Proposed Rule2023-28724
Group Registration of Updates to a News Website
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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
January 3, 2024
Issuing agencies
Library of CongressCopyright Office, Library of Congress
Abstract
The U.S. Copyright Office is proposing to create a new group registration option for frequently updated news websites. The rapid pace at which many web-based materials are created and updated presents a challenge for copyright registrants. This challenge is especially pronounced 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 works, rather than the complete contents of the website. The Office invites comment on this proposal and the questions below.
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<title>Federal Register, Volume 89 Issue 2 (Wednesday, January 3, 2024)</title>
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[Federal Register Volume 89, Number 2 (Wednesday, January 3, 2024)]
[Proposed Rules]
[Pages 311-318]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28724]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Parts 201 and 202
[Docket No. 2023-8]
Group Registration of Updates to a News Website
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Copyright Office is proposing to create a new group
registration option for frequently updated news websites. The rapid
pace at which many web-based materials are created and updated presents
a challenge for copyright registrants. This challenge is especially
pronounced 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 works, rather than the
complete contents of the website. The Office invites comment on this
proposal and the questions below.
DATES: Comments on the proposed rule must be made in writing and must
be received by the U.S. Copyright Office no later than February 20,
2024.
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://copyright.gov/rulemaking/newswebsite">https://copyright.gov/rulemaking/newswebsite</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: Rhea Efthimiadis, Assistant to the
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#a5c8c0c3d1e599c485cdd7c0c398" http: copyright.gov">copyright.gov</a>">meft@<a href="http://copyright.gov">copyright.gov</a></a> or by telephone at 202-
707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
The U.S. Copyright Office (``Office'') is proposing to create a new
group registration option for frequently updated news websites. When
Congress enacted the Copyright Act of 1976 (``Copyright Act'' or
``Act''), it authorized the Register of Copyrights (``Register'') to
specify by regulation the administrative classes of works for the
purpose of seeking registration and the nature of the deposit required
for each such class.\1\ Congress afforded the Register discretion to
permit registration of groups of related works with one application and
one filing fee, known as ``group registration.'' \2\ As the legislative
history explains, allowing ``a number of related works to be registered
together as a group represent[ed] a needed and important liberalization
of the law.'' \3\
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\1\ See 17 U.S.C. 408(c)(1).
\2\ Id.
\3\ H.R. Rep. No. 94-1476, at 154 (1976), reprinted in 1976
U.S.C.C.A.N. 5659, 5770; S. Rep. No. 94-473, at 136 (1975).
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In providing the Register the discretion to provide for group
registrations, Congress recognized that requiring applicants to submit
separate applications for certain types of works may be so burdensome
and expensive that authors and copyright owners may forgo registration
altogether.\4\ Group registration options must be designed, however, in
a manner that balances claimants' need for an efficient method to
submit applications with the Office's need to examine applications and
provide an adequate public record. Exercising this statutory
discretion, Registers have over the years issued regulations providing
for group registrations for certain categories of works and
establishing eligibility requirements.
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\4\ Copyright registration is not a prerequisite to copyright
protection, although registration generally must be made before
instituting a civil infringement action in Federal court. See 17
U.S.C. 411(a); Fourth Estate Pub. Benefit Corp. v. <a href="http://Wall-Street.com">Wall-Street.com</a>,
LLC, 139 S. Ct. 881, 886 (2019).
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The Copyright Act also gives the Register broad authority to issue
regulations concerning the nature of the copies that must be deposited
in support of registration. Section 408 provides that the Register may
issue regulations establishing ``the nature of the copies . . . to be
deposited'' in specific classes of works and to ``permit, for
particular classes, the deposit of identifying material instead of
copies or phonorecords.'' \5\ The legislative history indicates that
Congress believed that a deposit of identifying material should be
permitted in cases where the copies or phonorecords would be too
``bulky, unwieldy, easily broken, or otherwise impractical [to serve]
as records identifying the work registered.'' \6\ The Office has used
this authority to require only identifying material in certain
circumstances. For example, for computer programs, automated databases,
or other literary works fixed or published solely in machine-readable
copies, the Office permits the deposit of ``identifying portions'' of
the specific version of the work the applicant intends to register.\7\
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\5\ 17 U.S.C. 408(c)(1).
\6\ H.R. Rep. No. 94-1476, at 154.
\7\ See 37 CFR 202.20(c)(2)(vii). For example, with regards to
deposit requirements for computer programs, the Office has defined
``identifying portions'' as the first and last twenty-five pages of
the work.
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After receiving input from stakeholders and carefully considering
the issue, the Office has concluded that there is a need for a new
group registration accommodation for frequently updated news
websites.\8\ The Office welcomes public comment on its proposal and
subjects of inquiry set forth here.
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\8\ The proposed regulations define 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.
