prevent the system from opening the files, but after testing the new
applications the Office has confirmed that punctuation should not cause
this type of problem.\52\ This represents a change in a ``rule[] of
agency organization, procedure, or practice,'' \53\ that does not
``alter the rights or interests of parties'' to require notice and
comment \54\--if anything, it eases the requirements for applicants
that use this option.
---------------------------------------------------------------------------
\51\ 37 CFR 202.4(h)(9), (i)(9); id. at 202.20(c)(2)(vii)(D)(8).
\52\ For similar reasons, the Office removed a provision from
the deposit requirements for GRUW that encouraged applicants to
submit their works in a .zip file, rather than uploading them one at
a time.
\53\ 5 U.S.C. 553(b)(3)(A).
\54\ JEM Broadcasting Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir.
1994).
---------------------------------------------------------------------------
List of Subjects
37 CFR Part 201
Copyright, General provisions.
37 CFR Part 202
Copyright, Preregistration and registration of claims to copyright.
Final Regulations
For the reasons set forth in the preamble, the U.S. Copyright
Office amends 37 CFR parts 201 and 202 as follows:
PART 201--GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
0
2. Amend Sec. 201.3 by redesignating paragraphs (c)(8) though (22) as
(c)(9) through (23) and adding a new paragraph (c)(8) to read as
follows:
Sec. 201.3 Fees for registration, recordation, and related services,
special services, and services performed by the Licensing Division.
* * * * *
(c) * * *
------------------------------------------------------------------------
Registration, recordation and related services Fees ($)
------------------------------------------------------------------------
* * * * *
(8) Registration of a claim in a group of unpublished 55
works..................................................
* * * * *
------------------------------------------------------------------------
* * * * *
PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
0
3. The authority citation for part 202 continues to read as follows:
Authority: 17 U.S.C. 408(f), 702.
0
4. Amend Sec. 202.3 by revising paragraph (b)(4) and adding paragraph
(c)(4) to read as follows:
Sec. 202.3 Registration of copyright.
* * * * *
(b) * * *
(4) Registration as one work. For the purpose of registration on
one application and upon the payment of one filing fee, the following
shall be considered one work: In the case of published works, all
copyrightable elements that are otherwise recognizable as self-
contained works, that are included in the same unit of publication, and
in which the copyright claimant is the same.
* * * * *
(c) * * *
(4) In the case of applications for registration made under
paragraphs (b)(4) through (5) of this section or under Sec. 202.4, the
``year of creation,'' ``year of completion,'' or ``year in which
creation of this work was completed''
[[Page 3698]]
means the latest year in which the creation of any copyrightable
element was completed.
* * * * *
0
5. Amend Sec. 202.4 as follows:
0
a. Add paragraph (c).
0
b. In paragraph (h)(8), remove the second sentence, which is in
parentheses.
0
c. In paragraph (h)(9), remove the second sentence.
0
d. In paragraph (i)(9), remove the second sentence.
0
e. In paragraph (n), remove ``paragraph (g), (h), (i), or (k)'' and add
in its place ``paragraphs (c), (g), (h), (i), or (k)''.
The addition reads as follows:
Sec. 202.4 Group registration.
* * * * *
(c) Group registration of unpublished works. Pursuant to the
authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights
has determined that a group of unpublished works may be registered in
Class TX, PA, VA, or SR with one application, the required deposit, and
the filing fee required by Sec. 201.3(c) of this chapter, if the
following conditions are met:
(1) All the works in the group must be unpublished, and they must
be registered in the same administrative class.
(2) Generally, the applicant may include up to ten works in the
group. If the conditions set forth in Sec. 202.3(b)(1)(iv)(A) through
(C) have been met, the applicant may include up to ten sound recordings
and ten musical works, literary works, or dramatic works in the group.
(3) The group may include individual works, joint works, or
derivative works, but may not include compilations, collective works,
databases, or websites.
(4) The applicant must provide a title for each work in the group.
(5) All the works must be created by the same author or the same
joint authors, and the author and claimant information for each work
must be the same.
(6) The works may be registered as anonymous works, pseudonymous
works, or works made for hire if they are identified in the application
as such.
(7) The applicant must identify the authorship that each author or
joint author contributed to the works, and the authorship statement for
each author or joint author must be the same. Claims in the selection,
coordination, or arrangement of the group as a whole will not be
permitted on the application.
(8) The applicant must complete and submit the online application
designated for a group of unpublished works. The application may be
submitted by any of the parties listed in Sec. 202.3(c)(1).
(9) The applicant must submit one complete copy or phonorecord of
each work. Each work must be contained in a separate electronic file
that complies with Sec. 202.20(b)(2)(iii). The files must be submitted
in one of the electronic formats approved by the Office, they must be
assembled in an orderly form, and they must be uploaded to the
electronic registration system. The file size for each uploaded file
must not exceed 500 megabytes; the files may be compressed to comply
with this requirement.
(10) In an exceptional case, the Copyright Office may waive the
online filing requirement set forth in paragraph (c)(8) of this section
or may grant special relief from the deposit requirement under Sec.
202.20(d), subject to such conditions as the Associate Register and
Director of the Office of Registration Policy and Practice may impose
on the applicant.
* * * * *
0
6. Amend Sec. 202.6 as follows:
0
a. Redesignate paragraphs (e)(2) through (7) as paragraphs (e)(3)
through (8).
0
b. In newly redesignated paragraph (e)(8), remove ``paragraph (e)(1)''
and add in its place ``paragraph (e)(1) or (2)''.
0
c. Add new paragraph (e)(2).
The addition reads as follows:
Sec. 202.6 Supplementary registration.
* * * * *
(e) * * *
(2) To seek a supplementary registration for a group of unpublished
works registered under Sec. 202.4(c), an applicant must complete and
submit the online application designated for supplementary registration
after consultation with and under the direction of the Office of
Registration Policy & Practice.
* * * * *
Sec. 202.20 [Amended]
0
7. Amend Sec. 202.20(c)(2)(vii)(D)(8) by removing the fourth sentence.
Dated: January 28, 2019.
Karyn A. Temple,
Acting Register of Copyrights and Director of the U.S. Copyright
Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2019-02185 Filed 2-12-19; 8:45 am]
BILLING CODE 1410-30-P
