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that the costs imposed on an applicant strengthened federalism. The Executive SUMMARY: The Copyright Office is by the proposed priorities, order relies on processes developed by issuing a revised proposed rule to make requirements, definitions, and selection State and local governments for electronic-only books published in the criteria would be limited to paperwork coordination and review of proposed United States subject to the Copyright burden related to preparing an Federal financial assistance. Act’s mandatory deposit provisions if application and that the benefits of the This document provides early they are affirmatively demanded by the proposed priorities, requirements, notification of our specific plans and Office. In response to comments definitions, and selection criteria would actions for this program. received in response to the Office’s outweigh any costs incurred by the Assessment of Educational Impact April 16, 2018 Notice of Proposed applicant. Rulemaking, the revised proposed rule Participation in the PN program is In accordance with section 411 of makes additional clarifying edits to the voluntary. For this reason, the proposed General Education Provisions Act, 20 definition of an ‘‘electronic-only book’’ priorities, requirements, definitions, and U.S.C. 1221e–4, the Secretary and adjusts the requirements related to selection criteria would impose no particularly requests comments on employment of technological protection burden on small entities unless they whether the proposed regulations would measures. This document also updates applied for funding under the program. require transmission of information that the public on developments We expect that in determining whether any other agency or authority of the subsequently announced by the Library to apply for PN program funds, an United States gathers or makes of Congress related to certain questions applicant would evaluate the available. raised in public comments with respect requirements of preparing an Accessible Format: Individuals with to its digital collection strategy and application and any associated costs, disabilities can obtain this document in information technology security matters. and weigh them against the benefits an accessible format (e.g., braille, large DATES: Written comments must be likely to be achieved by receiving a PN print, audiotape, or compact disc) on received no later than 11:59 p.m. program grant. An applicant would request to the program contact person Eastern Time on July 29, 2020. listed under FOR FURTHER INFORMATION probably apply only if it determines that ADDRESSES: For reasons of government the likely benefits exceed the costs of CONTACT. Electronic Access to This Document: efficiency, the Copyright Office is using preparing an application. the regulations.gov system for the We believe that the proposed The official version of this document is the document published in the Federal submission and posting of public priorities, requirements, definitions, and comments in this proceeding. All Register. You may access the official selection criteria would not impose any comments are to be submitted edition of the Federal Register and the additional burden on a small entity electronically through regulations.gov. Code of Federal Regulations at applying for a grant than the entity Specific instructions for submitting www.govinfo.gov. At this site you can would face in the absence of the comments are available on the view this document, as well as all other proposed action. That is, the length of Copyright Office website at https:// documents of this Department the applications those entities would www.copyright.gov/rulemaking/ published in the Federal Register, in submit in the absence of the proposed ebookdeposit. If electronic submission text or Adobe Portable Document regulatory action and the time needed to of comments is not feasible due to lack Format (PDF). To use PDF you must prepare an application would likely be of access to a computer and/or the have Adobe Acrobat Reader, which is the same. internet, please contact the Office using This proposed regulatory action available free at the site. You may also access documents of the the contact information below for would not have a significant economic special instructions. impact on a small entity once it receives Department published in the Federal FOR FURTHER INFORMATION CONTACT: a grant because it would be able to meet Register by using the article search Regan A. Smith, General Counsel and the costs of compliance using the funds feature at www.federalregister.gov. Associate Register of Copyrights, provided under this program. We invite Specifically, through the advanced [email protected]; Kevin R. Amer, comments from small eligible entities as search feature at this site, you can limit Deputy General Counsel, kamer@ to whether they believe this proposed your search to documents published by copyright.gov; or Mark T. Gray, regulatory action would have a the Department. Attorney-Advisor, mgray@ significant economic impact on them Frank T. Brogan, copyright.gov. They can be reached by and, if so, request evidence to support Assistant Secretary for Elementary and telephone at 202–707–3000. that belief. Secondary Education. SUPPLEMENTARY INFORMATION: Paperwork Reduction Act [FR Doc. 2020–13158 Filed 6–26–20; 8:45 am] I. Background The proposed priorities, BILLING CODE 4000–01–P requirements, definitions, and selection A. Mandatory Deposit Under the criteria contain information collection Copyright Act Generally requirements that are approved by OMB LIBRARY OF CONGRESS Section 407 of title 17 requires that under OMB control number 1894–0006; Copyright Office the owner of the copyright or the the proposed priorities, requirements, exclusive right of publication in a work definitions, and selection criteria do not 37 CFR Part 202 published in the United States, within affect the currently approved data three months of publication, deposit collection. [Docket No. 2016–03] ‘‘two complete copies of the best Intergovernmental Review edition’’ with the Copyright Office ‘‘for Mandatory Deposit of Electronic-Only the use or disposition of the Library of This program is subject to Executive Books Congress.’’ 1 The ‘‘best edition’’ is Order 12372 and the regulations in 34 AGENCY: U.S. Copyright Office, Library defined as ‘‘the edition, published in the CFR part 79. One of the objectives of the of Congress. Executive order is to foster an 1 ACTION: Notice of proposed rulemaking. 17 U.S.C. 407(a), (b); see generally 37 CFR intergovernmental partnership and a 202.19.

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United States at any time before the date only works from the mandatory deposit comments praised the efforts to collect of deposit, that the Library of Congress requirement, the Office also, however, more works in the identified categories, determines to be most suitable for its adopted an exception to this exemption, others expressed reservations. purposes.’’ 2 These requirements are requiring the deposit of electronic-only D. 2018 Proposed Rule Regarding governed by section 202.19 and serials if affirmatively demanded by the Electronic-Only Book Deposit Appendix B of part 202 of the Office’s Office.7 An electronic-only serial is ‘‘an regulations, which set forth rules and electronic work published in the United In April 2018, the Office issued a criteria, respectively, for the different States and available only online, issued notice of proposed rulemaking (‘‘2018 types of works subject to the mandatory or intended to be issued on an NPRM’’) seeking public comment on a deposit requirement. established schedule in successive parts proposal to finalize the interim rule and Under the statute, the Register of bearing numerical or chronological to extend the demand-based mandatory Copyrights may issue a written demand designations, without subsequent deposit requirements to electronic-only for works at any time after they have alterations, and intended to be books.12 The 2018 NPRM proposed that 8 been published in the United States, continued indefinitely.’’ This category the term ‘‘electronic-only book’’ be and failure to deposit after a demand includes ‘‘periodicals, newspapers, ‘‘defined broadly as an electronic may subject the recipient to monetary annuals, and the journals, proceedings, literary work published in one volume liability.3 Compliance with this section transactions, and other publications of or a finite number of volumes published 9 is separate from the copyright societies.’’ The 2010 Interim Rule in the United States and available only registration process, but the Copyright stated that any additional categories of online,’’ with some exclusions for Act provides that deposits made under electronic-only works would first be specific types of works such as serials, section 407 may be used to satisfy the ‘‘identified as being subject to demand’’ audiobooks, websites, blogs, and registration deposit provisions under through a rulemaking with notice and emails.13 To clarify how the rule would section 408, if all other registration comment before the Office issues any apply in the context of books available 10 conditions are met.4 actual demands for such works. The for print-on-demand, the definition Certain categories of works are not present proposed rule is one such provided that a work would be deemed subject to mandatory deposit. As set out rulemaking. available only online ‘‘even if physical in the statute, unpublished works and C. 2016 Notice of Inquiry Regarding copies or phonorecords have been made foreign works that have not been Expansion of Demand-Based Deposit on demand for individual consumers, so published in any form in the United long as the work is otherwise available In 2016, the Office issued a notice of States do not have to be deposited. In only online.’’ 14 inquiry (‘‘NOI’’) that proposed to addition, under section 407(c), the The 2018 NPRM also addressed Register can, by regulation, exempt any finalize the 2010 interim rule and to add a new category of online works— questions raised by commenters categories of material from section 407’s regarding Library access policies and mandatory deposit requirements or electronic-only books—to the demand- based mandatory deposit scheme.11 The information technology requirements. demand only one copy to provide a The Office proposed to modify existing ‘‘satisfactory archival record of a work.’’ Office sought comments on four topics: (1) The efficacy of the interim rule, regulations to apply the same access Under this authority, the Register has policies to deposited electronic-only excluded numerous categories of works including whether it adequately serves the needs of the Library and other books as those applicable to electronic from the mandatory deposit deposits of newspapers: Access would requirement, such as greeting cards, affected parties and whether it could serve as a good framework for adding be provided only to authorized users on architectural blueprints, and three- Library of Congress premises and off- dimensional sculptural works.5 additional categories of electronic works to the mandatory deposit system; (2) the site to Library staff as part of their B. Regulations Regarding Mandatory Library’s access policy as applied to assigned duties via a secure Deposit of Electronic-Only Materials both electronic-only serials and, connection.15 In response to comments expressing concern about the adequacy In 2010, the Office issued an interim potentially, to electronic-only books; (3) of the Library’s technology security rule (the ‘‘2010 Interim Rule’’) codifying ‘‘information technology, security, and/ infrastructure, the 2018 NPRM provided its established practice of excluding or other requirements’’ that should information on the recent steps taken by from mandatory deposit requirements apply to the receipt and storage of, and the Library to address its information all ‘‘[e]lectronic works published in the access to, electronic-only books; and (4) technology needs, including the United States and available only how the ‘‘best edition’’ requirements appointment of a permanent Chief online.’’ 6 The 2010 Interim Rule should be applied to the mandatory Information Officer, the implementation referred to such works as ‘‘electronic- deposit of electronic-only books. The of security standards, and the use of only.’’ In generally excluding electronic- Office received fifteen comments on the proposed changes. While some of the comprehensive security testing for all 16 2 17 U.S.C. 101; see also 17 U.S.C. 407(b). Library systems. 3 17 U.S.C. 407(d). 7 2010 Interim Rule at 3865–66. ‘‘Electronic Finally, the proposed rule established 4 Id. at 408(b). Although section 408 states that works’’ are themselves defined as ‘‘works fixed and ‘‘best edition’’ requirements for published solely in an electronic format.’’ 37 CFR copies deposited pursuant to the mandatory deposit electronic-only books, adopting provision in section 407 may be used to satisfy the 202.24(c)(3). registration deposit requirement in section 408, in 8 37 CFR 202.19(b)(4). provisions from the Library’s practice the Office treats copies of works submitted 9 Id. Recommended Formats Statement with for registration as satisfying the mandatory deposit 10 2010 Interim Rule at 3866. some clarifying language regarding the requirement (assuming the deposit requirements are 11 Mandatory Deposit of Electronic Books and the same), and not vice versa. 37 CFR 202.19(f)(1), Sound Recordings Available Only Online, 81 FR 12 Mandatory Deposit of Electronic-Only Books, 202.20(e); see 43 FR 763, 768 (Jan. 4, 1978). 30505, 30506–08 (May 17, 2016) (‘‘2016 NOI’’). The 83 FR 16269 (Apr. 16, 2018) (‘‘2018 NPRM’’). 5 See 37 CFR 202.19(c). NOI also included online sound recordings as a 13 6 Mandatory Deposit of Published Electronic potential additional category of works to subject to Id. at 16272. Works Available Only Online, 75 FR 3863, 3869 mandatory deposit, but the Office has decided to 14 Id. at 16272–73. (Jan. 25, 2010) (‘‘2010 Interim Rule’’); 37 CFR postpone further consideration of this issue until 15 Id. at 16270 (citing 37 CFR 202.18). 202.19(c)(5). after the conclusion of this rulemaking. 16 2018 NPRM at 16273–74.