See also U.S. Copyright Office, Compendium of U.S. Copyright Office
Practices sec. 1002.1 (3d ed. 2021) (``Compendium (Third)''). For
example, the Office's website is located at <a href="http://copyright.gov">copyright.gov</a>, and the
Library of Congress's website is located at <a href="http://loc.gov">loc.gov</a>.
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A. The Need for a New Group Registration Option
This proposed rulemaking stems from the rapid development and
predominance of news websites over print newspapers, and requests
submitted by online publishers to the Office. Over the past two
decades, the internet has become an increasingly common method for
distributing, displaying, and performing copyrightable content. More
than eight in ten Americans get news from digital devices, and, as of
2021, more than half prefer digital platforms to access news.\9\ Thus,
a significant amount of news content must be offered in an online
environment to meet demand. The current state of the news media
industry requires dynamism, ``with content constantly changing,
updating, and refreshing in real time.'' \10\ Because of
[[Page 312]]
this, news publishers assert they face unique obstacles when it comes
to registering their works and have encouraged the Office to develop
practices for registering ``newspaper websites'' that are ``updated
frequently.'' \11\
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\9\ Elisa Shearer, More Than Eight-In-Ten Americans Get News
from Digital Devices, Pew Research Center (Jan. 12, 2021), <a href="https://www.pewresearch.org/fact-tank/2021/01/12/more-than-eight-in-ten-americans-get-news-from-digital-devices/">https://www.pewresearch.org/fact-tank/2021/01/12/more-than-eight-in-ten-americans-get-news-from-digital-devices/</a>.
\10\ MPA--The Association of Magazine Media Comments at 5,
Submitted in Response to Nov. 9, 2021 Notice of Inquiry, Publishers'
Protections Study, U.S. Copyright Office Dkt. No. 2021-5 (Jan. 5,
2022), <a href="https://www.regulations.gov/comment/COLC-2021-0006-0044">https://www.regulations.gov/comment/COLC-2021-0006-0044</a>
(``MPA--The Association of Magazine Media Comments'').
\11\ 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) (seeking a group registration option
for newspaper websites), <a href="https://www.copyright.gov/rulemaking/online-only/comments/naa.pdf">https://www.copyright.gov/rulemaking/online-only/comments/naa.pdf</a> (``Newspaper Association of America
Comments'').
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B. The Office's Prior Studies
The Office acknowledged the news publishers' concerns in previous
statements and reports. In 2011, the Office released a paper titled
Priorities and Special Projects of the United States Copyright Office
(October 2011-October 2013), which acknowledged the challenges in
registering websites and content published on websites.\12\ The paper
noted that websites may contain ``a great number of contributions from
many authors'' and changes may be made ``daily or even several times a
day.'' \13\ It identified several issues to be addressed, such as the
appropriate means for creating an accurate and informative record of
copyright ownership and the appropriate form of the deposit. It also
invited public input regarding whether ``a group registration scheme
[should] be implemented that would permit a single registration to
cover content disseminated over a period of many days or weeks.'' \14\
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\12\ U.S. Copyright Office, Priorities and Special Projects of
the United States Copyright Office October 2011-October 2013 (2011),
<a href="https://www.copyright.gov/docs/priorities.pdf">https://www.copyright.gov/docs/priorities.pdf</a>.
\13\ Id. at 11.
\14\ Id.
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As the Office considered stakeholder input in response to the
paper, it issued public guidance to address registration of online
content. In 2014, the Office released the Compendium of U.S. Copyright
Office Practices, Third Edition, which contains an entire chapter on
websites and website content.\15\ In 2017, it released a circular that
provides additional information on this topic.\16\ These resources
explain how to identify the author(s) and owner(s) of websites, website
content, and user-generated content. They identify factors that may
determine whether a work has been published online; discuss the
distinctions between copyrightable authorship and uncopyrightable
material, and between a website and an online database; and provide
step-by-step instructions for completing a registration application and
preparing a deposit for an online work.
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\15\ U.S. Copyright Office, Compendium of U.S. Copyright Office
Practices ch. 1000 (3d ed. 2014). The Office published a new version
of the Compendium (Third) in January 2021. The 2021 version cited in
this notice is available at <a href="https://copyright.gov/comp3/">https://copyright.gov/comp3/</a>.
\16\ U.S. Copyright Office, Circular 66: Copyright Registration
of websites and website Content (revised Mar. 2021), <a href="https://copyright.gov/circs/circ66.pdf">https://copyright.gov/circs/circ66.pdf</a>.
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Although these resources offer guidance for registering online
content, news publishers have continued to express concern about the
difficulty of registering frequently updated websites. As discussed in
detail below, applicants who seek to register dynamic news websites are
currently required to submit a separate application, deposit, and
filing fee for each website update. This is particularly costly and
time-consuming for news content, which can be added, modified, or
removed on a daily or hourly basis.
