Online Publication

Citation84 FR 66328
Record Number2019-26004
Published date04 December 2019
CourtCopyright Office,Library Of Congress
Federal Register, Volume 84 Issue 233 (Wednesday, December 4, 2019)
[Federal Register Volume 84, Number 233 (Wednesday, December 4, 2019)]
                [Proposed Rules]
                [Pages 66328-66334]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-26004]
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                LIBRARY OF CONGRESS
                Copyright Office
                37 CFR Chapter II
                [Docket No. 2019-7]
                Online Publication
                AGENCY: U.S. Copyright Office, Library of Congress.
                ACTION: Notification of inquiry.
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                SUMMARY: The U.S. Copyright Office is undertaking an effort to provide
                additional guidance regarding the determination of a work's publication
                status for registration purposes. To aid this effort, the Office is
                seeking public input on this topic, including feedback regarding issues
                that require clarification generally, as well specific suggestions
                about how the Office may consider amending its regulations and, as
                appropriate, effectively advise Congress regarding possible changes to
                the Copyright Act. Based on this feedback, the Office may solicit
                further written comments and/or schedule public meetings before moving
                to a rulemaking process.
                DATES: Initial written comments must be received no later than 11:59
                p.m. Eastern Time on February 3, 2020. Written reply comments must be
                received no later than 11:59 p.m. Eastern Time on March 3, 2020.
                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/online-publication/. If
                electronic submission of comments is not feasible due to lack of access
                to a computer and/or the internet, please contact the Office, using the
                contact information below, for special instructions.
                FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and
                Associate Register of Copyrights, [email protected]; Robert J.
                Kasunic, Associate Register of Copyrights and Director of Registration
                Policy and Practice, [email protected]; or Jordana S. Rubel, Assistant
                General Counsel, [email protected]. They can be reached by telephone
                at 202-707-3000.
                SUPPLEMENTARY INFORMATION: The Copyright Act requires an applicant for
                a copyright registration to state, among other things, whether a work
                has been published, along with the date and nation of its first
                publication. 17 U.S.C. 409(8). Over time, the Office has increasingly
                provided various group registration options that permit an applicant to
                register groups of works with one application and filing fee. See,
                e.g., 37 CFR 202.3(b)(1)(iv), (b)(4) through (5), 202.4(c) through (i)
                and (k). Currently, however, no group registration option allows
                published and unpublished works to be registered using the same
                application. As a result, applicants must determine the publication
                status of a work or group of works in order to complete a proper
                copyright application.
                 This requirement places some burden on copyright applicants.
                Although the Office may provide some general guidelines on relevant
                legal requirements,\1\ it cannot give specific legal advice as to
                whether a particular work has been published. U.S. Copyright Office,
                Compendium of U.S. Copyright Office Practices sec. 1904.1 (3d ed. 2017)
                (``Compendium (Third)''). Thus, the applicant must determine
                independently, or potentially based on the advice of its own legal
                counsel, whether a work is published. Various individuals and groups
                have repeatedly expressed frustration to the Office regarding
                difficulty in determining whether a work has been published when
                completing copyright application forms.\2\ Commenters to the Office
                have indicated that the distinction between published and unpublished
                works is ``so complex and divergent from an intuitive and colloquial
                understanding of the terms that it serves as a barrier to registration,
                especially with respect to works that are disseminated online.'' \3\ A
                perceived lack of consensus among courts about what constitutes online
                publication only increases applicants' uncertainty, as applicants, most
                of whom have no legal training, may feel bound to reconcile conflicting
                judicial opinions before they can file an application to register their
                copyrights.\4\
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                 \1\ For example, the Copyright Office provides guidelines on
                legal requirements such as publication in its Compendium of U.S.
                Copyright Office Practices and in various Circulars.
                 \2\ See, e.g., National Press Photographers Association
                (``NPPA''), Comments Submitted in Response to Public Draft of
                Compendium of U.S. Copyright Office Practices at 7-11 (May 31, 2019)
                (``We continue to find that our members are confused by the
                definition of published vs. unpublished.''); Coalition of Visual
                Artists (``CVA''), Comments Submitted in Response to Notice of
                Inquiry Regarding Registration Modernization, at 35 (Jan. 15, 2019)
                (``No issue frustrates and confounds visual creators more than the
                statutory requirement that the registration application include
                whether an applicant's works have been published, and if published,
                the date and nation of first publication.''); Professional
                Photographers of America (``PPA''), Comments Submitted in Response
                to the U.S. Copyright Office's Apr. 24, 2015 Notice of Inquiry at 7
                (July 22, 2015); American Society of Media Photographers (``ASMP''),
                Comments Submitted in Response to the U.S. Copyright Office's Apr.
                24, 2015 Notice of Inquiry at 13 (July 23, 2015) (noting that
                ``[t]he most vocal complaint about the current system is the time-
                consuming and expensive process of distinguishing between published
                and unpublished works in the registration process'').
                 \3\ Copyright Alliance, Comments Submitted in Response to Notice
                of Inquiry Regarding Registration Modernization, at 5 (Jan. 15,
                2019).
