[Federal Register Volume 89, Number 140 (Monday, July 22, 2024)]
[Rules and Regulations]
[Pages 58991-59000]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15880]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201 and 202
[Docket No. 2023-8]
Group Registration of Updates to a News Website
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Final rule.
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SUMMARY: The U.S. Copyright Office is creating a new group registration
for frequently updated news websites. This option will enable online
news publishers to register a group of updates to a news website as a
collective work with a deposit composed of identifying material
representing sufficient portions of the work, rather than the complete
contents of the website. The final rule is nearly identical to the
provisions set forth in the January 2024 notice of proposed rulemaking,
with one modification in response to public comments and one to reflect
a technical change in the process for submitting these claims.
DATES: Effective July 22, 2024.
FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the
General Counsel, by email at [email protected] or by telephone at 202-
707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
The Copyright Act authorizes the Register of Copyrights to specify
by regulation the administrative classes of works for the purpose of
registration and the deposit required for each class.\1\ In addition,
Congress gave the Register the discretion to allow registration of
groups of related works with one application and one filing fee.\2\
This procedure is known as ``group registration.'' \3\ Pursuant to this
authority, the Register has issued several regulations permitting group
registrations for certain types of works, including newspapers,
newsletters and serials, unpublished works, unpublished and published
photographs, contributions to periodicals, secure test items, works on
an album of music, short online literary works, and database
updates.\4\
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\1\ 17 U.S.C. 408(c)(1).
\2\ Id.
\3\ See generally 37 CFR 202.3(b)(5), 202.4.
\4\ Id. at 202.3(b)(5), 202.4(c)-(k), (o).
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This rulemaking expands the available group registration options
because of several factors specifically impacting news websites. Along
with receiving requests from online publishers, the Office observed the
increase in news content offered online and the dynamic nature of such
material.\5\ It also reviewed stakeholder comments in prior proceedings
that discussed the challenges associated with registering online news
content, including those submitted in response to its 2022 Copyright
Protections for Press Publishers report.\6\ Finally, the Office
acknowledged the deposit challenges associated with websites,
particularly news websites, in its 2011 publication titled Priorities
and Special Projects of the United States Copyright Office (October
2011-October 2013).\7\
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\5\ See 89 FR 311, 311-12 (Jan. 3, 2024).
\6\ U.S. Copyright Office, Copyright Protection for Press
Publishers (June 2022), https://copyright.gov/policy/publishersprotections/202206-Publishers-Protections-Study.pdf.
\7\ See 89 FR 311, 312.
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On January 3, 2024, the Office published a Notice of Proposed
Rulemaking (``NPRM'') to establish a new group registration option for
frequently updated news websites.\8\ The proposed rule would allow an
applicant to register a news website as a collective work (including
any individual component works it fully owns, such as literary works,
photographs, and/or graphics) \9\ with a deposit composed of
identifying material, rather than the complete contents of the website.
The proposed rule would also allow registration of the news website and
any updates published within one calendar month, if the deposit
evidences a sufficiently creative selection, coordination, or
arrangement within each collective work to constitute a copyrightable
compilation.\10\ Each
[[Page 58992]]
collective work must have been created as a work made for hire, with
the same person or entity named as both the author and copyright
claimant. The proposed rule stated that applicants would be required to
submit their claims through the online copyright registration system,
using the application currently in use for a group of newspaper
issues.\11\
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\8\ Id. at 311. The final rule defines a ``news website'' as ``a
website that is designed to be a primary source of written
information on current events, either local, national, or
international in scope, that contains a broad range of news on all
subjects and activities and is not limited to any specific subject
matter.'' 37 CFR 202.4(m)(1)(i).
\9\ Because the Office will not examine each component work
within the collective work, the copyright claimant bears the burden
of proving that it owns the individual component works claimed in
the submission.
\10\ A ``collective work'' is a type of compilation. See 17
U.S.C. 101. A ``compilation'' is ``a work formed by the collection
and assembling of preexisting materials or of data that are
selected, coordinated, or arranged in such a way that the resulting
work as a whole constitutes an original work of authorship.'' Id.
\11\ As noted in the NPRM, ``in appropriate circumstances, the
Office may waive the online filing requirement, subject to the
conditions the Associate Register of Copyrights and Director of the
Office of Registration Policy and Practice may impose.'' 89 FR 311,
316 n.55.
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The Office received twenty comments in response to the NPRM.\12\
All but one \13\ supported the Office's proposal to create the new
group registration option, though the majority requested various
modifications. Two commenters, however, expressly conditioned their
support on substantive changes to the rule, which would substantially
change its scope.\14\ In general, commenters were interested in
expanding eligibility for this option to a greater number of works and
changing the deposit requirement. Proposals included revising the
definition of ``news website,'' removing the work made for hire and
author/claimant requirements, increasing the time limitation for
updates to the news website, clarifying the ``home page'' deposit
requirement, and asking the Office to confirm the scope of remedies for
copyright infringement of a collective work.\15\ Finally, one commenter
encouraged the Office to ``identify opportunities for improvement'' and
to remain ``adaptive to technological changes.'' \16\
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\12\ The Office also received a letter from several
organizations reflecting their collective support for finalizing the
rulemaking in a timely manner and in-line edits to the Office's
proposed regulatory language. Letter from Ass'n of Am. Publishers et
al. to Suzanne Wilson, Gen. Counsel and Assoc. Register of
Copyrights (Apr. 4, 2024), https://www.copyright.gov/rulemaking/newswebsite/Association-of-American-Publishers-et-al%E2%80%93Letter-to-Copyright-Office.pdf.
\13\ See Am. Ass'n of Independent Music, Ass'n of Am.
Publishers, Inc, and Recording Industry Ass'n of Am., Inc. (``A2IM,
AAP, & RIAA'') Comment at 2 (``Commenters express no position on the
primary focus of the NPRM--whether the Office should create a new
group registration option for frequently updated news websites--or
on the details of how such an option should be implemented.'').
\14\ See generally Nat'l Writers Union, Nat'l Press
Photographers Ass'n, Nat'l Ass'n of Sci. Writers (``NWU, NPPA, &
NASW'') Comment; Gordon Firemark 2 Comment.
\15\ A handful of commenters also proposed that the Office
should adopt the NPRM immediately, as an interim rule. See, e.g.,
Copyright All. Comment at 11; Nat'l Pub. Radio (``NPR'') Comment at
3-5; News Media All. (``NMA'') Comment at 2.
\16\ Am. Bar Ass'n Section of Intell. Prop. L. (``ABA-IPL'')
Comment at 4.
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Having reviewed and carefully considered each of the comments, the
Office now issues a final rule that is nearly identical to the proposed
rule, with one modification reflecting concerns raised by some
commenters regarding the ``home page'' deposit requirement and one
modification concerning the application form for this option. These
modifications are discussed in more detail below. With respect to
requests that we received to expand the scope of the rule, the Office
will closely monitor how the new group option performs, including the
number and complexity of the claims submitted, the amount of time
needed to examine these claims, and the modest filing fee for this
option. The Office remains open to revisiting these issues in the
future based on this rule's performance.