The Office also looked at some of these issues as part of its 2021
study assessing press publishers' existing protections under U.S.
copyright law. That study, and its resulting 2022 report, Copyright
Protections for Press Publishers, was undertaken after a series of
congressional hearings on reforms to digital copyright law, which
considered what changes ``are needed to ensure the growth of creative
industries without undermining incentives for digital platforms and
technologies.'' \17\ As part of the study, the Office requested public
input on the effectiveness of current copyright protections for press
publishers. It received feedback from news publishers that registration
challenges make registering frequently updated news content
impracticable.\18\ They expressed frustration that ``[t]he inability to
register dynamic and voluminous website content is a foundational
enforcement shortcoming.'' \19\ They stated that, because ``[t]here is
currently no feasible way to apply for a single group registration of
the full contents of a dynamic news media website, on which articles
are constantly being published and updated,'' \20\ it is ``beyond
difficult for news publishers to acquire meaningful copyright
protection for their output,'' \21\ and stated that, ``with no feasible
means to access all of the statutory remedies for infringement of their
online news content,'' infringers are left ``free to pick and choose
from works among that content without fear of significant or immediate
consequence.'' \22\
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\17\ Letter from Senators Leahy, Tillis, Cornyn, Hirono,
Klobuchar, and Coons to Shira Perlmutter, Register of Copyrights, at
1 (May 3, 2021), <a href="https://www.copyright.gov/policy/publishersprotections/letter-to-the-copyright-office.pdf">https://www.copyright.gov/policy/publishersprotections/letter-to-the-copyright-office.pdf</a>.
\18\ See, e.g., News Corporation Comments at 10-11, Submitted in
Response to Oct. 12, 2021 Notice of Inquiry, Publishers' Protections
Study, U.S. Copyright Office Dkt. No. 2021-5 (Nov. 26, 2021),
<a href="https://www.regulations.gov/comment/COLC-2021-0006-0016">https://www.regulations.gov/comment/COLC-2021-0006-0016</a> (``News
Corporation Comments'').
\19\ News Media Alliance Comments at 19, Submitted in Response
to Oct. 12, 2021 Notice of Inquiry, Publishers' Protections Study,
U.S. Copyright Office Dkt. No. 2021-5 (Nov. 23, 2021), <a href="https://www.regulations.gov/comment/COLC-2021-0006-0020">https://www.regulations.gov/comment/COLC-2021-0006-0020</a> (``News Media
Alliance Comments'').
\20\ News Corporation Comments at 10.
\21\ Id. at 11.
\22\ Id.
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C. Deposit-Related Challenges
The Office is aware that one of the biggest challenges in
registering a website is providing a deposit that displays the work in
its entirety. Copyright registration of published works generally
requires the submission of two complete copies of the best edition of
the work.\23\ In addition to their use in the examination process,
deposits serve as a record of the contents of a work. They can also
serve an important evidentiary function if the copyright owner did not
create or maintain an archive copy of a work before making updates. For
example, a copyright owner who registered the updates to a website
could use the deposits to confirm that a specific contribution was
posted on a particular date and did not appear in earlier versions of
the same website.\24\
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\23\ 17 U.S.C. 408(b)(2). The Copyright Act authorizes the
Register to promulgate regulations specifying the exceptions to this
general rule. 17 U.S.C. 408(c)(1).
\24\ One way that some litigants have attempted to show what was
posted on a particular date is to use web archiving platforms like
the internet Archive's Wayback Machine. Courts have taken different
approaches on whether to admit these records into evidence. See
United States v. Gasperini, 894 F.3d 482, 490 (2d Cir. 2018)
(finding a sufficient basis to admit screenshots produced by the
Wayback Machine into evidence where the office manager of the
internet Archive ``explained how the Archive captures and preserves
evidence of the contents of the internet at any given time'' and
``testified that the screenshots were authentic and accurate copies
of the Archive's records''). But see Ward v. Am. Airlines, Inc., No.
4:20-cv-00371-O, 2020 U.S. Dist. LEXIS 205771 (N.D. Tex. Oct. 16,
2020) (declining to take judicial notice of references from the
Wayback Machine).
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The deposit requirements for a website vary depending on the nature
of the claim and the type and number of works being registered. If an
applicant created one of the individual works on a website--such as an
article, blog entry, or photograph--the applicant ordinarily should
submit a complete copy of that work.\25\ If, however, the applicant
[[Page 313]]
selected, coordinated, and/or arranged the content on the website, and
owns the copyright in some or all of the content, then it may register
the collective work and the individual contributions it owns with the
same submission.\26\ In this situation, the deposit should reflect the
collective work authorship, by displaying the component works as they
would appear when viewed on the website.\27\ Typically, this requires
the applicant to include a complete copy of the entire website as
published on a particular date.
