Simplifying Copyright Registration for Architectural Works
| Published date | 26 December 2018 |
| Record Number | 2018-27866 |
| Section | Proposed rules |
| Court | U.s. Copyright Office |
Federal Register, Volume 83 Issue 246 (Wednesday, December 26, 2018)
[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Proposed Rules]
[Pages 66182-66184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27866]
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LIBRARY OF CONGRESS
U.S. Copyright Office
37 CFR Part 202
[Docket No. 2018-13]
Simplifying Copyright Registration for Architectural Works
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Copyright Office is proposing to amend its regulations
pertaining to the registration of architectural works. To improve the
efficiency of this process, applicants will be required to submit their
claims through the online application process, rather than a paper
application, and they will be encouraged to upload a digital copy of
their works through the electronic registration system, instead of
submitting a physical copy. The proposed rule also clarifies that a
date of construction is needed only if the architectural work was
embodied in unpublished plans or drawings on or before December 1, 1990
and if the work was constructed before January 1, 2003. The Office
invites public comment on the proposed changes.
DATES: Comments on the proposed rule must be made in writing and must
be received in the U.S. Copyright Office no later than February 11,
2019.
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 http://www.copyright.gov/rulemaking/architecturalworks/. 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: Robert J. Kasunic, Associate Register
of Copyrights and Director of Registration Policy and Practice; Erik
Bertin, Deputy Director of Registration Policy and Practice; Jordana
Rubel, Assistant General Counsel by telephone at 202-707-8040 or by
email at rkas@copyright.gov, ebertin@copyright.gov, and
jrubel@copyright.gov.
SUPPLEMENTARY INFORMATION: As part of the U.S. Copyright Office's
ongoing effort to improve the quality and readability of its
regulations, the Office is proposing to amend the rules governing the
registration of architectural works, which have remained essentially
unchanged since 1992. 57 FR 45307 (Oct. 1, 1992); 68 FR 38630 (June 30,
2003). The regulation pertaining to the registration and application
requirements is set forth in 37 CFR 202.11, the regulation governing
the deposit requirements for registration is set forth in 37 CFR
202.20(c)(2)(xviii). The regulation governing the mandatory deposit
requirements, set forth in 37 CFR 202.19(d)(2)(viii), will remain
unchanged. The Office welcomes comments on these proposed changes.
Application Requirements
The current regulation states that applicants must use a paper
application to register an architectural work and that the claim must
be submitted on Form VA. 37 CFR 202.11(c)(3). This does not reflect the
Office's current practices. Since 2008, the Office has accepted claims
submitted through the Office's electronic registration system
(``eCO''), and in fact, many architecture claims are filed in this
manner.
Under the proposed rule, applicants will be required to submit
their claims through the eCO system using the Standard Application. The
Office will no longer accept architectural works submitted for
registration on a paper application using Form VA. If a paper
application is received after the effective date of this rule, the
Office will refuse registration and instruct the applicant to resubmit
the claim on the Standard Application.\1\
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\1\ The Office recently issued a notice of proposed rulemaking
clarifying that the Single Application may not be used to register
an architectural work. The Single Application is an electronic
application designed ``for those authors who file the simplest kind
of [claim].'' 78 FR 38843, 38845 (June 28, 2013). Architecture
claims are not a good fit for this application because they tend to
be very complex. 83 FR 5227, 5228 (Feb. 6, 2017). To avoid potential
confusion, the proposed rule removes the word ``single'' wherever it
appears in the regulation on architectural works.
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A substantial majority of the U.S. population has access to the
internet, and the Office expects that most architects will be able to
use the electronic system. See 81 FR 86643, 86648 & nn. 15-16 (Dec. 1,
2016). Architects typically use sophisticated computer software to
create their works, and thus, should be capable of using the Standard
Application to register their claims.\2\
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\2\ As with other rules recently promulgated by the Office, the
proposed rule would allow the Office to waive the online filing
requirement in exceptional cases. Applicants who do not have
internet access and are unable to use the Standard Application may
request a waiver in writing. The Office will review each request and
will make accommodations for applicants who receive a waiver, such
as making staff available to assist with filling out the
application.
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The Office believes that requiring applicants to use the Standard
Application, rather than Form VA, is necessary to improve the overall
efficiency of the registration process. Most claims submitted on Form
VA require correspondence or other action from the Office. Applicants
often fail to provide information expressly requested on the form, or
add extraneous information that is not requested. In
[[Page 66183]]
each case, the Office must scan these paper applications into the
registration system and input the relevant information by hand. This is
a cumbersome, labor-intensive process. Addressing these issues imposes
significant burdens on the Office's limited resources, and has had an
adverse effect on the examination of other types of works within the
Visual Arts Division.