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‘‘completeness’’ of a work.17 These pursuant to the rule. Some commenters phonorecords (e.g., audiobooks), serials provisions also included a requirement urged the Office to provide additional (as defined in § 202.3(b)(1)(v)), that depositors remove technological assurances as to the adequacy of the computer programs, websites, blogs, and measures that control access to or use of Library’s digital security practices,24 emails.’’ 28 A number of comments the work, as is currently required for while others objected to the proposed raised questions about the scope of electronic-only serials.18 requirement that deposited materials be materials that would be subject to free of technological protection mandatory deposit under this II. Discussion measures.25 definition. The Office received nine comments in The Office has carefully considered First, the National Writers Union response to the 2018 NPRM. these comments and finds that they (NWU) found certain terminology in the Commenters generally expressed have helpfully identified several areas proposed rule ambiguous. It noted that agreement with the broad goal of that would benefit from further ‘‘[t]he term ‘volume,’ as applied to supporting the Library’s acquisition and discussion or explanation. In response digital data, is normally used to describe preservation of digital materials for the to certain issues raised by commenters, a physical or virtual drive, storage benefit of the American public. The the Office has made revisions to the device, partition, or filesystem, which Library Copyright Alliance supported proposed regulatory text. In addition, to can contain any number of related or the proposed rule ‘‘because of the further demonstrate the basis for the unrelated files.’’ 29 NWU therefore critical role of deposit in building the proposed rule, the Office is providing believed the rule was unclear as to Library’s collection and ensuring long- additional information in response to ‘‘which digital files or groups of files the term preservation’’ of digital commenters’ questions regarding Copyright Office considers or will deem materials.19 Authors Guild similarly Library collections and security to constitute ‘volumes.’ ’’ 30 noted that the Library ‘‘cannot fulfill policies, including to share relevant Additionally, NWU expressed confusion [its] mission today without collecting developments that occurred after the over the exclusion of ‘‘websites’’ and books that are published only in close of the initial comment period.26 ‘‘email’’ from the definition, noting that electronic form,’’ 20 and the Association The Office addresses each of these ‘‘[m]ost works distributed in electronic of American Publishers stated issues below and welcomes additional formats are distributed either as files ‘‘[p]ublishers have long supported the public comment. In light of the existing downloadable from the World Wide special privilege of the Library to collect rulemaking record and, as noted below, Web—i.e., as part of websites—or by works’’ through mandatory deposit.21 the progress the Library has reported to email.’’ 31 Based on this interpretation, Authors Alliance supported the rule the Office in response to the 2018 NWU reads the proposed rule to because, in its view, mandatory deposit NPRM, the Office anticipates being able exclude, for example, all e-book files ‘‘serve[s] the long-term interests of to reasonably move forward with released for the Amazon Kindle because authors by ensuring that their creative finalization of the proposed rule after those files ‘‘can be downloaded . . . and intellectual legacies are this round of comments. through the Amazon.com website’’ and preserved.’’ 22 thus are ‘‘part of websites.’’ 32 A. Scope of Material Subject to Deposit At the same time, the comments After consideration of NWU’s revealed significant concern over 1. Definition of ‘‘Electronic-Only Book’’ comments, the Office does not agree that several aspects of the proposed rule. A The 2018 proposed rule defined an the cited provisions are likely to cause number of commenters requested ‘‘electronic-only book’’ as ‘‘an electronic confusion. When read in context, the clarification of the rule’s intended literary work published in one volume term ‘‘volume’’ cannot plausibly be scope, pointing to ambiguity in the or a finite number of volumes published understood to describe a physical or definition of the term ‘‘electronic-only in the United States and available only digital drive that stores data. Rather, the book’’ and uncertainty as to the online.’’ 27 It specifically excluded regulatory text makes clear that the term collections policies that would govern ‘‘literary works distributed solely in carries its ordinary meaning as a unit in acquisition decisions.23 Commenters which a ‘‘literary work’’ is published.33 also raised questions regarding the 24 Copyright Alliance Comment at 4 (requesting The language simply indicates that, for security of digital materials deposited the Library ‘‘demonstrat[e] the adequacy of the purposes of defining an ‘‘electronic-only Library’s IT system’’ before finalizing the rule); book,’’ it is immaterial whether a work 17 Id. at 16274–75. Authors Guild Comment at 3 (seeking additional specifics about the ‘‘security measures for e-books’’ is published in one file or is broken into 18 Id. at 16275. and requesting more information about Library’s multiple files. Nor does the Office find 19 Library Copyright Alliance Comment at 2; see creation of a secure e-book repository); AAP NWU’s interpretation of ‘‘websites’’ to also University of Michigan Copyright Office Comment at 2–3 (seeking additional information be a reasonable reading. The fact that Comment at 1–2 (‘‘strongly support[ing]’’ the about ‘‘the state of the Library’s technology proposed rule because it ‘‘provide a means for the capabilities, protocols, and security measures’’). copies of a work are distributed via a Library of Congress to acquire [electronic-only 25 Copyright Alliance Comment at 4–5 (stating website does not mean the work is part books], preserve them, and provide limited access that technological protection measures serve as of the website. Moreover, excluding to them’’). ‘‘important safeguards’’ for digital material); 20 Authors Guild Comment at 2. Authors Guild Comment at 5–6 (expressing concern 28 21 American Association of Publishers (‘‘AAP’’) Id. that requiring removal of technological protection 29 Comment at 3–4; see also Copyright Alliance measures may ‘‘essentially require the publisher to NWU Comment at 3. Comment at 2 (noting ‘‘the value of the Library’s create a new edition’’ where no such version is sold 30 Id. ongoing efforts to preserve culturally significant in the market). 31 Id. at 4. works’’). 26 The Library Copyright Alliance suggested the 32 Id. at 4. 22 Authors Alliance Comment at 2. Library’s access policies were overly restrictive and 33 The existing interim rule for electronic serials 23 Authors Guild Comment at 3–4 (raising should allow for more than two users at a time to uses the terms ‘‘issues’’ and ‘‘volumes’’ in reference questions about the Library’s collections policies view the same resource. Library Copyright Alliance to units of a literary work, and depositors have not and recommending changes to definition of Comment at 4. For the reasons stated in the 2018 expressed confusion in applying these terms. See 37 ‘‘electronic-only book’’); National Writers Union NPRM, the Office believes the Library’s access CFR 202 app. B.IX.A.2.b. (requiring submission of (‘‘NWU’’) Comment at 3–4 (expressing uncertainty policies strike an appropriate balance between available metadata for ‘‘volume(s)’’ and ‘‘issue about what material would be demanded based on protecting against infringement and facilitating dates(s)’’); 2010 Interim Rule at 3867 (‘‘[I]t is Library collections policies); Copyright Alliance lawful uses by Library patrons. See 2018 NPRM at expected that each issue of a demanded serial will Comment at 3 (raising questions about Library’s 16723. be deposited with the Copyright Office thereafter as collections strategy). 27 2018 NPRM at 16275. is the current practice.’’).