                 \4\ See, e.g., CVA, Comments Submitted in Response to Notice of
                Inquiry Regarding Registration Modernization, at 35 (Jan. 15, 2019)
                (citing Elliott v. Gouverneur Tribune Press, Inc., 2014 WL 12598275,
                at *3 (N.D.N.Y. Sept. 29, 2014) to highlight conflicting opinions on
                the question of whether publication on the internet constitutes
                ``publication'' for the purposes of registering images as published
                or unpublished; providing an Appendix of frequently asked questions
                of the CVA that relate to publication).
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                [[Page 66329]]
                 Based on these comments, and recognizing a relative lack of
                consensus among courts, the Office believes that additional guidance
                regarding the definition of publication in the modern context will help
                ensure the smooth functioning of the registration process. As noted,
                the requirement to designate the publication status of works on
                registration applications is currently mandated by statute, and the
                Copyright Act includes a definition of ``publication.'' However, the
                Office may act under its existing regulatory authority to determine how
                to apply this statutory definition of publication for purposes of
                administering the copyright registration system; and the Office may
                also provide guidance materials to users of that system. Depending on
                the public comments received in response to this inquiry, the Office
                may also choose to provide recommendations to Congress on specific
                statutory language to further clarify this issue. This inquiry is
                directed at the current statute and the existing structure of the
                copyright registration system; any legislative changes to the Copyright
                Act could affect the subjects of inquiry and the topics on which users
                of the copyright registration system would require guidance.
                 The Office is issuing this Notice of Inquiry to seek public
                comments regarding possible areas of consensus, and may subsequently
                notice a proposed rule to codify guidance it develops regarding the
                definition of publication as a result of this process.\5\
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                 \5\ The Office previously indicated this notice was forthcoming
                in various public documents. Letter from Karyn A. Temple, Acting
                Register of Copyrights and Dir., U.S. Copyright Office to Lindsey
                Graham, Chairman, Comm. on the Judiciary, U.S. Senate, and Dianne
                Feinstein, Ranking Member, Comm. on the Judiciary, U.S. Senate (Jan.
                18, 2019) at 11, https://www.copyright.gov/policy/visualworks/senate-letter.pdf; Letter from Karyn A. Temple, Acting Register of
                Copyrights and Dir., U.S. Copyright Office to Jerrold Nadler,
                Chairman, Comm. on the Judiciary, U.S. House of Representatives, and
                Doug Collins, Ranking Member, Comm. on the Judiciary, U.S. House of
                Representatives (Jan. 18, 2019) at 11, https://www.copyright.gov/policy/visualworks/house-letter.pdf; 84 FR 3693, 3696 (Feb. 13,
                2019); Letter from Karyn A. Temple, Acting Register of Copyrights
                and Dir., U.S. Copyright Office to Thom Tillis, Chairman, Subcomm.
                on Intellectual Property, U.S. Senate, and Christopher A. Coons,
                Ranking Member, Subcomm. on Intellectual Property, U.S. Senate (May
                31, 2019) at 41-42, https://www.copyright.gov/laws/hearings/response-to-march-14-2019-senate-letter.pdf; Letter from Karyn A.
                Temple, Acting Register of Copyrights and Dir., U.S. Copyright
                Office to Jerrold Nadler, Chairman, Comm. on the Judiciary, U.S.
                House of Representatives, and Doug Collins, Ranking Member, Comm. on
                the Judiciary, U.S. House of Representatives (May 31, 2019) at 41-
                42, https://www.copyright.gov/laws/hearings/response-to-april-3-2019-house-letter.pdf.
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                I. Background
                (A) Statutory and Regulatory Usage of ``Publication''
                 The Copyright Act defines publication as ``the distribution of
                copies or phonorecords of a work to the public by sale or other
                transfer of ownership, or by rental, lease, or lending.'' 17 U.S.C.
                101. Publication includes the actual distribution of such copies or
                phonorecords or the offer to distribute such copies or phonorecords to
                a group of persons for purposes of further distribution, public
                performance, or public display, however a ``public performance or
                display of a work does not of itself constitute publication.'' Id.
                While the definition of ``publication'' may have provided sufficient
                clarity when the Copyright Act was enacted in 1976, adapting this
                definition to the modern electronic era has proven challenging.
                Congress could not have anticipated the technological changes in the
                ensuing four decades that have enabled copyright owners to make copies
                of their works accessible to the general public worldwide with a single
                keystroke.\6\
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                 \6\ The Digital Millennium Copyright Act did not amend the
                definition of ``publication'' or otherwise comment on online
                publication. Pub. L. 105-304, 112 Stat. 2860 (1998).
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                (1) Published Versus Unpublished Works
                 Applying the statutory definition of ``publication'' to works that
                have been posted online is particularly important because publication
                is a central concept in copyright law from which many significant legal
                consequences flow: \7\
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                 \7\ Under the 1909 Copyright Act, state copyright law generally
                governed protection for unpublished works. Copyright owners could
                secure federal copyright protection for certain types of unpublished
                works by registering them with the Copyright Office, and federal
                copyright law also applied if the work was published with a notice
                of copyright. Copyright Act of 1909, ch. 320, sec. 9, 35 Stat. 1075,
                1077 (repealed 1976). Publication of a work without the requisite
                formalities resulted in the loss of copyright protection. Under the
                1976 Act, federal copyright law governs all original works fixed in
                a tangible medium of expression whether they are published or not.