II. Final Rule
A. Eligibility Requirements
1. Works That May Be Included in the Group
In the NPRM, the Office proposed to limit this group registration
option to updates to a ``news website,'' defined as ``a website that is
designed to be a primary source of written information on current
events, either local, national, or international in scope, that
contains a broad range of news on all subjects and activities and is
not limited to any specific subject matter.'' As described in the NPRM,
the proposed rule stems from the rapid development and predominance of
news websites over print newspapers,\17\ and requests from news
publishers for a feasible way to register ``newspaper websites'' that
are ``updated frequently.'' \18\ Thus, the proposed rule is an
extension of the existing group newspaper option that has been
available for decades.\19\ Consistent with the Compendium of U.S.
Copyright Office Practices, the proposed rule defines a ``website'' as
``a web page or set of interconnected web pages that are accessed using
a uniform resource locator (``URL'') organized under a particular
domain name.'' A number of commenters encouraged the Office to expand
the type of works eligible under the rule and recommended revisions to
both definitions.
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\17\ 89 FR at 311-12 (noting that ``[m]ore than eight in ten
Americans get news from digital devices, and, as of 2021, more than
half prefer digital platforms to access news'').
\18\ Id. (citing Newspaper Association of America Comments at
12-18, Submitted in Response to July 15, 2009 Notice of Proposed
Rulemaking, Mandatory Deposit of Published Electronic Works
Available Only Online, U.S. Copyright Office Dkt. No. 2009-3 (Aug.
31, 2009) (emphasis omitted), https://www.copyright.gov/rulemaking/online-only/comments/naa.pdf).
\19\ 37 CFR 202.4(e). The Office's definition of newspapers is
based on the Library of Congress's collection policy definition.
Library of Congress, Collections Policy Statements: Newspapers--
United States 1 (Sept. 2023), https://www.loc.gov/acq/devpol/neu.pdf.
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i. Constitutional Challenge
Before turning to the requests to expand the rule, the Office
addresses the argument made by a small number of commenters that the
proposed group registration option would violate the First Amendment by
limiting the option to a particular type of work. In a joint comment,
NWU, NPPA, and NASW stated that restricting the option to ``news''
websites constitutes ``[c]ontent-based discrimination,'' which they
considered ``[c]onstitutionally suspect and subject to strict
scrutiny'' that the rule ``cannot meet.'' \20\ In support of this
argument, they cited Arkansas Writers Project v. Ragland, 481 U.S. 221
(1987), which reviewed a state sales tax scheme that taxed general
interest magazines, but exempted newspapers and religious, professional
trade, and sports journals. Because Arkansas ``advanced no compelling
justification for selective, content-based taxation of certain
magazines,'' the Supreme Court held the tax scheme invalid under the
First Amendment.\21\ Analogizing the tax scheme in Arkansas Writers
Project to the proposed registration option, NWU, NPPA, and NASW argued
that the exclusion of any web content that does not meet the ``news
website'' definition is unconstitutional.\22\
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\20\ NWU, NPPA, & NASW Comment at 12-13; Gordon Firemark 2
Comment (asserting that ``the proposed regulation is not Content
Neutral, as required under the First Amendment'').
\21\ Arkansas Writers Project, 481 U.S. at 234.
\22\ NWU, NPPA, & NASW Comment at 12-13.
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Aligned with NWU, NPPA, and NASW, another commenter, Gordon
Firemark, contended that, by limiting the group option to updates to
news websites, the proposed rule ``excludes other types of content from
[its] benefits'' and denies content creators ``relief from the burdens
of the current system.'' \23\ He argued that recent Supreme Court
precedent concerning trademark registration requires a content-neutral
approach.\24\
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\23\ Gordon Firemark 2 Comment.
\24\ Id. (citing Iancu v. Brunetti, 139 S. Ct. 2294 (2019), and
Matal v. Tam, 582 U.S. 218 (2017)).
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The Office disagrees with these arguments. It is correct that the
Supreme Court has held that content-based laws--laws restricting or
compelling
[[Page 58993]]
speech based on its communicative content--are presumptively
unconstitutional,\25\ and subject to strict scrutiny, under which the
government must show that the law is the ``least restrictive means'' of
advancing a ``compelling'' governmental interest.\26\ A regulation can
be content-based ``on its face,'' if its text applies to speech based
on the subject matter, topic, or viewpoint of that speech. It can also
be content-based if it has a discriminatory purpose that ``cannot be
justified without reference to the content of the regulated speech'' or
was ``adopted by the government because of disagreement with the
message'' conveyed.\27\ However, a regulation that places ``a
differential burden on speakers is insufficient by itself to raise
First Amendment concerns.'' \28\ The tax scheme in Arkansas Writers
Project was found to violate these principles by being directed at
particular subjects, thus targeting a small group within the press.\29\
That is not the case here.
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\25\ Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015).
\26\ Sable Commc'ns of Cal. v. FCC, 492 U.S. 115, 126 (1989).
\27\ Reed, 576 U.S. at 164 (internal quotes omitted).
\28\ Leathers v. Medlock, 499 U.S. 439, 452-53 (1991) (citing
Mabee v. White Plains Publ'g Co., 327 U.S. 178 (1946), and Oklahoma
Press Publ'g Co. v. Walling, 327 U.S. 186 (1946)).
\29\ Arkansas Writers Project, 481 U.S. at 229 (finding the tax
scheme impermissibly targets a small group of the press because
``the magazine exemption means that only a few Arkansas magazines
pay any sales tax'').
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The Office's proposed group registration option is not analogous to
the unconstitutional tax statute in Arkansas Writers Project for
multiple reasons. First, the option does not restrict or compel speech
based on its communicative content. Nor does it favor or disfavor
particular topics or subjects, or exclude a small group of the
press.\30\ Instead the option is available for updates to news websites
that contain a broad range of topics regardless of the content of the
speech involved.
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\30\ Arkansas Writers Project, 481 U.S. at 229-30.
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Second, the registration option is viewpoint neutral and operates
not as a restriction on speech, but as a condition for qualifying for
one of many options available to register copyrights, including online
websites and other publications. The Standard Application is available
to any type of author for any type of work within the statutory
categories.\31\ Group registration options are discretionary
accommodations offered by the Office in a number of areas. Currently,
the Office administers ten group options covering unpublished works,
short online literary works, works on an album of music, serials,
newspapers, newsletters, contributions to periodicals, published and
unpublished photographs, automated databases, and secure test
items.\32\ For online publications, group serials and group newsletters
are other registration options for publications that fall outside of
the ``newspaper'' or ``news website'' definitions.
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\31\ 37 CFR 202.3(b)(2)(i)(A).
\32\ See generally id. at 202.4.
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The Supreme Court's recent ruling in a case involving trademark
regulations supports the Office's view. There the Court reviewed a rule
of the U.S. Patent and Trademark Office (``USPTO'') barring the
registration of trademarks that use the names of particular living
individuals without their written consent.\33\ The Court held that this
bar, though content-based, is viewpoint neutral and does not violate
the First Amendment.\34\ The Court noted that while its precedents
``distinguish between content-based and content-neutral regulations of
speech,'' \35\ they further distinguish ``a particularly `egregious
form of content discrimination'--viewpoint discrimination,'' which
targets not merely a subject matter, ``but particular views taken by
speakers on a subject.'' \36\ The Court identified ``[s]everal features
of trademark [law]'' that ``counsel against a per se rule of applying
heightened scrutiny to viewpoint-neutral, but content-based trademark
regulations.'' Most notably, it found that ``trademark rights have
always coexisted with the First Amendment, despite the fact that
trademark protection necessarily requires content-based distinctions.''