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such books would be at odds with both balance between ensuring that the regulations for printed textual matter, the purpose of the rule and Copyright Library retains sufficient flexibility in which require ‘‘the regular and timely Office practice. As the NOI explained, its acquisition decisions, and making receipt of all appropriate looseleaf this proceeding is intended to facilitate clear that rule’s intended focus is on updates, supplements, and releases.’’ 44 collection of ‘‘electronic books that have ‘‘textual works that are marketed or The deposit requirement for updates to been published solely through online presented as ‘electronic books’ and electronic-only books will be channels,’’ 34 which certainly would other monographic works such as administered in the same manner that include books distributed through major organizational reports and long-form publishers are accustomed to for printed platforms such as Amazon. Further, the essays’’—and not on blogs, social media material. Nor is revision required to Compendium of U.S. Copyright Office posts, websites, and the like.40 The accommodate books available in print Practices provides that a ‘‘work that is additional language proposed here with additional content in a digital perceptible to the user only by further clarifies this distinction. version. Where a work is available in downloading or separately purchasing Third, the Authors Guild suggested both digital and print editions, the work that particular work is not considered that the proposed definition is is not ‘‘available only online,’’ and thus part of the website for registration underinclusive because the phrase is not subject to the rule. To the extent purposes and must be registered ‘‘available only online’’ might not the digital version contains separately.’’ 35 encompass electronic books distributed supplementary material that is not Second, the Authors Guild noted that offline, such as books preloaded onto e- published in the physical version, the the proposed regulatory language did readers or tablets.41 The Authors Guild electronically enhanced version would not address the length of works subject proposed instead that references to a be subject to demand if it constitutes a to the rule even though ‘‘books are work being ‘‘available only online’’ be separate ‘‘work’’ under the Copyright generally defined as longer literary replaced with ‘‘available in electronic Act and is not otherwise excluded from works.’’ 36 It recommended modifying form.’’ 42 The Office agrees that works of the rule. the rule to clarify that ‘‘very short this type should be covered by the rule, Fifth, the Office has determined that works, such as a single poem or a string but the language proposed by the the rule should be revised to further of tweets,’’ are not covered.37 Authors Guild potentially could sweep clarify when print-on-demand books are Although the 2018 NPRM noted that in electronic works that are also to be deemed ‘‘available only online.’’ the Library ‘‘does not intend to obtain published in physical form. The Office The original proposed rule provided blog posts, social media posts, and believes that a more targeted solution is that ‘‘[a] work shall be deemed to be general web pages’’ through this rule,38 to address this situation in the section available only online even if physical the Office agrees that that limitation of the rule defining when a work is copies have been made on demand for could be made clearer in the regulatory considered to be available only online. individual consumers, so long as the text itself. The Office therefore proposes The revised proposed rule adds work is otherwise available only 45 revising the definitional language to language to that definition providing online.’’ The Office proposed that expressly exclude ‘‘short online literary that a work shall be deemed to be definition to address commenters’ works such as social media posts.’’ The available only online ‘‘even if copies concern that, in the case of books made Office considered the possibility of have been loaded onto electronic available for printing by individual adopting a longer and more detailed list devices, such as tablets or e-readers, in consumers, ‘‘it [would] be difficult for of exclusions but ultimately concluded advance of sale to individual publishers to determine whether such consumers, so long as the work is that such an approach would be works are subject to the general otherwise available only online.’’ infeasible given the speed at which new exemption for electronic-only works Fourth, AAP raised questions about online services emerge. Moreover, any (and the demand-based mandatory the rule’s requirement that ‘‘[a]ll deposit scheme proposed here), or attempt to further limit the subclasses of updates, supplements, releases, and literary works subject to the rule could whether they are subject to affirmative supersessions’’ of the work be deposited mandatory deposit requirements.’’ 46 result in the exclusion of certain works in a timely manner. AAP requested that that fall within the rule’s intended The 2018 NPRM thus contemplated that the Office define the terms ‘‘updates, a work would qualify as an e-book scope. For example, excluding ‘‘poems’’ supplements, releases, and would not be advisable, as some poems under the rule even if copies were supersessions’’ and sought clarification ‘‘printed privately, in consumers’ are long enough to constitute a book as how the Office would treat books (e.g., Paradise Lost). As noted in the homes, or at kiosks at brick-and-mortar available in print whose digital editions 47 2018 NPRM, the Office recognizes that bookstores.’’ contain additional content or That situation, however, is the traditional definition of a physical revisions.43 After consideration, the book ‘‘does not translate neatly to the distinguishable from a business model Office does not believe modification of in which an author, publisher, or digital environment’’ and that the regulatory text is necessary. The distinguishing ‘‘electronic-only books’’ distributor prints copies in response to language regarding updates and similar purchases by individual consumers. For from other types of online literary works material is analogous to a longstanding may be difficult in certain cases at the example, a physical or online retailer requirement in the best edition might place orders for printed copies of margins.39 Nevertheless, the Office a particular title only as individual continues to believe that the overall 40 Id. To the extent that numerous short online requests for that title are received from definitional approach set forth in the posts, blogs, and social media posts are collected customers, as opposed to ordering 2018 NPRM strikes an appropriate and published in a single monograph, such a collection would be subject to this rule, because it multiple copies from the publisher in would be presented as an ‘‘electronic book’’ and 34 advance of any customer purchases. 81 FR at 30508. would be copyrightable as a collective work. 35 These books are outside the scope of U.S. Copyright Office, Compendium of U.S. 41 Authors Guild Comment at 4. Copyright Office Practices sec. 1002.2 (3d ed. 2017). 42 Id. 36 44 Authors Guild Comment at 4. 43 AAP Comment at 7 (inquiring as to the ‘‘degree 37 CFR 202 app. B.I.A.8. 37 Id. of variation from the print version [that] suffices to 45 2018 NPRM at 16275. 38 2018 NPRM at 16272. make an electronic-only book subject to the 46 Id. at 16272–73. 39 Id. requirement’’). 47 Id. at 16273.

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this rule, and instead remain subject to materials specifically, the Authors’ Collection Development Office has the general mandatory deposit Guild explained, ‘‘[i]t is our explained, this policy reflects the obligation under section 407. In understanding that the Library has not Library’s effort to develop ‘‘one circumstances where a retailer provides yet created and adopted a interdependent collection that contains a physical copy for sale, it is immaterial comprehensive strategy for safely both its traditional physical holdings to the purchaser—and likely unknown storing books published in electronic and materials in digital formats.’’ 61 to acquisition specialists at the form, despite the fact that e-books and With respect to commenters’ concerns Copyright Office—whether the retailer electronic audio books have been a about the Library’s digital strategy,62 the has multiple copies on hand or obtains significant and growing percentage of Library has provided further public them individually to fulfill purchases as books published for over a decade.’’ 53 information following the close of the they occur. To make this distinction As the 2018 NPRM indicates, the comment period, most notably in its clear, the Office has amended the Copyright Office consults with the five-year strategic plan and in a formal proposed rule to more precisely refer to Library and relies on those discussions books made available for on-demand along with the Library’s public digital strategy document that supports printing by individual consumers, as statements in considering and the strategic plan. The 2019–2023 distinguished from on-demand activities responding to commenters’ concerns in strategic plan, Enriching the User performed by distributors, publishers, this area.54 According to the Library, the Experience, notes that ‘‘being digitally retailers, or others in the supply chain. criteria used to determine what enabled is paramount to [the Library of 63 The revised language provides: ‘‘A work electronic materials to acquire ‘‘do not Congress’s] success.’’ Describing shall be deemed to be available only greatly differ from those used for other digital efforts as an ‘‘ongoing process,’’ online even if copies have been made formats.’’ 55 The Library prepares the plan states that in the next five years available to individual consumers to subject-specific Collections Policy the Library will streamline its print on demand, so long as the work is Statements (e.g., Education, Chemical operational capabilities and undertake otherwise available only online.’’ 48 Sciences, Medicine, Theater) and makes efforts to identify gaps in expertise and them available on its website.56 These recruit new talent to fill those gaps.64 2. The Library’s Collections Policies policies detail what kinds of works the The Library’s digital strategy, published In discussing the scope of materials Library seeks to collect and at what in April 2019, describes a five-year plan subject to deposit under this rule, a level of comprehensiveness. For for expanding its digital collections and number of commenters sought example, the Political Science statement providing access to that material, in additional information about the Library notes that the Library seeks to ‘‘collect[ ] connection with the Library’s broad of Congress’s specific collections all the important current reference goals of ‘‘throwing open the treasure policies. As the AAP put it, ‘‘[i]n works’’ in the field, regardless of chest, connecting, and investing in our providing for the transfer of said copies language, while it collects foreign future.’’ 65 It notes that the Library through mandatory deposit, Congress textbooks ‘‘on a highly selective intends to ‘‘exponentially’’ expand its made clear that the Library must make basis.’’ 57 The Library also maintains digital collections, provide ‘‘maximum demands under Section 407 with a supplementary guidelines to assist in authorized access’’ to material in the purpose.’’ 