[Federal Register Volume 77, Number 131 (Monday, July 9, 2012)]
[Rules and Regulations]
[Pages 40268-40270]
From the Federal Register Online via the Government Publishing 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published or unpublished photographs when certain requirements are met.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of unpublished works in a single registration.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photographs for registrations of unpublished collections, as well as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]
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