The regulation also states that applicants should provide ``[t]he
date of construction of the building,'' and ``[i]f the building has not
yet been constructed'' the application should include a statement to
that effect. The proposed rule clarifies that this information is only
needed if the architectural work was embodied in unpublished plans or
drawings on or before December 1, 1990 and if the building was
constructed before January 1, 2003. See 37 CFR 202.12(d)(3)(i)
(buildings constructed before December 1, 1990 not eligible for
copyright protection); id. at 202.12(d)(3)(ii) (unconstructed buildings
embodied in unpublished drawings or plans as of December 1, 1990 not
eligible for copyright protection unless the building was constructed
by December 31, 2002). In all other cases, a date of construction is
not needed.
Deposit Requirements for Registration
Under the current rule, to register an architectural work with the
Copyright Office, applicants must submit ``one complete copy of an
architectural drawing or blueprint in visually perceptible form showing
the overall form of the building and any interior arrangements of
spaces and/or design elements'' being registered. If the building has
been constructed, applicants also must submit photographs of the work.
37 CFR 202.20(c)(2)(xviii)(A), (B). The proposed rule clarifies that
the ``overall form of the building'' refers to exterior elevations of
the building when viewed from the front, rear, and sides, while
``interior arrangements of spaces and/or design elements'' refers to
walls or other permanent structures that divide the interior into
separate rooms and spaces.
In addition, the proposed rule would amend the deposit requirement
by allowing applicants to submit drawings, and photographs of an
architectural work in any form that allows the Office to access,
perceive, and examine the entire copyrightable content of the work,
including by being uploaded through the electronic registration system
in an acceptable file format.\3\ In doing so, the proposed rule removes
language listing an order of preference for drawings and photographs
that are submitted in a physical format.
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\3\ The list of acceptable file formats is posted on the
Office's website at https://www.copyright.gov/eco/help-file-types.html.
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The Office routinely accepts digital copies of architectural works
instead of requiring physical copies as stated in the current
regulation, and in fact, it prefers to receive digital--rather than
physical--copies. The Office does not need physical drawings, or
photographs to examine an architectural work for copyrightable
authorship, or to determine whether the applicant satisfied the formal
and legal requirements for registration. See 17 U.S.C. 410(a)
(providing that the Register of Copyrights must determine whether
``material deposited [for registration] constitutes copyrightable
subject matter''). Electronic submissions take less time to process and
are easier to handle than physical copies, in part, because a
registration specialist can examine a digital copy as soon as it has
been uploaded to the electronic registration system. By contrast, when
an applicant files an online application and mails a physical copy to
the Office, it takes added time to connect the application with the
correct deposit.
Digital uploads may also provide architects with more prompt legal
benefits. When the Office registers an architectural work and issues a
certificate of registration, the effective date of registration is the
date on which the Office received the application, filing fee, and
deposit in proper form. When an applicant uploads a digital copy to the
electronic system, the Office typically receives the application,
filing fee, and deposit on the same date. But when an applicant sends
physical drawings, or photographs, the deposit may arrive long after
the date that the application and filing fee were received--thereby
establishing a later effective date of registration. Moreover, digital
copies are easier to store and retrieve than physical copies, including
if the copyright owner or other interested parties need to obtain a
copy of a particular work for use in litigation or another legitimate
purpose.
Finally, the proposed rule explicitly identifies architectural
works as one of the types of work for which only a single copy is
required to be deposited under section 202.20(c)(2)(i). This is a
technical edit because the current rule already states that only one
deposit copy is required. See 37 CFR 202.20(c)(2)(xviii).
Mandatory Deposit Requirements
To be clear, the proposed rule only applies to copies that are
submitted for purposes of registering an architectural work under
section 408 of the Copyright Act and sections 202.11 and 202.20 of the
Office's regulations. It makes no amendment to the rules regarding
copies submitted for the purpose of complying with the mandatory
deposit requirement under section 407 of the statute or section 202.19
of the regulations. 37 CFR 202.20(a) (``The provisions of this section
are not applicable to the deposit of copies and phonorecords for the
Library of Congress under section 407 of title 17, except as expressly
adopted in Sec. 202.19.'').
Section 407 states that if a work is published in the United
States, the copyright owner or the owner of the exclusive right of
publication should deposit two copies of the ``best edition'' of that
work with the Library of Congress within three months after
publication. 17 U.S.C. 407(a)-(b). Under the current regulations,
architects may satisfy this requirement by registering their works with
the Office, or by sending copies directly to the Copyright Office's
Copyright Acquisitions Division for use or disposition by the Library
without seeking a registration. Because the same copies can potentially
be used for both registration and mandatory deposit, the deposit
requirements for architectural works currently set forth in sections
202.19 and 202.20, are essentially identical and they both refer to
physical drawing submissions.
