Notice2022-11953
Best Edition Study: Notice and Request for Public Comment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 3, 2022
Issuing agencies
Library of CongressCopyright Office, Library of Congress
Abstract
The U.S. Copyright Office is undertaking a public study at the request of Senator Thom Tillis to evaluate the deposit requirements of section 407 and 408 of the Copyright Act and consider whether "removing the `best edition' requirement from the registration deposit process in section 408 could help improve the registration process." To aid in its review of this topic, the Office is soliciting input from interested members of the public.
Full Text
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<title>Federal Register, Volume 87 Issue 107 (Friday, June 3, 2022)</title>
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[Federal Register Volume 87, Number 107 (Friday, June 3, 2022)]
[Notices]
[Pages 33836-33839]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-11953]
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LIBRARY OF CONGRESS
Copyright Office
[Docket No. 2022-3]
Best Edition Study: Notice and Request for Public Comment
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of inquiry.
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SUMMARY: The U.S. Copyright Office is undertaking a public study at the
request of Senator Thom Tillis to evaluate the deposit requirements of
section 407 and 408 of the Copyright Act and consider whether
``removing the `best edition' requirement from the registration deposit
process in section 408 could help improve the registration process.''
To aid in its review of this topic, the Office is soliciting input from
interested members of the public.
DATES: Written comments must be received no later than 11:59 p.m.
Eastern Time on July 18, 2022.
ADDRESSES: For reasons of government efficiency, the Copyright Office
is using the <a href="http://regulations.gov">regulations.gov</a> system for the submission and posting of
public comments in this proceeding. All comments are therefore to be
submitted electronically through <a href="http://regulations.gov">regulations.gov</a>. Specific instructions
for submitting comments are available on the Copyright Office website
at <a href="https://www.copyright.gov/policy/best-edition">https://www.copyright.gov/policy/best-edition</a>. If electronic
submission of comments is not feasible due to lack of access to a
computer and/or the internet, please contact the Office using the
contact information below for special instructions.
FOR FURTHER INFORMATION CONTACT: Megan Efthimiadis, Assistant to the
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#5c31393a281c3f332c252e353b3428723b332a"><span class="__cf_email__" data-cfemail="412c24273501222e313833282629356f262e37">[email protected]</span></a> or telephone at (202)
707-8350.
SUPPLEMENTARY INFORMATION: On May 24, 2021, Senator Thom Tillis sent a
letter seeking the Copyright Office's ``expertise and guidance
regarding adjusted copyright examination and registration
requirements.'' \1\ Specifically, Senator Tillis requested that the
Office complete ``a study regarding the feasibility of decoupling the
deposit requirements of Section 407 of Title 17 from Section 408.'' \2\
The letter states that ``[s]ome have asserted that'' decoupling ``could
help improve the registration process by permitting low resolution
digital deposits, for example.'' \3\ In conducting the study, Senator
Tillis asked the Office to consult with the Library of Congress to
address the Library's need to grow its collections, as well as to
consider the Office's own needs as part of the registration process.\4\
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\1\ Letter from Sen. Thom Tillis, Ranking Member, Subcomm. on
Intell. Prop. of the S. Comm. on the Judiciary, to Shira Perlmutter,
Reg. of Copyrights, U.S. Copyright Office 1 (May 24. 2021), <a href="https://www.copyright.gov/policy/best-edition/5-24-21-Ltr-USCO-Copyright-Examination-and-Registration-Requirements-Studies-Final.pdf">https://www.copyright.gov/policy/best-edition/5-24-21-Ltr-USCO-Copyright-Examination-and-Registration-Requirements-Studies-Final.pdf</a>.
\2\ Id.
\3\ Id.
\4\ Id.
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To guide its consideration of these issues, the Office is
soliciting public comments on topics related to this inquiry. These
comments will be used to inform the Office's discussions with the
Library and its consideration of the Office's needs with respect to
deposits for registration purposes.