                17 U.S.C. 102(a).
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                 (1) Whether a work is published and, if so, the date of first
                publication can have far-reaching consequences for a work. For
                example, registration of a work before publication or within five
                years of first publication constitutes prima facie evidence of the
                validity of the copyright and the facts stated on the certificate.
                17 U.S.C. 410(c).\8\
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                 \8\ A court may exercise its discretion to determine how much
                evidentiary weight to accord to a work not registered within five
                years of first publication.
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                 (2) A copyright owner is generally eligible to recover
                attorneys' fees and statutory damages, rather than having to prove
                actual damages or entitlement to defendant's profits, only if it has
                registered its copyright before the alleged infringement commenced.
                Congress provided an exception to this rule in the form of a three
                month grace period for published works, allowing copyright owners to
                recover attorneys' fees and statutory damages for pre-registration
                infringement when registration is made within three months of first
                publication. 17 U.S.C. 412.\9\
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                 \9\ Exceptions to this rule apply for authors claiming
                violations of their moral rights and for infringement actions
                involving preregistered works. See 17 U.S.C. 408(f), 412.
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                 (3) Although omission of a copyright notice from published
                copies of a work on or after March 1, 1989 no longer results in
                copyright forfeiture, a defendant who had access to a copy of the
                work that includes a copyright notice cannot typically claim that
                any infringement of that work was innocent. 17 U.S.C. 401(d).
                 (4) The term of copyright for works made for hire, anonymous
                works, and pseudonymous works is the shorter of ninety-five years
                from the date of publication or one hundred twenty years from the
                date of creation. 17 U.S.C. 302(c).
                 (5) Authors or their heirs have a right to terminate transfers
                of copyright that cover the right of publication and were effected
                after January 1, 1978 during a five-year period that begins at the
                earlier of thirty-five years from the date of first publication or
                forty years from the date of the transfer. 17 U.S.C. 203(a)(3).
                 (6) One factor in the fair use analysis is the ``nature of the
                work,'' which contemplates, in part, whether the work had previously
                been published, with the scope of fair use being narrower with
                respect to unpublished works in recognition of an author's right to
                control the date of first publication. 17 U.S.C. 107.\10\
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                 \10\ See, e.g., Harper & Row Publishers, Inc. v. Nation Enters.,
                471 U.S. 539, 564 (1985) (holding that publication of excerpts from
                unreleased manuscript was not fair use).
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                (2) Location of Publication
                 The locations in which a work has been published can also have
                important legal consequences with respect to copyright issues. First, a
                work's eligibility for copyright protection under U.S. law may depend
                in part on whether it is published and, if so, the country of first
                publication. Unpublished works that are original works of authorship
                fixed in a tangible medium of expression are eligible for U.S.
                copyright protection, regardless of the author's nationality or
                domicile or where the work was created. 17 U.S.C. 102(a),104(a). In
                contrast, published original works of authorship are only subject to
                U.S. copyright law under
                [[Page 66330]]
                certain circumstances.\11\ 17 U.S.C. 104(b).
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                 \11\ Such circumstances include: (1) If one or more of the
                authors is a national or domiciliary of the United States or a
                country that is a party to a copyright treaty to which the United
                States is a party (a ``treaty party''), (2) if the work is first
                published in the United States or in a foreign nation that is a
                treaty party, or (3) if within 30 days after first publication in a
                non-treaty party, the work is published in the United States or in a
                foreign nation that is a treaty party. 17 U.S.C. 104(b).
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                 Second, and separate from whether a work is eligible for copyright
                protection under U.S. law, before a copyright owner can commence an
                action for infringement of a United States work, the Copyright Office
                must either register the claim to copyright or else refuse to register
                the claim. 17 U.S.C. 411(a); Fourth Estate Public Benefit Corp. v.
                Wall-Street.com, 586 U.S. -, 203 L.Ed. 2d 147 (2019). Therefore, access
                to court may depend on whether a work is considered a United States
                work or a foreign work, and publication is a key concept in making that
                determination. See, e.g., UAB ``Planner5D'' v. Facebook, Inc., 2019 WL
                6219223 (N.D. Cal. Nov. 21, 2019) (dismissing copyright infringement
                claims where plaintiff failed to allege adequately that its work was a
                registered United States work or exempted from registration requirement
                as a foreign work). An unpublished work is a United States work if all
                of the authors of the work are nationals, domiciliaries, or habitual
                residents of the United States. 17 U.S.C. 101 (definition of ``United
                States work''). Whether a published work is a United States work,
                however, depends largely on the country in which the work was first
                published. Id.\12\
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                 \12\ Specifically, a published work is considered a U.S. work if
                it was first published (i) in the United States; (ii) simultaneously
                in the United States and a treaty party whose law grants a term of
                copyrighted protection that is not shorter than the term provided
                under U.S. law; (iii) simultaneously in the United States and a
                foreign nation that is not a treaty party; or (iv) in a foreign
                nation that is not a treaty party and all of the authors of the work
                are nationals, domiciliaries or habitual residents of the United
                States. 17 U.S.C. 101 (definition of ``United States work'').
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                 Third, whether a work is published and the country of first
                publication also influence whether a work whose copyright was lost due
                to lack of compliance with formalities or lack of national eligibility
                may be eligible for restoration under U.S. law. See 17 U.S.C. 104A.
