Deposit Requirements for Registration of Automated Databases That Predominantly Consist of Photographs

AGENCY:

Copyright Office, Library of Congress.

ACTION:

Notice of proposed rulemaking and request for comments.

SUMMARY:

The Copyright Office is proposing to amend its regulations, including the recently published interim regulations regarding electronic registration of automated databases that consist predominantly of photographs and group registration of published photographs (the “Interim Regulations”), governing the deposit requirements for applications for automated databases that consist predominantly of photographs. The proposed amendments would require that, in addition to providing material relating to claimed compilation authorship, the deposits for such databases include the image of each photograph in which copyright is claimed. The Office believes that this amendment will align the deposit requirements for such databases with the deposit requirements for published or unpublished photographs as a single work or group registration of published photographs and provide a better public record identifying the scope of the copyright claim.

DATES:

Comments must be received in the Office of the General Counsel of the Copyright Office no later than February 28, 2011.

ADDRESSES:

The Copyright Office strongly prefers that comments be submitted electronically. A comment page containing a comment form is posted on the Copyright Office Web site at http://www.copyright.gov/docs/databases. The Web site interface requires submitters to complete a form specifying name and organization, as applicable, and to upload comments as an attachment via a browse button. To meet accessibility standards, all comments must be uploaded in a single file in either the Adobe Portable Document File (PDF) format that contains searchable, accessible text (not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a scanned document). The maximum file size is 6 megabytes (MB). The name of the submitter and organization should appear on both the form and the face of the comments. All comments will be posted publicly on the Copyright Office Web site exactly as they are received, along with names and organizations. If electronic submission of comments is not feasible, please contact the Copyright Office at 202-707-8125 for special instructions.

FOR FURTHER INFORMATION CONTACT:

David O. Carson, General Counsel, or Catherine Rowland, Attorney Advisor, Copyright Office, GC/I&R, P.O. Box 70400, Washington, DC 20024. Telephone: (202) 707-8380. Telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION:

Background

The Copyright Office has long allowed photographers to register groups or collections of photographs, including groups of either published or unpublished photographs (or of any other unpublished works) as part of a single work when certain requirements have been met. See 37 CFR 202.3(b)(4)(i)(A) and (B). It has also adopted a group registration procedure for published photographs that complements the unpublished collection procedure. See 37 CFR 202.3(b)(10).

Despite the availability of these options, however, some applicants have registered groups of photographs as part of automated databases. A published database is registerable under the “single unit of publication” rule of § 202.3(b)(4)(i)(A), and the group database registration provisions permit single registrations that covers up to three months' worth of updates and revisions to an automated database when all of the updates or other revisions (1) are owned by the same copyright claimant, (2) have the same general title, (3) are similar in their general content, including their subject, and (4) are similar in their organization. 37 CFR 202.3(b)(5). Using this provision, stock photography agencies have registered all the photographs added to their databases within a three-month period when they have obtained copyright assignments from the photographers.

The regulations governing registration of automated databases embodied in machine-readable copies (other than in a CD-ROM format) require deposits that are significantly different than the deposits required in connection with the other regulations for registration of photographs, discussed above. Section 202.20(c)(2)(vii)(D)(5) of the Office's regulations provides that the applications for database registrations need not be accompanied by a deposit of the entire work, but instead may include identifying material consisting of fifty representative pages or data records marked to show the new material added on one representative day, along with additional identifying information. The deposit accompanying a database registration application thus can consist of a fraction of the copyrightable material covered by the registration.

This is in stark contrast to the deposit requirements for registration of unpublished collections, for group registrations of published photographs, and for most other forms of copyright registration. Section 202.3(b)(10)(x), which governs the deposit for a group registration of photographs, provides that the deposit shall consist of “one copy of each photograph [to] be submitted in one of the formats set forth in Sec. 202.20(c)(2)(xx).” See also 37 CFR 202.20(c)(1)(i) (“in the case of unpublished works, [the deposit shall consist of] one complete copy or phonorecord,” a provision that applies to registrations of unpublished collections as well as individual unpublished works).

There is no good reason why a registration should issue for a database consisting predominantly of photographs when the copyright claim extends to the individual photographs themselves unless each of those claimed photographs is actually included as part of the deposit. As the Office said when it announced its regulations on group registration of published photographs:

[T]he Office rejects the plea of at least one commenter to permit the use of descriptive identifying material in lieu of the actual images. Although the Office had previously expressed a willingness to consider such a proposal, the most recent notice of proposed rulemaking noted that “the Office is reluctant to implement a procedure that would permit the acceptance of deposits that do not meaningfully reveal the work for which copyright protection is claimed.” Deposit of the work being registered is one of the fundamental requirements of copyright registration, and it serves an important purpose. As the legislative history of the Copyright Act of 1976 recognizes, copies of registration deposits may be needed for identification of the copyrighted work in connection with litigation or for other purposes. The ability of litigants to obtain a certified copy of a registered work that was deposited with the Office prior to the existence of the controversy that led to a lawsuit serves an important evidentiary purpose in establishing the [identity] and content of the plaintiff's work.

Registration of Claims to Copyright, Group Registration of Photographs, 66 FR 37142, 37147 (July 17, 2001) (citations omitted). Moreover, the actual practice with respect to almost all registrations of predominantly photographic databases has in fact been to include all of the photographs in the deposit.

For these reasons, in the recently announced interim regulation establishing a pilot program for online applications for group registration of databases consisting predominantly of photographic authorship, the Office included a requirement that the deposit accompanying such an online application authorship must include the image of each claimed photograph in the database. Interim Rule, Registration of claims of copyright, 76 FR 4072-4076 January 24, 2011).

In order to conform to the prevailing practice and the Office's determination of what a reasonable deposit requirement should include, the Office proposes to apply that requirement to deposits accompanying paper applications for group registration of databases consisting predominantly of photographic authorship. The proposed amendment would provide that, for any registration (whether the application is made by paper application or online pursuant to the Interim Regulation) of an automated database consisting predominantly of photographs, the deposit shall include, in addition to the descriptive statement currently required under section 202.20(c)(2)(vii)(D)(5), all of the photographs included in the copyright claim being registered. Identifying material will not constitute a sufficient deposit. As noted above, this conforms with what has in fact been the prevailing practice. The Office also notes that it will, in the future, consider extending this requirement to other types of databases.

Proposed Regulations

In consideration of the foregoing, the Copyright Office proposes to amend part 202 of 37 CFR, as follows:

List of Subjects in 37 CFR Part 202

• Copyright

PART 202—PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

1. The authority citation for part 202 continues to read as follows:

Authority: 17 U.S.C. 407, 408, 702.

2. Amend § 202.20 as follows:

a. In paragraph (c)(2)(vii)(D)(5) introductory text by removing “electronically submitted” after “or in the case of”;

b. In paragraph (c)(2)(vii)(D)(8) by removing “submitted electronically” after “case of an application”; and

c. In paragraph (c)(2)(xx) introductory text remove “registered with an application submitted electronically under § 202.3(b)(5)(ii)(A)” after “and for automated databases that consist predominantly of photographs”.