[[Page 33837]]
I. Background
(A) Legal Background
The Copyright Act has two provisions requiring copyright owners to
deposit copies of their works. First, under section 407 of the Act,
once a copyrighted work is published in the United States, the
copyright owner must, within three months of publication, deposit ``two
complete copies of the best edition'' of the work with the Copyright
Office ``for the use or disposition of the Library of Congress.'' \5\
Second, under section 408, copyright owners who apply to register works
that have been published must generally include with their applications
a deposit that consists of ``two complete copies or phonorecords of the
best edition'' of their works.\6\ The term ``best edition,'' as used in
both section 407 and section 408 is defined as ``the edition, published
in the United States at any time before the date of deposit, that the
Library of Congress determines to be most suitable for its purposes.''
\7\
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\5\ 17 U.S.C. 407(a), (b). See generally 37 CFR 202.19, 202.20.
\6\ 17 U.S.C. 408(b)(2).
\7\ Id. 101. See also id. 407(b).
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Copyright owners can deposit a single set of best edition materials
that will satisfy their obligations under both sections 407 and 408.
Section 408 explicitly provides that deposits made to satisfy section
407 may also be used to satisfy the registration deposit requirement,
provided they are accompanied by a copyright application and fee.\8\
When applicants submit the required best edition copies with their
registration applications, the Office provides the Library with copies
of the materials that are within the Library's selection criteria for
addition to its collections.\9\
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\8\ Id. 408(b).
\9\ In many cases, the Copyright Office has issued regulations
to require only one copy instead of two. See, e.g., 37 CFR
202.19(d)(2)(vi) (permitting deposit of one complete copy of best
edition for literary monographs), 202.20(c)(2)(i)(E) (permitting
deposit of one complete copy of best edition of musical compositions
published in copies).
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Together, the deposits received pursuant to sections 407 and 408
allow the Library of Congress to grow its collection as the nation's
library. The Copyright Office generally transfers over 700,000
copyright deposits to the Library each year.\10\
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\10\ See U.S. Copyright Office, Annual Report Fiscal 2019, at 48
(2019), <a href="https://www.copyright.gov/reports/annual/2019/ar2019.pdf">https://www.copyright.gov/reports/annual/2019/ar2019.pdf</a>
(roughly 727,000 deposits transferred to Library); U.S. Copyright
Office, Annual Report for Fiscal 2018, at 24 (2018), <a href="https://www.copyright.gov/reports/annual/2018/ar2018.pdf">https://www.copyright.gov/reports/annual/2018/ar2018.pdf</a> (almost 737,000
deposits transferred to Library). The number of deposits decreased
in fiscal year 2020 due to a backlog of processing physical deposits
as a result of the COVID-19 pandemic. U.S. Copyright Office, Annual
Report Fiscal 2020, at 40 (2020), <a href="https://www.copyright.gov/reports/annual/2020/ar2020.pdf">https://www.copyright.gov/reports/annual/2020/ar2020.pdf</a> (roughly 550,000 deposits transferred).
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(B) Best Edition Requirements
The Office's regulations at appendix B to part 202 of title 37 of
the Code of Federal Regulations--known as the Best Edition Statement--
describe how to identify the best edition of a work. The regulations do
not require a specific format; they instead describe an order of
preference for formats of different types of works.\11\ In most cases,
physical copies of works must be submitted to meet the best edition
requirement. For example, for printed textual matter, the Library of
Congress prefers that the deposit be the largest possible size (other
than a large-type edition for the partially-sighted), illustrated in
color, and contain ``archival-quality rather than less-permanent
paper,'' a hard cover, library binding, and a sewn rather than glued
binding.\12\ For photographs, the Library prefers the most widely
distributed edition of the photograph, or an unmounted 8x10-inch glossy
print on archival-quality paper.\13\
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\11\ See, e.g., 37 CFR 202, App. B.I.C.2 (for printed textual
works with illustrations, the best edition is version with
``[i]llustrations in color rather than black and white.''). The Best
Edition Statement divides works into 10 categories: I. Printed
Textual Matter, II. Photographs, III. Motion Pictures, IV. Other
Graphic Matter, V. Phonorecords, VI. Musical Compositions, VII.
