[Federal Register Volume 77, Number 131 (Monday, July 9, 2012)]
[Rules and Regulations]
[Pages 40268-40270]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16723]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. 2011-5]


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

AGENCY: Copyright Office, Library of Congress.

ACTION: Final rule.

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SUMMARY: The Copyright Office is amending its regulations governing the 
deposit requirements for applications for automated databases that 
consist predominantly of photographs. The amendments require that, in 
addition to providing material related to claimed compilation 
authorship, the deposits for such databases include the image of each 
photograph in which copyright is claimed.

DATES: Effective Date: This rule shall take effect August 8, 2012.

FOR FURTHER INFORMATION CONTACT: Robert Kasunic, Deputy General 
Counsel, Copyright GC/I&R, P.O. Box 70400, Washington, DC 20024-0400. 
Telephone (202) 707-8380; fax (202) 707-8366. All prior Federal 
Register notices and public comments in this docket are available at 
http://www.copyright.gov/docs/databases/.

SUPPLEMENTARY INFORMATION:

[[Page 40269]]

Background

    The Copyright Office has long allowed photographers to register 
groups or collections of photographs, including groups of either 
published or unpublished photographs when certain requirements are met. 
See 37 CFR 202.3(b)(4)(i)(A) and (B).
    Moreover, in 2001, after an extensive rulemaking proceeding, the 
Office adopted a group registration procedure for published photographs 
that complemented the existing procedure for registering a collection 
of unpublished works in a single registration. See Registration of 
Claims to Copyright; Group Registration of Photographs, 66 FR 37142 
(July 17, 2001) (codified at 37 CFR 202.3(b)(10)). The result was a new 
group registration procedure permitting registration of a group of 
published photographs, all taken by the same photographer and published 
within the same calendar year, upon submission of an application for 
registration and a deposit consisting of each of the images covered by 
the registration. At the same time, the Office liberalized its 
requirements with respect to acceptable formats of deposits of 
photographs for registrations of unpublished collections, as well as 
for the new group registration of published photographs option. See 37 
CFR 202.3(b)(1) and 202.20(c)(2)(xx). The 2001 regulations ensured that 
together, the registration record and the deposit would provide a 
sufficient record to identify the individual photographic works 
contained in the registered copyright claim.
    Despite the availability of these options, however, some applicants 
have registered groups of photographs using the registration option for 
automated databases. The group database registration option was first 
announced in 1989. See Registration of Claims to Copyright Registration 
and Deposit of Databases, 54 FR 13177 (March 31, 1989). It has been 
used to register databases consisting predominantly of photographic 
images since at least 1997. See, e.g., Registration No. VA 863-785 
(Corbis Digital Online Update Group, from March 18-June 30, 1997) 
(effective date Nov. 6, 1997). A published database may be registered 
as a compilation, and the group database registration provisions permit 
a single registration that covers up to three months' worth of updates 
and revisions to an automated database if 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.
    In the interim regulation establishing a pilot program for online 
applications for group registrations of databases consisting 
predominantly of photographic authorship, the Office included a 
requirement that the deposit accompanying such an online submission 
must include all individual photographs included in the claim. See 
Interim Rule, Registration of claims of copyright, 76 FR 4072-4076 
(January 24, 2011); 37 CFR 202.20(c)(vii)(D)(8).
    In addition to establishing the pilot program for online 
submissions, the interim rule announced that the Office would be 
reviewing the circumstances and conditions under which database 
registrations may be made and the extent to which, going forward, such 
registrations should continue to be deemed to cover not only the 
compilation authorship (i.e., the authorship involved in the selection, 
coordination and arrangement of the data and/or works assembled in a 
database) but also any or all of the individual works assembled in the 
database.\1\
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    \1\ Accordingly, and in light of the longstanding availability 
of the option of registering unpublished collections and the lengthy 
and carefully considered rulemaking that established the procedures 
for group registration of published photographs, the Office prefers 
and urges claimants to use those two options when registering groups 
of photographs rather than using the provisions for registration of 
automated databases.
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    In the interest of reconciling the deposit requirements for 
registrations consisting predominantly of photographs, on January 28, 
2011, the Office published a notice of proposed rulemaking to extend 
the requirement of a deposit of all of the individual images included 
in a claim to cases in which paper applications are used for group 
registration of databases consisting predominantly of photographic 
authorship. 76 FR 5106. The amendment would provide that, for any 
registration of an automated database consisting predominantly of 
photographs (whether the application is made by paper application or 
online pursuant to the Interim Regulation), the deposit shall include, 
in addition to the descriptive statement currently required under Sec.  
202.20(c)(2)(vii)(D)(5), all of the photographs included in the 
copyright claim being registered. 76 FR 5106. Identifying material 
would not constitute a sufficient deposit. While most applications for 
group registration of databases consisting predominantly of 
photographic authorship typically provide all of the photographs in the 
deposit, some submissions that comply with the current requirements for 
this group registration option do not include all of the photographs.