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\25\ 37 CFR 202.20(b)(2)(iii)(B) (``If the work is published
solely in an electronic format,'' the deposit is considered
``complete'' if it contains ``all elements constituting the work in
its published form, i.e., the complete work as published, including
metadata and authorship for which registration is not sought.'').
\26\ As with any other claim, the registration will not cover
``unclaimable material,'' which includes previously published or
registered material, material that is in the public domain,
copyrightable material that is owned by a third party, or material
generated by artificial intelligence without human authorship. See
Compendium (Third) sec. 509.2; 88 FR 16190, 16192 (Mar. 16, 2023).
\27\ See 37 CFR 202.20(b)(2)(iii)(B) (``Publication in an
electronic only format requires submission of the digital file(s) in
exact first-publication form and content.''); see also Compendium
(Third) sec. 1010.
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The Office recognizes that submitting a complete copy of an entire
dynamic website has been difficult for many applicants and causes
problems for the Office as well.\28\ Perhaps the most common problem
occurs when applicants submit individual folders containing hundreds or
thousands of disaggregated files that do not show the organization of
the website. Similar problems result from the submission of individual
PDF (Portable Document Format) pages that display the website in a
linear fashion without showing the coordination and/or arrangement of
the web pages in relation to each other. In other cases, applicants
attempt to register a website by submitting the hypertext markup
language (HTML) establishing the format and layout of the content on
the site rather than visually depicting it.
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\28\ See, e.g., Newspaper Association of America Comments at 12-
18 (``The burden of requiring a separate registration for each
publication date of a newspaper website, with a print-out or other
physical copy, is a powerful disincentive, if not a virtual bar, to
registration.''); News Media Alliance Comments at 19 (highlighting
``[t]he inability to register . . . voluminous website content'' as
a ``foundational enforcement shortcoming'').
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Current technological means for fixing and normalizing website
content for copyright deposit purposes are limited. The Office's
current registration system only accepts certain file types that could
display the image of a website, such as PDF, JPEG (Joint Photographic
Experts Group), DWF (Autodesk Design), BMP (BitMap Image), GIF
(Graphics Interchange Format), TIFF (Tagged Image File Format), and PUB
(Microsoft Publisher).\29\ The Office is developing a new Enterprise
Copyright System (``ECS'') that will include new capabilities for
uploading large files and large numbers of files. The Office is also
exploring the acceptance of new file formats, such as .epub, that may
better enable the fixation of online content.\30\ But for the time
being, the Office encourages applicants to submit website claims in a
PDF package.\31\
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\29\ The list of acceptable file formats is posted on the
Office's website at <a href="https://www.copyright.gov/eco/help-file-types.html">https://www.copyright.gov/eco/help-file-types.html</a>.
\30\ See Modernization, U.S. Copyright Office, <a href="https://copyright.gov/copyright-modernization/">https://copyright.gov/copyright-modernization/</a> (last visited Dec. 21, 2023);
85 FR 12704 (Mar. 3, 2020); 83 FR 52336 (Oct. 17, 2018).
\31\ See Compendium (Third) sec. 1010.
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When a website is fixed in a PDF package, the Office should be able
to view the website as it existed on the date identified in the
registration application, and to examine the compilation authorship
involved in selecting, coordinating, and/or arranging the website as a
whole. The Office recognizes that this is not a solution for all
applicants. Some applicants are able to fix certain aspects of a
website in a PDF package but find it difficult to fix it in a way that
depicts the complete website. For large websites, such as news media
websites, the resulting file may include hundreds or even thousands of
pages, which makes it difficult for the Office to examine the
selection, coordination, and arrangement of the website as a whole.
Additionally, the organization and arrangement shown 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.
Capturing the website by saving pages in PDF format may also include
selection and arrangement that was not created by a human author, such
as advertisements inserted into the website by an algorithm. Moreover,
a PDF package only captures component works consisting of text,
photographs, or pictorial or graphic material.
D. Existing Registration Options
News website publishers have described to the Office the
limitations of the existing registration options available to them.
Specifically, they explain that registering each individual update to a
website separately is not practical or feasible. The Office has
reviewed its registration options and concludes that there is
substantial need for a new option for online news websites that are
frequently updated.
Current group registration options are not sufficient because they
require all works within the group to have the same author. For
example, an applicant may register up to 750 photographs with the same
application, if they were all created by the same author and are owned
by the same claimant.\32\ Similarly, another group registration option
allows registration of up to fifty blog entries, social media posts,
and other short online literary works if the works were all created by
the same individual and published within a three-month period.\33\
Because news websites are typically collective works that include the
individual contributions of multiple authors, such an approach to group
registrations is not a good fit for their publishers.
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\32\ 37 CFR 202.4(h), (i).
\33\ 85 FR 37341 (June 22, 2020).
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Another existing registration option for a website including works
authored by multiple authors is to register it as a collective work.
