[Federal Register: May 5, 2000 (Volume 65, Number 88)]
[Proposed Rules]
[Page 26162-26166]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 202
[Docket No. RM 95-7B]
Registration of Claims to Copyright, Group Registration of
Photographs
AGENCY: Copyright Office, Library of Congress.
ACTION: Proposed regulations with request for comments.
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SUMMARY: The Copyright Office of the Library of Congress is proposing
regulations to facilitate group registration of published photographs.
These proposed regulations differ significantly from regulations
proposed earlier in this rulemaking proceeding, as they require the
deposit of the actual photographic images, rather than merely written
identifying descriptions, for registration purposes and as they pertain
only to published photographs. This option for group registration of
photographs is available only for registration of works by an
individual photographer which are published within one calendar year.
In addition, the Office also proposes to liberalize the deposit
requirements for groups of unpublished photographs registered as
unpublished collections. The Office is seeking comments only on these
proposals.
DATES: Written comments on the proposed regulations should be received
on or before June 19, 2000.
ADDRESSES: If sent BY MAIL, an original and 15 copies of written
comments should be addressed to David O. Carson, General Counsel,
Copyright GC/I&R, P.O. Box 70400, Southwest Station, Washington, DC
20024. If delivered by hand, an original and 15 copies should be
brought to: Office of the Copyright General Counsel, James Madison
Memorial Building, Room LM-403, 101 Independence Avenue, SE.,
Washington, DC 20559.
FOR FURTHER INFORMATION CONTACT: David Carson, General Counsel, or
Patricia L. Sinn, Senior Attorney Advisor, Telephone: (202) 707-8380.
Fax: (202) 707-8366.
SUPPLEMENTARY INFORMATION:
I. Background
Registration of a copyright can be made at any time during the term
of statutory protection; however, with the exception of a three-month
grace period dating from first publication, the law prohibits the award
of statutory damages or attorney's fees where a work has not been
registered before infringement occurs. 17 U.S.C. 412.
Under the 1976 Copyright Act, as amended, an applicant may register
a claim in an original work of authorship with the Copyright Office by
submitting a completed application, a fee, and a deposit of copies of
the work to be registered. The nature of the copy to be deposited is
set out in the statute in general terms, e.g., one complete copy or
phonorecord of an unpublished work,
[[Page 26163]]
and two complete copies or phonorecords of the best edition of a
published work if first published in the United States. 17 U.S.C.
408(b). The Register of Copyrights may require or permit the deposit of
identifying material instead of copies or phonorecords; and the
Register may allow a single registration for a group of related works.
17 U.S.C. 408(c).
A. Legislative Intent
In explaining section 408(c), the House Judiciary Committee noted
that it was intended to give the Register of Copyrights ``latitude in
adjusting the type of material deposited to the needs of the
registration system.'' H. R. Rep. No. 94-1476, at 153 (1976). It stated
that ``Where the copies or phonorecords are bulky, unwieldy, easily
broken, or otherwise impractical to file and retain as records
identifying the work registered, the Register would be able to require
or permit the substitute deposit of material that would better serve
the purpose of identification. Cases of this sort might include, for
example, billboard posters, toys and dolls, ceramics and glassware,
costume jewelry, and a wide range of three-dimensional objects
embodying copyrighted material. The Register's authority would also
extend to rare or extremely valuable copies which would be burdensome
or impossible to deposit.'' Id. at 154 (emphasis added).
Finally, Congress noted that the provision empowering the Register
to allow a number of related works to be registered together as a group
``represents a needed and important liberalization of the law now in
effect. At present the requirement for separate registrations where
related works or parts of a work are published separately has created
administrative problems and has resulted in unnecessary burdens and
expense on authors and other copyright owners.'' Id. A group of
photographs by one photographer was cited as one example where these
results could be avoided by allowing a group registration.