Public Comments

    The Copyright Office received three comments in response to the 
notice of proposed rulemaking. The comments generally supported the 
pilot program, the opportunity to register groups of published images 
by electronic submission, and the requirement of a more complete 
deposit.
    Comments submitted on behalf of the Picture Archive Council of 
America (PACA) and Public Knowledge both acknowledged that the proposed 
amendment would create a more complete public record. PACA specifically 
noted that a deposit of all photographs would ``avoid unnecessary 
disputes over whether a particular photograph is within the scope of 
the registration.'' Public Knowledge stated that the quick and accurate 
identification of a copyright owner is necessary for both the public 
and creators. It asserted that without this information, it is 
difficult to near impossible for the public to make use of the work, or 
for creators to be compensated for that use. Public Knowledge commented 
that the consequences of being unable to identify the owner of a work 
are ``vividly illustrated by the status of orphan works.'' Orphan works 
are works that may be protected by copyright, but cannot be licensed by 
the public because there is no way to identify or locate the actual 
owner of the works or the owners of particular rights.
    Comments submitted on behalf of the Professional Photographers of 
America, the Society of Sport & Event Photographers, the Student 
Photographic Society, Evidence Photographers International Council, and 
the Stock Artists Alliance (hereinafter ``PPA comments'') supported the 
pilot program and electronic registration options for photographic 
works in general. However, their comments also expressed concern that 
the proposed regulation would create ``double the effort'' for 
professional photographers who may have ``* * * already devised an 
automated system for cataloguing their creative work.'' The comments 
stated that the new deposit requirements would not create an additional 
incentive to register a database of images, and that a

[[Page 40270]]

photographer would be equally served to follow the existing process for 
registering groups of either published or unpublished work.
    Some comments proposed further clarification and/or procedures to 
improve the registration process in general, as well as improved online 
searching tools for copyright records.

Discussion

    Based on the reasoning expressed in the Notice of Proposed 
Rulemaking, and upon consideration of the public comments received, the 
Copyright Office concludes that when a registration is made for a 
database consisting predominantly of photographs, and the copyright 
claim extends to the individual photographs themselves, each of those 
photographs must be included as part of the deposit accompanying the 
application. As the Office has previously stated:

    [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 lead 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 3712, 37147 (July 17, 2001) (citations omitted). Identifying 
portions and a descriptive statement will no longer constitute a 
sufficient deposit. The requirement that all photographs covered by a 
registration are to be included as part of the deposit is in addition 
to the existing deposit requirements for identifying material 
(including a descriptive statement in the case of group registration 
for revised or updated versions of a database) set forth in Sec.  
202.20(c)(2)(vii)(D).
    While the Copyright Office recognizes that the proposed deposit 
requirements for automated databases consisting predominately of 
photographic authorship require the submission of additional material 
on the part of the photographer, the Office already requires this 
material for the all other registration options for published and 
unpublished photographs, as well as for online applications to register 
photographic databases. Moreover, the prevailing practice with respect 
to almost all registrations of predominantly photographic databases has 
been to include all of the photographs in the deposit.\2\ The 
regulation simply aligns the deposit requirements for paper 
applications to register automated databases that predominantly consist 
of photographs with the requirements already imposed for all other 
registration options for groups of photographs and with the prevailing 
industry practices. Moreover, it creates a better registration record 
by making it possible to determine which photographs are actually 
included in a particular group registration.
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    \2\ However, a very small number of applications are submitted 
with deposits consisting of only the bare minimum number of 
photographs required by the current regulations, resulting in a 
woefully inadequate deposit.
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Other Issues

    The Office notes the concerns expressed by commenters related to 
other registration and public record issues. Although they are outside 
the scope of the present rulemaking, the Office will take them into 
account as it endeavors to continue improving the copyright system for 
the benefit of creators and users of copyrighted works.
    Claimants submitting applications for group registration of 
photographic and other databases that select and arrange works 
protected by copyright and who intend to include claims in those 
component works within the scope of the registration are advised that 
it is in their interest to specifically identify (1) the author of each 
of the component works, and (2) for each author, the title of each of 
his or her component works on the application. A number of district 
courts have ruled that a certificate of registration that does not 
identify the author and title of a particular work does not cover that 
particular work. See, e.g., Alaska Stock, LLC v. Houghton Mifflin 
Harcourt Pub. Co. 2010 WL 3785720, No. 3:09-CV-0061-HRH 
(D.Alaska,2010); Bean v. Houghton Mifflin Harcourt Publishing Co., 2010 
WL 3168624, No. CV10-8034-PCT-DGC, (D.Ariz.,2010); Muench Photography, 
Inc. v. Houghton Mifflin Harcout Publishing Company, 712 F.Supp.2d 84 
(S.D.N.Y.2010). The Copyright Office is optimistic that those decisions 
will be overturned on appeal, but applicants who do not specifically 
identify each author and title run the risk that their registrations 
will be considered not to extend to each work in the group. And 
regardless of the outcome of that litigation, specific identification 
of each author and title creates a more accurate and informative public 
record. Applicants seeking guidance as to how to identify each author 
and title on a paper or electronic application should contact the 
Visual Arts Division at (202) 707-8202.
    In the next year, the Office is likely to propose additional 
regulatory amendments relating to various group registration options, 
including group registrations of automated databases, in part to 
address some of the issues that have arisen in the recent litigation.

List of Subjects in 37 CFR Part 202

    Copyright.

Amended Regulation

    In consideration of the foregoing, Part 202 of Title 37 of the Code 
of Federal Regulations is amended to read as follows:

PART 202-PREREGISTRATION AND REGISTRATION OF CLAIMS TO COPYRIGHT

0
1. The authority citation for part 202 continues to read as follows:

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


0
2. Amend Sec.  202.20 as follows:
0
a. In paragraph (c)(2)(vii)(D)(5) introductory text by removing 
``electronically submitted'' after ``or in the case of'';
0
b. In paragraph (c)(2)(vii)(D)(8) by removing ``submitted 
electronically'' after ``case of an application''; and
0
c. In paragraph (c)(2)(xx) introductory text remove ``registered with 
an application submitted electronically'' after ``and for automated 
databases that consist predominantly of photographs''.

    Dated: June 4, 2012.
Maria A. Pallante,
Register of Copyrights.

    Approved by:

James H. Billington,
The Librarian of Congress.
[FR Doc. 2012-16723 Filed 7-6-12; 8:45 am]
BILLING CODE 1410-30-P