Although collective works contain multiple works of authorship, they
are considered ``one work'' for purposes of registration.\34\ A website
can be a collective work if it contains ``a number of contributions''
that constitute ``separate and independent works in themselves,'' and
if those contributions ``are assembled into a collective whole'' ``in
such a way that the resulting work as a whole constitutes an original
work of authorship.'' \35\ A registration for a collective work covers
the authorship involved in selecting and arranging component works into
a collective whole.\36\ In the case of a website, this typically
involves selecting, coordinating, and arranging the various web pages
that make up the site, as well as the selection, coordination, and
arrangement of the separate and independent works on each individual
web page.
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\34\ Compare 17 U.S.C. 101 (defining a collective work as ``a
work'' and recognizing that ``[t]he term `compilation' includes
collective works'') with 17 U.S.C. 504(c)(1) (``all the parts of a
compilation . . . constitute one work''). A collective work is a
type of compilation. Therefore, a collective work must meet the same
statutory requirement as a compilation; there must be a sufficiently
creative selection, coordination, or arrangement of the component
works.
\35\ 17 U.S.C. 101 (definitions of ``compilation'' and
``collective work'').
\36\ See H.R. Rep. No. 94-1476, at 120 (noting that the ``key''
element in creating a collective work is the ``assemblage or
gathering of `separate and independent works . . . into a collective
whole' '').
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A registration for a collective work may also cover the individual
works that make up the collective work if certain requirements are met.
The Copyright Act provides that the copyright in a collective work
``extends
[[Page 314]]
only to the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work.''
\37\ The ``[c]opyright in each separate contribution to a collective
work is distinct from copyright in the collective work as a whole, and
vests initially in the author of the contribution.'' \38\ If the
claimant fully owns the copyright in those contributions,\39\ however,
courts have held that a collective work registration may also cover the
contributions that make up the collective work.\40\ The Office has
taken a similar position.\41\
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\37\ 17 U.S.C. 103(b).
\38\ Id. at 201(c). The Act further states that ``[i]n the
absence of an express transfer of the copyright'' in a particular
contribution, ``the owner of copyright in the collective work is
presumed to have acquired only the privilege of reproducing and
distributing the contribution as part of that particular collective
work, any revision of that collective work, and any later collective
work in the same series.'' Id.
\39\ A contribution to a collective work is ``fully owned'' by
the publisher if it owns all of the exclusive rights in that
contribution. See, e.g., Morris v. Business Concepts, Inc., 259 F.3d
65, 68 (2d Cir. 2001) (``Unless the copyright owner of a collective
work also owns all the rights in a constituent part, a collective
work registration will not extend to the constituent part.''),
abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559
U.S. 154, 160 (2010); Compendium (Third) secs. 509.1, 509.2.
\40\ See Sohm v. Scholastic Inc., 959 F.3d 39, 53 (2d Cir. 2020)
(registration of a compilation of photographs by an applicant that
owns the rights to the component works also registers the individual
photographs even where the copyright application did not list the
individual authors of the photographs); Metro. Reg'l Info. Sys.,
Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591, 598 (4th Cir.
2013) (``[C]ollective work registrations [are] sufficient to permit
an infringement action on behalf of component works, at least so
long as the registrant owns the rights to the component works as
well.''); Alaska Stock, LLC v. Houghton Mifflin Harcourt Publ'g Co.,
747 F.3d 673, 683, 685 (9th Cir. 2014) (a collective work
registration ``extended registration to the component parts if the
party registering the collective work owned the copyright to the
component parts'').
\41\ See 17 U.S.C. 103(b) (``The copyright in a compilation . .
. extends only to the material contributed by the author of such
work, as distinguished from the preexisting material employed in the
work, and does not imply any exclusive right in the preexisting
material.''); Compendium (Third) secs. 509, 509.1, 509.2.
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Collective work registration, however, may not be a satisfactory
option for website publishers. First, as discussed above, providing a
complete deposit of a website is challenging. Second, even if the
collective work registration extends to all the individual components
of a specific website, the registration would extend only to the
material in the deposit that was owned by the copyright claimant as of
the effective date of registration. An applicant would need to prepare
a new registration application for any subsequent changes made to that
website, which would be as burdensome and expensive as other options.
Third, a collective work registration would not provide protection for
any individual works that have been previously published.\42\ Finally,
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.\43\
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\42\ See Compendium (Third) sec. 509.2 (providing that a
collective work registration does not cover contributions that were
previously published or registered).
\43\ 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.'').
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Alternatively, a website owner could choose to register a few
individual works from the website, instead of the website as a whole.
This alternative might appeal to a website owner who does not fully own
the copyright in all of the component works that make up the website,
struggles to create a deposit copy of the entire website, or wants to
retain the possibility of collecting multiple statutory damages awards.
