Group Registration of Newsletters and Serials

AGENCY:

U.S. Copyright Office, Library of Congress.

ACTION:

Final rule.

SUMMARY:

The U.S. Copyright Office is amending its regulations governing the group registration options for newsletters and serials. With respect to group newsletters, the final rule amends the definition of “newsletter,” eliminating the requirement that each issue must be a work made for hire, and the provision stating that group newsletter claims must be received within three months after publication. Under the final rule, newsletter publishers now should register their issues with the online application and upload a digital copy of each issue through the electronic registration system instead of submitting them in a physical form. With respect to group serials, the final rule clarifies that serials governed by the rule generally must be published at intervals of a week or longer, and that the publication dates provided in the application need not match the dates appearing on the issues themselves. In addition, the rule phases out the paper application for group serials and the submission of physical copies. Beginning one year after the rule goes into effect, serial publishers will be required to use the online application for group serials and to upload a digital copy of each issue, rather than submitting them in a physical form. The final rule updates the regulations for both newsletters and serials by confirming that publishers do not need to provide the Library of Congress with complimentary subscriptions to or microfilm of each issue as a condition for registering their works with the Office, but newsletter and serial issues that are submitted for purposes of registration will no longer satisfy the mandatory deposit requirement. Publishers will be expected to separately provide the Library with two complimentary subscriptions if the newsletter or serial is published in the United States in a physical format (unless the publisher is informed that the publication is not needed for the Library's collections). If the newsletter or serial is published solely in electronic form, the publisher will remain exempt from mandatory deposit unless the Office issues a formal demand for copies of that publication.

DATES:

Effective date: December 31, 2018.

FOR FURTHER INFORMATION CONTACT:

Robert J. Kasunic, Associate Register of Copyrights and Director of Registration Policy and Practice, or Erik Bertin, Deputy Director of Registration Policy and Practice, by telephone at 202-707-8040, or by email at rkas@copyright.gov or ebertin@copyright.gov; or Cindy Paige Abramson, Assistant General Counsel, by telephone at 202-707-0676, or by email at ciab@copyright.gov.

SUPPLEMENTARY INFORMATION:

On May 17, 2018, the Copyright Office (the “Office”) published two notices of proposed rulemaking (“NPRMs”) setting forth proposed amendments to the regulations governing the group registration options for newsletters and serials. 83 FR 22902 (May 17, 2018); 83 FR 22896 (May 17, 2018). The Office did not receive any comments in response to the NPRM on group newsletters. In response to the NPRM on group serials, the Office received comments from the Copyright Alliance and one individual. Having reviewed and carefully considered these comments, the Office is issuing a final rule that is nearly identical to the rule proposed in the NPRM on group newsletters, and substantially similar to the rule proposed in the NPRM on group serials; in both cases, the Office has made a few modifications reflecting the concerns raised by the comments regarding online registration and electronic submission of deposits regarding group registration of serials, which are discussed in more detail below.

Topics Involving Solely the Group Registration Option for Newsletters

The final rule revises current practices for the group registration option for newsletters. It clarifies and expands the category of works eligible for this option by amending the definition of what constitutes a “newsletter” and by making clear that newsletters need not be collective works. It also eliminates the work-made-for-hire requirement and the requirement that the issues must be submitted within three months after publication.

The final rule also phases out the paper application (known as Form G/DN) and generally requires applicants to register their newsletters using the designated online application. In addition, it requires applicants to upload their newsletters in a digital format through the electronic registration system. If an applicant submits Form G/DN after the effective date of the final rule, the Office will refuse to register the claim. Likewise, the Office will refuse registration if an applicant submits physical copies of a newsletter, such as printed copies or photocopies, or digital copies that have been saved onto a flash drive, disc, or other physical storage medium.

Topics Involving Solely the Group Registration Options for Serials

The final rule codifies, clarifies, and revises current practices for the group registration option for serials.

First, the final rule requires that each claim must include at least two issues, that each issue must be a work made for hire, and that the author and copyright claimant for each issue must be the same person or organization.

Second, the final rule eliminates the current requirement that each issue must have been created no more than one year prior to publication.