B. Registration Concerns Expressed by Photographers
For some time the Copyright Office has been working with
photographers to devise a registration system that works more
effectively for photographers who have said that they find it difficult
to register the many images they create due to concerns of time, effort
and expense. At the same time, the procedure adopted must meet the
requirement that the deposit adequately identify the work registered.
Photographers have urged that the nature of much photography, where
thousands of images may be created, particularly by free-lance
photographers, with only a few images, if any, being published, makes
registration difficult. They assert that at the time registration may
be sought, the photographer may not know which photographs, if any,
will be or have been published. Often a photographer's film is turned
over to another party which processes and uses the images, leaving the
photographer with nothing to deposit with the Copyright Office for
registration purposes.
In an attempt to make registration easier for such photographers,
the Office expanded its procedures regarding deposit materials for two
and three dimensional works of the visual arts. For example, the Office
accepts the deposit of a videotape or filmstrip as identifying material
for collections of unpublished photographs. Despite the liberalization
of deposit procedures, many photographers continued to urge that the
requirement that they deposit a visual image of each photograph covered
in the registration precludes them from registering. They claim that
while they have been given a legal right by the copyright law, they
have no effective remedy, thus leading to continued infringement of
their works.
During congressional hearings on the proposed Copyright Reform Act
of 1993, photographers stated that they could not take advantage of the
benefits of copyright registration because the Office's practices were
too burdensome in terms of the time and cost required to submit a copy
of each image included in a collection of photographs.\1\
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\1\ See Copyright Reform Act of 1993: Hearings on H.R. 897
Before the Subcomm. on Intellectual Property and Judicial
Administration of the House Comm. on the Judiciary, 103d Cong., 1st
Sess. 370-72 (1993). See also, Copyright Reform Act of 1993: Hearing
on S. 373 Before the Subcomm. on Patents, Copyrights and Trademarks
of the Senate Comm. on the Judiciary, 103d Cong., 1st Sess. 169
(1993).
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In June, 1993, the Librarian of Congress appointed an Advisory
Committee on Copyright Registration and Deposit (ACCORD) to advise him
``concerning the impact and implications of the [proposed] Copyright
Reform Act of 1993. . .'' Library of Congress, Advisory Committee on
Copyright Registration and Deposit, Report of the Co-Chairs, vii
(1993). The Committee recommended that the Office expand ``the use of
group registration and optional deposit to reduce the present burdens''
and ``consult more actively and frequently with present and potential
registrants to hear their problems and to respond to them whenever
possible.'' Id. at 20.
C. Office's Further Attempts to Address Photographer's Concerns.
After the ACCORD report was issued, the Copyright Office met with
photographers and their representatives and sought a workable solution
for photographers which would not cause unforeseen problems for
publishers, photofinishers, and other users of photographs. On December
4, 1995, the Office initiated a rulemaking proceeding by publishing
proposed regulations with a request for comments. 60 FR 61657 (Dec. 4,
1995). The proposed regulations would have permitted individual
photographers and photography businesses to make group registrations of
mixed unpublished and published photographs with the deposit of
identifying material consisting of written descriptions of the photos
in a particular grouping rather than copies of individual photo images.
The notice of proposed rulemaking also framed questions regarding
possible consequences of adopting the proposed regulations which were
much more liberal than anything the Office had previously proposed.
The proposed regulations elicited a great deal of controversy. In
an effort to reach consensus, the Office held a public hearing and
provided for an additional comment period. See 61 FR 28829 (June 6,
1996).\2\ Some respondents approved the proposed regulations, in whole
or in part, as aiding photographers in their desire for access to legal
remedies. Others raised a number of concerns, the most serious of which
is the value of the copyright deposit as an identification of the work
registered and the question of whether descriptive identifying material
serves as well as the deposit of the complete image of a photograph for
a court's purposes. Some respondents claimed that based on past
experience, it was likely that the proposed regulations would promote
frivolous litigation targeting parties who unknowingly reproduced
copies of copyrighted photographs without the copyright owner's
permission. In response to this concern, industry representatives
presented a set of proposed guidelines that not only would be followed
by industry members who had previously agreed to them, but also were
proposed to be included in, or referenced by, the Office's final
regulations.
