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LIBRARY OF CONGRESS Amer, Deputy General Counsel, kamer@ a notice of inquiry in October 2018 copyright.gov; Erik Bertin, Deputy (‘‘2018 NOI’’) inviting public comment Copyright Office Director of Registration Policy and on several potential practice and policy Practice, [email protected]; or changes to better meet the demands of 37 CFR Parts 201 and 202 Jalyce E. Mangum, Attorney-Advisor, users of the registration system in the 7 [Docket No. 2018–9] [email protected]. They can be digital age. The 2018 NOI previewed reached by telephone at 202–707–3000. technological features that the Office Registration Modernization SUPPLEMENTARY INFORMATION: A highly would like to be incorporated into the functional registration system is of ECS, including a more dynamic AGENCY: U.S. Copyright Office, Library paramount importance to the Copyright application tracking dashboard, an of Congress. Office as it administers title 17 for the integrated drag-and-drop submission ACTION: Statement of policy and benefit of the nation’s thriving copyright option for electronic deposits, and an notification of inquiry. ecosystem.1 Copyright registration improved messaging system to improve provides valuable benefits to copyright communication between the Office and SUMMARY: In conjunction with the owners, including providing access to applicants.8 The Office also announced development of new technological federal court to initiate a lawsuit for an intention to display a draft version of infrastructure for the copyright infringement of a U.S. work,2 serving as the registration certificate before final registration system, on October 17, prima facie evidence of the validity of submission so that applicants can 2018, the U.S. Copyright Office solicited the copyright and the facts stated in the confirm that they have entered the public input regarding potential certificate of registration,3 and enabling correct information.9 In addition to regulatory and practice updates to copyright owners to seek statutory announcing these intended user improve the system’s efficiency for both damages and attorneys’ fees in litigation features, the Office posed fifteen users and the Office. The Office sought for works that are timely registered.4 questions that fell into three categories and received public comment on three Registration also benefits users and of possible reform: (1) The main areas of proposed reform: The prospective users of creative works by administration and substance of the administration and substance of the enabling them to find key facts relating application for registration, (2) the application for registration, the utility of to the authorship and ownership of such utility of the public record, and (3) the the public record, and the deposit works in the Office’s online public deposit requirements for registration.10 requirements for registration. After record.5 Commenters expressed broad general reviewing the comments, the Office is Accordingly, modernizing the support for the proposals set forth in the announcing intended practice updates, technological infrastructure of the 2018 NOI. The Copyright Alliance was to be adopted in conjunction with the copyright registration system is one of ‘‘pleased that the Office is considering deployment of the new technological the Office’s top priorities. The Office is a broad range of legal and policy system that the Library of Congress is working with the Library of Congress’s changes regarding registration, and building for the Office. The Office also Office of Chief Information Officer seeking input from stakeholders early in seeks further comment on two proposals (‘‘OCIO’’), which is building an that process.’’ 11 Noting that ‘‘[a] to permit post-registration edits to rights enterprise copyright system (‘‘ECS’’) to modernized registration system is key and permissions information, and to improve the Office’s provision of for the healthy functioning of the permit voluntary submission of copyright services to the public, copyright ecosystem in the 21st additional deposit information to be including its registration services. century,’’ the Association of American included in the public record. Copyright Office information technology Publishers (‘‘AAP’’) expressed support DATES: Written comments must be (IT) modernization is being for many of the Office’s ‘‘innovative received no later than 11:59 p.m. implemented in accordance with the proposals to make the registration Eastern Time on April 2, 2020. overall model of IT centralization at the process more efficient, intuitive, and competitive,’’ 12 and the American ADDRESSES: For reasons of government Library of Congress. Under this model, Intellectual Property Law Association efficiency, the Copyright Office is using ‘‘the Copyright Office, with its expertise (‘‘AIPLA’’) specifically praised the the regulations.gov system for the of both copyright law and its internal systems, provides required business proposed updates that would allow submission and posting of public ‘‘user-errors [to] be reduced through comments in this proceeding. All features to the OCIO. The OCIO then uses its expertise to develop technology comments are therefore to be submitted 7 Registration Modernization, 83 FR 52336 (Oct. electronically through regulations.gov. solutions to support those features for the Copyright Office.’’ 6 17, 2018). Specific instructions for submitting 8 Id. at 52337. To take advantage of forthcoming IT comments are available on the 9 Id. A similar display feature will be provided in modernization development efforts and Copyright Office website at https:// the forthcoming electronic recordation system pilot. promote an efficient and innovative 10 www.copyright.gov/rulemaking/reg- Id. registration system, the Office published 11 Copyright Alliance Comments, at 1–2 (Jan. 15, modernization/. If electronic submission 2019); see also, e.g., National Music Publishers’ Association (‘‘NMPA’’) Comments, at 3 (Jan. 15, of comments is not feasible due to lack 1 See 17 U.S.C. 701(a) (‘‘All administrative 2019) (‘‘NMPA appreciates the opportunity to of access to a computer and/or the functions and duties under this title . . . are the comment on how the Office can design a responsibility of the Register of Copyrights as internet, please contact the Office, using registration system that will fit the needs of the director of the Copyright Office of the Library of the contact information below, for modern music industry.’’); Recording Industry Congress.’’). special instructions. 2 Association of America, Inc. (‘‘RIAA’’) Comments, 17 U.S.C. 411(a). at 2 (Jan. 15, 2019) (‘‘RIAA and its members FOR FURTHER INFORMATION CONTACT: 3 17 U.S.C. 410(c). applaud the Copyright Office . . . for thinking Regan A. Smith, General Counsel and 4 17 U.S.C. 412. broadly about a variety of steps that could be taken Associate Register of Copyrights, 5 Additional information is available at https:// to modernize the current copyright registration [email protected]; Robert J. Kasunic, www.copyright.gov/registration/. process.’’). Unless otherwise noted, all comments 6 Library of Congress Modernization Oversight: cited refer to comments submitted in response to Associate Register of Copyrights and Hearing Before the S. Comm. on Rules and Admin., the 2018 Notice of Inquiry Regarding Registration Director of Registration Policy and 116th Cong. 24 (2019) (Statement of Carla Hayden, Modernization. Practice, [email protected]; Kevin Librarian of Congress). 12 AAP Comments, at 8 (Jan. 15, 2019).