\37\ Accordingly, the Court held that USPTO's ``content-based, but
viewpoint-neutral, trademark restriction [ ] is compatible with the
First Amendment.'' \38\
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\33\ Vidal v. Elster, No. 22-704, slip op. at 1 (2024).
\34\ Id.
\35\ Id. at 4 (2024) (quoting National Institute of Family and
Life Advocates v. Becerra, 585 U.S. 755, 766 (2018)).
\36\ Id. (2024) (quoting Rosenberger v. Rector and Visitors of
Univ. of Va., 515 U. S. 819, 829 (1995)).
\37\ Id. at 6.
\38\ Id. at 12.
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Similarly, copyright registration, and the broad administrative
classification authority Congress granted to the Register, necessarily
requires content-based distinctions. Indeed, since its passage in 1976,
the Copyright Act has authorized the Register ``to specify by
regulation the administrative classes into which works are to be placed
for purposes of deposit and registration'' and to permit ``for
particular classes, the deposit of identifying material instead of
copies or phonorecords, the deposit of only one copy or phonorecord
where two would normally be required, or a single registration for a
group of related works.'' \39\ Like the USPTO's name bar, these
administrative distinctions are not based on the particular views taken
by authors and have always coexisted with the First Amendment. The
addition of an administrative classification for this new group
registration option, which adopts near-identical criteria for
determining ``news'' content to that of the existing group option for
newspapers, is ``a matter of policy and discretion'' \40\ fully
compatible with the First Amendment.
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\39\ 17 U.S.C. 408(c)(1) (emphasis added).
\40\ Leathers, 499 U.S. at 452 (quoting Regan v. Taxation with
Representation, 461 U.S. 540, 549 (1983)).
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Further, unlike the viewpoint-based trademark provisions held
unconstitutional for barring registration of scandalous or disparaging
marks,\41\ the Office's viewpoint-neutral administrative classification
does not bar registration for non-news content or websites. Quite the
opposite: to increase participation in the registration system, the
Office has created several group options for the registration of works
that are published online.\42\ The Standard Application also remains
available to any type of author for any type of work within the
statutory categories. This rule does not prevent anyone's ability to
register non-news works.
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\41\ See Gordon Firemark 2 Comment (citing Iancu v. Brunetti,
139 S. Ct. 2294 (2019), and Matal v. Tam, 582 U.S. 218 (2017)).
\42\ See, e.g., 85 FR 37341, 37345 (June 22, 2020) (final rule
for group registration of short online literary works); 83 FR 61546,
61546-48 (Nov. 30, 2018) (final rule for group registration of
newsletters and serials); 82 FR 29410, 29410-11 (June 29, 2017)
(final rule for group registration of contributions to periodicals).
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ii. News Website Limitation
Multiple commenters urged the Office to expand the rule's
definition of ``news website'' by removing the condition that the
website must contain news on all subjects and activities.\43\ In
encouraging
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the Office ``not to exclude . . . specialized websites,'' the ABA-IPL
noted that the ``proposed rule may provide especially meaningful
benefit to smaller news websites--including those that focus on certain
`specific subject matter.' '' \44\ HBP argued that ``websites, like
HBR.org, that focus on a particular area of news . . . still face the
same registration problems afflicting all news websites.'' \45\ The
Authors Guild also expressed concern that the rule would exclude more
specialized news publications, such as those that focus on political
news. It argued that ``these publications clearly qualify as news
websites under any ordinary understanding of that term.'' \46\
Relatedly, commenters claimed that content restrictions ``put[ ]
examiners in an untenable position of deciding what is or is not
`news.' '' \47\ Finally, four commenters asked the Office to abandon
the ``news website'' definition and extend the group option ``to any
periodically-produced content distributed through the internet.'' \48\
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\43\ See ABA-IPL Comment at 2; Am. Intell. Prop. L. Ass'n
(``AIPLA'') Comment at 1 (``We encourage the Office to reconsider
[the definition of `news website'] and clarify the final clause--
`not limited to any specific subject matter'--which could be
construed as excluding news websites with an industry-specific focus
(e.g., wired.com), and thus unnecessarily limiting access to this
group registration option.''); Copyright All. Comment at 4 (``We
urge deletion of the phrase `. . . on all subjects and activities
and is not limited to any specific subject matter' in the proposed
rule . . . .''); Harvard Bus. Publ'g (``HBP'') Comment; Nat'l Ass'n
of Broad. (``NAB'') Comment at 3; NWU, NPPA, & NASW Comment at 12-
13; NMA Comment at 8; The Authors Guild Comment at 2; see also
Letter from Ass'n of Am. Publishers et al. to Suzanne Wilson, Gen.
Counsel and Assoc. Register of Copyrights (Apr. 4, 2024).
\44\ ABA-IPL Comment at 2.
\45\ HBP Comment.
\46\ The Authors Guild Comment at 1-2.
\47\ John Murphy Comment; The Authors Guild Comment at 2
(arguing that ``making eligibility determinations based on the
substantive content of the materials submitted for registration . .
. goes well beyond the Office's ordinary examination process'').
\48\ Gordon Firemark 1 Comment; see NWU, NPPA, & NASW at 12-13;
Brenda Ulrich Comment; John Murphy Comment.
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After considering this request and in the interest of implementing
this final rule as quickly as possible, the Office declines to revise
the definition at this time. As an extension of the newspaper group
option, the ``news website'' definition is modeled on the Office's
longstanding regulation defining a ``newspaper'' as a publication that
is ``mainly designed to be a primary source of written information on
current events, either local, national, or international in scope,''
that ``contains a broad range of news on all subjects and activities
and is not limited to any specific subject matter.'' \49\ This
definition is very broad and it is intended to ``make any newspaper
eligible for a group registration.'' \50\ It is also intended to
distinguish a ``newspaper'' from a ``newsletter,'' which is defined
elsewhere in the regulations as a publication that contains ``news or
information that is chiefly of interest to a special group, such as
trade and professional associations, colleges, schools, or churches.''
\51\
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\49\ 37 CFR 202.4(e)(1).
\50\ 82 FR 51369, 51371 (Nov. 6, 2017).
\51\ 37 CFR 202.4(f)(1)(i).
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Under this definition, newspapers are aimed at any member of the
general public who may be interested in newsworthy information or
events that are reported on a given day.\52\ By applying a similar
definition to websites, the final rule recognizes that ``news
websites'' are also intended to have universal appeal.
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\52\ Id. at 202.4(e)(1) (``Newspapers are intended either for
the general public or for a particular ethnic, cultural, or national
group'').
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This definition would encompass news websites that cover current
events and provide information on diverse topics, including some
political websites like those identified in the Authors Guild's
comment.\53\ Although these sites focus primarily on issues involving
politics and events with political implications, they do not limit
their coverage to a particular subject matter nor are they directed at
narrow or discrete groups of readers.\54\
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\53\ The Authors Guild Comment at 1-2.
\54\ Cf. 37 CFR 202.4(f)(1)(i) (designed for newsletters that
``contain news or information that is chiefly of interest to a
special group'').
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The Office also disagrees with commenters that the ``news website''
eligibility requirement places a burden on examiners. Indeed, the
definitions for ``news website'' and ``newspaper'' are similar, in
part, to enable consistent application of both rules. Examiners are
accustomed to assessing eligibility based on this definition.