                 Fourth, a copyright owner must deposit two copies of most works
                that are published in the United States with the Library of Congress,
                but this obligation does not attach to non-U.S. works or unpublished
                works. 17 U.S.C. 407(a)-(b).\13\
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                 \13\ Works published in the United States that are available
                only online are generally exempted by regulation from the mandatory
                deposit requirements of section 407(a).
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                (3) Treatment of Publication Status in the Copyright Registration
                Process
                 As noted, the Copyright Act requires an applicant for a copyright
                registration to state, among other things, whether a work has been
                published, along with the date and nation of its first publication. 17
                U.S.C. 409(8). While the Register has regulatory authority to modify
                certain registration requirements, compare 17 U.S.C. 407(c) (permitting
                Register to exempt certain categories of material from statutory
                deposit requirements), the Office may not waive this statutory
                requirement under section 409(8). The Copyright Act also requires the
                Register of Copyrights to create a group registration option for works
                by the same individual author that are first published as contributions
                to periodicals within a twelve month period, in connection with which
                applicants are required to identify each work and its date of first
                publication. 17 U.S.C. 408(c)(2).\14\
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                 \14\ The regulations that were subsequently established for this
                group option can be found at 37 CFR 202.4(g).
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                 Other copyright regulations relating to the registration process
                also require applicants to determine whether a work or group of works
                has been published. For example, groups of up to 750 unpublished
                photographs created by the same author for whom the copyright claimant
                is the same can be registered with one application and filing fee. 37
                CFR 202.4(h). Similarly, groups of up to 750 published photographs
                created by the same author and for whom the copyright claimant is the
                same can be registered with one application and filing fee. 37 CFR
                202.4(i). Due to the technical constraints of the Office's current
                registration system and the statutory requirement of section 409(8),
                there is no group registration option that allows published and
                unpublished photographs to be registered together within the same
                application. Similarly, groups of up to ten unpublished works in
                certain categories may be registered with one application and filing
                fee if the author and claimant information is the same for all of the
                works. 37 CFR 202.4(c). And a group of serials or newspaper issues that
                are all-new collective works that were not published prior to the
                publication of that issue may be registered with one application under
                certain circumstances. 37 CFR 202.4(d) through (e). Like photographs,
                there are currently no methods for registering published and
                unpublished works in these categories in one group application.
                 A recent Ninth Circuit case illustrates the consequences an
                applicant may face if it incorrectly indicates on an application for a
                copyright registration that the work at issue is unpublished. In Gold
                Value International Textile, Inc. v. Sanctuary Clothing, LLC, 925 F.3d
                1140 (9th Cir. 2019), the court affirmed the district court's finding
                that a copyright registration was invalid with respect to the work at
                issue where the application stated the work was unpublished despite the
                applicant's knowledge at the time of facts that the court determined
                constituted publication. Unlike other cases in which the Register has
                responded to requests pursuant to 17 U.S.C. 411(b), a supplementary
                registration could not have corrected the error in this case because
                the registration at issue covered a collection of unpublished works,
                and a published work could not be registered as part of an unpublished
                collection.\15\ Id. at 1148. The court affirmed dismissal of the
                complaint based on the lack of a valid registration, as well as the
                award of over $120,000 in attorneys' fees to defendants as the
                prevailing parties. Id. at 1148-49.
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                 \15\ The option to register a collection of unpublished works
                was subsequently discontinued and replaced by a group registration
                option for unpublished works, which allows registration of up to ten
                unpublished works in the same administrative class created by the
                same author or authors, who must also be the copyright claimants,
                and for which the authorship statement for each author is the same.
                See 37 CFR 202.4(c).
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                (B) The Meaning of ``Publication''
                (1) Legislative History
                 The 1976 Copyright Act House Report notes that, although
                publication would play a less central role in copyright law under the
                1976 Act than it had under the 1909 Act, ``the concept would still have
                substantial significance under provisions throughout the bill. . . .''
                H.R. Rep. No. 94-1476, at 138 (1976). The legislative history of the
                1976 Copyright Act also provides guidance regarding Congress'
                interpretation of the statutory definition of the term ``publication.''
                The 1976 Copyright Act House Report explains that under the definition
                included in the Act, a work would be considered published if ``one or
                more copies or phonorecords embodying it are distributed to the
                public--that is generally to persons under no explicit or implicit
                restrictions with respect to disclosure of its contents--without regard
                to the manner
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                in which the copies or phonorecords changed hands.'' H.R. Rep. No. 94-
                1476, at 138 (1976).\16\ The House Report also explains that the
                distinction between the public distribution of a work, which
                constitutes publication, and the performance or display of a work,
                which does not constitute publication, is based upon whether a material
                object would change hands. Id. (referencing definition of
                ``publication'' in 17 U.S.C. 101). The definition of ``publication''
                was intended to clarify that ``any form of dissemination in which a
                material object does not change hands--performances or displays on
                television, for example--is not a publication no matter how many people
                are exposed to the work.'' \17\ Id.
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                 \16\ See also H.R. Rep. No. 94-1476, at 61 (1976) (noting that
                ``[t]he reference to `copies or phonorecords,' although in the
                plural, are intended here and throughout the bill to include the
                singular'').
                 \17\ This language distinguished distribution and publication
                (which allow for possession of a copy of a work) from performance or
                display (which allow only for a work to be perceived). It does not
                reflect a requirement that an ``actual'' distribution of a work
                occur to constitute publication.