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self-correction and proofing prior to Office suggesting that the statutorily- direction of modernization.24 And the filing.’’ 13 drawn distinction between published Office continues to meet regularly with Other commenters opined that the and unpublished works is, as Copyright stakeholders and deliver presentations Office’s proposals did not address all of Alliance put it, ‘‘so complex and to external audiences to provide updates the shortcomings of the current divergent from an intuitive and on modernization activities. OCIO user registration system. For example, the colloquial understanding of the terms experience (UX) experts are also Coalition of Visual Artists (‘‘CVA’’) that it serves as a barrier to registration, committed and involved to ensure that cautioned the Office to avoid making especially with respect to works that are development can incorporate public incremental improvements when a disseminated online.’’ 20 The Office will input through robust user participation comprehensive modernization effort is 25 analyze these issues related to online and feedback. necessary to make the registration system easier and more cost effective for publication, as well as other potential To further advance these efforts, and authors to use.14 The Graphic Artists practice changes, contemporaneously following careful consideration of the Guild (‘‘GAG’’) similarly contended that with, yet separately from, the OCIO’s comments received in response to the the modernization effort should not efforts to upgrade the IT system through 2018 NOI, the Office is now announcing ‘‘proceed in a piecemeal fashion, establishment of an ECS. While the plans to adopt eleven registration without substantive changes to a system Copyright Office remains dedicated to practice updates that it will identify as that for individual visual artists is continuously exploring potential business needs to the OCIO, so that they broken.’’ 15 It expressed particular regulatory and/or practice changes may be incorporated into the design of concern about registration processing through public discussion, the current the new ECS to support a more user- times, highlighting that ‘‘[t]he Registration Modernization proceeding friendly and efficient registration processing time for the simplest online focuses on the practices directly process that is simpler, clearer, secure, copyright registrations, requiring no relevant to the pending technological and adaptable. As detailed below, these communication, averages six upgrades. The Library has committed to updates relate to both the substance of months.’’ 16 an IT development approach that can the registration application and the The Office takes these comments meet ‘‘the complex and unique mission utility of the online public record from seriously and is pleased to note that, of the Copyright Office today and for the a registration-specific perspective. The separate from the IT modernization future,’’ including ‘‘to accommodate Office has concluded that each of these process, it already has taken significant possible future legal responsibilities’’ intended practice changes or design features can be incorporated into the steps toward addressing a number of and to meet ‘‘evolving business ECS without adjusting existing commenters’ concerns. For example, the needs.’’ 21 To the extent the publication regulatory language. As development Office has made extensive efforts to proceeding, other pending or future efforts progress, the Office envisions reduce registration processing times, rulemakings, result in regulatory or initiating a pilot program that could particularly in light of the Supreme practice changes that need to be Court’s 2019 decision in Fourth Estate permit incorporation of these updates accommodated in the Office’s Public Benefit Corp. v. Wall-Street.com, through an iterative process that also technology, the Office will which confirmed that Copyright Office takes into account participants’ input, communicate those requirements to the action on an application for registration similar to the recently-announced pilot must be complete before the owner of a OCIO, but such changes will be for the electronic recordation system.26 U.S. work can bring an infringement considered separately from the umbrella of ‘‘modernization.’’ 22 The Office also seeks further input suit.17 Since 2018, the average from the public regarding two processing time for claims that are With respect to IT modernization, the additional issues: (1) How the Office received through the electronic Office is prioritizing public outreach to might implement a system that would registration system and do not require gain additional information about the allow users to make post-registration correspondence (which make up needs and concerns of users of the amendments to rights and permissions seventy-two percent of claims) has been registration system. The Office created a and unique identifier information; and reduced from six months to three dedicated IT modernization web page to (2) further considerations related to the 18 months. keep stakeholders apprised of the status possibility of permitting the voluntary As a second example apart from IT of modernization efforts.23 In early submission of an additional public- modernization, the Office has also 2019, the Office launched a bimonthly facing deposit, that may display low- issued a notice of inquiry requesting webinar series to report on the progress resolution or incomplete portions of the written comments on issues relating to achieved on IT modernization registered work to enhance the public online publication, including whether initiatives and to discuss the overall record. and how to amend its registration regulations and other considerations 20 84 FR at 66328 (citing Copyright Alliance 24 U.S. Copyright Office, Modernization Webinar, relevant to ensuring continued thorough Comments, at 5 (Jan. 15, 2019)). https://www.copyright.gov/copyright- assistance to Congress.19 This notice 21 Letter from Carla Hayden, Librarian of modernization/webinar/. seeks to address recent feedback to the Congress, and Karyn A. Temple, Register of 25 Letter from Carla Hayden, Librarian of Copyrights & Dir., to Hon. Thom Tillis, United Congress, and Karyn A. Temple, Register of States Senate, 2–3 (Sept. 30, 2019), https:// 13 AIPLA Comments, at 2 (Jan. 15, 2019). Copyrights & Dir., to Hon. Thom Tillis, United www.copyright.gov/rulemaking/reg-modernization/ States Senate, 4–5 (Sept. 30, 2019), https:// 14 CVA Comments, at 2–3 (Jan. 15, 2019). letter-to-senator-thom-tillis.pdf. www.copyright.gov/rulemaking/reg-modernization/ 15 GAG Comments, at 2 (Jan. 15, 2019). 22 As one exception; separately, the Office has letter-to-senator-thom-tillis.pdf; Letter from Carla 16 Id. at 1. issued two interim rules connected to the related Hayden, Librarian of Congress, to Thom Tillis, 17 139 S. Ct. 881, 888, 892 (2019). IT modernization efforts with respect to its Chairman, S. Comm. on the Judiciary, Subcomm. on 18 U.S. Copyright Office, Registration Processing Recordation program. See Modernizing Copyright Intellectual Prop., and Christopher A. Coons, Times, https://www.copyright.gov/registration/ Recordation, 82 FR 52213 (Nov. 13, 2017); 85 FR Ranking Member, S. Comm. on the Judiciary, docs/processing-times-faqs.pdf. The data is from 3854 (Jan. 23, 2020). Subcomm. on Intellectual Prop., 8–9 (Jan. 7, 2020), April 1 through September 30, 2019. 23 U.S. Copyright Office, Copyright https://www.judiciary.senate.gov/imo/media/doc/ 19 See Online Publication, 84 FR 66328 (Dec. 4, Modernization, https://www.copyright.gov/ Hayden%20Responses%20to%20QFRs.pdf. 2019). copyright-modernization/. 26 See 85 FR at 3854.