49 The NWU stated that it applying these standards to electronic collection depending on the type of ‘‘remain[ed] puzzled as to what works works.58 For example, the guidelines patron, and use ‘‘verifiable chain of the Copyright Office intends to demand note that criteria weighing in favor of custody’’ to ensure the authenticity of be deposited’’ under the proposed acquisition include the at-risk nature of digital material and prevent digital rule,50 and the Authors Guild desired to a work or its availability only in digital deterioration.66 see a ‘‘comprehensive collection 59 format. In general, however, the Office The Library also has worked to strategy’’ from the Library before understands that Library acquisition implement the recommendation made finalization of a rule.51 The Copyright decisions involving electronic materials in an April 2015 report by its Inspector Alliance expressed concern that there are governed by the relevant Collections was a ‘‘lack of a clear and cohesive Policy Statement, as is true for works in digital collections strategy within the 60 devpol/polisci.pdf (‘‘[c]omparable electronic physical format. As the Library’s materials are collected at the same levels’’ as Library of Congress’’ and requested the physical materials). opportunity to give input into that 53 Authors Guild Comment at 2. 61 Library of Congress Collection Development strategy.52 And with respect to 54 See 2018 NPRM at 16271, 16273 (noting Office, Collecting Digital Content at the Library of collection and preservation of digital consultations with and public statements by the Congress at 3 (Feb. 2017), https://www.loc.gov/acq/ Library). devpol/CollectingDigitalContent.pdf. 55 Library of Congress, Library of Congress 62 Authors Guild Comment at 2; Copyright 48 On a related issue, one commenter inquired Collections Policy Statements Supplementary Alliance Comment at 3. whether a copyright owner could comply with a Guidelines: Electronic Resources 2 (Aug. 2016), 63 demand from the Office under this rule by Library of Congress, Enriching the Library https://www.loc.gov/acq/devpol/ providing a print version of an electronic-only Experience: The FY2019–2023 Strategic Plan of the electronicresources.pdf. book. AAP Comment at 7. Because this rule is Library of Congress at 13, https://www.loc.gov/ 56 _ _ crafted ‘‘as a way to fulfill the Library’s digital See Collections Policy Statements and static/portals/strategic-plan/documents/LOC Strat _ collections,’’ 2018 NPRM at 16271, the rule does Supplementary Guidelines, Library of Congress, Plan 2018.pdf. not contemplate deposit of a print version of an https://www.loc.gov/acq/devpol/cpsstate.html. 64 Id. at 13, 23. electronic-only book. As with any deposit demand 57 Library of Congress, Library of Congress 65 Library of Congress, Digital Strategy at 2 (Apr. under section 407, however, copyright owners may Collections Policy Statements: Political Science 2– 26, 2019), https://www.loc.gov/static/portals/ request special relief from the deposit requirement 3 (Nov. 2017), https://www.loc.gov/acq/devpol/ digital-strategy/documents/Library-of-Congress- to provide a different format, such as a print polisci.pdf. Digital-Strategy-v1.1.2.pdf. version. Such a decision would be made by the 58 Library of Congress, Library of Congress 66 Id. at 3–4, 10 (digital acquisitions will be Register after consultation with other appropriate Collections Policy Statements Supplementary expanding ‘‘as outlined in Collecting Digital officials from the Library of Congress. See 37 CFR Guidelines: Electronic Resources 2 (Aug. 2016), Content at the Library of Congress’’); see also 202.19(e)(2). https://www.loc.gov/acq/devpol/ Library of Congress Collection Development Office, 49 AAP Comment at 4 (citing H.R. Rep. No. 1476, electronicresources.pdf. Collecting Digital Content at the Library of Congress 94th Cong., 2d Sess. 151 (1976)). 59 Id. at 3–6 (Feb. 2017), https://www.loc.gov/acq/devpol/ 50 NWU Comment at 3. 60 See, e.g., Library of Congress, Library of CollectingDigitalContent.pdf (describing Library’s 51 Authors Guild Comment at 3. Congress Collections Policy Statements: Political plans to expand digital collections through avenues 52 Copyright Alliance Comment at 3. Science 2 (Nov. 2017), https://www.loc.gov/acq/ such as copyright deposit, purchase, and exchange).

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General (‘‘OIG’’) on these issues.67 In to the Office’s knowledge, has owner has elected to remove such March 2018, the OIG noted that the functioned without issue for those technological measures. Library had made progress toward deposits. It is important to note, however, that creating ‘‘an overarching, transformative Some commenters objected to under section 202.24, the Office’s eCollections Strategy for collecting extending this requirement to regulations already provide that electronic works’’ by aligning all electronic-only books. For example, the deposits ‘‘must be able to be accessed electronic collection under a single Authors Guild expressed concern that in and reviewed by the Copyright Office, 68 Digital Collecting Plan. A subsequent some instances, the only published Library of Congress, and the Library’s OIG report noted that the Library has authorized users on an ongoing edition of a book may be one employing 79 provided evidence of its efforts toward technological protection measures, and basis.’’ Such language is consistent closing this recommendation, including that requiring removal would force with section 407 of the Copyright Act, ‘‘current Library of Congress Collections some publishers to ‘‘transfer the files to which obligates deposit of materials for Policy Statements, which include digital new formats or use hacking codes to ‘‘use or disposition of the Library of Congress’’ in its collections.80 So as a content and proof that digital collecting remove the controls.’’ 74 This would floor, the proposed rule clarifies that is part of overarching Library collections ‘‘not only put[ ] the author’s work at risk 69 deposits must be otherwise provided in strategies.’’ The report further noted of piracy, but [would] put[ ] an a manner that meets the requirements of that the Library and OIG met in unnecessary burden on publishers, current section 202.24(a)(4). In sum, September 2019 to discuss next steps to especially on authors who depositors must take reasonable steps to achieve closure of the remaining e- independently publish and small ensure that the Library is able to access deposit and e-collections publishers.’’ 75 The Copyright Alliance 70 the work to the extent necessary for recommendations. pointed to this requirement as The Office interprets this additional preservation and other lawful uses.81 In heightening concerns about the information to further clarify that the the case of a TPM-protected work, such Library’s IT security system, arguing Library’s plans to increase its digital efforts might include providing the collection do not reflect a shift in the that the possession of unencrypted same access codes that are available to content-based considerations digital works greatly increases the purchasing consumers. And as potential harm if the Library’s storage underlying its collections policies. 76 explained in the NPRM, ‘‘in the unlikely Rather, the Office understands that the system were ever breached. event that the Library seeks to acquire Library’s digital collections policies are For the reasons noted in the 2018 a work that is only published in a substantively the same as its policies for NPRM, the Library generally prefers proprietary format that cannot be physical works, and so an expansion of TPM-free editions of works to simplify viewed by the Library, the Office will the mandatory deposit rule to and further its preservation efforts.77 At work with the publisher to identify a electronic-only books would not the same time, the 2018 NPRM noted means to access the work.’’ 82 significantly change the nature of the that the statutory deposit requirement is C. Library of Congress IT Security Library’s collections activity. limited to the best published edition and ‘‘does not require the publisher or Several comments were directed not B. Technological Protection Measures producer to create a special preservation at the specific regulatory text in the The 2018 proposed rule provided that copy simply for the benefit of the proposed rule but instead at the ‘‘technological measures that control Library of Congress.’’ 78 To Library’s IT security practices and the access to or use of the work should be appropriately balance these ability of the Library to secure electronic removed.’’ 71 In support of that considerations, and to respond to deposits from digital theft. The 2018 requirement, the 2018 NPRM noted that commenters’ concerns, the revised NPRM briefly discussed the Library’s while technological protection measures proposed rule removes the requirement work in this area,83 but in light of the (‘‘TPM’’s) ‘‘provide significant security that TPMs be removed from deposit level of concern expressed by assurances, . . . encumbering deposited copies, but updates the Best Edition commenters, and because of important copies with such protections would regulations in Appendix B to Part 202 developments that have occurred since conflict with the Library’s purposes of to reflect the Library’s preference for a the close of the prior comment period, preserving the works.’’ 72 This TPM-free edition, if such a version has the Office is providing additional requirement was adopted for electronic been published. That is, where a serials in the 2010 interim rule 73 and, publisher has published both TPM- 79 37 CFR 202.24(a)(4). protected and non-TPM-protected 80 As commenters noted, in 1998, Congress 67 See Library of Congress Office of the Inspector versions of an e-book, the best edition specifically protected the use of technological General, The Library Needs to Determine an protection measures by copyright owners by eDeposit and eCollections Strategy at 12 (Apr. 24, for purposes of this rule is the latter. In establishing a separate remedy against 2015), https://www.loc.gov/static/portals/about/ accordance with the general approach of circumvention of such measures under section 1201 documents/edeposit-and-ecollections-strategy-april- Appendix B to provide alternate options of title 17. See Copyright Alliance Comment at 5 2015.pdf. in descending orders of preference, (raising concerns about removal of technology 68 Library of Congress Office of the Inspector protection measures, ‘‘which Congress considered General, Semiannual Report to Congress at 38 (Mar. where an electronic-only book is not critical enough to secure with independent legal 30, 2018), https://www.loc.gov/static/portals/about/ published TPM-free, the proposed rule protection’’). But there is no indication that there office-of-the-inspector-general/annual-reports/ would next accept a copy for which the was any congressional intent to abrogate the documents/March2018-semi-annual-report-to- Library’s preexisting entitlement to usable deposits congress.pdf. in section 407. See 17 U.S.C. 407(b) (‘‘The required 69 Library of Congress Office of the Inspector 74 Authors Guild Comment at 5. copies . . . shall be deposited . . . for the use or General, Semiannual Report to Congress at 30 (Sept. 75 Id. disposition of the Library of Congress.’’). 30, 2019), https://www.loc.gov/static/portals/about/ 76 Copyright Alliance Comment at 4–5. 81 Cf. 37 CFR 202.20(b)(2)(iii)(D) (noting that office-of-the-inspector-general/annual-reports/ 77 The University of Michigan Copyright Office correspondence may be necessary for digital documents/September-2019-OIG-Semiannual- wrote in support of this proposed requirement deposits ‘‘if the Copyright Office cannot access, Report-to-Congress.pdf. because, in its experience, ‘‘such technological view, or examine the content of any particular 70 Id. measures seriously impede long-term preservation.’’ digital file that has been submitted for the 71 2018 NPRM at 16275. University of Michigan Copyright Office Comment registration of a work’’). 72 Id. at 3. 82 2018 NPRM at 16274. 73 2010 Interim Rule at 3870. 78 2018 NPRM at 16274–75. 83 Id. at 16273–74.