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                 The House Report also notes that Congress provided the right ``to
                distribute copies or phonorecords of the copyrighted work to the public
                by sale or other transfer of ownership, or by rental, lease, or
                lending'' as one of the exclusive rights of a copyright owner in
                section 106 of the Copyright Act. Id. at 62 (referencing 17 U.S.C.
                106(3)). The Report describes this exclusive right as ``the right to
                control the first public distribution of an authorized copy or
                phonorecord of his work'' and explains that any unauthorized public
                distribution of copies would be an infringement. Id.
                (2) Case Law: Electronic Works
                 It is well-settled that electronic files are capable of being
                published as defined by the Copyright Act. To the extent that
                publication requires transferring or offering to transfer a material
                object, electronic files saved on a server, hard drive or disk
                constitute material objects, such that they meet the ``copies''
                requirement inherent in the definition of publication. Courts have
                routinely found that electronic transmission of a work constitutes
                distribution.\18\ Because the Copyright Act defines publication to
                include the distribution of copies or phonorecords to the public, it
                follows that the electronic transmission of copies of a work
                constitutes publication of that work if the other requirements of
                publication were satisfied.
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                 \18\ See, e.g., New York Times Co. v. Tasini, 533 U.S. 483
                (2001) (stating that placement of electronic copies of articles in a
                database constituted distribution of copies of those articles as
                defined by the Copyright Act); Metro-Goldwyn-Mayer v. Grokster, 545
                U.S. 913 (2005) (noting that ``peer-to-peer networks are employed to
                store and distribute electronic files'' and that peer-to-peer
                software ``enable[d] users to reproduce and distribute the
                copyrighted works in violation of the Copyright Act.''); London-Sire
                Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 170-72 (D. Mass. 2008)
                (``[a]n electronic file transfer is plainly within the sort of
                transaction that Sec. 106(3) [the distribution right] was intended
                to reach.'').
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                 Judicial opinions addressing the definition of publication in the
                online context are not uniform. Some courts have held that merely
                posting a work on a publicly accessible website constitutes
                publication. For example, in Getaped.com, Inc. v. Cangemi, 188 F. Supp.
                2d 398, 402 (S.D.N.Y. 2002), the court held that the posting of content
                on a website constituted publication because ``merely by accessing a
                web page, an internet user acquires the ability to make a copy of that
                web page, a copy that is, in fact, indistinguishable in every part from
                the original. Consequently, when a website goes live, the creator loses
                the ability to control either duplication or further distribution of
                his or her work.'' The court reasoned that unlike a public display or
                performance, the public has the ability to download a file from a
                website and gain a possessory interest in it. Id. at 401-02. Other
                courts have adopted Getaped's holding that the act of posting a work to
                a website constitutes publication.\19\ These courts have not addressed,
                however, whether a rule that bases publication solely on the technical
                ability of users to duplicate or further distribute a work posted on
                the internet is inconsistent with the established principle that
                publication requires the copyright owner's authorization. See
                Compendium (Third) sec. 1902. Indeed, copying or distributing such a
                work without the copyright owner's permission would (absent a defense)
                constitute infringement--a result that is difficult to reconcile with
                the notion that the copyright owner published the work merely by
                posting it online.\20\
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                 \19\ See, e.g., UAB ``Planner5D'' v. Facebook, Inc., 2019 WL
                6219223, at *7 (N.D. Cal. Nov. 21, 2019) (holding that plaintiff
                failed to plead adequately that works posted on a website were
                merely displayed and therefore unpublished where it had not alleged
                facts that show that the website contained features that prevented
                users from copying the works); New Show Studios, LLC v. Needle, 2016
                WL 5213903, at *7 (C.D. Cal. Sept. 20, 2016); William Wade Waller
                Co. v. Nexstar Broad., Inc., 2011 WL 2648584, at *2 (E.D. Ark. July
                6, 2011).
                 \20\ Modern technology may also prevent users' practical ability
                to make copies of certain web pages. See 17 U.S.C. 1201(a).
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                 In contrast, other courts have taken the position that merely
                posting a digital file on the internet does not constitute publication.
                For example, in Einhorn v. Mergatroyd Productions, the court held that
                posting a digital file of a performance of a theatrical production on
                the internet did not amount to publication because it did not involve a
                transfer of ownership, rental, lease or lending. 426 F. Supp. 2d 189,
                197 (S.D.N.Y. 2006). Another court in the same district held that
                allegations that a collection of drawings were posted on a website were
                insufficient to plead that the drawings were published under the
                Copyright Act. McLaren v. Chico's FAS, Inc., 2010 WL 4615772, at *4
                (S.D.N.Y. Nov. 9, 2010). Likewise, in Moberg v. 33T, LLC, the court
                determined that a Swedish photographer's posting of copyrighted works
                on a German website did not constitute simultaneous, global publication
                as a matter of law and the work could not be considered a ``United
                States work'' that was subject to the registration requirement of
                section 411(a) prior to filing suit. 666 F. Supp. 2d 415, 422 (D. Del.
                2009). The court reasoned that treating the uploading of a work on a
                website to be simultaneous publication in every jurisdiction in which
                the website is accessible would effectively subject copyright owners
                from other countries to the formalities of U.S. copyright law, contrary
                to the purpose of the Berne Convention. Id. at 422-23.