However, if the definition proves too rigid or unworkable, the
Office is willing to revisit this issue based on its experience in
administering this rule. Importantly, however, this new group option is
not intended to extend to the websites of all serials or newsletters,
which in print or ePrint form have the benefit of separate group
registration options.\55\
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\55\ Group registration of serials provides a registration
option for serial issues within a three-month period that meet the
eligibility requirements for that option. Id. at 202.4(d)(1). Group
registration of newsletters provides an option for registering a
group of newsletters published within a one-month period. Id. at
202.4(f)(1).
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iii. Website Limitation
The Office received requests to expand the rule beyond websites.
Commenters recommended that the proposed rule be amended to include
mobile applications (``apps'') in the definition of ``website.'' \56\
They argued that ``[m]any news publishers encourage users to access
content on an app rather than a website.'' \57\
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\56\ Copyright All. Comment at 6; NAB Comment at 4; NMA Comment
at 10.
\57\ The Authors Guild Comment at 2; Copyright All. Comment at
6; NAB Comment at 4.
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The Office declines to amend the definition. It considers an app to
be ``a computer program that is used directly or indirectly in a
computer or handheld electronic device.'' \58\ The Office has a
procedure for registering the underlying code that operates the
app.\59\ To the extent that news publishers seek to register the works
published on the app, a registration for a newspaper or a news website
would protect those works if they contain the same content.
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\58\ U.S. Copyright Office, Compendium of U.S. Copyright Office
Practices sec. 722 (3d ed. 2021) (``Compendium (Third)'').
\59\ Id.
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AIPLA encouraged the Office to revise the definition of ``website''
to clarify that a website is not limited to content accessed using a
single domain name.\60\ It explained that ``web pages are composed of
various elements, like text, images, and videos'' that ``might be
hosted on a different server than the one hosting the main web page for
reasons such as efficiency, speed, and cost.'' \61\ The Office
appreciates this distinction but declines to revise the definition. To
qualify for this option, each collective work in the group must be
published under one particular domain name. For registration purposes,
the Office does not assess eligibility based on where component digital
works may be stored. The Office believes the ``particular web page''
requirement is necessary to prevent applicants from using the option to
register collective works published under different domain names on the
same application, which would make it difficult to identify the website
that is covered by the registration. Therefore, the final rule retains
the definition proposed in the NPRM.
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\60\ AIPLA Comment at 1-2.
\61\ Id.
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2. Scope of Collective Work
The proposed rule provides that claims registered under this option
will be limited to the collective work authorship based on the
selection, coordination, and/or arrangement of the individual component
works, and that all parts of the collective work will constitute one
work for purposes of 17 U.S.C. 504(c)(1).\62\ Additionally, the
[[Page 58995]]
Office made clear that the registration will also cover the individual
contributions contained within the collective work if they are fully
owned by the copyright claimant and were first published in that work.
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\62\ In the NPRM, the Office also noted that when a website is
registered as a compilation, the statute provides that the copyright
owner may seek only one award of statutory damages for infringement
of the compilation as a whole--rather than a separate award for each
individual work that appears on the website--even if the defendant
infringed all of the works covered by the registration. 17 U.S.C.
504(c)(1) (``For the purposes of this subsection, all the parts of a
compilation or derivative work constitute one work.''). Some
commenters urged the Office to acknowledge and adopt the ``
`independent economic value' test to determine when copyrighted
material constitutes a separate `work' for the purpose of
determining eligibility for statutory damages.'' A2IM, AAP, & RIAA
Comment at 2-3; Copyright All. Comment at 8; NAB Comment at 6-8.
Acknowledging that the NPRM correctly states ``that the group
registration option will extend to individual works that make up the
collective work if they are fully owned by the applicant,'' NMA
asked the Office to confirm that its statement ``do[es] not reflect
a substantive opinion on eligibility for statutory damages.'' NMA
Comment at 11-12. The Office stands by its restatement of section
504(c)(1) and declines to address the matter further in this
rulemaking. See H.R. Rep. No. 94-1476, at 162 (1976), reprinted in
1976 U.S.C.C.A.N. 5659, 5770 (``Subsection (c)(1) makes clear,
however, that, although they are regarded as independent works for
other purposes, `all the parts of a compilation or derivative work
constitute one work' for this purpose.'').
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NPR asked the Office to confirm that ``the scope of the collective
work will explicitly include all copyrightable contributions made by
the claimant, not just textual works.'' \63\ As noted above, a ``news
website'' is defined as ``a website that is designed to be a primary
source of written information.'' \64\ If the collective work contains
individual contributions that are fully owned by the copyright claimant
and were first published in the work, then the registration will cover
those contributions, so long as they are copyrightable subject matter.
However, a component work ``that is perceptible to the user only by
downloading or separately purchasing that particular work is not
considered part of the website for registration purposes and must be
registered separately.'' \65\ Additionally, any ``externally linked
content [i.e., content residing on another website] is not considered
part of the website's content for registration purposes.'' \66\
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\63\ NPR Comment at 7.
\64\ 37 CFR 202.4(m)(1)(i) (emphasis added).
\65\ Compendium (Third) sec. 1002.2.
\66\ Id.
---------------------------------------------------------------------------
HBP recommended that the Office permit applicants to disclaim
content that is licensed and not owned by the applicant. As with group
newspapers, the Office does not see the need for a limitation of claim
for news websites, because the proposed rule expressly states that
``[e]ach update to the website must be [an original] collective work.''
A registration issued by the Office pursuant to this rule will only
cover the new contributions owned by the copyright claimant. Consistent
with any collective work registration, any articles, photos, or other
contributions included in the collective work that were previously
published, previously registered, owned by another party, or in the
public domain are automatically excluded from the claim. As a practical
matter, therefore, a disclaimer to expressly exclude material in the
application is unnecessary.
Port. Prerogative Club asked the Office to ``[c]larify whether
updates to numerical information, such as prices, volumes, retweets, or
other metrics, qualify as registrable under the rule, and whether the
Office has changed its policy on the registrability of short phrases
and headlines.'' The Office states that its longstanding regulation
denying protection for words and short phrases has not changed.\67\
Regarding ``prices, volumes, retweets, or other metrics,'' it is
unclear whether the commenter is referring to individual works of
authorship, or whether these items appear in a compilation. Individual
numbers and short phrases are not copyrightable. However, a
copyrightable compilation of these items may be registrable.
---------------------------------------------------------------------------
\67\ See 37 CFR 202.1(a).
---------------------------------------------------------------------------
3. One-Month Limitation
The proposed rule permits an applicant to include updates published
on the same website within the same calendar month. Three commenters
urged the Office to remove the limitation, arguing that it is too
``onerous.'' \68\ NPR recommended that the Office allow for the option
to cover ``three months, or six months, or a calendar year'' to
``reduce registration costs.'' \69\ Noting that ``attorneys' fees and
statutory damages can be awarded as long as copyright is registered
within three months of first publication,'' NWU, NPPA, and NASW
requested that the rule be amended to allow registration of updates
published ``during any specified three-month period.'' \70\
---------------------------------------------------------------------------
\68\ John Murphy Comment; see NPR Comment at 5 (``[T]he office
should further relax the frequency''); NWU, NPPA, & NASW Comment at
16-17.