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information shared by the Library that of the digital content in [its] care.’’ 88 He Office, in no known instance has the speaks to these issues. also has testified that the Library is Library’s security been breached or its Many commenters from organizations implementing encryption for electronic digital collections stolen. representing copyright owners were copyright deposits, putting such Since the 2018 NPRM was published, reluctant to support the proposed rule materials on the same footing as other the Library has provided additional 89 without additional assurances regarding sensitive Library data. Likewise, the detail on its IT security policies in the Library’s security capabilities. The Library has informed the Office that several recent public statements, Authors Guild stated that it was electronic deposits are given the same including congressional testimony. The ‘‘premature’’ to finalize a rule until the level of security as other highly Library’s Chief Information Officer Library could ‘‘ensure[ ]’’ the security of sensitive information held by the recently testified that the Library has e-books, and requested that a full Library, such as congressional material. ‘‘significantly increased our IT security security plan be explained and ‘‘vetted According to the Library, this material posture over the last few years. We have implemented NIST security standards, with publishers.’’ 84 The Copyright is stored on a network that complies with role based security, to ensure that Alliance requested that the Library with the security standards established users only have access to the data they ‘‘demonstrat[e] the adequacy of the by the National Institute of Standards 90 are supposed to see.’’ 95 He further noted Library’s IT system’’ before finalizing a and Technology (‘‘NIST’’), including 91 that the Library regularly conducts rule, lest the Office ‘‘put[ ] the cart standards SP 800–53 Rev. 4 and FIPS 92 penetration tests of its high value assets before the horse’’ in demanding ‘‘blind 140–2, among others. NIST creates and ‘‘are implementing encryption—at- faith’’ from copyright owners that the these security standards as required by the Federal Information Security rest and in-motion—for all sensitive Library will protect deposits.85 And Management Act,93 which seeks to Library data, including e-deposits.’’ 96 AAP said it would be ‘‘premature’’ and ensure that federal agencies Noting that ‘‘[s]ecurity is always a top ‘‘nothing short of reckless’’ to issue a ‘‘incorporate adequate, risk-based, and priority for all Library IT,’’ he further final rule before implementation of the cost-effective security compatible with stated that the Library employs recommendations of the Government business processes.’’ 94 Through its cybersecurity professionals to Accountability Office (‘‘GAO’’) in its systems, the Library has received tens of proactively monitor, test, and oversee 2015 report on the Library’s IT millions of digital files in the last security of the Library’s systems.97 management.86 decade, including over 300,000 The Librarian has similarly testified The Copyright Office appreciates electronic serial issues and 460,000 that the Library had made ‘‘significant concerns about the security of digital electronic books received under the IT security improvements’’ and deposits and agrees that the Office and interim rule or pursuant to special relief cybersecurity enhancements ‘‘to Library occupy a position of public trust agreements with publishers. As the heighten the detection of threats, thwart with respect to copyright deposits. It is Library has reported to the Copyright denial of service attacks, protect against incumbent on both organizations to malware and enable continuous operate in accordance with that trust. As 88 Oversight of Modernization of the United States monitoring so that issues are prevented, the Library has stated in its digital Copyright Office, Hearing Before the Senate and if they occur, quickly identified and strategy, ‘‘[p]romoting creativity and Subcomm. on Intellectual Property, 116th Cong. 3 resolved.’’ 98 Other improvements (Dec. 10, 2019) (prepared statement of Bernard A. building cultural heritage collections Barton, Jr., Chief Information Officer, Library of highlighted by the Library include entails protecting creators’ intellectual Congress), https://www.judiciary.senate.gov/imo/ requiring all staff to use multi-factor property rights. This responsibility is media/doc/Barton%20Testimony.pdf (‘‘Dec. 2019 authentication to access the Library’s salient at the Library, as the home of the Senate Oversight CIO Statement’’). systems,99 upgrading the Library to a 89 Id. at 4. 87 United States Copyright Office.’’ After 90 See id. at 3–4 (stating that the Library has new data center that reduces the risk of consultation with the Library, the Office ‘‘implemented NIST security standards, with role service interruptions,100 and is sharing additional information based security, to ensure that users only have access to the data they are supposed to see’’). 95 Dec. 2019 Senate Oversight CIO Statement at 3– provided to it that discusses the 91 significant effort the Library has Special Publication (SP) 800–53 is ‘‘a catalog of 4. With respect to digital deposits, for example, the security and privacy controls for federal only staff able to access digital copies of undertaken to revamp its IT operations information systems and organizations’’ provided audiovisual works are system administrators and and ensure the integrity of its electronic by NIST that is meant to secure federal employees of the Library’s National Audio-Visual deposits and other digital material in its organizations ‘‘from a diverse set of threats Conservation Center. including hostile cyber attacks, natural disasters, 96 collections. structural failures, and human errors (both Id. 97 Id. As an initial matter, the Library has intentional and unintentional).’’ SP 800–53 Rev. 4: Security and Privacy Controls for Federal 98 Library of Congress Modernization Oversight, provided assurances of its commitment Information Systems and Organizations, NIST (Jan. Hearing Before the Senate Comm. on Rules and to digital security, both in public 22, 2015), https://csrc.nist.gov/publications/detail/ Admin., 116th Cong. 23–24, (Nov. 7, 2019) statements and in consultations with the sp/800-53/rev-4/final. (prepared statement of Carla Hayden, Librarian of Office. As the Library’s Chief 92 The FIPS 140–2 standard is the current set of Congress), https://www.govinfo.gov/content/pkg/ requirements for cryptographic security outlined by CHRG-116shrg38506/pdf/CHRG-116shrg38506.pdf Information Officer testified to Congress NIST. See FIPS 140–2: Security Requirements for (‘‘Nov. 2019 Senate Oversight Hearing’’). in December 2019, ‘‘the Library is well Cryptographic Modules, NIST (May 25, 2001), 99 Id. at 23 (‘‘We have implemented multi-factor aware of the need to ensure the security https://csrc.nist.gov/publications/detail/fips/140/2/ authentication for all users, enhancing security final. protections for access to sensitive Library 93 The Federal Information Security Management resources.’’). 84 Authors Guild Comment at 2–3. Act was passed as Title III of the E-Government Act 100 Annual Oversight of the Library of Congress, 85 Copyright Alliance Comment at 4. of 2002, Public Law 107–347. Hearing Before the Senate Comm. on Rules & 86 AAP Comment at 3, 5; see Government 94 44 U.S.C. 3602(f)(15) (describing Admin. 116th Cong. 21–22 (Mar. 6, 2019) (prepared Accountability Office, Strong Leadership Needed to responsibilities of head of Office of Electronic statement of Carla Hayden, Librarian of Congress), Address Serious Information Technology Government); see also National Institute of https://www.rules.senate.gov/imo/media/doc/ Management Weaknesses (Mar. 31, 2015), https:// Standards and Technology, FISMA Implementation Annual%20Oversight%20of%20the%20library%20 www.gao.gov/assets/670/669367.pdf. Project: FISMA Background (Feb. 26, 2020), https:// of%20Congress%20Transcript.pdf (‘‘Mar. 2019 87 Library of Congress, Digital Strategy at 4 (Apr. csrc.nist.gov/projects/risk-management/detailed- Senate Oversight Hearing’’) (‘‘We are optimizing our 26, 2019), https://www.loc.gov/static/portals/ overview/ (describing law as ‘‘explicitly hosting environments by transitioning to a new, digital-strategy/documents/Library-of-Congress- emphasiz[ing] a risk-based policy for cost-effective Tier III-level data center, reducing the risk of Digital-Strategy-v1.1.2.pdf. security’’). service interruptions.’’).