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I. Registration Practice Updates model for how information can be payments,36 the Office has determined presented to users.’’ 32 to issue a separate notice to discuss (A) The Application Process: How Users The Office will pursue both proposed changes to streamline and Engage With the Registration System approaches. The Office is updating its harmonize its payment processing rules. (1) New Application Assistance Tools website to provide additional guidance The Office may separately consider Recognizing that users approach the that applicants can consult before they questions related to the feasibility of system with varying levels of begin or while they are completing an subscription pricing under its current understanding of copyright law and application. In addition to improving statutory authority. existing FAQs, the Office is updating its technical experience, the NOI sought (3) Electronic Certificates input on how the Office should questionnaires and adding video Upon approving an application for integrate in-application support and tutorials. The Office also will request registration of a copyright claim, the assistance to users of the electronic development of new tools for in- Office issues a certificate of registration system. The Office proposed application assistance, such as the registration.37 While the Office has multi-tiered support options to offer tiered system proposed in the 2018 NOI, traditionally issued certificates in paper basic, intermediate, or in-depth support subject to usability testing during the form, the 2018 NOI proposed providing based on user experience level.27 OCIO’s ECS development. electronic certificates in a secure form to All commenters expressed support for (2) Electronic Applications some form of improved assistance for ensure authenticity. The cost of the The 2018 NOI sought comment on users.28 Some encouraged the Office to electronic certificate would be included whether the Office should switch to a focus on improving the materials and in the registration fee. The Office strictly-electronic system. After resources currently available to proposed that it would provide paper considering the feedback received, the applicants, with, for example, the AAP certificates upon request for an Office will continue to encourage the 38 and the Motion Picture Association of additional fee. use of electronic applications over paper All commenters supported the America, Inc. (‘‘MPAA’’) urging the forms by differentiating the fees for the issuance of electronic certificates.39 In Office to expand upon its existing standard and paper applications. But it response to the Office’s explanation that Frequently Asked Questions web will not, at this time, eliminate paper printing paper certificates ‘‘requires a page.29 The Association of Medical applications. substantial amount of resources both in Illustrators (‘‘AMI’’) proposed that the While paper applications remain the terms of employee compensation and Office provide a service similar to that most cumbersome for the Office to the cost of maintaining printing of the U.S. Patent and Trademark Office ingest and examine,33 these forms serve equipment,’’ 40 AMI agreed that (‘‘USPTO’’), which ‘‘maintains an populations that do not have access to ‘‘resources currently utilized for inventor assistance hotline as well as a a computer or the internet. The Office printing and mailing paper certificates call center providing live, telephonic notes GAG’s comment that ‘‘there will should be redirected to other services, assistance in resolving problems of always be a certain portion of the such as better application assistance.’’ 41 formalities of electronically submitted 30 population who, for various reasons The Office accordingly will issue patent applications.’’ (such as disability, distance from Other commenters recommended the electronic certificates in the new ECS as libraries, time constraints, etc.) are development of new in-application a matter of course. The Office intends to unable to avail themselves of those offer paper certificates for an additional assistance tools. For example, GAG 34 42 suggested that the Office incorporate resources.’’ Additionally, several fee. In addition, as noted below, the commenters expressed concerns about Office has determined that it is frequently asked questions and answers 35 ‘‘throughout the registration application potential technology failures. The appropriate for these electronic stream (possibly within an interactive 2018 NOI also sought input on whether certificates to be viewable in the public widget that won’t clutter or obstruct the to switch to electronic-only payment record. Some commenters expressed concern interface).’’ 31 The New York Intellectual methods, eliminating the instances about whether courts would accept Property Law Association (‘‘NYIPLA’’) where payments may be made by cash urged the Office to provide ‘‘more or check. After consideration of these 36 See, e.g., 37 CFR 201.6(a), 201.33(e)(2), information and guidance in the online comments and review of the various regulatory provisions regarding 201.39(g)(3), 202.12(c)(2)(ii), 202.23(e)(2). forms themselves,’’ and suggested that 37 17 U.S.C. 410(a), 708(a)(1). the USPTO’s ‘‘method of providing 38 83 FR at 52338–39; see 37 CFR 201.3(c)(14) 32 NYIPLA Comments, at 2 (Jan. 15, 2019). (2019) (fee for obtaining an additional certificate). links to pop-up windows with 33 additional information provides a good See 83 FR at 52338 (noting that ‘‘a significant 39 See, e.g., Author Services, Inc. Comments, at 2 portion of claims submitted on paper forms require (Jan. 8, 2019) (‘‘We support this proposal’’); correspondence or other action from the Office, Copyright Alliance Comments, at 9 (‘‘The Copyright 27 83 FR at 52338. which further increases pendency times and Alliance supports the Office’s proposal to issue 28 See AIPLA Comments, at 2 (‘‘AIPLA . . . contributes to the overall backlog of pending electronic certificates in lieu of paper copies and supports including more embedded links to provide claims.’’). only offer paper certificates for an additional fee’’); immediate help in completing each section of the 34 GAG Comments, at 4. GAG Comments, at 4 (‘‘We agree with the Copyright online application.’’); Copyright Alliance 35 AIPLA Comments, at 2 (‘‘[T]echnology has Office’s proposal that registration certificates be Comments, at 4 (‘‘As an organization that represents limitations and suffers downtime and failures. It is supplied as electronic documents with validating a diverse group of copyright owners—including often critically important that applicants file within watermarks, etc.’’); MPAA Comments, at 5 (‘‘The individual creators, and small and large strict time requirements to enforce their rights in MPAA has no objection to the Office issuing businesses—the Copyright Alliance supports a court (17 U.S.C. 411) or avoid losing statutory electronic certificates in the normal course, with multi-tier approach to in-application support and benefits (17 U.S.C. 412).’’); GAG Comments, at 4 paper certificates available for an additional fee.’’); assistance that would more effectively meet the (‘‘Paper applications . . . fill in the gap when a News Media Alliance (‘‘NMA’’) Comments, at 4 specific needs of both novice and experienced system outage or government shutdown make the (Jan. 15, 2019) (‘‘The Alliance supports the issuance applicants.’’); NMPA Comments, at 3 (‘‘NMPA eCO system unavailable.’’); NMPA Comments, at 6 of electronic certificates, particularly if it would supports a multi-tiered approach to in-application (‘‘[O]ur members who opt for the paper application expedite the application process and the resulting assistance.’’). largely do so because of negative experiences with savings are used to offset costs to the registrants.’’). 29 AAP Comments, at 4; MPAA Comments, at 2– the electronic system or interfering outages. Our 40 83 FR at 52338. 3 (Jan. 15, 2019). members have found paper applications a useful 41 AMI Comments, at 4. 30 AMI Comments, at 3 (Jan. 15, 2019). backup option for when the electronic system is 42 The Office will issue a notice regarding any 31 GAG Comments, at 3. down.’’). additional fees. See 17 U.S.C. 708.