\69\ NPR Comment at 5.
\70\ NWU, NPPA, & NASW Comment at 16.
---------------------------------------------------------------------------
At this time, given administrative capabilities, the Office cannot
expand the option to cover more than one month of updates. As the NPRM
explained, to deliver the option promptly, and to minimize development
time, the Office is adapting the existing group application for
newspapers, which is used to register up to one month of newspaper
issues and contains technical validations that prevent applicants from
entering publication dates that are more than one month apart. Changing
the limit would require additional modifications to the application and
delay implementation of the final rule. Further, the Office seeks an
appropriate balance between the interests of copyright owners and the
administrative burden to the Office. Based on the modest fee set for
this option, some limit on the number of works included in each claim
is necessary. The Office will reassess whether the limit can be
increased after it has gained sufficient experience administering the
rule.
4. Authorship, Ownership, and Work Made for Hire Requirements
Under the proposed rule, to be eligible for the option, each
collective work in the group must have been created as a work made for
hire, with the same person or entity named as the author and copyright
claimant. Multiple commenters questioned this requirement.\71\ The
Authors Guild argued that the work made for hire requirement
``arbitrarily and unfairly confines the benefit of the rule to
corporate entities even where other creators are producing
substantially the same type of content.'' \72\ While they recognized
that this requirement reflects practical and technical limitations, NMA
and AIPLA noted that ``there does not seem to be a fundamental reason
for such a limitation in principle, and in many business cases, the
work may be fully owned by the publisher, or obtained via assignment or
operation of law.'' \73\
---------------------------------------------------------------------------
\71\ The Authors Guild Comment at 3; NWU, NPPA, & NASW Comment
at 11; NMA Comment at 11; AIPLA Comment at 2; Letter from Ass'n of
Am. Publishers et al. to Suzanne Wilson, Gen. Counsel and Assoc.
Register of Copyrights (Apr. 4, 2024).
\72\ The Authors Guild Comment at 3; NWU, NPPA, & NASW Comment
at 11.
\73\ NMA Comment at 11; AIPLA Comment at 2 (``[W]e see no clear
policy reason to disfavor registration of copyrights acquired
through other means (e.g., by assignment).'').
---------------------------------------------------------------------------
The Office acknowledges that the work made for hire requirement may
not reflect every business case of ownership. However, this requirement
streamlines the registration procedures, which, as noted above, will
adapt the existing group application option for newspapers. Under that
option, the same person or entity must be named as the author and
copyright claimant, and each issue must be a work made for hire. The
Office retains the same requirements for the news websites option to
minimize the need for additional development time that would otherwise
be required.
[[Page 58996]]
Additionally, under general Copyright Office practice, if the
author and claimant are not the same person, the applicant is
statutorily required to provide a transfer statement explaining how the
claimant acquired all of the rights initially belonging to the
author.\74\ If an applicant names a third party as the copyright
claimant, but fails to provide a transfer statement, then the Office
must correspond to determine whether the claimant actually owns all of
the exclusive rights in the works, which delays the registration
decision. The corresponding additional time and costs that the Office
would incur are inconsistent with the reduced fee for examination of
multiple collective works.
---------------------------------------------------------------------------
\74\ Compendium (Third) sec. 620.4.
---------------------------------------------------------------------------
Moreover, imposing a work made for hire limitation is consistent
with the goal of this rulemaking, which is to address obstacles to
registering online news content produced by news publishers, who often
also publish newspapers. Based on its experience with the existing
group newspaper registrations, the Office expects that this requirement
will produce an optimal public record, while reducing the
administrative burden that these claims impose. The final rule
accordingly retains the work made for hire requirement. Applicants who
do not qualify for the option may still register their works
individually using the Standard Application.
5. Subjects of Inquiry
i. Permitted Additional Title Information
The Office invited public comments on whether it should give
applicants the opportunity to provide additional information, such as
individual article or photograph titles, as part of this group
registration option. Commenters expressed support for the
implementation of an opportunity to include granular information
concerning individual component works at the applicant's
discretion.\75\ The Authors Guild noted that ``in the event an
individual article is the subject of a later infringement action, the
applicant may need to rely on its own recordkeeping to establish that
the article was on the website during the period covered by the
registration.'' \76\ It concluded, ``[t]he listing of individual titles
or other information on the application may provide additional evidence
relevant to that showing.'' \77\ The Office agrees and will provide
instructions on its website explaining how applicants may submit
additional information regarding component works on an optional
basis.\78\
---------------------------------------------------------------------------
\75\ ABA-IPL Comment at 3; AIPLA Comment at 2; Copyright All.
Comment at 6-7; NAB Comment at 5; NMA Comment at 7; The Authors
Guild Comment at 4.
\76\ The Authors Guild Comment at 4.
\77\ Id.
\78\ Note, however, the Office will not certify the accuracy of
such additional information based on the identifying material
deposited.
---------------------------------------------------------------------------
ii. Permitted Archived URLs
The Office also invited public comments on the availability and
effectiveness of technological solutions for saving or archiving
websites that could assist or supplement news websites' recordkeeping
efforts while also informing the public of the contents of the website
and/or any updates registered. The Office suggested that applicants may
provide in the ``Note to Office'' field additional information
regarding the contents of the work, such as archived URLs that capture
the complete content of each collective work submitted for
registration. The Copyright Alliance expressed support for this
suggestion, provided that doing so is voluntary.\79\ Therefore the
Office encourages applicants to submit archived URLs in the ``Note to
Office'' field on a voluntary basis.
---------------------------------------------------------------------------
\79\ Copyright All. Comment at 7.
---------------------------------------------------------------------------
B. Filing Fee
The NPRM provided that the filing fee for this option will be $95,
the same fee that currently applies to a claim in a group of
newspapers. It noted that the Office believes it is reasonable to
charge the same fee as for the group newspaper option, given the
similarities in expected workflow associated with examining these
claims. The NMA expressed support for this modest fee, describing it as
``reasonable and unarbitrary.'' \80\ The final rule establishes this
fee.
---------------------------------------------------------------------------
\80\ NMA Comment at 7.
---------------------------------------------------------------------------
C. Deposit Requirements
The NPRM proposed that for each collective work submitted under
this group registration option, applicants must ``submit a deposit that
is sufficient to identify some of the updates that were made to the
website.'' \81\ The Office specified that ``applicants will need to
submit separate PDF files that each contain a complete copy of the home
page for the site. Each PDF must show how the home page appeared at a
specific point during each day of the calendar month when new updates
were published on the site.'' \82\ Additionally, the NPRM required that
each deposit demonstrate ``that the home page contains a sufficient
degree of selection, coordination, and/or arrangement to be registered
as a collective work.'' \83\ Several commenters requested that the
Office consider different deposit requirements, though commenters
varied on the specific changes they requested or discussed deposits
generally. The Office addresses each suggested change below.
---------------------------------------------------------------------------
\81\ 89 FR at 316.
\82\ Id.
\83\ Id.
---------------------------------------------------------------------------
1. ``Home Page'' Requirement
i. Timing of Deposit Capture
After considering NMA's request to resolve a purported ambiguity in
the proposed rule regarding the time of day for daily deposits of home
pages, the Office is clarifying the time period for capturing
deposits.\84\ The language within section (m)(6)(i) requiring ``[e]ach
PDF [to] show how the home page appeared at a specific point during
each day of the calendar month'' does not require applicants to capture
PDFs of home pages at the same exact time every day.\85\ Instead, PDFs
of home pages must show how the home page appeared at some point during
each day, in addition to satisfying other applicable deposit
requirements.