Microforms, VIII. Machine-Readable Copies, IX. Electronic-Only Works
Published in the United States and Available Only Online, and X.
Works Existing in More Than One Medium. Id.
\12\ See id. 202, App. B.I.
\13\ Id. 202, App. B.II.
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(C) Exceptions to Best Edition Requirements
The Office has the authority to waive the requirement that deposits
be the best edition of a work, and it has done so in many
circumstances. For section 407 deposits, the Office has promulgated
regulations permitting deposit of versions that might not be the best
edition as defined by the Best Edition Statement. For example,
copyright owners of pictorial and graphic works published in small
numbers have the option to deposit ``photographs or other identifying
material'' of the works.\14\ For other types of works, such as greeting
cards and three-dimensional sculptural works, the Office's regulations
waive the deposit requirement altogether.\15\ Additionally, for
electronic-only books and serials published only in electronic form and
available only online, deposit is required only on demand from the
Copyright Office.\16\ The Office also may waive the best edition
requirement for section 407 deposits for individual works upon request
for ``special relief,'' typically when complying with the requirement
would be burdensome or impractical.\17\ These requests may permit
copyright owners to deposit a version of their work that does not fit
the best edition requirement, such as an electronic copy of a work that
was published as physical printed text. The Library and the Copyright
Office have entered into continuing ``special relief'' agreements with
a number publishers, whereby electronic copies of works in a
publisher's catalog are accepted as a substitute for the best edition
under certain conditions.
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\14\ See id. 202.19(d)(2)(iv).
\15\ See id. 202.19(c)(2), (6).
\16\ See 37 CFR 202.19(c)(5), 202.24.
\17\ Id. 202.19(e).
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The Office provides similar flexibility for section 408
registration deposits. For many works, such as computer programs,
useful articles, and works exceeding 96 inches in any dimension, the
Office permits applicants to deposit identifying material instead of
the best edition.\18\ Identifying material is a deposit that provides
at least ``an adequate representation'' of the content an applicant
seeks to register.\19\ While the Office was closed to the public during
the COVID-19 pandemic, the Office provided the option for applicants
submitting electronic applications for works that required deposit of
``best edition'' physical copies to upload electronic copies of the
works in addition to mailing the required physical copies, which
enabled the Office to examine the works remotely.\20\ As with section
407 deposits, the Office, in consultation with the Library, may also
waive the best edition requirement on a case-by-case basis as ``special
relief,'' upon request to permit the deposit of other formats that are
more convenient for the applicant.\21\
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\18\ See id. 202.20(c)(vii), (xi)(A)(2), (xiii).
\19\ Id. 202.21(b).
\20\ U.S. Copyright Office, Operations Updates During the COVID-
19 Pandemic, <a href="https://www.copyright.gov/coronavirus/">https://www.copyright.gov/coronavirus/</a>.
\21\ 37 CFR 202.20(d).
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(D) Criticism of Best Edition Requirements
While the best edition requirement satisfies important Library
acquisition objectives, it can in some instances be an obstacle to
registration and generally increases the Copyright Office's
registration processing times. Some copyright owners have explained
that they have difficulty complying with the best edition requirement
because they do not possess copies of the best edition
[[Page 33838]]
of a work. Obtaining two copies--or even one--of the best edition of a
work may sometimes be time-consuming and expensive. Shaftel &
Schmelzer, a consulting firm that works with visual artists, has
explained that ``[v]isual creators sometimes have to purchase published
copies at full retail price to submit with their registration
application, adding significant cost to our registration. . . .'' \22\
The statutory requirement that the best edition be one that has been
published also creates a hurdle because creators may have difficulty
determining if a particular version of a work has been published.\23\
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\22\ Shaftel & Schmelzer, Comments Submitted in Response to
Notification of Inquiry on Registration Modernization, at 21 (Jan.
11, 2019). See also Coalition of Visual Artists, Comments Submitted
in Response to Notification of Inquiry on Registration
Modernization, at 25 (Jan. 15, 2019) (``Tracking down hard copies of
the first published use of a particular image is often difficult or
impossible. And purchasing two copies of a book, for example,
unnecessarily increases registration expense.'').