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participating in the Legislative Branch content. Inventory systems maintain logs of Systems Development Lifecycle Cyber Security Working Group, which actions on digital content by digital content addresses the need for robust facilitates the exchange of expertise and managers as well as systems. No single user security.’’ 112 should be able to unilaterally move or delete coordination in response to security Further, the Library has announced 101 digital content without following an threats. established procedure or system protocol, significant strides toward full More generally, the Library has sought which can be monitored according to the implementation of the GAO’s 2015 to provide greater coordination by documentation and recordkeeping of actions recommendations.113 Some commenters 107 centralizing all IT efforts under the in inventory logs. requested that the Office wait to issue a direction of the Office of the Chief The DCMC also sets out a set of final rule until the GAO’s thirty-one Information Officer (‘‘OCIO’’). As the principles to be followed by the Library public recommendations had been Librarian has explained, centralization in providing access to digital collections implemented.114 In late 2019, the was completed in October 2018 (after that are supplementary to the regulatory Librarian reported to Congress that all the close of the comment period), and restrictions established in 37 CFR but four of the public recommendations now OCIO serves as the ‘‘single 202.18, including ‘‘communicat[ing] have been implemented and closed, and authoritative source for technology’’ at known restrictions’’ on digital works to that the GAO is reviewing the Library’s the Library.102 The Library has stated patrons and requiring patrons seeking evidence for closing the final six (two of that it views IT centralization as key to use of digital items to ‘‘mak[e] which are not public).115 Moreover, enabling more efficient use of IT independent legal assessments and three of the four remaining public resources and improving IT security.103 secur[e] necessary permissions.’’ 108 recommendations do not directly In addition, in late 2019 the Library The Library’s security efforts are launched a Digital Collections implicate security, instead involving the bolstered by oversight from the OIG, adoption of organizational plans for cost Management Compendium (‘‘DCMC’’), which issues public reports detailing an online resource that collects the estimates, project scheduling, and the Library’s progress. For example, the customer satisfaction.116 The final Library’s policies and practices for OIG’s March 2019 semiannual report to management of its digital collections.104 Congress noted that the Library uses 112 Library of Congress Office of the Inspector The DCMC is intended to ‘‘broadly Security Information and Event explain the Library’s practices for General, Semiannual Report to Congress at 33 (Mar. Management (‘‘SIEM’’) functionality for 30, 2018), https://www.loc.gov/static/portals/about/ managing digital content for the ‘‘robust continuous monitoring office-of-the-inspector-general/annual-reports/ public.’’ 105 It includes information documents/March2018-semi-annual-report-to- capabilities and ongoing insight into IT congress.pdf. about how the Library keeps inventory 109 security control effectiveness.’’ The 113 and tracks use of digital material, who The GAO landing page for the report keeps OIG noted that it had engaged an IT track of which recommendations have been closed is responsible for the security of digital contractor to evaluate the Library’s and the status of those that remain open. U.S. collections, and what policies govern ‘‘SIEM implementation strategy and Government Accountability Office, Library of user permissions and periodic reviews Congress: Strong Leadership Needed to Address execution, internal controls, of staff accounts.106 For example, its Serious Information Technology Management configuration, and incident detection Weaknesses, https://www.gao.gov/products/GAO- guidance for digital collections security response,’’ and that the Library agreed 15-315#summary_recommend. See Government for stored digital content states: with all of the resulting Accountability Office, Strong Leadership Needed to Address Serious Information Technology To safeguard digital collections, the Library recommendations.110 OIG also monitors will develop and follow policies to ensure Management Weaknesses (Mar. 31, 2015), https:// the Library’s security practices in www.gao.gov/assets/670/669367.pdf (underlying that only authorized user accounts and report). systems may modify digital collection connection with its April 2015 report, which recommended that the Library, in 114 AAP Comment at 3 (‘‘AAP insists that it is premature for the Copyright Office to issue a final 101 Id. at 21. developing a comprehensive policy for rule for the benefit of the Library before there is 102 Nov. 2019 Senate Oversight Hearing at 23 digital collections, ensure that public accountability as to the Library’s (prepared statement of Carla Hayden, Librarian of electronic collections material be implementation of all of the Government Congress). protected by ‘‘robust security’’ to Accountability Office’s 2015 rectifying 103 Mar. 2019 Senate Oversight Hearing at 16. prevent ‘‘loss, alteration, and recommendations’’); Copyright Alliance Comment 104 at 4–5 (citing GAO report and recommending a See Library of Congress, Digital Collections 111 Management: About This Program, https://loc.gov/ unauthorized access’’ The OIG’s delay until ‘‘proper IT security and infrastructure is programs/digital-collections-management/about- March 2018 report stated that ‘‘the in place and fully functional’’). this-program/. Library’s IT Security Program and 115 Nov. 2019 Senate Oversight Hearing at 22–23 105 Library of Congress, Digital Collections (prepared statement of Carla Hayden, Librarian of Congress) (of the 107 total recommendations made Management: Frequently Asked Questions, https:// 107 Id. www.loc.gov/programs/digital-collections- by GAO, Library has closed 27 out of 31 public 108 Library of Congress, Principles of Access, management/about-this-program/frequently-asked- recommendations, 72 out of 74 non-public questions/. The information in the Compendium is https://www.loc.gov/programs/digital-collections- recommendations, and both recommendations for ‘‘specifically focused on a collections management management/access/principles-of-access/. See also Copyright Office technology); Oversight of approach to ongoing management of digital 2018 NPRM at 16275 (expanding 37 CFR 202.18 to Modernization of the United States Copyright collections’’ and thus ‘‘focuses less on the specific electronic deposits under this rule); 2016 NOI at Office, Hearing Before Senate Subcomm. on technical requirements of systems and more on the 30508. Intellectual Property, 116th Cong. 1 (Dec. 10, 2019) areas of work which are critical to the Library at 109 Library of Congress Office of the Inspector (prepared statement of Carla Hayden, Librarian of present, including digital formats, custody, and General, Semiannual Report to Congress at 10 (Mar. Congress), https://www.judiciary.senate.gov/imo/ inventory management.’’ Id. 29, 2019), https://www.loc.gov/static/portals/about/ media/doc/Hayden%20Testimony.pdf (‘‘Dec. 2019 106 Library of Congress, Digital Collections office-of-the-inspector-general/annual-reports/ Senate Oversight Librarian Statement’’) (‘‘[T]his Security, https://www.loc.gov/programs/digital- documents/March2019-OIG-Semiannual-Report-to- hard work has allowed us to close as implemented collections-management/inventory-and-custody/ Congress.pdf. nearly 95% of the IT recommendations made by the digital-collections-security/ (explaining that ‘‘digital 110 Id. Government Accountability Office (GAO) in 2015, collections security policies and systems ensure 111 Library of Congress Office of the Inspector and we will keep working until we close 100%.’’). that appropriate controls prevent unauthorized General, The Library Needs to Determine an 116 See U.S. Government Accountability Office, access, changes, deletion, or removal of collection eDeposit and eCollections Strategy at 35 (Apr. 24, Library of Congress: Strong Leadership Needed to content’’ and that the Library coordinates periodic 2015), https://www.loc.gov/static/portals/about/ Address Serious Information Technology account review to ‘‘ensure[ ] that appropriate access documents/edeposit-and-ecollections-strategy-april- Management Weaknesses, https://www.gao.gov/ levels are maintained for digital content managers, 2015.pdf (recommending Architecture Review products/GAO-15-315#summary_recommend and that account holders and system users Board be required to address eCollections security (comments in response to Recommendations 17, 18, represent currently active Library staff’’). needs). 30).