---------------------------------------------------------------------------
\84\ NMA Comment at 11.
\85\ 37 CFR 202.4(m)(6)(i) (emphasis added); see also 89 FR at
316 (``Each PDF must show how the home page appeared at a specific
point during each day of the calendar month when new updates were
published on the site.'').
---------------------------------------------------------------------------
ii. ``Complete Copy''
Three commenters specifically requested that the Office expand the
identifying material it will accept to encompass more than ``a complete
copy of the home page for the site.'' \86\ The NAB stated that ``the
Office should amend the deposit requirements proposed in Sec.
202.4(m)(6)(i) to allow for the submission of a copy of identifying
material in lieu of a complete copy of the home page.'' \87\ It
explained that ``many news websites utilize an `infinite scroll'
feature that automatically and continuously loads more content as users
scroll down the web page'' making
[[Page 58997]]
it ``technologically impossible for an applicant to satisfy the deposit
requirement of providing a PDF of the home page in its entirety.'' \88\
Copyright Alliance echoed this sentiment stating ``a user is able to
continuously reveal additional content on the web page without having
to leave the page to view the content on a separate web page. For such
web pages, it is not possible to capture an `entire copy' of the page
since the user can endlessly reveal the contents of the page.'' \89\
Similarly, NMA noted that, due to the difficulties posed by ``extensive
or close-to-infinite scroll,'' the Office should clarify that an
applicant could meet the deposit requirement ``as long as [the PDF]
captures the masthead, URL identifier, and a defined minimum amount of
the homepage (which in most cases will encompass all of it), including
representative updates from the previous deposit copy.'' \90\
---------------------------------------------------------------------------
\86\ Copyright Alliance Comment at 10-11; NAB Comment at 4-5;
NMA Comment at 11. See also Letter from Ass'n of Am. Publishers et
al. to Suzanne Wilson, Gen. Counsel and Assoc. Register of
Copyrights at App. at 2 (Apr. 4, 2024) (proposing regulatory
language altering the deposit requirement when ``a complete copy is
technically unfeasible or unreadable due to the size or continuous
nature of the home page''); Nexstar Media Group Inc. Comment
(stating that Nexstar ``would like to see even more modification of
the requirements for article submission, so that each local
television station or other news site would not be required to have
dedicated staff purely for depositing copyrighted materials, which
may be updated several times per day'').
\87\ NAB Comment at 5.
\88\ Id.
\89\ Copyright All. Comment at 10-11.
\90\ NMA Comment at 11.
---------------------------------------------------------------------------
After considering these comments, the Office concludes that the
requested modification to the proposed rule is reasonable and supports
the overall goal of this group registration option. Accordingly, the
final rule includes an alternative to the ``complete copy of the home
page'' requirement where submitting a complete copy is not feasible due
to the size or continuous nature of the home page. In such
circumstances, applicants may ``submit the first 25 pages of the home
page that demonstrates updates from the previous deposit copy.'' This
portion of the rule is designed to decrease the burden on applicants
that wish to utilize this group registration option, but are unable to
satisfy the ``complete copy'' deposit requirement. The Office believes
that this modification will facilitate registration, while also
ensuring that the deposit provided is sufficient to identify the work
and the copyrightable authorship covered by the registration.
Applicants utilizing this provision are advised that any deposit should
only include updates within the time period covered by the application.
In the event that an applicant includes updates outside the time
period, they would be considered previously published material, and
would not be covered by the registration. Additionally, as stated in
the NPRM, if a copyright owner is required to prove to a court or an
alleged infringer ``the specific contents of a website at any
particular point in time, it will need to preserve and maintain its own
copy of the site and rely on its own recordkeeping to provide such
proof.'' \91\
---------------------------------------------------------------------------
\91\ 89 FR at 316.
---------------------------------------------------------------------------
2. Site Maps
NWU, NPPA, and NASW disagreed that a home page would constitute
sufficient identifying material for registration.\92\ They asserted
that ``requiring deposit of PDFs of images of the home page is
disconnected from the reality that updates aren't necessarily visible
on the `home page' of a website.'' \93\ While ``[u]pdates appear on the
home pages of some--but far from all--newspaper publishers' websites,''
the home pages of other websites, such as self-published or references
websites, are ``mostly or entirely static,'' with updates occurring on
other ``inside'' pages that are not indexed or referenced on the home
page.\94\ Instead, NWU, NPPA, and NASW suggested that the Office accept
a ``sitemap page or set of sitemap pages,'' ``as the way to indicate
which pages of a site have most recently been added or modified, and
when.'' \95\ Sitemaps, they alleged, ``are structured, standardized,
machine-readable, and human-readable'' and ``all updates in a given
period can be identified by a single sitemap or set of sitemaps,''
which the Office could ``use[ ] immediately.'' \96\
---------------------------------------------------------------------------
\92\ NWU, NPPA, & NASW Comment at 17-20.
\93\ Id.
\94\ Id.
\95\ Id.; see also id. at 20 (proposing ``submission of `a file
or set of files linked from a master file listing in structured form
the text files on the site added or modified during the time period
covered by the application, including the URL and the date each file
was added to the site or most recently modified' '').
\96\ Id. at 17, 20. NWU, NPPA, and NASW asserted that ``the
`sitemap.xml' standard has been widely accepted and adopted by
website publishers, web publishing platforms, and developers of
content management systems (CMSs).'' Id. at 17-18.
---------------------------------------------------------------------------
The Office declines to permit applicants to submit a sitemap page
or a set of sitemap pages as identifying material for several reasons.
First, it is not clear that sitemaps themselves provide information
that would allow an examiner to determine whether each collective work
within the group application contains sufficient creative selection,
coordination, or arrangement.\97\ Second, sitemaps do not satisfy the
public notice function that deposits serve, as they do not display the
work requested for registration and are not sufficient to identify the
updates made to the websites.\98\ As explained in the NPRM, any deposit
requirement must ``satisfy the public notice function of capturing, and
making available for public inspection, a deposit that should be
sufficient to identify'' the work covered by the application.\99\
Lastly, accepting sitemap deposits would likely not aid in efficiency
as suggested.\100\ If an examiner receives a sitemap, they would likely
need to correspond with the applicant to determine what exactly the
application covers. For these reasons, the Office declines to modify
the final rule to include sitemaps.
---------------------------------------------------------------------------
\97\ See 17 U.S.C. 410(a); Compendium (Third) sec. 204.3
(``[D]eposit copy(ies) should be clear and should contain all the
authorship that the applicant intends to register.''). This finding
is bolstered by the examples cited in NWU, NPPA, and NASW's comment,
which do not provide any information that would allow the examiner
to determine any copyrightability of the collective work. See NWU,
NPPA, & NASW Comment at 18 nn.19-22; id. at 19 nn.23-26.
\98\ See H.R. Rep. No. 94-1476, at 153 (1976), reprinted in 1976
U.S.C.C.A.N. 5659, 5769 (``As a general rule the deposit of more
than a tear sheet or similar fraction of a collective work is needed
to identify the contribution properly and to show the form in which
it was published.'').
\99\ 89 FR at 316.