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\2\ All comments and the transcript of the June 26, 1996, public
meeting are available for inspection in the Copyright Office Public
Information Office.
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Another controversial issue highlighted by commenters was whether
registration claimants who decided to use proposed group registration
[[Page 26164]]
procedures would (or could), by making that choice, be forced by
provisions of the industry agreement to waive rights to statutory
damages and attorney's fees in innocent infringement determinations.
Further comments concerned other registration requirements, identifying
deposit information, effective date of registration, and consumer
education about copyright law.
Professor Peter Jaszi, a member of the ACCORD advisory committee,
asserted that although some specific and limited suggestions about how
to address photographers' concerns were incorporated in recommendations
made by the Librarian of Congress' advisory group ACCORD in response to
the proposed 1993 Copyright Reform Act, ``there is little if anything
in the ACCORD record which lends support to such a far-reaching
revision of registration and deposit practice'' as was contained in the
Office's proposed group registration regulations. Jaszi reply comments
in RM 95-7 at 1.
D. Further Reflection on the 1995 Proposal
When the Office opened this rulemaking proceeding in 1995, its
goals were to determine how to modify registration and deposit
procedures to ensure deposit of works for the record, to register works
to protect claimants, and ultimately to benefit the public by providing
access to information on copyright status and ownership of photographic
works. Its efforts to further liberalize deposit provisions for
photographers led to what seemed insurmountable differences about the
purpose of the copyright deposit which could not be resolved to the
satisfaction of all interested parties. Although the rulemaking
proceeding has remained open for a considerable period of time, the
Office has continued to consider the issues raised in the proceeding
and in other contexts (e.g., the adjustment of registration fees and
other statutory fees). It has also determined that it should reexamine
the purpose of the section 408 copyright deposit for all classes of
works and expects to publish a Notice of Inquiry to begin the study
this year. Meanwhile, 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.
The Office has decided that it should move forward with a more
modest proposal which would permit group registration of related
published photographs. Since this rulemaking proceeding commenced in
1995, there have been advances in the technology that permits the
taking and/or preservation of photographs in digital form, and in the
commercial availability of such technology. The Office expects that
such advances over the next several years will make identification and
imaging of photographs for registration purposes even easier so that
registration will become more readily available for photographers.
II. Group Registration of Photographs Published in the Same
Calendar Year
Continued reflection on the issue suggested a possible alternative
that would give many photographers a more flexible group registration
procedure by permitting registration of multiple photographs created by
one photographer which are published on different dates but in the same
calendar year. The Office is now proposing regulations that would
permit such an alternative. A.
A. Works Covered and Required Identification.
Each submission for group registration must contain photographs by
an individual photographer that were all published \3\ within the same
calendar year. The claimant(s) for all photographs in the group must be
the same. The date of publication for each photograph must be indicated
either on the individual image or on the registration application or
application continuation sheet in such a manner that for each
photograph in the group, it is possible to ascertain the date of its
publication. However, the Office will not catalog individual dates of
publication; the Copyright Office catalog will include the single
publication date or range of publication dates indicated on the Form
VA. If the claimant uses a continuation sheet to provide details such
as date of publication for each photograph, the certificate of
registration will incorporate the continuation sheet, and copies of the
certificate may be obtained from the Copyright Office and reviewed in
the Office's Card Catalog room.
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\3\ The definition of ``publication'' in the 1976 Copyright Act,
as amended, is as follows: ``Publication'' is the distribution of
copies or phonorecords of a work to the public by sale or other
transfer of ownership, or by rental, lease, or lending. The offering
to distribute copies or phonorecords to a group of persons for
purposes of further distribution, public performance, or public
display, constitutes publication. A public performance or display of
a work does not of itself constitute publication. 17 U.S.C. 101.