\23\ On December 4, 2019, the Office published a notification of
inquiry in which it noted the uncertainty expressed by some
registration applicants as to how the term ``publication'' applies
in the online context, and sought perspectives and suggestions
regarding possible new regulations interpreting the statutory
definition of publication and policy guidance regarding the role
that publication should play in copyright law and the registration
process. 84 FR 66328 (Dec. 4, 2019). The Office recently described
the actions it has taken to provide additional guidance regarding
the definition of ``publication,'' and discussed how it will
supplement those efforts going forward. Letter from Shira
Perlmutter, Reg. of Copyrights, U.S. Copyright Office, to Sen. Thom
Tillis, Ranking Member, Subcomm. on Intell. Prop. of the S. Comm. on
the Judiciary (Dec. 1, 2021).
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In response to a prior Copyright Office inquiry, the Association of
American Publishers (``AAP'') commented that publishers of literary
works sometimes find the Office's registration deposit requirements to
be ``costly, risky, and illogical,'' and indicated they would welcome
the ability to submit electronic deposits for registration if they
could do so in a manner that was secure, with the deposit ``kept wholly
separate from the collections of the Library and its access or
interlibrary lending or surplus books policies.'' \24\ In particular,
AAP explained that the current best edition requirements do not accept
ePub files, which are its members' preferred format.\25\ Likewise, the
Copyright Alliance urged the Office to create options for applicants to
upload digital deposits in a manner that takes into account applicants'
operational systems and work processes.\26\ Visual artists also have
maintained that the ability to submit digital deposits of their works
encourages registration.\27\
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\24\ Association of American Publishers, Comments Submitted in
Response to Notification of Inquiry on Registration Modernization,
at 2 (Jan. 15, 2019).
\25\ Id. at 2 n.2.
\26\ Copyright Alliance, Comments Submitted in Response to
Notification of Inquiry on Registration Modernization, at 25-26
(Jan. 15, 2019).
\27\ See, e.g., Coalition of Visual Artists, Comments Submitted
in Response to Notification of Inquiry on Registration
Modernization, at 25-26 (Jan. 15, 2019) (describing the ``two best-
edition'' requirement as ``archaic, unnecessary and impractical'');
Graphic Artists Guild, Comments Submitted in Response to
Notification of Inquiry on Registration Modernization, at 8-9 (Jan.
15, 2019) (requesting that applicants be permitted to submit digital
deposits for all types of works and only be required to provide a
physical deposit if the Library determines that it wants to include
the work in its collection).
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As the Office has explained to Congress, the section 408 best
edition requirement often increases registration processing times for a
number of reasons.\28\ After electronic applications and fees have been
submitted, authors or publishers must incur the time and expense of
packaging and shipping physical copies of works, along with shipping
slips that connect the physical works with the electronic applications.
Once the physical copies arrive at the Office, they must undergo off-
site security screening and decontamination, be matched to a
corresponding electronic application, have security measures applied,
and be physically brought to an examiner's workspace before examination
can begin. The time delay adversely affects applicants because the
effective date of registration is not assigned until the Office has
received the deposit in addition to the application and fee.\29\
Second, under the current rules, in addition to examining whether a
work is copyrightable, an examiner must review each deposit for
compliance with the best edition rules to confirm whether the proper
version has been received. Correspondence with applicants is often
necessary to ensure that they have complied with the Library's best
edition criteria and the Copyright Office's regulations.\30\ This adds
additional complexities and time to the examination process.
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\28\ Letter from Karyn A. Temple, Reg. of Copyrights, U.S.
Copyright Office, to Sen. Thom Tillis, Chairman, Subcomm. on Intell.
Prop. of the S. Comm. on the Judiciary, and Sen. Christopher A.