\100\ See NWU, NPPA, & NASW Comment at 20 (suggesting that
sitemaps ``could be used immediately in manual Copyright Office work
flow but would also lend themselves to efficiencies through
automated parsing'').
---------------------------------------------------------------------------
3. Additional Deposit Suggestions
Commenters also suggested that the Office accept deposits comprised
of annotated Portable Document Formats (``PDFs'') \101\ or PDF deposits
of apps.\102\ Specifically, one commenter encouraged the Office to
consider accepting annotated PDFs of a single web page, where
``[a]nnotations could circle content that is not included in
registration, such as licensed content as compared to original news
organization content'' or ``content already registered.'' \103\ Other
commenters, including Copyright Alliance, NMA, and the Authors Guild,
proposed that the Office should accept PDFs that ``contain a complete
copy of the home page of . . . mobile application[s].'' \104\
[[Page 58998]]
They discussed the ease with which applicants could submit app PDFs
\105\ and how PDFs address record-keeping concerns and ``concerns over
whether the collective works stem from the same source.'' \106\
Copyright Alliance and NMA also suggested that the absence of a uniform
resource locator (``URL'') from app PDFs, a requirement of the proposed
rule, is immaterial because apps ``generally prominently feature the
logo or other visible identifier of the publication in question'' and
news content on an app is ``organized and contained,'' similar to a
website.\107\ NMA further recommended that because the USPTO has ``long
accepted'' app screenshots for trademark specimens, subject to certain
requirements, the Office should adopt similar standards.\108\
---------------------------------------------------------------------------
\101\ Erik Gottlieb Comment.
\102\ Copyright All. Comment at 6; NMA Comment at 10; The
Authors Guild Comment at 2. See also Letter from Ass'n of Am.
Publishers et al. to Suzanne Wilson, Gen. Counsel and Assoc.
Register of Copyrights at 1 & App. at 2 (Apr. 4, 2024) (proposing
the Office ``include[e] mobile app content in the scope of the
rule''). The Office also received a comment from Port. Prerogative
Club, suggesting that the Office ``evaluate whether native [version
control systems (``VCS'')] files would satisfy [the Office's]
internal requirements for deposit copies.'' Port. Prerogative Club
Comment at 2. The Office currently does not accept this file format,
but will revisit file formats as part of its ongoing work in
developing the Enterprise Copyright System.
\103\ Erik Gottlieb Comment.
\104\ NMA Comment at App. at 16 (proposing regulatory language).
See Copyright All. Comment at 6; NMA Comment at 10; The Authors
Guild Comment at 2. See also Letter from Ass'n of Am. Publishers et
al. to Suzanne Wilson, Gen. Counsel and Assoc. Register of
Copyrights at 1 & App. at 2 (Apr. 4, 2024) (proposing the Office
``includ[e] mobile app content in the scope of the rule'').
\105\ Copyright All. Comment at 6; The Authors Guild Comment at
2.
\106\ Copyright All. Comment at 6.
\107\ Id. (noting that ``news content on an app is already
organized and contained in an interconnected and uniform ecosystem,
much like a website''); NMA Comment at 10 (stating that app
screenshots serve the same ``identifying function as URLs'').
\108\ NMA Comment at 10.
---------------------------------------------------------------------------
The Office declines to permit parties to submit annotated PDFs of a
single web page. As discussed above, each update will be registered as
a collective work. For that reason, there is no need to identify
component works that are not owned by the claimant or component works
that have been previously registered, because as a general rule, a
registration for a collective work does not cover this type of
preexisting material.
The Office also declines to accept PDF deposits of apps to
represent a news website. Initially, it is unclear whether the
selection, coordination, and/or arrangement of material encompassed
within the PDFs would be identical to the selection, coordination, and/
or arrangement of a website's home page, regardless of whether the same
content is present on both.\109\ Further, the Office continues to
believe that the rule's deposit regulations offer flexibility, while
still satisfying the public notice function of deposits. The regulation
will permit applicants to submit a complete copy of the website's home
page, and when that is not feasible due to the size or continuous
nature of the home page, applicants may submit the first 25 pages of
the home page demonstrating updates from the previous deposit copy.
---------------------------------------------------------------------------
\109\ See 89 FR at 313 (``[T]he organization and arrangement
show in a PDF package may vary depending on whether it depicts the
website as it would appear on a desktop computer, a mobile phone or
other electronic device.''). But cf. ABA-IPL Comment at 4 (``The
Section is aware of no substantive difference between what is
published at a URL and what is published on an app.'').
---------------------------------------------------------------------------
4. Other Comments
Commenters made additional suggestions and remarks on the proposed
rule's deposit requirements and the Office's deposit requirements
generally. With respect to the Office's modernization efforts, ABA-IPL
suggested that the Office consider generally expanding the ``format of
deposit copies accepted'' and regularly reviewing and updating
registration regulations.\110\ ABA-IPL stated that the Office should
accept deposits in .xml format for regularly updated news content, such
as content covered under the proposed rule, ``as [.xml] and similar
formats are widely used in digital content creation and management.''
\111\ The University of Michigan Library (``UM-Library'') expressed
concerns with the proposed regulations regarding fixation and
preservation.\112\ They asserted that the proposed deposit requirements
are not ``sufficiently fixed for copyright purposes'' and that if
deposit ``materials are not collected and preserved--even as facsimiles
or through emulation--then as a practical matter there will be a huge
gap in the possibilities for research, scholarship, and
understanding.''
---------------------------------------------------------------------------
\110\ ABA-IPL Comment at 4-5.
\111\ Id. at 4.
\112\ UM-Library Comment at 1-2.
---------------------------------------------------------------------------
The Office is sympathetic to commenters' desires to expand the file
formats accepted for deposit purposes generally, including regularly
updated news content. As stated above and in the NPRM, the current
registration system only accepts certain file types.\113\ The Office
anticipates revisiting its acceptable file formats in connection with
ongoing improvements to its technology systems. Until then, the Office
continues to actively engage in research about the suitability of other
file formats.\114\
---------------------------------------------------------------------------
\113\ 89 FR at 313; see also eCO Acceptable File Types, U.S.
Copyright Office, https://www.copyright.gov/eco/help-file-types.html
(last visited July 5, 2024) (listing acceptable file formats).
\114\ For example, the Office is researching the web archive
file format (``WARC'') that is utilized by the Library of Congress'
Web Archiving Team. Research has shown that there are many publicly
available options for adapting websites in the WARC format,
including through internet browser extensions.
---------------------------------------------------------------------------
The Office appreciates the fixation and preservation concerns about
the proposed deposit requirements, codified in the final rule. It
continues to believe, however, that the deposit requirements are
sufficient. As stated above and in the NPRM, the Copyright Act imbues
the Register with broad authority to accept identifying material in
lieu of complete copies or phonorecords \115\ where such copies or
phonorecords are ``bulky, unwieldly, easily broken, or otherwise
impractical to [serve] . . . as records identifying the work[s]
registered.'' \116\ This provision, and its legislative history, give
the Register flexibility in determining the deposit requirements when
identifying material is involved, and the Office has used this
authority in the past. Within this rulemaking, the Office believes the
proposed deposit requirements are appropriate, and less burdensome than
general deposit requirements for websites.\117\ As the Office discussed
in the NPRM, the proposed deposit requirements satisfy the public
notice function and still require that deposits sufficiently ``identify
some of the updates'' made to the website.\118\ Any fixation concerns
may be alleviated by the fact that the proposed regulations are merely
registration deposit requirements. They do not relieve a registrant
from complying with other legal obligations, such as the obligation to
maintain and preserve copies of a website, including its content, in
the context of an infringement claim.\119\
---------------------------------------------------------------------------
\115\ 17 U.S.C. 408(c)(1); see also 89 FR at 311 (discussing
identifying material).