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electronic certificates.43 The Office will the work as a whole instead of the or specialized descriptors for request implementation of visual work’s individual elements.48 applications on a going-forward basis. markers, such as watermarks, to indicate Although the Office did not receive For paper applications, the Office will that an Office-issued electronic comments objecting to the adjustment of permit the examiner to provide a registration certificate is indeed this requirement per se, several description of the work submitted for authentic. commenters opposed the wholesale registration where no description is elimination of the online application’s provided by the applicant. Although (B) Application Information: The Author Created section.49 For example, commenters were not supportive of Information Requested on the AAP argued that it is ‘‘helpful to the examiners providing work descriptions, Application for Registration public record to have an applicant name arguing that it would ‘‘likely increase (1) Simplifying the Authorship the authorship, what is being registered, the workload of examiners and could Statement what is being disclaimed, and other have the effect of lengthening such pertinent information.’’ 50 registration times and increasing The Copyright Act does not require The Office agrees that authorship costs,’’ 52 on average, paper applications registration applicants to describe the descriptions provide pertinent comprise only 4% of all applications type of work for which registration is information concerning registered that the Office receives.53 A common sought, except in the case of a works, and does not intend a complete error that the Office encounters is a compilation or derivative work.44 But removal of the Author Created section. blank authorship section. Allowing the Act permits the Register to require Rather, the Office will request that the examiners to provide this information ‘‘any other information’’ that bears OCIO explore two complementary would improve efficiency by reducing ‘‘upon the preparation or identification methods to obtain more complete and the correspondence required to obtain of the work or the existence, ownership, specific descriptions of works. First, the omitted authorship statements, which, or duration of the copyright.’’ 45 Thus, Office will request exploration of using as the Office has noted, ‘‘imposes under current practices, ‘‘[t]o register a tiers of descriptions that permit the significant burdens on the Office’s work of authorship, the applicant must applicant to gradually narrow the limited resources, and has had an identification of their work using a more file an application that clearly identifies adverse effect on the [pendency of] expanded decision tree format. Under the copyrightable authorship that the examination of claims submitted on this approach, the system would allow applicant intends to register.’’ 46 In the electronic forms.’’ 54 applicants to identify the work online application, the applicant can submitted for registration by using (2) Derivative Works identify that authorship by ‘‘checking general and specific pre-populated For a compilation or derivative work, one or more of the boxes in the Author descriptions, as well as a free-form the Copyright Act requires copyright Created field that accurately describe space allowing applicants to provide 47 registration applicants to identify ‘‘any the authorship.’’ The options more descriptive, non-legal information. preexisting work or works that it is available vary depending on the type of General descriptions would include the based on or incorporates’’ and to application in use (e.g., Literary, Visual categories of authorship set forth in provide ‘‘a brief, general statement of Arts, or Performing Arts). If registering section 102 of the Copyright Act, while the additional material covered by the a literary work, the options are ‘‘text,’’ specific descriptions could include copyright claim being registered.’’ 55 ‘‘computer program,’’ ‘‘photograph(s),’’ particular types of works within those Generally, the Office attempts to obtain or ‘‘artwork.’’ If registering a visual arts categories—for example, ‘‘novel,’’ this information in two steps. First, the work, the options include ‘‘photograph’’ ‘‘poem,’’ ‘‘article’’ or ‘‘podcast.’’ After applicant must ‘‘identify the new and ‘‘two-dimensional artwork,’’ among testing the feasibility of this approach, others. If registering a performing arts the Office will provide guidance authorship that the applicant intends to work, the options include ‘‘music,’’ regarding whether this method is register’’ by checking one or more boxes ‘‘lyrics,’’ ‘‘other text (includes script, preferable to the current format. that appear under the heading ‘‘Author screenplay, dramatic work),’’ and Second, and potentially additive of Created’’ in the online application that ‘‘musical arrangement.’’ As a result, the first approach, the Office will describe the new material the applicant works are described by their individual request that the OCIO investigate intends to register, or by providing a elements (e.g., text, lyrics, or two- developing a table of crowdsourced descriptive statement in the ‘‘Nature of dimensional artwork), rather than by a descriptions, using as a model the Authorship’’ space on the paper 56 holistic description of the work such as USPTO’s Trademark Identification application. Second, if the derivative ‘‘children’s book with illustrations,’’ Manual, which provides users with work contains an appreciable amount of ‘‘research paper,’’ or ‘‘craft book with acceptable identifications of goods and preexisting material that was previously photographs,’’ which may be more services for use in trademark published, previously registered, in the helpful for future identification applications.51 This option would allow public domain, or owned by a third purposes. Seeking to capture a more examiners to curate acceptable party, the applicant must identify that complete description of works descriptions encountered through the material by checking one or more boxes submitted for registration, the Office examination process to add to the in the ‘‘Material Excluded’’ field of the proposed to adjust the Author Created database, and for an applicant to rely online application or by providing a section and ask applicants to identify upon this list for guidance in describing brief statement in the corresponding their work. This would allow the Office section of the paper application.57 This 43 Copyright Alliance Comments, at 9; MPAA to consider and adopt industry-specific Comments, at 5–6; NMPA Comments at 7; NYIPLA 52 NMPA Comments, at 11. Comments, at 2; RIAA Comments, at 3. 48 83 FR at 52339–40. 53 U.S. Copyright Office, Registration Processing 44 See 17 U.S.C. 409(1)–(10). 49 See, e.g., AIPLA Comments, at 3–4; Authors Times, https://www.copyright.gov/registration/ 45 Id. at 409(10). Guild, Inc. (‘‘Authors Guild’’) Comments, at 3 (Jan. docs/processing-times-faqs.pdf. 46 U.S. Copyright Office, Compendium of U.S. 15, 2019). 54 83 FR at 52338. Copyright Office Practices sec. 618.1 (3d ed. 2017) 50 AAP Comments, at 5. 55 17 U.S.C. 409(9). (‘‘Compendium (Third)’’). 51 See USPTO, Trademark ID Manual, https:// 56 Compendium (Third) sec. 618.5. 47 Id. at sec. 618.4(A). idm-tmng.uspto.gov/id-master-list-public.html. 57 Id.