Third, the final rule requires that applicants may only register serials that are “generally . . . published at intervals of a week or longer” (e.g., weekly, every two weeks, monthly), and requires that the issues be “published in a given three month period” within “the same calendar year.” The proposed rule reflected the current practice that issues must be published at intervals of one week or more, however, the Copyright Alliance noted that publishers sometimes distribute two issues during the same week, such as when a “special” issue is published in addition to a regularly scheduled issue. To accommodate these practices, the final rule clarifies that a serial must “generally” be published at intervals of one week or more. The Copyright Alliance also explained that issues may be published in one month but contain an issue date for the following month and, in the case of issues published in December, may contain the issue date for January of the following year. Based on this information, the final rule eliminates the requirements that the issues themselves must bear issue dates reflecting the same three-month period and the same calendar year. Instead, applicants will be required to provide a publication date for each issue in the group.

Fourth, the final rule requires that each issue must be an “all-new” collective work that has not been previously published, and each issue must be fixed and distributed as a discrete, self-contained collective work. The Copyright Alliance expressed concern that this requirement may prevent publishers from registering “enhanced, digital issues which may contain content hosted on and linked to another platform such as videos and blogs that allow the reader to manipulate or interact with the issue.” The Office does not believe a change to the language of the rule is necessary. If a particular issue contains enhanced content, such as an embedded video, the registration will cover that material if it is included within the deposit and if the examiner can access and view that material in the context where it appears within the actual serial. Any additional content that appears on the publisher's website—but does not appear within the issues themselves—must be registered separately.

Fifth, the final rule generally requires applicants to register their issues using the online application designated for group serial claims, and eliminates the paper application known as Form SE/Group.

Finally, the final rule amends the deposit requirements by requiring applicants to upload their issues in digital form through the electronic registration system, instead of submitting them in a physical form, absent exceptional cases. While the Copyright Alliance agreed that requiring publishers to upload a digital copy of each issue “will generally `increase the efficiency of the group registration process,' ” it questioned whether the electronic registration system is capable of handling large digital files, whether the process of uploading these files may be burdensome for some publishers, and whether the Office has implemented and deployed robust security measures to protect its digital deposits. The Copyright Alliance suggested that the Office should gradually phase out the paper application and continue to accept physical deposits “[u]ntil the registration system is able to fully accommodate the digital deposit process.” After carefully reviewing these comments, the Office has decided to adopt the online digital deposit requirement proposed in the NPRM, but to give publishers time to adjust to this change, the Office will continue to accept physical deposits and paper applications for another twelve months. Generally, if a publisher submits a Form SE/Group or submits a physical deposit after the phase-out period has expired, the Office will refuse to register the claim.

The Office has concluded that the other concerns raised by the Copyright Alliance about digital deposits were already adequately addressed by the proposed rule. The Office has accepted digital deposits from serial publishers since September 14, 2012, and is not aware of any technical issues that have prevented them from using the upload feature. The current registration system will accept any digital deposit, as long as it is submitted in an acceptable file format and does not exceed 500MB. And as noted in the proposed rule, the files may be compressed to comply with this limit, if necessary.

The Office first introduced its electronic registration system more than a decade ago, and as the Copyright Alliance acknowledged, the Office has not experienced any issues concerning the security of its digital deposits. The Office utilizes a multi-level security design to ensure the confidentiality and integrity of the files that are stored within this system. The system is certified to operate at the moderate security level, as defined by the FIPS 200 and SP 800-53 standards published by the National Institute of Standards and Technology. The entire system operates on hardware and software that is dedicated to this system and it does not share storage resources with other systems. Strict access controls have been placed throughout the system that enforce the principle of “least privilege,” meaning that each type of user may access only what is needed for that particular role. The system is also protected by multiple levels of network firewalls and other network-based security, such as anti-malware protection, and it is continuously monitored to ensure that these security controls remain effective.

In addition to these technical measures, the Office's regulations restrict the parties who may obtain access to its digital registration deposits. Briefly stated, the Office will provide a copy of a registration deposit only if it receives (i) written authorization from the copyright claimant or the owner of the exclusive rights in the work, (ii) a written request from an attorney representing a plaintiff or defendant in litigation involving that work, or (iii) a court order directing the Office to produce a copy of that work for use in a legal proceeding.

Similarly, regulations restrict how parties may access digital registration deposits that have been transferred to the Library of Congress. Specifically, the Library currently provides access to the digital registration deposits that it receives through the group registration option for newspaper issues, subject to certain conditions specified in the regulations. But the Library currently does not provide public access to digital registration deposits for any other type of work, including deposits submitted under the group registration option for serial issues. As noted in the NPRM on group newspapers, the Library would like to expand the regulation to include other types of digital registration deposits, but before doing so, the Office will conduct separate rulemakings to provide notice and seek comment from the public.