\116\ H.R. Rep. No. 94-1496, at 154 (1976), reprinted in 1976
U.S.C.C.A.N. 5659, 5770.
\117\ See 89 FR at 313, 316 (discussing how depositing complete
copies of websites poses difficulties for applicants and the
Office).
\118\ Id. at 316.
\119\ Id.
---------------------------------------------------------------------------
E. Application Requirements
The NPRM explained that the Office planned to use one of its
existing group registration application forms to process these claims.
Specifically, it said applicants would be required to submit their
claims through the current electronic registration system using the
application designated for a group of newspaper issues. None of the
commenters objected to this proposal.
After consulting with the Library of Congress's Office of the Chief
Information Officer, the Office determined that it would be feasible to
create a separate application for news website claims that will be
cloned from the corresponding application that is used for group
newspaper claims. This should simplify the registration process for
both applicants and Office staff by preventing potential confusion
between claims involving newspaper issues and claims involving updates
to a news website. The cloned application will include the same
technical specifications and system validations that appear in the
group newspaper
[[Page 58999]]
form. The final rule has been modified to reflect this change.
Information and instructions on how to submit these claims will be
provided in the application itself and on a dedicated page on the
Office's website.
F. Conclusion
Based on requests from affected parties for the expeditious
implementation of the rule \120\ and the absence of arguments
supporting a delay, the Office finds that good cause exists to issue
these regulations as a final rule with an immediate effective date.
Commenters have presented a record supporting ``the demonstrable
urgency of the conditions [the rule is] designed to correct.'' \121\
Finally, the registration option authorized by the final rule will be
available to registrants at or near the rule's publication date.
---------------------------------------------------------------------------
\120\ See Letter from Ass'n of Am. Publishers et al. to Suzanne
Wilson, Gen. Counsel and Assoc. Register of Copyrights (Apr. 4,
2024); Copyright All. Comment at 11.
\121\ H.R. Rep. No. 79-1980, at 260 (1946). See 5 U.S.C. 553(d)
(30-day notice not required where agency finds good cause).
---------------------------------------------------------------------------
List of Subjects
37 CFR Part 201
Copyright, General provisions.
37 CFR Part 202
Copyright, Copyright claims, preregistration and registration.
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
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
Section 201.10 also issued under 17 U.S.C. 304.
0
2. In Sec. 201.3, amend table 1 to paragraph (c) by redesignating
paragraphs (c)(12) through (c)(29) as (c)(13) through (c)(30),
respectively, and adding a new paragraph (c)(12) to read as follows:
Sec. 201.3 Fees for registration, recordation, and related services,
special services, and services performed by the Licensing Section and
the Copyright Claims Board.
* * * * *
(c) * * *
Table 1 to Paragraph (c)
------------------------------------------------------------------------
Registration, recordation, and related services Fees ($)
------------------------------------------------------------------------
* * * * * * *
(12) Registration of a group of updates to a news 95
website...............................................
* * * * * * *
------------------------------------------------------------------------
* * * * *
PART 202--PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT
0
3. The authority citation for part 202 continues to read as follows:
Authority: 17 U.S.C. 408(f), 702.
0
4. Amend Sec. 202.4 by adding paragraph (m) and revising paragraph (r)
to read as follows:
Sec. 202.4 Group registration.
* * * * *
(m) Group registration of updates to a news website. Pursuant to
the authority granted by 17 U.S.C. 408(c)(1), the Register of
Copyrights has determined that a group of updates to a news website may
be registered with one application, the required deposit, and the
filing fee required by Sec. 201.3 of this chapter, with each update
being registered as a collective work, if the following conditions are
met:
(1) Definitions. For the purposes of this paragraph (m):
(i) News website means a website that is designed to be a primary
source of written information on current events, either local,
national, or international in scope, that contains a broad range of
news on all subjects and activities and is not limited to any specific
subject matter.
(ii) Website means a web page or set of interconnected web pages
that are accessed using a uniform resource locator (``URL'') organized
under a particular domain name.
(2) Requirements for collective works. Each update to the website
must be a collective work, and the claim must be limited to the
collective work.
(3) Author and claimant. Each collective work in the group must be
a work made for hire, and the author and claimant for each collective
work must be the same person or organization.
(4) Updates must be from one news website; time period covered.
Each collective work in the group must be published on the same news
website under the same URL, and they must be published within the same
calendar month. The applicant must identify the earliest and latest
date that the collective works were published.
(5) Application. The applicant must complete and submit the online
application designated for a group of updates to a news website. The
application may be submitted by any of the parties listed in Sec.
202.3(c)(1).
(6) Deposit. (i) For each collective work within the group, the
applicant must submit identifying material from the news website. For
these purposes ``identifying material'' shall mean separate Portable
Document Format (PDF) files that each contain a complete copy of the
home page of the website. In case a complete copy is technically
unfeasible due to the size or continuous nature of the home page, the
applicant may submit the first 25 pages of the home page that
demonstrates updates from the previous deposit copy. Each PDF must show
how the home page appeared at a specific point during each day of the
calendar month when new updates were published on the website.
(ii) The identifying material must demonstrate that the home page
contains sufficient selection, coordination, and arrangement authorship
to be registered as a collective work If the home page does not
demonstrate sufficient compilation authorship, the deposit should
include as many additional pages as necessary to demonstrate that the
updates to the news website can be registered as a collective work.
(iii) The identifying material must be submitted through the
electronic registration system, and all of the
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identifying material that was published on a particular date must be
contained in the same electronic file. The files must be submitted in
PDF format, they must be assembled in an orderly form, and each file
must be uploaded to the electronic registration system as an individual
electronic file (i.e., not .zip files). The file size for each uploaded
file must not exceed 500 megabytes, but files may be compressed to
comply with this requirement.
(7) Special relief. In an exceptional case, the Copyright Office
may waive the online filing requirement set forth in paragraph (m)(5)
of this section or may grant special relief from the deposit
requirement under Sec. 202.20(d) of this chapter, subject to such
conditions as the Associate Register of Copyrights and Director of the
Office of Registration Policy and Practice may impose on the applicant.
* * * * *
(r) The scope of a group registration. When the Office issues a
group registration under paragraph (d), (e), or (f) of this section,
the registration covers each issue in the group and each issue is
registered as a separate work or a separate collective work (as the
case may be). When the Office issues a group registration under
paragraphs (c), (g), (h), (i), (j), (k), or (o) of this section, the
registration covers each work in the group and each work is registered
as a separate work. When the Office issues a group registration under
paragraph (m) of this section, the registration covers each update in
the group, and each update is registered as a separate collective work.
For purposes of registration, the group as a whole is not considered a
compilation, a collective work, or a derivative work under section 101,
103(b), or 504(c)(1) of title 17 of the United States Code.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2024-15880 Filed 7-19-24; 8:45 am]
BILLING CODE 1410-30-P