If a website owner were concerned that the entire contents of the
website could be copied or scraped by a third party, registering one or
more of the component works on the website and providing deposit copies
of only those component works should be sufficient to initiate a claim
for infringement.\44\ And if more than one of the individual works were
registered in a timely manner, these registrations may provide a means
for seeking attorneys' fees and multiple statutory damages awards in an
infringement action.\45\
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\44\ See id. at 411(a).
\45\ Id. at 504(c)(1).
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This approach too has limitations. Registration of select works
individually only protects the copyright owner if an infringer copies
the specific works that were registered. It also does not offer
protection for the selection, coordination, or arrangement of the
website as a whole, which may be an important element of the authorship
of the website.
II. A New Framework for Registering News Websites
The Office proposes a new rule pursuant to which a news publisher
will be able 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) \46\ with a deposit composed of
identifying material, rather than the complete contents of the website.
The material may include representative examples of the updates
published in a calendar month, provided that they represent sufficient
portions of selection, coordination or arrangement authorship. The
works must be created by the same entity, and that entity must be named
as the copyright claimant for the collective work. Each of these
requirements is discussed below.
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\46\ For such applications, the Office will not examine each
component work. Thus, the collective work claimant will bear the
burden of proving that it owns the individual component works
claimed in the submission.
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A. Eligibility Requirements
Due to the potential number of updates in this group option, and to
limit the accommodation that permits identifying material rather than
complete copies, the Office will strictly apply all of the eligibility
requirements. To facilitate compliance with the requirements, the
Office will provide a checklist for applicants, as well as additional
guidance through its publications.
1. Works That May Be Included in the Group
The proposed rule will limit this registration option to ``news
websites.'' A ``website'' will be defined as a web page or set of
interconnected web pages that are accessed using a URL organized under
a particular domain name. In addition, a ``website'' will include any
web page whose URL incorporates the primary domain name for that site.
For example, any web page that includes the URL ``<a href="http://copyright.gov/">copyright.gov/</a>''
would be considered part of the Office's website, regardless of the
length of the file name. By contrast, any web page that includes the
URL ``<a href="http://loc.gov/">loc.gov/</a>'' would be considered a different website, even though
<a href="http://copyright.gov">copyright.gov</a> and <a href="http://loc.gov">loc.gov</a> are linked to each other, stored on the same
servers, and emanate from the same agency.
The Office proposes to model the definition of ``news website''
after the regulation defining a ``newspaper.'' \47\ This approach is
consistent with the goal of this rulemaking--to address obstacles to
registering online news content produced by news publishers, who often
also publish newspapers. The Office's ``newspaper'' definition has been
generally accepted by these publishers.\48\ A ``news website'' will be
[[Page 315]]
defined as a website 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.
---------------------------------------------------------------------------
\47\ See 37 CFR 202.4(e)(1).
\48\ See, e.g., News Media Alliance Comments at 2, Submitted in
Response to Nov. 6, 2017 Notice of Proposed Rulemaking, Group
Registration of Newspapers, U.S. Copyright Office Dkt. No. 2017-16
(Dec. 6, 2017), <a href="https://www.regulations.gov/comment/COLC-2017-0010-0005">https://www.regulations.gov/comment/COLC-2017-0010-0005</a> (``News Media Alliance--Group Registration of Newspapers
Comments'').
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2. The Collective Work Requirement
This new group registration option would cover a group of
collective works, and the electronic registration system will
automatically add the term ``collective work authorship'' to the group
news websites application. As a type of compilation, each collective
work must contain a sufficiently creative selection, coordination, or
arrangement of the individual component works, such as articles,
photographs, illustrations, or other content.\49\ Whether the content
itself is entirely new is irrelevant to this determination. An update
to a news website could be considered original if it contains a new
selection, coordination, and arrangement of content, even if that
individual content has been previously published on the website--such
as articles appearing in previous updates.
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\49\ 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.'' 17 U.S.C. 101.
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A collective work will be eligible for this registration option if
it was first published on a publicly accessible website, including news
websites protected by paywalls. This option will also be available
where the work was simultaneously published both on the internet and in
a physical form. Each collective work within the group will be
considered a separate work for purposes of section 504(c)(1).
As a general rule, a registration under this group option will
cover the individual contributions contained within the collective work
if they are fully owned by the copyright claimant and if they were
first published in that work. By contrast, if a collective work
contains contributions that are not fully owned by the copyright
claimant, and/or contributions that were previously published, the
registration will not extend to those works.\50\
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\50\ See Morris, 259 F.3d at 71 (``Unless the copyright owner of
a collective work also owns all the rights in a constituent part, a
collective work registration will not extend to the constituent
part.'').
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3. One Month Limitation
Under the proposed rule, an applicant can include updates published
on the same website within the same calendar month. Applicants will be
required to identify the earliest and latest date that updates were
published on the website during the month specified in the application.
Claims bearing dates outside of the single calendar month will be
refused.\51\
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\51\ See 37 CFR 202.4(p).