Coons, Ranking Member, Subcomm. on Intell. Prop. of the S. Comm. on
the Judiciary 18 (May 31, 2019), <a href="https://www.copyright.gov/laws/hearings/response-to-march-14-2019-senate-letter.pdf">https://www.copyright.gov/laws/hearings/response-to-march-14-2019-senate-letter.pdf</a> (``Senate
Letter''); Letter from Karyn A. Temple, Reg. of Copyrights, U.S.
Copyright Office, to Rep. Jerrold Nadler, Chairman, H. Comm. on the
Judiciary, and Rep. Doug Collins, Ranking Member, H. Comm. on the
Judiciary 18 (May 31, 2019), <a href="https://www.copyright.gov/laws/hearings/response-to-april-3-2019-house-letter.pdf">https://www.copyright.gov/laws/hearings/response-to-april-3-2019-house-letter.pdf</a> (``House
Letter'').
\29\ 17 U.S.C. 410(d); U.S. Copyright Office, Compendium of U.S.
Copyright Office Practices sec. 625 (3d ed. 2021).
\30\ Senate Letter at 18; House Letter at 18.
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As a result, applications with physical deposits take much longer
for the Office to process than those with electronic deposits.\31\ On
average, examination of electronic applications that do not need
correspondence takes 1.1 months for those with electronic deposits and
takes 10.8 months for those with physical deposits. The average
processing time for electronic applications that do need correspondence
is 3.4 months for those with electronic deposits and 13.1 months for
those with physical deposits.\32\
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\31\ Senate Letter at 19; House Letter at 19.
\32\ U.S. Copyright Office, Registration Processing Times,
<a href="https://www.copyright.gov/registration/docs/processing-times-faqs.pdf">https://www.copyright.gov/registration/docs/processing-times-faqs.pdf</a>.
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(E) Digital Deposit Options
The Office has been exploring options that would permit
registration applicants to submit digital copies of works and provide
the Library with physical copies only upon demand. Since 2018, the
Office has required applicants seeking to register a group of
newspapers to file an online application rather than a paper
application and to upload a complete electronic copy of each issue
through the electronic registration system instead of submitting them
in physical form.\33\ The Library has incorporated electronic copies of
these registration deposits into its collections, and provides its
patrons with secure onsite access to them, subject to a number of
security restrictions.\34\ If this model were applied to other
categories and classes of registered works, the Office could both meet
the Library's collections needs and expand the ability of applicants to
provide electronic deposits in lieu of physical best edition copies,
while providing secure, rights-restricted access to the works.
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\33\ 37 CFR 202.4(e).
\34\ Id. 202.18.
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The Library's Office of Chief Information Officer (``OCIO'') is
currently working with the Office to build a new Enterprise Copyright
System (``ECS'') to improve the Office's provision of copyright
services to the public, including its registration services. This will
include replacing the Office's current electronic system for
registration. As part of the Office's prior rulemaking on registration
modernization, the Office inquired about providing greater flexibility
for copyright applicants to deposit digital versions of their works,
with physical copies only deposited upon request. The responses to that
inquiry were generally very positive.\35\
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\35\ See 85 FR 12704, 12711-12 (Mar. 3, 2020) (summarizing
public comments on issue of digital deposits).
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The Library has been focusing on its digital collecting capacity
and capability
[[Page 33839]]
for over two decades and has expressed a commitment to continuing to
strengthen its digital collections. The Library has stressed that new
electronic deposit options for copyright owners must take into account
``the Library's collection needs, technological capabilities, and
security and access issues.'' \36\ The Library's Library Collections
and Services Group (part of which was formerly known as Library
Services) has expressed support for permitting digital deposits for all
copyright applications in the long run. Noting that the Library depends
on the items acquired via copyright deposit to help build its
collection, it further explained that ``[w]hile the submission of e-
copies as opposed to print copies for purposes of registration would
pose some difficulties in terms of service to Congress and other user
groups, having access to e-copies of the content will be beneficial in
the long term.'' \37\
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\36\ Id. See also Carla Hayden, Libr. of Congr., Responses to
Questions for the Record, Subcomm. on Intell. Prop. of the S. Comm.
on the Judiciary at 17 (Jan. 7, 2020), <a href="https://www.judiciary.senate.gov/imo/media/doc/Hayden%20Responses%20to%20QFRs.pdf">https://www.judiciary.senate.gov/imo/media/doc/Hayden%20Responses%20to%20QFRs.pdf</a> (noting that digital deposits
options must ``appropriately balance security with ease of use'').