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The Office notes that although it will accept group registration
claims for all photographs published within a calendar year, an
applicant who wishes to ensure that he is eligible for statutory
damages and attorney's fees must register within three months of
publication. 17 U.S.C. 412. Applicants would be well-advised to submit
a group registration claim within each three-month period in which any
photographs in the group were published.
The Office recognizes that some commenters have previously
expressed the view that photographers sometimes have difficulty knowing
exactly when--or even whether \4\--a particular photograph has been
published. With respect to date of publication, it should be noted that
the Office's longstanding practices permit the claimant some
flexibility in determining the appropriate date. See, e.g., Compendium
of Copyright Office Practices, Compendium II, Sec. 910.02 (1984)
(Choice of a date of first publication).\5\
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\4\ The Compendium of Copyright Office Practices, Compendium II,
Sec. 904 states the Office's general practice with respect to
publication, including that ``The Office will ordinarily not attempt
to decide whether or not publication has occurred but will generally
leave this decision to the applicant.''
\5\ ``1) Where the applicant is uncertain as to which of several
possible dates to choose, it is generally advisable to choose the
earliest date, to avoid implication of an attempt to lengthen the
copyright term, or any other period prescribed by the statute. ``2)
When the exact date is not known, the best approximate date may be
chosen. In such cases, qualifying language such as `approximately,'
`on or about,' `circa,' `no later than,' and `no earlier than,' will
generally not be questioned.''
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Notwithstanding such concerns, the Office has concluded that it
cannot establish a group registration procedure that permits claimants
to include both published and unpublished photographs within a single
group registration due to their inability to determine whether a
particular photograph has been published. A procedure permitting
inclusion of both published and unpublished works in a single
registration would be unprecedented and would ignore critical
distinctions between the copyright law's treatment of published works
and its treatment of unpublished works. See, e.g., 1 Melville B. Nimmer
and David Nimmer, Nimmer on Copyright Sec. 4.01[A] (1999). Moreover, an
application for copyright registration must identify the date and
nation of first publication for each published work. 17 U.S.C. 409(8).
That statutory requirement would be inconsistent with a procedure that
permitted claimants to refrain from identifying whether a particular
photograph has been published.
The Office also requests comments on whether applications for group
registration of photographs should be permitted to state a range of
dates of up to three months (e.g., January 1-March
[[Page 26165]]
31, 2001) in which all the photographs in the group were published,
rather than stating specific dates of publication for each photograph.
The Office would consider such an alternative only if it were persuaded
that requiring specific dates of publication for each photograph would
impose an unjustifiable and burdensome hardship on photographers, and
that the advantages (to claimants and to the public record) of such an
alternative would outweigh its disadvantages.
The Office believes that it would be beneficial and would create a
clearer public record if claimants are required to number the
photographs in a group consecutively (e.g., from 1 to 500), and to
indicate the number of each photograph on or affixed to the individual
image of the photograph that is deposited. The Office requests comments
on whether such a requirement would be desirable.
B. Use of the Appropriate Form, Deposit, and Fee
To register qualified works as a group, an applicant should submit
an application Form VA, with the appropriate fee and a deposit
consisting of an image of each photograph included in the group. The
statutory requirement of a deposit of two complete copies of the best
edition of each published photograph is waived, and a claimant may
submit a single copy of each image in any of the following formats:
Iimages in digital form on CD-ROM or DVD-ROM; single images (prints, at
least 3 inches by 3 inches and preferably archivally-processed on
fiber-based paper); contact sheets (preferably archivally-processed on
fiber-based paper); slides with single images; slides each containing
up to 36 images; or multiple images on video tape. In addition, any or
all of the photographs may be deposited in the format in which they
were originally published, such as clippings from a newspaper or
magazine. The Office seeks comment on whether there are other formats
for deposit of full images of photographs that will minimize the burden
on photographers while providing the Office and the public record with
accessible and usable images. The Office also seeks comment on what
file formats should be acceptable for photographs submitted on CD-ROM.