                 Rather than endorsing a bright line test, the Eleventh Circuit, the
                only Circuit Court to rule specifically on the issue, opined that
                publication is a fact-specific inquiry. In Kernal Records Oy v. Mosley,
                the court held that determining whether a work has been published
                requires an examination of ``the method, extent, and purpose of the
                alleged distribution,'' and determining whether a work was first
                published outside the United States requires an examination of ``both
                the timing and geographic extent of the first publication.'' 694 F.3d
                1294, 1304 (11th Cir. 2012). The court explained that a copyright owner
                can make a work available ``online'' in many ways, including by sending
                the work to specific recipients through email, as well as posting it on
                a restricted website, a peer-to-peer network, or a public website, and
                each of the methods raises different wrinkles as to whether the work
                has been published. Id. at 1305. Because the evidence presented by the
                defendant established only that the work had been posted in an
                ``internet publication'' and an ``online magazine,'' from which it was
                not evident that the work had been made available on a public website
                or that it had been simultaneously published in Australia and the
                United States,
                [[Page 66332]]
                disputed issues of fact prevented summary judgment as to whether the
                work was a ``United States work.'' Id. at 1306-07. Similarly, in Rogers
                v. Better Business Bureau of Metropolitan Housing, Inc., the Southern
                District of Texas held that the fact intensive nature of the
                publication inquiry precluded the court from finding as a matter of law
                that the plaintiff distributed copies of the works at issue when he
                uploaded them to the internet. 887 F. Supp. 2d 722, 730 (S.D. Tex.
                2012). ``Absent binding law or even a clear consensus in case law
                directly related to the posting of a website online,'' the court stated
                it was reluctant to find, as a matter of law, that the plaintiff
                distributed copies of the websites when he uploaded them to the
                internet, which was a determination it recognized ``would have wide-
                ranging effects on the rights of authors and users, including copyright
                duration, country of publication, time limits, deposit requirements
                with the Library of Congress, and fair use.'' Id. at 731-32, n.34.
                (3) Copyright Office Guidance
                 The Copyright Office ``will accept the applicant's representation
                that website content is published or unpublished, unless that statement
                is implausible or is contradicted by information provided elsewhere in
                the registration materials or in the Office's records or by information
                that is known to the registration specialist.'' Compendium (Third) sec.
                1008.3(F). To aid applicants in determining whether a work has been
                published, the Copyright Office provides guidance on a variety of
                issues relating to the issue of publication based on the statutory
                definition and the Copyright Act's legislative history. Consistent with
                the law, the Office does not consider a work to be published if it is
                merely displayed or performed online. Compendium (Third) sec.
                1008.3(C). The Compendium provides that publication occurs when one or
                more copies or phonorecords are distributed to a member of the public
                who is not subject to any restrictions concerning the disclosure of the
                content of the work. Compendium (Third) sec. 1905.1. Consistent with
                the statutory definition, the Compendium provides that publication can
                be accomplished through transfer of ownership of the work or rental,
                lease, or lending of copies of the work, or by offering to distribute
                copies of a work to a group of persons for the purpose of further
                distribution, public performance or public display. Compendium (Third)
                sec. 1905.2, 1906.
                 The 1976 Copyright Act ``recognized for the first time a distinct
                statutory right of first publication.'' Harper & Row, Publishers, Inc.
                v. Nation Enterprises, 471 U.S. 539, 552 (1985). This right allows the
                copyright owner to decide when, where and in what form to first publish
                a work, or whether to publish it at all. Id. at 553; see also, H.R.
                Rep. No. 94-1476, at 61 (``The exclusive rights accorded to a copyright
                owner under section 106 are `to do and to authorize' any of the
                activities specified in the five numbered clauses.''). Thus, the
                Compendium recognizes that publication only occurs if the distribution
                or offer to distribute copies is made ``by or with the authority of the
                copyright owner.'' Compendium (Third) sec. 1902. The Office therefore
                does not consider a work to be published if it is posted online without
                authorization from the copyright owner. Compendium (Third) sec.
                1008.3(F).
                 The Office considers a work published if it is made available
                online and the copyright owner authorizes the end user to retain copies
                of that work. Compendium (Third) sec. 1008.3(B). ``A critical element
                of publication is that the distribution of copies or phonorecords to
                the public must be authorized by the copyright owner. . . . To be
                considered published, the copyright owner must expressly or impliedly
                authorize users to make retainable copies or phonorecords of the work,
                whether by downloading, printing, or by other means.'' Compendium
                (Third) sec. 1008.3(C). For instance, a work that is expressly
                authorized for download by members of the public by including a
                ``Download Now'' button, is considered published. Compendium (Third)
                sec. 1008.3(F). If the website on which a work is posted contains an
                obvious notice, including in the terms of service, indicating that a
                work cannot be downloaded, printed or copied, the work may be deemed
                unpublished. Id.
                 The Copyright Office also considers a work published if the owner
                makes copies available online and offers to distribute them to
                intermediaries for further distribution, public performance, or public
                display. Compendium (Third) sec. 1008.3(B); see also, H.R. Rep. No. 94-
                1476, at 138 (``On the other hand, the definition also makes clear
                that, when copies or phonorecords are offered to a group of
                wholesalers, broadcasters, motion pictures, etc., publication takes
                place if the purpose is `further distribution, public performance, or
                public display.' ''). For instance, a sound recording that has been
                offered by the copyright owner for distribution to multiple online
                streaming services and a photograph that has been offered by the
                copyright owner to multiple stock photo companies for purposes of
                further distribution would be considered published. Compendium (Third)
                sec. 1008.3(B).