As noted above, the proposed rule would let architects register
their works by providing an electronic copy of their drawings, and
photographs instead of a physical copy. But to be clear, a digital copy
submitted for purposes of registration does not satisfy the mandatory
deposit requirement under section 407, which is outlined in 37 CFR
202.19(d)(2)(viii). To satisfy this requirement, architects submitting
electronic registration deposits are expected to deposit a physical
copy of the most finished form of presentation drawings, as defined in
37 CFR 202.19(d)(2)(viii), within three months after the work has been
published in the United States, and if an appropriate deposit is not
received within that time frame, the Copyright Acquisitions Division
may issue a written demand for that material under section 202.19 of
the regulations.
Technical Amendments
Finally, the proposed rule codifies the Office's longstanding view
that
[[Page 66184]]
architectural works are considered ``works of the visual arts'' for
purposes of registration, and as such, they may be registered in Class
VA. It also improves the organization and readability of the regulation
by removing superfluous references and moving the text of two footnotes
into the main body of the regulation. See 37 CFR 202.11(a), (b)(1).
List of Subjects in 37 CFR Part 202
Copyright.
Proposed Regulations
For the reasons set forth in the preamble, the Copyright Office is
proposing to amend 37 CFR part 202 as follows:
PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
0
1. The authority citation for part 202 continues to read as follows:
Authority: 17 U.S.C. 408(f), 702.
0
2. In Sec. 202.3, add a sentence at the end of paragraph (b)(1)(iii)
to read as follows:
Sec. 202.3 Registration of copyright.
* * * * *
(b) * * *
(1) * * *
(iii) * * * This class also includes published and unpublished
architectural works.
* * * * *
0
3. Amend Sec. 202.11 as follows:
0
a. Revise paragraph (a).
0
b. Revise paragraphs (b)(1) and (2).
0
c. Remove paragraph (c)(2) and redesignate paragraph (c)(5) as (c)(2).
0
d. Revise paragraphs (c)(3) and (c)(4).
0
e. Add new paragraph (c)(5).
The revisions and additions read as follows:
Sec. 202.11 Architectural works.
(a) General. This section prescribes rules pertaining to the
registration of architectural works.
(b) Definitions. (1) For the purposes of this section, the term
building means humanly habitable structures that are intended to be
both permanent and stationary, such as houses and office buildings, and
other permanent and stationary structures designed for human occupancy,
including but not limited to churches, museums, gazebos, and garden
pavilions.
(2) Unless otherwise specified, all other terms have the meanings
set forth in Sec. Sec. 202.3 and 202.20.
(c) * * *
(3) Registration limited to one architectural work. For published
and unpublished architectural works, an application may cover only one
architectural work. Multiple architectural works may not be registered
using one application. For works such as tract housing, one house model
constitutes one work, including all accompanying floor plan options,
elevations, and styles that are applicable to that particular model.
Where dual copyright claims exist in technical drawings and the
architectural work depicted in the drawings, any claims with respect to
the technical drawings and architectural work must be registered
separately.
(4) Online application. (i) The applicant must complete and submit
the Standard Application. The application should identify the title of
the building. If the architectural work was embodied in unpublished
plans or drawings on or before December 1, 1990, and if the building
was constructed before January 1, 2003, the application should also
provide the date that the construction was completed.
(ii) In an exceptional case, the Copyright Office may waive the
online filing requirement set forth in paragraph (c)(4)(i) of this
section, subject to such conditions as the Associate Register and
Director of the Office of Registration Policy and Practice may impose
on the applicant.
(5) Deposit requirements. (i) For designs of constructed or
unconstructed buildings, the applicant must submit one complete copy in
a visually perceptible format of the most finished form of an
architectural drawing showing the overall form of the building (i.e.,
exterior elevations of the building when viewed from the front, rear,
and sides), and any interior arrangements of spaces and/or design
elements in which copyright is claimed (i.e., walls or other permanent
structures that divide the interior into separate rooms and spaces).
The deposit should disclose the name(s) of the architect(s) and
draftsperson(s) and the building site, if known. For designs of
constructed buildings, the applicant also must submit identifying
material in the form of photographs complying with Sec. 202.21, which
clearly show several exterior and interior views of the architectural
work being registered.
(ii) The deposit may be submitted in any form that allows the
Copyright Office to access, perceive, and examine the entire
copyrightable content of the work being registered, including by
uploading the complete copy and identifying material in an acceptable
file format to the Office's electronic registration system. Deposits
uploaded to the electronic registration system will be considered
solely for the purpose of registration under section 408 of title 17 of
the United States Code, and will not satisfy the mandatory deposit
requirement under section 407 of title 17 of the United States Code.
* * * * *
0
4. Amend Sec. 202.20 as follows.
0
a. Add paragraph (c)(2)(i)(M).
0
b. Remove and reserve paragraph (c)(2)(xviii).
The addition reads as follows:
Sec. 202.20 Deposit of copies and phonorecords for copyright
registration.
* * * * *
(c) * * *
(2) * * *
(i) * * *
(M) Architectural works, for which the deposit must comply with the
requirements set forth in Sec. 202.11.
* * * * *
Dated: December 19, 2018.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2018-27866 Filed 12-21-18; 8:45 am]
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