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method can lead to gaps in the public should ask ‘‘whether preexisting works work submitted for registration,68 or an record because it ‘‘encourage[s] have been used, and if yes, what those individual or organization that owns all applicants to identify individual works are.’’ 63 Some commenters also of the rights under copyright.69 To elements of the work that should be expressed concern that eliminating the register a claim of copyright, ‘‘if the excluded from the claim,’’ but it does requirement to identify the new material copyright claimant is not the author,’’ not require applicants to identify the that should be included in the claim the copyright registration application preexisting work itself.58 Further, in the would ‘‘wreak havoc with the Copyright must include ‘‘a brief statement of how Office’s experience, the checkboxes Office’s objective to produce as accurate the claimant obtained ownership of the provided on the application may limit a public record as possible.’’ 64 copyright.’’ 70 This ‘‘brief statement’’ is applicants’ ability to fully describe the Others supported this proposed termed a transfer statement. Further, the nature of their claims, leading to errors approach. AMI opined that eliminating Copyright Act specifies that copyright in identifying new or preexisting ‘‘cumbersome checkboxes’’ and may be transferred (1) ‘‘by any means of material. For example, using the allowing applicants ‘‘to more easily conveyance,’’ (2) ‘‘by will or . . . by the checkboxes, applicants often mark the explain in their own words the elements applicable laws of intestate succession,’’ ‘‘Material Included’’ as ‘‘text’’ and the that are pre-existing versus the ‘new or (3) ‘‘by operation of law,’’ and so the ‘‘Material Excluded’’ also as ‘‘text.’’ material to be included’ ’’ would transfer statement must fit within these These descriptions do not add any simplify the registration process for statutory guidelines.71 meaningful information to users of the such works.65 AIPLA agreed that As the 2018 NOI explained, the public record. ‘‘asking the applicant to identify the current online registration application To avoid this result, the 2018 NOI new authorship is unnecessary . . . and allows applicants to provide a transfer proposed requiring applicants to that the Office should assume that the statement by selecting one of three identify explicitly whether a work applicant intends to register all options in a drop-down menu marked submitted for registration is a derivative copyrightable aspects of the work.’’ 66 ‘‘Transfer Statement.’’ The three options work. If the work is identified as After reviewing the comments, the are ‘‘By written agreement,’’ ‘‘By derivative, applicants would be directed Office continues to believe that the inheritance,’’ and ‘‘Other.’’ The to identify, in their own words, any current identification process should be Compendium of U.S. Copyright Office elements that should be excluded from simplified, but agrees that use of the Practices provides that ‘‘[i]f the claimant the claim. And, assuming that the term ‘‘derivative work’’ may cause obtained the copyright through an applicant intends to register all confusion. Instead, the Office will assignment, contract, or other written copyrightable aspects of the work that provide a business requirement that the agreement, the applicant should select have not been expressly disclaimed, the revised electronic application ask ‘By written agreement.’ ’’ 72 And ‘‘[i]f the applicants, in plain language, about the applicant would not be required to claimant obtained the copyright through facts relating to the authorship of the identify the new material that should be a will, bequest, or other form of 59 work (e.g., Is the work based on one or ‘‘included’’ in the claim. inheritance, the applicant should select more preexisting works? Does the work While most commenters ‘By inheritance.’ ’’ 73 The applicant may incorporate any preexisting work?). The acknowledged that it would benefit the select ‘‘Other’’ and provide a more Office will request that the system allow public record to require applicants to specific transfer statement in a blank applicants to identify any elements that explicitly identify derivative works space marked ‘‘Transfer Statement 60 should be excluded from the claim submitted for registration, some were Other’’ if ‘‘By written agreement’’ or ‘‘By using their own words, rather than a set concerned that such a requirement inheritance’’ do not fully describe the of predetermined checkboxes. This would cause confusion. For example, transfer. approach is intended to streamline the the Copyright Alliance had ‘‘concerns In the 2018 NOI, the Office proposed process by which applicants can that novice applicants might be eliminating the ‘‘Other’’ option both to disclaim preexisting material. confused about how to answer such a avoid confusion among applicants and question,’’ believing that it ‘‘would (3) Simplifying the Transfer Statement to better align the process with the require an understanding of the nuance statutory text. Applicants often provide between ‘transformation’ as it is used in An application for registration must identify the copyright claimant.67 The conflicting information when they select fair use, and ‘transform’ as it is used to the ‘‘Other’’ option, which requires 61 ‘‘claimant’’ is either the author(s) of the define a derivative work.’’ GAG examiners to expend time to correspond likewise noted that ‘‘novice users (and 63 Id.; see American Bar Association Section of with applicants to correct the even experience[d] users) are often Intellectual Property Law (‘‘ABA–IPL’’) Comments, application and delays the resolution of tripped up in interpreting whether a at 5 (Jan. 9, 2019) (‘‘The Section suggests that a claims. Because the methods of transfer 62 work is derivative.’’ Instead of asking simpler process for soliciting factual information are limited by section 201, practically whether a work is a derivative work, about preexisting materials would be to include questions requiring ‘yes/no’ responses’’). commenters argued that the Office 68 64 AAP Comments, at 6. Id. at 201(a) (‘‘Copyright in a work protected 65 AMI Comments, at 5 (citation omitted). under this title vests initially in the author or 58 authors of the work. The authors of a joint work are 83 FR at 52341. 66 AIPLA Comments, at 4; see also New Media 59 coowners of copyright in the work.’’). Id. Rights (‘‘NMR’’) Comments, at 17 (Jan. 15, 2019) (‘‘If 69 60 See, e.g., AIPLA Comments, at 4 (‘‘AIPLA the user disclaims content, presumably the rest of Id. at 201(d)(1) (‘‘The ownership of a copyright believes that applicants should be required to the protectable audiovisual work is original content may be transferred in whole or in part by any means identify whether the work submitted for registration created by the author, so the ‘New Material of conveyance or by operation of law, and may be is a derivative work’’); AMI Comments, at 6 (‘‘The Included’ category does not seem necessary or bequeathed by will or pass as personal property by AMI would not object to asking applicants to relevant unless the work being registered is a new the applicable laws of intestate succession.’’); 37 affirmatively state whether a work submitted is edition of a previously registered work (which is a CFR 202.3(a)(3) (defining claimant as the author of derivative provid[ed] the application form makes it very specific subset of content).’’); AAP Comments, a work or the person or organization that has crystal clear as to what constitutes a derivative at 5 (‘‘AAP members are in favor of asking obtained all rights under copyright initially work.’’); NYIPLA Comments, at 3 (‘‘It is often applicants to explicitly identify whether a work belonging to the author). helpful to know whether a registered work is a submitted for registration is a derivative work and 70 17 U.S.C. 409(5). derivative work’’). to identify, in their own words, any elements that 71 Id. at 201(d)(1). 61 Copyright Alliance Comments, at 17. should be excluded from the claim.’’). 72 Compendium (Third) sec. 620.9(A). 62 GAG Comments, at 7. 67 17 U.S.C. 409(1). 73 Id.