                (4) Commentary
                 Several copyright treatises opine on how to apply the statutory
                definition of publication to modern circumstances. David Nimmer
                explains that although the statutory definition of the term
                ``publication'' does not explicitly state that the copyright owner must
                authorize the distribution of the copies or phonorecords, such
                authorization can be implied because ``Congress could not have intended
                that the various legal consequences of publication under the current
                Act would be triggered by the unauthorized act of an infringer or other
                stranger to the copyright.'' David Nimmer & Melville Nimmer, 1 Nimmer
                on Copyright sec. 4.03 (2019). Nimmer does not take a definitive
                position on whether works that have been posted on the internet have
                been published--but asserts that this question must be considered
                within the context that the sine qua non of publication is allowing
                members of the public to acquire a possessory interest in tangible
                copies of a work. Id. at 4.07.
                 William Patry states that the Section 411(a) registration
                requirement raises ``tricky questions'' concerning first publication
                for works posted on the internet. William F. Patry, 3 Patry on
                Copyright sec. 6:55.40 (2019). Patry notes that the Berne Convention is
                non-self-executing, and that the Copyright Act does not define
                simultaneous publication; therefore, it is up to the courts to decide
                what ``simultaneous publication'' means, so long as their definition is
                consonant with the general definition of ``publication'' outlined in
                the Copyright Act. Id. Patry agrees with the general approach the
                Eleventh Circuit took in Kernal Records of focusing on the ``particular
                factual distribution'' as opposed to crafting a rule that ``all
                `internet' publication is a global general publication.'' Id.
                 In his treatise, Paul Goldstein argues that dissemination over the
                internet without limits on copying should be held to constitute
                publication. Paul Goldstein, Goldstein on Copyright sec. 3.3.3 (3d ed.
                2016). Goldstein points to several reasons that counsel in favor of
                this result. First, because the copyright term for works made for hire
                is 95 years from publication, or 120 years from creation, to treat
                internet works as ``unpublished'' would effectively extend copyright
                protection for many internet
                [[Page 66333]]
                works for an additional 25 years. Id. Second, considering internet
                works to be ``unpublished'' would dilute incentives to early and
                regular registration of claims to copyright. Id. Finally, one reason
                that Congress deemed broadcast performances or other traditional
                performances and displays not to constitute publication was that they
                could not be readily or accurately reproduced at the time when the 1976
                Copyright Act was drafted. In contrast, a vast array and quantity of
                content can be cheaply and accurately downloaded from the internet. Id.
                 Others have opined on matters relating to publication. For example,
                Thomas F. Cotter recommends that Congress consider whether there is a
                different date, for example the date of creation, that may be
                preferable to trigger some or all of the consequences that currently
                flow from publication. Thomas F. Cotter, Toward a Functional Definition
                of Publication in Copyright Law, 92 Minn. L. Rev. 1724, 1789 (2008). In
                the meantime, he suggests that courts apply a broad definition of
                publication to trigger time periods that begin to run on the date of
                first publication and for the purpose of a fair use analysis but a
                narrower definition of publication for imposing a duty to deposit and
                determining a work's country of origin and place of first publication.
                Id. at 1793.
                (C) Illustrative Challenges in Applying Statutory Definition to Modern
                Context
                 In the online environment, each new feature or application can
                raise additional wrinkles regarding publication. For example, the
                Office regularly receives questions regarding whether works that have
                been transmitted by email, link, and/or through streaming are
                distributions of a work that transfer ownership, such that they
                constitute publication, or are more closely akin to public performance
                or display of a work, which does not of itself constitute publication.
                 Consider the ubiquitous ability to post works on traditional
                websites or social media, such as posting a photograph to a Facebook
                page or Instagram account. Must the photographer actively demonstrate
                his/her authorization to copying, printing, downloading or further
                distribution of a work for the photograph to be considered published?
                Is an affirmative statement permitting users to copy, print, download
                or further distribute the work required for a work posted on a public
                website to be considered published, or can we infer consent of the
                author to these actions absent an explicit statement prohibiting
                copying, printing, downloading or distribution of the work? Similarly,
                does the posting of a work on a public website that assists users in
                some manner in downloading, printing, copying, or transmitting the work
                constitute publication, or can we infer from the posting of a work
                without any safeguards to prevent such actions that the owner consents
                to these actions such that work is published? Is it sufficient for a
                copyright owner to have generally authorized the posting of the work on
                the public website or must the copyright owner have specifically
                authorized downloading, printing, copying and/or further distribution
                of the work?
                 Online Terms of Service also raise questions about whether a
                copyright owner has authorized copying, printing, downloading or
                distribution of its works. For example, does joining a social media
                platform whose terms of service provide that the social media platform
                or its users obtain a license to download, copy, print, and/or further
                distribute any content posted on the platform constitute authorization
                to other users to download, copy, print and/or redistribute any works
                subsequently posted on that platform? Where a social media platform
                provides tools for redistributing content (e.g. Twitter's ``retweet''
                button, Facebook's ``share'' button, or Instagram's ``add post to your
                story'' button), have all members of that platform authorized the
                further distribution of works they post on that platform such that
                those works should be considered published?