Topics Involving Both the Group Registration Option for Newsletters and the Group Registration Option for Serials

The final rule makes four changes that modify the regulations governing both newsletters and serials.

First, the rule memorializes the Office's longstanding position regarding the scope of a group registration. It confirms that a registration for a group of newsletter or serial issues covers each issue in the group. It also confirms that if each issue is a collective work, the registration will cover the articles, photographs, illustrations, or other contributions appearing within those issues if they are fully owned by the copyright claimant and if they were first published in those issues.

Second, the rule confirms that newsletter and serial publishers will no longer be required to provide the Library of Congress with complimentary subscriptions to or microfilm copies of their issues as a condition for seeking a group registration under section 408(c)(1) of the Copyright Act. The Copyright Alliance applauded the elimination of this requirement. But newsletter and serial issues that are submitted to the Office for purposes of registration will no longer satisfy the mandatory deposit requirement set forth in section 407 of the Copyright Act.

Third, the rule provides guidance on how newsletter and serial publishers may comply with the mandatory deposit requirement. If a newsletter or serial is published in the United States in a physical format, the publisher will be expected to provide the Library with two complimentary subscriptions to physical copies of that publication, unless the publisher is notified that the newsletter or serial is not needed for the Library's collections. The rule does not change for newsletters or serials published solely in electronic format; in that case, the publisher will not be expected to provide copies of that publication unless the Office issues a formal demand for that newsletter or serial under section 202.24 of the regulations.

Fourth, the final rule includes provisions to address the Copyright Alliance's concerns about the potential burdens of electronic filing and digital deposit on applicants transitioning from traditional print to digital media. These provisions permit the Office to waive the online filing requirement in “an exceptional case” and “subject to such conditions as the Associate Register and Director of the Office of Registration Policy and Practice may impose on the applicant.” Registrants who do not have internet access or are unable to use the online applications may contact the Office, and the Office will review the specific details of their cases and determine their eligibility. The rule also provides that applicants may request special relief under § 202.20(d) if they are unable to comply with the deposit requirements for these group options. These provisions are consistent with recently amended rules for group registration of contributions to periodicals and of photographs (published and unpublished) and for supplemental registration.

The Office plans to offer several resources for newsletter and serial publishers that should ease the transition to these new requirements, including an updated version of the Compendium of U.S. Copyright Office Practices, Third Edition and updated Circulars that discuss these group registration options and the mandatory deposit requirements for these types of works. The Office will also update the onscreen instructions and help text that accompanies the online applications for each type of claim, and add warnings to the corresponding paper applications to notify applicants that Forms G/DN and SE/Group will soon be phased out.

List of Subjects

37 CFR Part 201

• Copyright

37 CFR Part 202

• Copyright

Final Regulations

For the reasons set forth in the preamble, the Copyright Office amends 37 CFR parts 201 and 202 as follows:

PART 201—GENERAL PROVISIONS

1. The authority citation for part 201 continues to read as follows:

Authority: 17 U.S.C. 702.

2. Amend § 201.1 by revising paragraph (c)(6) to read as follows:

3. Amend § 201.3 by revising paragraph (c)(6) to read as follows:

PART 202—PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

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

Authority: 17 U.S.C. 408(f), 702.

5. Amend § 202.3 by removing and reserving paragraphs (b)(6) and (9).

6. Amend § 202.4 as follows:

a. Add paragraphs (d) and (f).

b. In paragraph (l) remove “through (7), or (9)”.

c. Revise the first sentence of paragraph (n).

The additions and revision read as follows:

7. In § 202.6(e)(1) remove “§ 202.3(b)(6) through (10) or”; and remove “SE.” and add “SE” in its place.

8. Amend § 202.19 by adding paragraph (d)(2)(xi) to read as follows:

9. Amend § 202.20 by removing and reserving paragraph (c)(2)(xvii).

10. In Appendix B to Part 202, revise the last sentence of paragraph a. to read as follows:

Appendix B to Part 202—“Best Edition” of Published Copyrighted Works for the Collections of the Library of Congress

a. * * * (For works first published only in a country other than the United States, the law requires the deposit of the work as first published.)