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speaking, the only correct statement that the available fields to ‘‘By written types of changes can be made without can be provided in the ‘‘Other’’ space is agreement,’’ ‘‘By inheritance,’’ and ‘‘By altering the Effective Date of a transfer occurring ‘‘by operation of operation of law’’ to improve efficiency. Registration and which changes would law,’’ a legal concept referring to rights Rather than requiring applicants to change the Effective Date.’’ 84 that arise under specific contingencies describe the transfer in their own words, In general, to establish an Effective such as by court-ordered or bankruptcy- the Office intends to provide guidance, Date of Registration, the Office must related transfers, certain forms of such as information icons or other in- receive an acceptable application, a acquisitions such as stock sales, or application assistance, to provide a clear complete deposit copy, and the explicit agreements providing for joint definition of each transfer statement appropriate filing fee.85 The Effective ownership with rights of survivorship.74 option for applicants, including, in Date of Registration is the date the The Office accordingly proposed to particular, to explain what instances Office receives all three of these replace the ‘‘Other’’ option with ‘‘By may constitute a transfer ‘‘by operation elements, but ‘‘[w]here the three operation of law.’’ 75 of law.’’ necessary elements are received at Most commenters supported the The Office is also exploring the value different times the date of receipt of the Office’s proposal, agreeing that it would of providing a space for applicants to last of them is controlling.’’ 86 The ‘‘simplify and clarify the process for add any recordation document numbers Compendium sets forth the minimum completing transfer statements.’’ 76 that support the transfer statement. requirements for an acceptable Others, however, expressed concern While a copy of an agreement, application, deposit copy, and filing about the proposed change. For conveyance, or other legal instrument is fee.87 In consideration of the comments, example, the Authors Guild argued that not an acceptable substitute for a the Office envisions that the new ECS the ‘‘means of acquiring ownership transfer statement,80 if such an will incorporate these current rules to other than by written transfer or instrument has been recorded with the warn applicants when an amendment inheritance should be spelled out in a Office, the relevant recordation would alter the Effective Date of dropdown menu in plain English and information may be valuable to the Registration. explained’’ because ‘‘ ‘By operation of registration record. Should this option law’ is a broad and legal term that non- prove feasible, the Office will provide (5) Application Programming Interfaces lawyers won’t necessarily in-application guidance on relevant (‘‘APIs’’) understand.’’ 77 AAP opposed removing document recordation topics. A copyright system of the twenty-first the ‘‘Transfer Statement Other’’ field, (4) In-Process Corrections century demands flexibility, agility, and recommending ‘‘a flexible and open adaptability to technological format to accommodate sufficient The current online registration system advancements. The Office believes that explanation in cases of complicated does not permit applicants to make the use of APIs—interfaces that permit transfer statements’’ to support a manual corrections once an application communication between two systems or ‘‘robust and useful public record.’’ 78 is submitted to the Office. The applicant software programs—could improve the As several commenters pointed out, must contact the Public Information registration system by enabling copyright transfer remains a confusing Office to ask the Office to make any programs used in the process of creating 79 area of law for many applicants. While necessary corrections. For the new ECS, works to submit copyright registration it might at first seem that giving the Office proposed removing this applications or extract data from the applicants more space to describe their limitation and permitting applicants to online public record. To explore particular transfer scenario would make changes to pending applications at possible uses of this technology in the enhance the public record, the Office’s any point before an examiner opens the 81 new ECS, the Office invited comment experience indicates that an open application for review. on how it could use APIs to integrate All commenters supported this format text box can give rise to external data into the registration proposal,82 but several requested that inconsistent information, while system or allow parties to export increasing registration processing time the ECS warn applicants when an amendment would change a work’s internal data from the Office’s registry. due to the need for correspondence. The Office also inquired about relevant Therefore, the Office tentatively Effective Date of Registration.83 ImageRights International, Inc. design considerations, such as concludes it would be optimal to establishing a trusted provider eliminate the ‘‘Other’’ field and restrict (‘‘ImageRights’’) recommended that the system ‘‘present a schedule of what framework to minimize spam submissions and deter predatory 74 See David Nimmer & Melville Nimmer, 3 88 Nimmer on Copyright sec. 10.03(A)(6) (2019). 80 Compendium (Third) sec. 620.10(A). behavior. Commenters generally 75 83 FR at 52341. 81 83 FR at 52341. agreed that using APIs would benefit 76 NYIPLA Comments, at 3; see also AMI 82 See, e.g., AIPLA Comments, at 5 (‘‘AIPLA registration applicants and users of the Comments, at 6 (‘‘The AMI supports simplification supports permitting applicants to make edits to online public record,89 although some of transfer statements.’’); International Trademark pending applications in most circumstances.’’); Association (‘‘INTA’’) Comments, at 7 (Jan. 10, AAP Comments, at 6 (‘‘AAP members generally 84 ImageRights Comments, at 6 (Jan. 15, 2019). 2019) (‘‘[S]ince Copyright Act Section 201(d)(1) support the proposal of allowing applicants to make 85 provides for transfer of an author’s interest only by in-process edits to open cases prior to the Compendium (Third) sec. 625. written agreement, inheritance, or operation of law, examination of application materials.’’). 86 H.R. Rep. No. 94–1476, at 157 (1976), reprinted limiting the transfer statement to these three 83 AAP Comments, at 6 (‘‘We trust the Office in 1976 U.S.C.C.A.N. 5659, 5773. categories is advisable.’’); MPAA Comments, at 9 would establish clear parameters and practices as 87 Compendium (Third) sec. 625. (‘‘The only options that should be available to to when such corrections would trigger a change in 88 83 FR at 52342–43. registrants in describing a transfer of ownership are the effective date of registration.’’); Copyright 89 Artists Rights Society Comments, at 4 (Jan. 10, those mentioned in 17 U.S.C. 201: ‘by written Alliance Comments, at 18 (‘‘The Office should 2019) (‘‘ARS . . . would welcome the opportunity agreement,’ ‘by inheritance,’ or ‘by operation of permit applicants to make in-process edits to open to develop in cooperation with the Office an API law.’ There is no statutory justification for the cases at any point prior to the examination of the that would be tailored to the needs of ARS members ‘Other’ option, which should be eliminated.’’). application materials, provided that the Office so that when members sign up with ARS . . . they 77 Authors Guild Comments, at 4. clearly warns applicants prior to making changes also might be able to complete an electronic 78 AAP Comments, at 6. that a modification could alter the effective date registration form.’’); CVA Comments, at 27–28 79 See Authors Guild Comments, at 4; Copyright depending on the type of change and explains the (encouraging the Office ‘‘to develop robust Alliance Comments, at 17; GAG Comments, at 7; types of changes that would result in change in the Application Programming Interfaces (APIs) that will INTA Comments, at 7. effective date.’’). Continued