                 The ability to transmit works widely with the click of a single
                button raises still other questions. If the posting of a work on a
                public website constitutes publication in certain circumstances, is the
                work simultaneously published in all jurisdictions from which the work
                is accessible? Does the concept of limited publication apply in the
                context of online publication? Is there a threshold number of people
                who must be able to access an online work for the work to be considered
                published? For example, is a work that is posted on a beta site that is
                being tested by a select group, or on a closed or private social media
                group published? How might a Facebook user's choice to allow only
                friends, or friends of friends, or the general public to access
                materials posted on their profile affect the analysis of whether a
                posted work has been published?
                II. Subjects of Inquiry
                 The Office invites written comments on the general subjects below.
                The Office seeks to propose a regulation interpreting the statutory
                definition of publication for registration purposes and to provide
                enhanced policy guidance, such as in revisions to the Compendium and/or
                Copyright Office circulars. Where possible, comments should be tailored
                to actions that are within the purview of the Office's regulatory
                authority, within the scope of the existing Copyright Act. If a party
                is proposing an action beyond the Office's authority, such as a
                statutory amendment or change to existing statutory language, the
                comment should explicitly so state. A party choosing to respond to this
                notice of inquiry need not address every subject, but the Office
                requests that responding parties clearly identify and separately
                address each subject for which a response is submitted. In responding,
                please identify your particular interest in and experience with these
                issues.
                 1. Section 409(8) of the Copyright Act requires applicants to
                indicate the date and nation of first publication if the work has been
                published. What type of regulatory guidance can the Copyright Office
                propose that would assist applicants in determining whether their works
                have been published and, if so, the date and nation of first
                publication for the purpose of completing copyright applications? In
                your response, consider how the statutory definition of publication
                applies in the context of digital on-demand transmissions, streaming
                services, and downloads of copyrighted content, as well as more broadly
                in the digital and online environment.
                 2. Specifically, should the Copyright Office propose a regulatory
                amendment or provide further detailed guidance that would apply the
                statutory definition of publication to the online context for the
                purpose of guiding copyright applicants on issues such as:
                 i. How a copyright owner demonstrates authorization for others to
                distribute or reproduce a work that is posted online;
                 ii. The timing of publication when copies are distributed and/or
                displayed electronically;
                 iii. Whether distributing works to a client under various
                conditions, including that redistribution is not authorized until a
                ``final'' version is approved, constitutes publication and the timing
                of such publication;
                 iv. Whether advertising works online or on social media constitutes
                publication; and/or
                 v. Any other issues raised in section I(C) above.
                 3. Can and should the Copyright Office promulgate a regulation to
                allow copyright applicants to satisfy the registration requirements of
                section 409
                [[Page 66334]]
                by indicating that a work has been published ``online'' and/or
                identifying the nation from which the work was posted online as the
                nation of first publication, without prejudice to any party
                subsequently making more specific claims or arguments regarding the
                publication status or nation(s) in which a work was first published,
                including before a court of competent jurisdiction? \21\
                ---------------------------------------------------------------------------
                 \21\ Compare 37 CFR 201.4(g) (``The fact that the Office has
                recorded a document is not a determination by the Office of the
                document's validity or legal effect. Recordation of a document by
                the Copyright Office is without prejudice to any party claiming that
                the legal or formal requirements for recordation have not been met,
                including before a court of competent jurisdiction.'').
                ---------------------------------------------------------------------------
                 4. Applicants cannot currently register published works and
                unpublished works in the same application. Should the Copyright Office
                alter its practices to allow applicants who pay a fee to amend or
                supplement applications to partition the application into published and
                unpublished sections if a work (or group of works) the applicant
                mistakenly represented was either entirely published or unpublished in
                an initial application is subsequently determined to contain both
                published and unpublished components? What practical or administrative
                considerations should the Office take into account in considering this
                option?
                 5. For certain group registration options, should the Copyright
                Office amend its regulations to allow applicants in its next generation
                registration system to register unpublished and published works in a
                single registration, with published works marked as published and the
                date and nation of first publication noted? What would the benefits of
                such a registration option be, given that applicants will continue to
                be required to determine whether each work has been published prior to
                submitting an application? What practical or administrative
                considerations should the Office take into account in considering this
                option?
                 7. Is there a need to amend section 409 so that applicants for
                copyright registrations are no longer required to identify whether a
                work has been published and/or the date and nation of first
                publication, or to provide the Register of Copyrights with regulatory
                authority to alter section 409(8)'s requirement for certain classes of
                works?
                 8. Is there a need for Congress to take additional steps with
                respect to clarifying the definition of publication in the digital
                environment? Why or why not? For example, should Congress consider
                amending the Copyright Act so that a different event, rather than
                publication, triggers some or all of the consequences that currently
                flow from a work's publication? If so, how and through what provisions?
                 9. The Copyright Office invites comment on any additional
                considerations it should take into account relating to online
                publication.
                 Dated: November 26, 2019.
                Regan A. Smith,
                General Counsel and Associate Register of Copyrights.
                [FR Doc. 2019-26004 Filed 12-3-19; 8:45 am]
                 BILLING CODE 1410-30-P
                

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