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The Office proposes one calendar month as the appropriate limit for
this option based on several considerations, including consultations
with news media representatives and experience with the group
registration option for print newspapers.\52\ As discussed below,
applicants will be required to submit their claims through the current
registration system. To minimize the need for additional development,
the Office intends to use the application designated for group
newspapers for this purpose. This form may be used to register up to
one month of newspaper issues, and it contains technical validations
that prevent applicants from entering publication dates that are more
than one month apart. Because newspaper and news website claims will be
submitted on the same form, it will be necessary to limit both claims
to the same one-month time period.
---------------------------------------------------------------------------
\52\ See, e.g., News Media Alliance--Group Registration of
Newspapers Comments at 2.
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Permitting registration of one calendar month of daily updates to
the same news website represents an appropriate balance between the
interests of copyright owners and the administrative capabilities of
the Office. The Office does not currently have the ability to charge
differential prices based on the number of works in the group or the
complexity of the claim. Given the technical limitations of the
existing registration system and the modest filing fee that would be
involved, a reasonable limit on the number of works included in each
claim is necessary to manage the administrative burden. In the future,
the Office may consider whether a different time range may be
preferable once it has introduced its new enterprise copyright system.
4. Authorship, Ownership, and Work Made for Hire Requirements
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. Applicants may not submit groups of collective
works created by different authors (such as twenty-five collective
works by Online News, Inc. and twenty-five collective works by Sports
Net, Inc.), even if those collective works appear on the same website.
5. Title and URL
Applicants will be required to provide a title that identifies the
news website. In all cases, the title must include the URL for the
site. For example, if the applicant is registering the online version
of the Grand Rapids Gazette, the Office would accept a title such as
``grgazzette.michigannews'' or Grand Rapids Gazette
(grgazette.michigannews).'' \53\
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\53\ The Grand Rapids Gazette name and associated URL are
fictitious and used merely to illustrate the proposed rule's
operation.
---------------------------------------------------------------------------
A title for the group of collective works as a whole will be
created automatically by the electronic registration system and will be
used to identify the registration in the Office's online public record.
The group title will include the website title and the publication
dates provided in the application. For example, if the applicant
provides the title ``grgazette.michigannews'' and states that the
earliest collective work in the group was published on March 1, 2024,
and the most recent one was published on March 31, 2024, the system
will generate the following group title: ``grgazette.michigannews.
[Published: 2024-03-01 to 2024-03-31. Issues: March 2024].'' In this
respect, the group title will be similar to the format of the group
title currently used for registration of a group of newspaper issues.
Subject of Inquiry: The Office seeks public comments regarding
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. The Office will balance the public
interest in creating a meaningful record (i.e., collecting information
regarding each individual contribution within the collective work) with
the relative burden on applicants. We welcome comments regarding the
impact on news publishers if they were permitted to provide granular
information concerning the individual articles, photographs, and other
component works for each group of news websites.
B. Application Requirements
The Office plans to create a new application form for this group
registration option in its next-generation registration system.\54\ In
the interim, it
[[Page 316]]
will use one of the current group registration application forms to
process these claims in the registration system. As mentioned above,
applicants will be required to submit their claims through the
electronic registration system, and to use the application designated
for a group of newspaper issues.\55\ Further instructions on how to
complete this application will be provided by the Office through
traditional avenues, including its website, circulars, or Chapter 1100
of the Compendium of U.S. Copyright Office Practices.
---------------------------------------------------------------------------
\54\ See Modernization, U.S. Copyright Office, <a href="https://copyright.gov/copyright-modernization/">https://copyright.gov/copyright-modernization/</a> (last visited Dec. 21, 2023)
(tracking the Office's work to develop and implement a new
enterprise IT system, including a registration module).
\55\ 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.
---------------------------------------------------------------------------
Recently, the Office finalized new regulations and amended other
regulations to require other group registration claims to be filed
electronically, and the rationales for requiring electronic submission
set forth in those rulemakings would apply equally here.\56\ Publishers
who create and publish these types of works will necessarily have
access to the internet and will be capable of using the electronic
registration system.\57\ Given that the Office has required newspaper
publishers to use the electronic registration system to register groups
of newspapers since March 1, 2018, it does not anticipate objection to
this requirement.\58\
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\56\ See, e.g., 86 FR 10820, 10822 (Feb. 23, 2022) (final rule
for group registration of works on an album of music); 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).
\57\ Likewise, the online-filing requirement will apply to the
``supplementary registration'' procedure, which may be used to
correct or amplify the information in an existing registration. The
Office has announced that if it ``move[s] registrations for other
classes of works into the electronic registration system,'' the
procedure for correcting or amplifying those registrations would
``be subject to this same [online filing] requirement.'' 81 FR
86656, 86658 (Dec. 1, 2016). Thus, if an applicant needs to correct
or amplify the information in a registration for a news website,
that request will need to be submitted through the electronic
registration system, instead of using a paper form. See 37 CFR
202.6(e)(1) (requiring a supplementary registration for a group of
related works to be made using the online application).