The Office also seeks comments on whether it should provide an
optional specialized continuation sheet, similar to Form GR/CP (the
adjunct application form for group registration of contributions to
periodicals), which could provide specific information (e.g., title or
other description, date of publication) about each photograph included
in the group.
C. How Many Photographs May Be Included in One Registration?
Due to administrative and workload considerations, a maximum of 500
photographs may be included in a single group registration. The
approximate number of photographs in the group submitted must be
indicated on the application.
D. Relationship of This New Procedure to Other Types of Registration of
Photographs
Registration and deposit requirements for unpublished photographs
remain unchanged, and may be found in 17 U.S.C. 408(b)(1) and 37 CFR
202.20(b)(1)(i), and (c)(4)(xix). Registration for individual
photographs may still be made using a Form VA, submitted with a
registration fee of $30.00 and a copy of the photograph which complies
with the existing deposit requirements found at 37 CFR 202.20.
Unpublished collections of photographs may be registered pursuant
to the requirements set forth in 37 CFR 202.3(b)(3). The new
liberalized deposit requirements of 37 CFR 202.20(c)(2)(xx), discussed
above in section C for group registration of published photographs,
shall also apply to deposit of unpublished collections of photographs.
Thus, photographers will be able to register groups of unpublished
photographs in much the same manner as that in which they can register
groups of published photographs.
III. Public Comment
The Copyright Office is seeking comment only on the rules proposed
in this notice. Reargument of issues raised earlier in this rulemaking
that have, at this point, been rejected by the Office (e.g., acceptance
of descriptive identifying material as deposits in lieu of actual
images) will not be productive. Following review of comments, the
Office will adopt final regulations. Interested parties are invited to
submit comments on the following points:
1. Under the proposed regulations, a claimant must identify the
date of publication of each image published within the same calendar
year and submitted for registration. As deposit copies, the Office will
accept images in digital form on CD-ROM or DVD-ROM; single images;
contact sheets; slides with single images; slides each containing up to
36 images; or multiple images on video tape. The Office will also
accept copies of the photographs in the formats in which they were
originally published (e.g., clippings from newspapers or magazines).
The final regulation will specify how dates must be provided for each
photograph in the group in such a way that for each photograph, one can
ascertain its date of publication. Recommendations about the best
methods for providing this information are invited now. In the proposed
regulations, applicants will have the option of identifying each
photograph and its date of publication separately on a continuation
sheet or of indicating the date of publication on each photograph
itself. For example, if separate photographic prints were deposited,
the date of publication of each photograph could be written on the back
of the print. However, for other formats (e.g., CD-ROM, slides
containing up to 36 images, videotapes, contact sheets), other ways of
indicating the date of publication for each image will be necessary.
A. Comments are invited on how the date of publication of each
photograph can be indicated on the deposit itself for deposits made in
such formats, and how each date can be connected to the pertinent
photograph.
B. Comments are also invited on how the date of publication of each
photograph can be indicated on a continuation sheet, and how each date
of publication entry on the continuation sheet can be related to a
particular photograph or photographs. For example, if the continuation
sheet is used, should each photograph be numbered consecutively; and
for each photograph, should that number be written or otherwise
indicated on the corresponding copy of the photograph that is
deposited?
C. Comments are also invited on whether the Office's general
continuation sheet, Form CON, should be used for this purpose or
whether the Office should provide an optional specialized continuation
sheet, similar to Form GR/CP (the adjunct application form for group
registration of contributions to periodicals), which could provide
specific information (e.g., title or other description, date of
publication) about each photograph included in the group.