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commenters urged the Office to provide providing a method of access between communications that applicants may adequate safeguards to protect the the copyright and MLC registration not wish to make public. Explaining security of the data and to guard against systems could permit a copyright owner that ‘‘[c]orrespondence between abuses by bad actors.90 With stakeholder to verify or update ownership applicants and the Office is often support, the Office will continue to information with respect to musical informal,’’ AAP argued that including explore and clarify its business needs works listed in the MLC database such materials ‘‘would not be related to the use of APIs for two alongside the process of completing a appropriate [or] useful for the Public purposes: (1) Ingesting data into the copyright registration application for Record and could be misused by Office online registration system, and that work, or vice versa. The Office has persons who have no claim to the work (2) extracting information from the concluded that the MLC database in question.’’ 99 Other commenters online public record. Of course, any represents an appropriate starting point argued that the public record should be new functionality must provide for API development. While the Office limited to records of what has been appropriate security for all relevant will prioritize this aspect, the Office registered by the Copyright Office.100 data. The Office will continue to will also work with the OCIO to explore NMPA, for example, contended that communicate this need to the OCIO. additional avenues to facilitate the ‘‘[o]nly a subset of copyrights would Initially, the Office will prioritize ingestion and exportation of data benefit from the inclusion of . . . investigation of ways to allow for the through APIs, while ensuring the additional information in the Online transmission of data between the integrity of registration records and Public Record’’ and that ‘‘[i]ncluding registration system and the database of safeguarding against abuses. large amounts of administrative musical works information that will be information concerning a registration (C) Public Record: How Users Engage administered by the Mechanical would likely slow the system down and and Manage Copyright Office Records Licensing Collective (‘‘MLC’’) pursuant be an inefficient use of the Office’s to the Orrin G. Hatch–Bob Goodlatte (1) The Online Registration Record resources.’’ 101 91 Music Modernization Act. The MLC The Copyright Act charges the Current law and regulations require database will contain information Copyright Office with ensuring ‘‘that the Office to make available for public relating to musical works (and shares of records of deposits, registrations, inspection any ‘‘[o]fficial such works) and, to the extent known, recordations, and other actions taken correspondence, including preliminary the identity and location of the under this title are maintained’’ and are applications, between copyright copyright owners of such works and the ‘‘open to public inspection.’’ 96 The claimants or their agents and the sound recordings in which the musical Copyright Office, and directly relating to 92 2018 NOI proposed to expand the works are embodied. To reduce the online public record to include records a completed registration, a recorded incidence of unmatched works, where of pending applications, refusals, document, a rejected application for the copyright owner has not been registration, or a document for which closures, appeals, and correspondence 102 identified or located, the MLC will for completed claims. recordation was refused.’’ Further, operate a claiming process by which This proposal received significant the current registration application musical work copyright owners may support from many commenters. For displays a privacy notice stating that the identify their ownership interests in a example, the American Association of information collected for registration musical work underlying a specific Law Libraries (‘‘AALL’’) supported ‘‘will appear in the Office’s online 103 sound recording, to receive accrued ‘‘publishing refused registration catalog.’’ Given that registration royalties for the usage of that musical application records, full versions of records are already available for public 104 work.93 correspondence records, and associated inspection and copying, the Office By law, the Copyright Office may appeal records in the online public does not see a persuasive basis for access the database in a bulk, machine- record because we believe it would help categorically excluding them from readable format, although the Office the public better understand the online availability, although the Office may not treat the database or any of its originality requirement in copyright law will approach historical materials information therein as a Government and assist those who wish to register a sensitively to address any potential 94 95 record. As some have suggested, claim to a copyright understand the notice or privacy considerations. contours of what ‘constitute[s] allow third-party image management software to copyrightable subject matter.’ ’’ 97 99 AAP Comments, at 7. interface directly with the Copyright Office’s 100 See, e.g., RIAA Comments, at 8 (‘‘The online registration system’’); Copyright Alliance Similarly, AIPLA noted that ‘‘the need public record should support its primary purpose Comments, at 21 (expressing support for ‘‘allowing for full information regarding an to notify the public of which works have been third-parties to interoperate with the Office’s API in application and registration is often registered, and not be appended in a manner that a way that would integrate registration into a crucial for litigation, licensing, and detracts or dilutes from this important function.’’). creator’s workflow to streamline and simplify the 101 NMPA Comments, at 17–18. registration process’’); GAG Comments, at 8 corporate diligence, among other 102 37 CFR 201.2(c)(1); see also 17 U.S.C. 705. (expressing support for the ‘‘integration of APIs into 98 circumstances.’’ 