\58\ 37 CFR 202.4(e)(5); see also 83 FR 4144, 4144 (Jan. 30,
2018) (final rule for group registration of newspapers).
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C. Deposit Requirement
The Office finds it necessary to modify the general complete-copy
requirement to enable the registration of dynamic news websites. As
noted above, Congress provided the Office with the authority to create
group registration options and to allow flexibility in the content of
the deposit to foster registrations that otherwise would be unduly
burdensome. Requiring applicants to provide complete deposits of each
news website imposes a significant and even unachievable burden on
applicants, discouraging registration and making the news content
increasingly vulnerable to infringement.\59\ While the Office is
reluctant to depart from its general rule, which would require the
entire contents of the website and each update, a different rule is
appropriate here in a specific context where a need for flexibility in
deposit requirements has been established. The proposed modification
will also satisfy the public notice function of capturing, and making
available for public inspection, a deposit that should be sufficient to
identify the news website covered by the registration. To the extent
the copyright owner may be required to prove to a court or to 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.\60\
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\59\ See MPA-The Association of Magazine Media Comments at 1, 4;
News Corporation Comments at 4-7.
\60\ To be clear, each PDF will contain a representative example
of what the home page looked like at a particular point on a
particular date. The PDFs, however, will not show how the home page
looked at any other point in time. Nor will the PDFs contain any of
the content that appeared elsewhere on the website.
---------------------------------------------------------------------------
Subject of Inquiry: To further satisfy the public record and assist
in later potential litigation efforts, the applicant 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. Archived URLs preserve
copies of web pages and display them as they appeared when captured.
The Office seeks 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.
Under the proposed rule, applicants will be required to submit a
deposit that is sufficient to identify some of the updates that were
made to the website. Specifically, 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.\61\ Up to thirty-one PDFs may be needed for
each application since new updates could be published any day of the
month. But each PDF would need to show only one of the updates that
were published on those dates, not each and every update made.
---------------------------------------------------------------------------
\61\ Applicants would be required to submit their deposits to
the Office in PDF and assembled in an orderly form. Each copy of the
home page must be contained in a separate electronic file, and the
size of each file must not exceed 500 megabytes. If necessary,
applicants may save the files in a .zip folder and upload it to the
system, provided that all of the files within the folder are
acceptable file types.
---------------------------------------------------------------------------
In each case, the deposit must demonstrate that the home page
contains a sufficient degree of selection, coordination, and/or
arrangement to be registered as a collective work. If the Office
determines that the home page does not contain sufficient collective
work authorship, the examiner may request additional pages from the
website.
As noted above, all claims registered under this option would be
limited to the collective work authorship based on the selection,
coordination, and/or arrangement of the individual component works, and
all parts of the collective work will constitute one work for purposes
of 17 U.S.C. 504(c)(1). If the Office registers the claim, the
registration may cover the individual component works that the claimant
owns. The certificate, however, will include an annotation confirming
that the Office examined the home page for collective work authorship,
but did not review any of the component works that appear in the
deposit to determine if they are copyrightable or if they are owned by
the claimant.
D. Filing Fee
The filing fee for this option will be $95, the same fee that
currently applies to a claim in a group of newspapers.\62\ As mentioned
above, the Office does not have the ability at this time to charge
differential prices based on the number of works in the group or the
complexity of the claim. At least initially, the Office believes it is
reasonable to charge the same fee for this new group registration
option as for the group newspaper option, given the similarities in
expected workflow associated with
[[Page 317]]
examining these claims. With the benefit of additional data the Office
will gather after this group registration option is launched, the
Office will consider whether it would be appropriate to charge a
different fee in its next-generation registration system.
---------------------------------------------------------------------------
\62\ See 37 CFR 201.3(c)(8) (listing registration fee for ``a
group of newspapers or a group of newsletters'').
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III. Conclusion
The Office anticipates that the proposed rule will lead to broader
participation in the registration system by facilitating the
registration process for news publishers who frequently update news
content published on the internet. To better inform the path forward,
the Office seeks public comment on the proposed rule generally and the
specific subjects of inquiry highlighted above.
List of Subjects
37 CFR Part 201
Copyright, General provisions.
37 CFR Part 202
Copyright, Copyright claims, preregistration and registration.
Proposed Regulations
For the reasons set forth in the preamble, the Copyright Office
proposes amending 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 paragraph (m) of this section:
(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 newspaper issues. 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. 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 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
paragraph (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
[[Page 318]]
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.
* * * * *
Dated: December 22, 2023.
Suzanne Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2023-28724 Filed 1-2-24; 8:45 am]
BILLING CODE 1410-30-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.