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outstanding public recommendation, Office believes that these security List of Subjects in 37 CFR Part 202 No. 22, calls for comprehensive and upgrades, together with the additional Copyright. effective security testing.117 In response, IT-related information made public the Library advised the GAO that it has since the close of the prior comment Proposed Regulations conducted monthly tests since August period, may reasonably address the For the reasons set forth in the 2015, and in November 2019 the Library concerns raised by commenters preamble, the Copyright Office proposes provided the GAO with security control regarding the security of digital amending 37 CFR part 202 as follows: assessments for select systems.118 The deposits.122 To ensure, however, that Library has advised Congress that it stakeholders have an adequate PART 202—PREREGISTRATION AND expects to achieve closure of these opportunity to consider and respond to REGISTRATION OF CLAIMS TO outstanding recommendations within the information provided on this COPYRIGHT the next several months.119 important issue, the Office invites While the Office appreciates further comment on this topic. ■ 1. The authority citation for part 202 commenters’ interest in full continues to read as follows: III. Subjects of Inquiry implementation of the GAO’s Authority: 17 U.S.C. 408(f), 702. recommendations, it does not appear After considering the comments in ■ that the few remaining open items response to the 2018 NPRM, the Office 2. Amend § 202.18 by: ■ a. Adding in paragraph (a) the words provide a basis for further delaying is proposing certain revisions to the issuance of the proposed rule, initial proposed rule. The amended rule: ‘‘and § 202.19, and transferred into the particularly given the Library’s overall (1) Redefines an ‘‘electronic-only Library of Congress’s collections,’’ after efforts with respect to IT security since book’’ to clarify that short online works, ‘‘under § 202.4(e)’’ in the first sentence; ■ b. Adding in paragraph (b), the words 2018. Collectively, those efforts support such as social media posts, are not ‘‘and § 202.19’’ after ‘‘under § 202.4(e)’’ the Library’s statement that it has intended to be encompassed by the rule; in the first sentence; ‘‘invested heavily in the optimization (2) Clarifies that books that are ■ c. Adding in paragraph (c), the words and centralization of information preloaded onto electronic devices before ‘‘and § 202.19’’ after ‘‘under § 202.4(e)’’ technology’’ and that ‘‘from a those devices are sold to consumers are in the first sentence, and d. Adding technological perspective, the Library of subject to the rule, provided they paragraph (f) to read as follows: Congress today is a fundamentally otherwise meet its requirements; different institution than it was just (3) Modifies the definitional language § 202.18 Access to electronic works. 120 to further clarify when print-on-demand three short years ago.’’ Further, the * * * * * Library has repeatedly expressed a books are to be deemed ‘‘available only online’’; and (f) Except as provided under special commitment ‘‘to ensure the security of relief agreements entered into pursuant the digital content in [its] care.’’ 121 The (4) Removes the requirement that all technological protection measures be to § 202.19(e) or § 202.20(d), electronic works will be transferred to the Library 117 Id. (‘‘To better protect IT systems and reduce removed, while retaining the general the risk that the information they contain will be requirement that deposits be able to be of Congress for its collections and made compromised, the Librarian should conduct ‘‘accessed and reviewed by the available only under the conditions comprehensive and effective security testing for all Copyright Office, Library of Congress, specified by this section. systems within the time frames called for by Library ■ 3. Amend § 202.19 by: policy, to include assessing security controls that and the Library’s authorized users on an ongoing basis.’’ ■ a. Revising paragraph (b)(4), and are inherited from the Library’s information ■ security program.’’). The Copyright Office invites comment b. Adding in paragraph (c)(5), the 118 Id. (comments in response to from the public on these proposed words ‘‘electronic-only books and’’ after Recommendation 22). amendments and on the other matters the words ‘‘This exemption includes’’. 119 See Nov. 2019 Senate Oversight Hearing at 14 The revisions read as follows: (testimony by Bernard A. Barton, Jr., Chief discussed in this notice. Information Officer, Library of Congress) (‘‘We are § 202.19 Deposit of published copies or in constant communication with the GAO and of Congress, Digital Strategy at 4 (Apr. 26, 2019), phonorecords for the Library of Congress. providing evidence on closing out the remaining six https://www.loc.gov/static/portals/digital-strategy/ finding. I do not have any concerns about being able documents/Library-of-Congress-Digital-Strategy- * * * * * to meet that by the end of this fiscal year.’’); Dec. v1.1.2.pdf (‘‘Promoting creativity and building (b) * * * 2019 Senate Oversight Librarian Statement at 1 cultural heritage collections entails protecting (4) For purposes of paragraph (c)(5) of (‘‘this hard work has allowed us to close as creators’ intellectual property rights. This this section: implemented nearly 95% of the IT responsibility is salient at the Library, as the home recommendations made by the Government of the United States Copyright Office. We will (i) An electronic-only serial is a serial Accountability Office (GAO) in 2015, and we will explore creative solutions to reduce the barriers to as defined in § 202.3(b)(1)(v) that is keep working until we close 100%’’). material while respecting the rights of creators, the published in electronic form in the 120 Dec. 2019 Senate Oversight Barton Statement desires of our donors, and our other legal and ethical responsibilities.’’). United States and available only online. at 1. (ii) An electronic-only book is an 121 Id. at 3; Mar. 2019 Senate Oversight Hearing 122 The Library has also sought stakeholder input at 16 (Mar. 6, 2019) (testimony by Carla Hayden, when making technology decisions, providing electronic literary work published in Librarian of Congress) (stating that ‘‘security is of opportunities for commenters to advise on the one volume or a finite number of paramount importance’’ in response to question Library’s security practices. See Dec. 2019 Senate volumes published in the United States about whether Library was prepared for security Oversight Barton Statement at 1 (thanking leaders and available only online. This class threats to Library and Copyright Office materials); of subcommittee ‘‘for facilitating the opportunity for Oversight of the Library of Congress’ Information . . . me to speak with copyright stakeholders last excludes literary works distributed Technology Management, Hearing Before the House month about modernization,’’ as such dialogue solely in phonorecords (e.g., Committee on Administration, 115th Cong. 10 (June ‘‘goes a long way to increase transparency and audiobooks), serials (as defined in 8, 2017) (testimony of Bernard A. Barton, Jr., Chief clarify OCIO’s role in the copyright modernization Information Officer, Library of Congress) https:// process’’); Library of Congress, Library of Congress § 202.3(b)(1)(v)), computer programs, www.govinfo.gov/content/pkg/CHRG- Fiscal 2020 Budget Justification at 121, https:// websites, blogs, emails, and short online 115hhrg27632/pdf/CHRG-115hhrg27632.pdf (‘‘As www.loc.gov/static/portals/about/reports-and- literary works such as social media confidential consultants to the Congress, budgets/documents/budgets/fy2020.pdf (‘‘the USCO posts. administrator of the national copyright system, and and Library’s OCIO will provide opportunities for stewards of the Nation’s cultural history, the broad involvement’’ through ‘‘[o]ngoing stakeholder (iii) A work shall be deemed to be Library is well aware of the need to ensure security outreach’’ in modernizing Copyright Office available only online even if copies of the digital content in our care.’’); see also Library systems). have been made available to individual

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consumers to print on demand, so long b. Page-oriented rendition: iii. Other widely-used book DTD/schemas as the work is otherwise available only i. PDF/UA (Portable Document Format/ (e.g., TEI, DocBook, etc.). online. A work also shall be deemed to Universal Accessibility; compliant with ISO b. Page-oriented rendition: be available only online even if copies 14289–1). i. PDF/UA (Portable Document Format/ ii. PDF/A (Portable Document Format/ Universal Accessibility; compliant with ISO have been loaded onto electronic Archival; compliant with ISO 19005). 14289–1). devices, such as tablets or e-readers, in iii. PDF (Portable Document Format, with ii. PDF/A (Portable Document Format/ advance of sale to individual searchable text, rather than without; highest Archival; compliant with ISO 19005). consumers, so long as the work is quality available, with features such as ii. PDF (Portable Document Format; highest otherwise available only online. searchable text, embedded fonts, lossless quality available, with features such as * * * * * compression, high resolution images, device- searchable text, embedded fonts, lossless ■ 4. Amend § 202.24 by: independent specification of colorspace; compression, high resolution images, device- ■ a. Removing in paragraph (a)(2), the content tagging; includes document formats independent specification of colorspace; such as PDF/X). words ‘‘works’’ and adding in its place content tagging; includes document formats c. Other structured or markup formats: such as PDF/X). the words ‘‘electronic-only serials’’. i. Widely-used serials or journal non- ■ b. Redesignating paragraphs (a)(3) and c. Other structured markup formats: proprietary XML-based DTDs/schemas with i. XHTML or HTML, with DOCTYPE (4) as paragraphs (a)(4) and (5), presentation stylesheet(s). declaration and presentation stylesheet(s). respectively. ii. Proprietary XML-based format for serials ii. XML-based document formats (widely- ■ c. Adding new paragraph (a)(3). or journals (with documentation) with DTD/ used and publicly-documented), with ■ d. Removing in paragraph (b), the schema and presentation stylesheet(s). presentation style sheet(s) if applicable. iii. XHTML or HTML, with DOCTYPE words ‘‘online-only’’ and adding in its Includes ODF (ISO/IEC 26300) and OOXML declaration and presentation stylesheet(s). place the words ‘‘electronic-only’’. (ISO/IEC 29500). iv. XML-based document formats (widely ■ e. Revising paragraph (c)(3). iii. SGML, with included or accessible used and publicly documented). With The addition and revision reads as DTD. presentation stylesheets, if applicable. follows: iv. Other XML-based non-proprietary Includes ODF (ISO/IEC 26300) and OOXML formats, with presentation stylesheet(s). (ISO/IEC 29500). § 202.24 Deposit of published electronic v. XML-based formats that use proprietary d. PDF (web-optimized with searchable works available only online. DTDs or schemas, with presentation text). stylesheet(s). * * * * * e. Other formats: d. PDF (web-optimized with searchable (a) * * * i. Rich text format. text). (3) Demands may be made only for ii. Plain