2. Comments are invited on whether claimants should be required to
number the photographs in a group consecutively (e.g., from 1 to 500),
and to indicate the number of each photograph on or affixed to the
individual image of the photograph that is deposited. Would such a
numbering requirement assist in identifying dates of publication of
each photograph when a continuation sheet is used, as
[[Page 26166]]
suggested in question 1.B. above? Would such a requirement assist in
creating a clearer public record? How burdensome would such a
requirement be?
3. Should the Office accept deposits in formats other than those
mentioned in item 1? If so, what other formats should be accepted? Each
format must be capable of providing a complete image of each photograph
in the group.
4. For photographs submitted on CD-ROMs or in other electronic
formats, what file formats (e.g., JPEG, GIF, etc.) should be accepted,
and why?
5. As an alternative to requiring a claimant to provide the date of
publication of each photograph in the group, should the Office consider
offering the alternative of providing a range of dates over a three-
month period (e.g., January 1-March 31, 2001)? What would be the
advantages and disadvantages--to claimants and to the public record -of
such an approach?
List of Subjects in 37 CFR Part 202
Claims, Copyright.
Proposed Rule
In consideration of the foregoing, the Copyright Office proposes to
amend 37 CFR part 202 in the manner set forth below:
PART 202--REGISTRATION OF CLAIMS TO COPYRIGHT
1. The authority citation for part 202 is revised to read as
follows:
Authority: 17 U.S.C. 408, 702.
2. In section 202.3, paragraph (b)(9) is redesignated as paragraph
(b)(10), and a new paragraph (b)(9) is added to read as follows:
Sec. 202.3 Registration of copyright.
* * * * *
(b) * * *
(9) Group registration of published photographs. Pursuant to the
authority granted by 17 U.S.C. 408(c)(1), the Register of Copyrights
will accept a single application (on Form VA), deposit and filing fee
for registration of a group of at least two and no more than 500
photographic works if the following conditions are met:
(i) The author of all the photographic works submitted for
registration as part of the group must be the same person.
(ii) The copyright claimant in all of the photographic works must
be the same.
(iii) The photographs in the group must have been published within
the same calendar year.
(iv) The date of publication of each work within the group must be
identified either on the deposited image, on the application form, or
on a continuation sheet, in such a manner that one may specifically
identify the date of publication of any photograph in the group. If the
photographs in a group were not all published on the same date, the
range of dates of publication (e.g., January 1-March 31, 2001) should
be provided in space 3b of the application.
(v) The deposit(s) and application must be accompanied by the fee
set forth in Sec. 201.3(c) of this chapter for a basic registration
using Form VA.
(vi) The applicant must note on the application Form VA the
approximate number of photographs included in the group.
(vii) As an alternative to the best edition of the work, one copy
of each photographic work shall be submitted in one of the formats set
forth in Sec. 202.20(c)(2)(xx).
* * * * *
3. Section 202.20 is amended by adding a new paragraph (c)(2)(xx)
to read as follows:
Sec. 202.20 Deposit of copies and phonorecords for copyright
registration.
* * * * *
(c) * * *
(2) * * *
(xx) Photographs: group registration. For groups of photographs
registered with one application under Sec. 202.3(b)(3) or
Sec. 202.3(b)(9), photographs must be deposited in one of the following
formats (listed in the Library's order of preference):
(A) Digital form on one or more CD-ROMs (including C-RW's) or DVD-
ROMs;
(B) Unmounted prints measuring at least 3 inches by 3 inches (not
to exceed 20 inches by 24 inches) submitted on fiber-based paper;
(B) Contact sheets on fiber-based paper;
(C) Slides, each with a single image;
(E) The form in which each photograph was originally published
(e.g., clippings from newspapers or magazines);
(F) Slides, each containing up to 36 images; or
(G) A videotape clearly depicting each photograph.
* * * * *
Dated: April 25, 2000.
Marybeth Peters,
Register of Copyrights
Approved By:
James H. Billington,
The Librarian of Congress.
[FR Doc. 00-10986 Filed 5-4-00; 8:45 am]
BILLING CODE 1410-30-P