\37\ Library of Congress Library Services, Comments Submitted in
Response to Notification of Inquiry on Registration Modernization,
at 1-2 (Jan. 15, 2019).
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The Library's Digital Collections Strategy: Fiscal Years 2022-2026
focuses on ``further mainstreaming and routinizing digital collecting
and digital collections management across the wide range of areas,
formats, and subjects the Library of Congress collects.'' \38\ Pursuant
to this Strategy, the Library has committed to continuing to work
closely with the Office to explore possible regulatory updates to the
deposit requirements, including ``planning electronic deposit workflows
related to the acquisition of electronic deposits for mandatory deposit
and registration deposit'' for works that could include ``books,
serials, motion pictures, sound recordings, music compositions, maps,
photographs, prints, drawings, design and architectural materials,
technical designs, technical reports, and web content.'' \39\ The
Strategy also notes that the Library plans to transition to ``e-
preferred,'' in which digital formats are preferred over traditional
physical formats, across its major acquisitions streams, including
deposits from the Copyright Office.\40\
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\38\ Library of Congress, Digital Collections Strategy Fiscal
Years 2022-2026, at 3 (2021), <a href="https://www.loc.gov/acq/devpol/Digital%20Collections%20Strategy%20Overview_final.pdf">https://www.loc.gov/acq/devpol/Digital%20Collections%20Strategy%20Overview_final.pdf</a>.
\39\ Id. at 4.
\40\ Id. at 4-5.
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II. Subjects of Inquiry
To guide the Office's consideration of these issues and its
consultation with the Library, the Office invites written comments on
the subjects below. A party choosing to respond to this notice of
inquiry need not address every subject, but the Office requests that
responding parties clearly identify and separately address each subject
for which a response is submitted. The Office also requests that
commenters explain their interest in the study and, with respect to
each answer, the basis for their knowledge. Citations to published data
and other external documents that support commenters' viewpoints are
particularly helpful to the Office's review of written comments.
1. One way to address concerns raised regarding the best edition
requirement would be to limit the categories of deposits to it applies.
To what categor(y/ies) of deposits do you think the best edition
requirement should apply and why? What would be the impact on Library
collections? What would be the impact on claimants' ability to register
their copyrights?
2. If registration and mandatory deposit requirements were no
longer linked, how would this affect the deposit burden on copyright
owners? How would it affect the Library's collections? How would it
affect claimants' ability to register their copyrights?
3. Should the Office expand the options for submitting electronic
deposits for the purpose of examining registration applications and
selection by the Library for its collections while retaining the
requirement to submit best edition copies upon demand by the Library
pursuant to section 407? Why or why not?
4. Would copyright owners prefer to deposit electronic deposit
copies for registration purposes instead of copies that meet the best
edition standards? Why or why not? Would copyright owners like the
option to provide electronic copies or best edition physical copies?
Why or why not? How would the submission of electronic copies for
registration affect the Library's collections and operations? What
effect would the use of electronic copies have on the public record,
and on a researcher's ability to use the work?
5. Would the option to deposit electronic deposit copies create
security concerns that the Copyright Office's and the Library's
protocols do not currently address? What are the security concerns most
important to applicants if electronic deposit copies are permitted and
how could the Library address them?
6. The Copyright Act requires that a ``best edition'' of a work
must be the edition published in the U.S. Can this definition be
interpreted to include digital file formats that were not themselves
distributed to the public but contain the same copyrightable material
as the edition distributed to the public?
7. Please identify any pertinent issues regarding digital deposit
and the best edition requirement not referenced above that the Office
should consider in conducting its study.
Dated: May 31, 2022.
Suzanne V. Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2022-11953 Filed 6-2-22; 8:45 am]
BILLING CODE 1410-30-P
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