text. electronic-only books published on or iii. Widely-used proprietary word e. Other formats: after EFFECTIVE DATE OF RULE. processing or page-layout formats. i. Rich text format. ii. Plain text. * * * * * iv. Other text formats not listed here. 2. Metadata Elements: If included with iii. Widely-used proprietary word (c) * * * processing formats. (3) ‘‘Electronic-only’’ works are published version of work, descriptive data (metadata) as described below should iv. Other text formats not listed here. electronic works that are published and 2. Metadata Elements: If included with available only online. accompany the deposited material: a. Title level metadata: Serial or journal published version of work, descriptive data * * * * * title, ISSN, publisher, frequency, place of (metadata) as described below should accompany the deposited material: Appendix B to Part 202 [Amended] publication. b. Article level metadata, as relevant/or a. As supported by format (e.g., standards- ■ 6. Amend Appendix B to Part 202 by applicable: Volume(s), number(s), issue based formats such as ONIX, XMP, MODS, or revising paragraph IX to read as follows: dates(s), article title(s), article author(s), MARCXML either embedded in or accompanying the digital item): Title, creator, * * * * * article identifier (DOI, etc.). c. With other descriptive metadata (e.g., creation date, place of publication, publisher/ IX. Electronic-Only Works Published in the subject heading(s), descriptor(s), abstract(s)), producer/distributor, ISBN, contact United States and Available Only Online rather than without. information. The following encodings are listed in 3. Completeness: b. Include if part of published version of descending order of preference for all a. All elements considered integral to the work: Language of work, other relevant deposits in all categories below: publication and offered for sale or identifiers (e.g., DOI, LCCN, etc.), edition, 1. UTF–8. distribution must be deposited—e.g., articles, subject descriptors, abstracts. 2. UTF–16 (with BOM). table(s) of contents, front matter, back matter, 3. Rarity and Special Features: 3. US–ASCII. etc. Includes all associated external files and a. Limited editions (including those with 4. ISO 8859. fonts considered integral to or necessary to special features such as high resolution 5. All other character encodings. view the work as published. images.) A. Electronic-Only Serials: b. All updates, supplements, releases, and b. Editions with the greatest number of 1. Content Format: supersessions published as part of the work unique features (such as additional content, a. Serials-specific structured/markup and offered for sale or distribution must be multimedia, interactive elements.) format: deposited and received in a regular and 4. Completeness: i. Content compliant with the NLM Journal timely manner for proper maintenance of the a. For items published in a finite number Archiving (XML) Document Type Definition deposit. of separate components, all elements (DTD), with presentation stylesheet(s), rather 4. Technological measures that control published as part of the work and offered for than without NISO JATS: Journal Article Tag access to or use of the work should be sale or distribution must be deposited. Suite (NISO Z39.96–201x) with XSD/XSL removed. Includes all associated external files and presentation stylesheet(s) and explicitly B. Electronic-Only Books: fonts considered integral to or necessary to stated character encoding. 1. Content Format: view the work as published. ii. Other widely used serials or journal a. Book-specific structured/markup format, b. All updates, supplements, releases, and XML DTDs/schemas, with presentation i.e., XML-based markup formats, with supersessions published as part of the work stylesheet(s), rather than without. included or accessible DTD/schema, XSD/ and offered for sale or distribution must be iii. Proprietary XML format for serials or XSL presentation stylesheet(s), and explicitly submitted and received in a regular and journals (with documentation), with DTD/ stated character encoding: timely manner for proper maintenance of the schema and presentation stylesheet(s), rather i. BITS-compliant (NLM Book DTD). deposit. than without. ii. EPUB-compliant. 5. Technological Protection Measures:

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a. Copies published in formats that do not The written comment is considered the Area as nonattainment for the 1997 8-hr contain technological measures controlling official comment and should include ozone NAAQS. access to or use of the work. discussion of all points you wish to Once a nonattainment area has three b. Copies published with technological years of complete and certified air measures that control access to or use of the make. EPA will generally not consider work, and for which the owner has elected comments or comment contents located quality data that has been determined to to remove such technological measures. outside of the primary submission (i.e., attain the NAAQS, and the area has met c. Copies otherwise provided in a manner on the web, cloud, or other file sharing the other criteria outlined in CAA that meets the requirements of § 202.24(a)(5). system). For additional submission section 107(d)(3)(E),2 the state can * * * * * methods, please contact the person submit a request to EPA to redesignate FOR FURTHER the area to attainment. Areas that have Dated: June 11, 2020. identified in the INFORMATION CONTACT section. For the been redesignated by EPA from Regan A. Smith, full EPA public comment policy, nonattainment to attainment are referred General Counsel and Associate Register of information about CBI or multimedia to as ‘‘maintenance areas.’’ One of the Copyrights. submissions, and general guidance on criteria for redesignation is to have an [FR Doc. 2020–12969 Filed 6–26–20; 8:45 am] making effective comments, please visit approved maintenance plan under CAA BILLING CODE 1410–30–P https://www.epa.gov/dockets/ section 175A. The maintenance plan commenting-epa-dockets. must demonstrate that the area will continue to maintain the standard for FOR FURTHER INFORMATION CONTACT: ENVIRONMENTAL PROTECTION the period extending 10 years after AGENCY Gregory Becoat, Planning & redesignation, and it must contain such Implementation Branch (3AD30), Air & additional measures as necessary to 40 CFR Part 52 Radiation Division, U.S. Environmental ensure maintenance as well contingency Protection Agency, Region III, 1650 measures as necessary to assure that [EPA–R03–OAR–2020–0194; FRL 10010–69– Arch Street, Philadelphia, Pennsylvania Region 3] violations of the standard will be 19103. The telephone number is (215) promptly corrected. Air Plan Approval; West Virginia; 1997 814–2036. Mr. Becoat can also be On July 11, 2006 (71 FR 39001, 8-Hour Ozone Standard Second reached via electronic mail at effective August 10, 2006), EPA Maintenance Plan for the Charleston, [email protected]. approved a redesignation request (and West Virginia Area Comprising SUPPLEMENTARY INFORMATION: On maintenance plan) from WVDEP for the Kanawha and Putnam Counties December 10, 2019, WVDEP submitted Charleston Area. In accordance with a revision to the West Virginia SIP to section 175A(b), at the end of the eighth AGENCY: Environmental Protection incorporate a plan for maintaining the year after the effective date of the Agency (EPA). 1997 ozone NAAQS through August 10, redesignation, the state must also ACTION: Proposed rule. 2026, in accordance with CAA section submit a second maintenance plan to ensure ongoing maintenance of the SUMMARY: The Environmental Protection 175A. standard for an additional 10 years. Agency (EPA) is proposing to approve a I. Background EPA’s final implementation rule for state implementation plan (SIP) revision In 1979, under section 109 of the the 2008 ozone NAAQS revoked the submitted by the State of West Virginia. 1997 ozone NAAQS and provided that This revision pertains to the West CAA, EPA established primary and secondary NAAQS for ozone at 0.12 one consequence of revocation was that Virginia Department of Environmental areas that had been redesignated to Protection’s (WVDEP) plan for parts per million (ppm), averaged over a 1-hour period. 44 FR 8202 (February attainment (i.e., maintenance areas) for maintaining the 1997 8-hour ozone the 1997 NAAQS no longer needed to national ambient air quality standards 8, 1979). On July 18, 1997 (62 FR 38856),1 EPA revised the primary and submit second 10-year maintenance (NAAQS) for the Charleston Area plans under CAA section 175A(b).3 (comprising Kanawha and Putnam secondary NAAQS for ozone to set the acceptable level of ozone in the ambient However, in South Coast Air Quality Counties). This action is being taken Management District v. EPA 4 (South under the Clean Air Act (CAA). air at 0.08 ppm, averaged over an 8-hour period. EPA set the 8-hour ozone Coast II), the United States Court of DATES: Written comments must be Appeals for the District of Columbia received on or before July 29, 2020. NAAQS based on scientific evidence demonstrating that ozone causes (D.C. Circuit) vacated EPA’s ADDRESSES: Submit your comments, adverse health effects at lower interpretation that, because of the identified by Docket ID No. EPA–R03– concentrations and over longer periods revocation of the 1997 ozone standard, OAR–2020–0194 at https:// of time than was understood when the second maintenance plans were not www.regulations.gov, or via email to pre-existing 1-hour ozone NAAQS was required for ‘‘orphan maintenance [email protected]. For set. Following promulgation of a new or areas,’’ (i.e., areas like Kanawha and comments submitted at Regulations.gov, Putnam Counties) that had been revised NAAQS, EPA is required by the follow the online instructions for redesignated to attainment for the 1997 CAA to designate areas throughout the submitting comments. Once submitted, NAAQS and were designated attainment nation as attaining or not attaining the comments cannot be edited or removed for the 2008 ozone NAAQS. Thus, states NAAQS. On April 30, 2004 (69 FR from Regulations.gov. For either manner 23858), EPA designated the Charleston of submission, EPA may publish any 2 The requirements of CAA section 107(d)(3)(E) comment received to its public docket. include attainment of the NAAQS, full approval 1 In March 2008, EPA completed another review under section 110(k) of the applicable SIP, Do not submit electronically any of the primary and secondary ozone standards and determination that improvement in air quality is a information you consider to be tightened them further by lowering the level for result of permanent and enforceable reductions in confidential business information (CBI) both to 0.075 ppm. 73 FR 16436 (March 27, 2008). emissions, demonstration that the state has met all or other information whose disclosure is Additionally, in October 2015, EPA completed a applicable section 110 and part D requirements, and review of the primary and secondary ozone a fully approved maintenance plan under CAA restricted by statute. Multimedia standards and tightened them by lowering the level section 175A. submissions (audio, video, etc.) must be for both to 0.70 ppm. 80 FR 65292 (October 26, 3 See 80 FR 12315 (March 6, 2015). accompanied by a written comment. 2015). 4 882 F.3d 1138 (D.C. Cir. 2018).

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