103 the registration system so that registration becomes Some commenters, however, U.S. Copyright Office, eCO Registration part of a creator’s workflow’’). System Standard Application, https:// expressed concern that records of eco.copyright.gov/ (‘‘Privacy Act Notice: Sections 90 See, e.g., Copyright Alliance Comments, at 23 408–410 of title 17 of the United States Code (urging the Office to ‘‘create terms of service for correspondence may expose personally authorize the Copyright Office to collect the access to its API,’’ which would allow the Office ‘‘to identifiable information or informal personally identifying information requested on block access . . . [by] third parties who abuse the this form in order to process the application for APIs’’ though spam submissions or predatory https://thetrichordist.com/2019/11/06/simplify- copyright registration. By providing this behavior); PPA Comments, at 16 (stating that the registration-and-costs-for-mlc/ (‘‘It seems like a information you are agreeing to routine uses of the Office must ensure that ‘‘the process is secure and simple solution for the Copyright Office to information that include publication to give legal able to handle the influx of data’’). harmonize [the online registration system and the notice of your copyright claim as required by 17 91 Public Law 115–264, 132 Stat. 3676 (2018). MLC database] to . . . have a check box to allow U.S.C. 705. It will appear in the Office’s online 92 17 U.S.C. 115(d)(3)(C). you to sign up with the MLC.’’). catalog. If you do not provide the information 93 Id. at 115(d)(3)(I), (J)(iii); see id. at 115(e)(35). 96 17 U.S.C. 705. requested, registration may be refused or delayed, 94 Id. at 115(d)(3)(E)(v). 97 AALL Comments, at 1 (Jan. 14, 2019) (citing 17 and you may not be entitled to certain relief, 95 David C. Lowery, Simplifying Registration and U.S.C. 410(b)). remedies, and benefits under the copyright law.’’). Costs for MLC, The Trichordist (Nov. 6, 2019), 98 AIPLA Comments, at 6. 104 Compendium (Third) sec. 2407.1(B)(1).

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Expanding the online public record to while linking records would be useful, relationship between an application for include these materials would advance it could ‘‘create confusion where the registration, any correspondence, and the Office’s goal to ‘‘[e]xpand access to records are incomplete or the chain of any associated request for Copyright Office records’’ and title is unclear.’’ 108 RIAA also expressed reconsideration.114 There was a general ‘‘[e]nhance services’’ to make it ‘‘easier concern about ‘‘what legal presumptions consensus among commenters in and more convenient for users to may be made based on the chain of title support of the Office’s proposal.115 transact business with the Copyright in a recordation record where there is Accordingly, for future applications, Office.’’ 105 As such, on a prospective no obligation for a subsequent rights the Office would like the system to basis, the Office will request that the holder to file a transfer or security adopt one number for any pending ECS include records of pending interest with the Office.’’ 109 The MPAA application and registration record applications, refusals, closures, appeals, cautioned that the Office should not completed from that application. The and correspondence for completed ‘‘itself engage in chain-of-title Office envisions that the number claims in the new online public record. analysis.’’ 110 assigned to an application (the ‘‘case The Office’s PII removal rule will The Copyright Office appreciates the number’’) and the registration number remain in place to provide for removal need for the ECS to clearly will have an identical base, but the of extraneous PII from the public record communicate the limitations of the registration number will be upon request.106 public record to users of the system. distinguished by a prefix that indicates Similarly, the Office will work with Currently, the Office warns that while the administrative class or type of the OCIO to make digital copies of ‘‘[s]earches of the Copyright Office registration. For example, case number registration certificates available in the catalogs and records are useful in 12345678 for a performing arts work online public record. helping to determine the copyright would become PA12345678, if status of a work . . . they cannot be registered. To further simplify the (2) Linking Registration and Recordation regarded as conclusive in all cases.’’ 111 registration process, the Office will also Records The Office will continue to explore retire correspondence identification Arising out of historical practice, ways to minimize confusion on the part numbers. registration and recordation records are of users. For example, the Office may (D) Digital Deposits currently maintained as discrete data request that the ECS begin by linking sets. Because these records are not only future registration and recordation In the 2018 NOI, the Office requested linked, it can be difficult to identify records. comment on whether applicants should chain-of-title information for particular Second, commenters discussed how be permitted to submit electronic works contained in the Office’s records. the Office should display assignment deposit copies, phonorecords, or All commenters supported the Office’s information and documentation within identifying materials, rather than proposal to link registration and public registration records. The ABA– physical copies or phonorecords, unless 116 recordation records, so that information IPL suggested that the USPTO’s system, the Office requests a physical copy. about registered claims, recorded which consists of an ‘‘Assignment While commenters expressed general transfers, and/or other chain of title Abstract of Title’’ linked to the database support for providing greater flexibility information can be viewed together to entry for a mark identified in a search, in complying with deposit facilitate access to information about could be a model for the Copyright requirements, the comments raised a copyrighted works, including updated Office’s system.112 The NYIPLA number of concerns. The Library of ownership information.107 similarly suggested that ‘‘the Trademark Congress’s Library Services unit Because the registration and Office offers a good model in that the expressed concern over the potential recordation processes are voluntary, application/registration data is directly effect of such a change on Library however, commenters also highlighted linked to the chain of title collections. Noting that ‘‘[t]he Library some areas of caution, which the Office information.’’ 113 The Office found these depends on the continuing flow of items itself is taking into account when comments helpful and hopes to work acquired via Copyright deposit to help developing requirements for the new with the OCIO to explore the specific build its collection,’’ it noted that ECS. For example, RIAA noted that manner of display for the new online ‘‘implementation of this strategy would public record system. require that a duplicative process be 105 U.S. Copyright Office, Strategic Plan 2019– established to obtain deposit copies for 2023, Copyright: The Engine of Free Expression 13 (3) Unified Case Number the Library’s collection.’’ 117 (2019), https://www.copyright.gov/reports/strategic- The Office currently administers and Subsequently, in response to a question plan/USCO-strategic2019-2023.pdf. raised by the Senate Judiciary’s IP 106 tracks separate numbers for See 37 CFR 201.2(f). Subcommittee, the Librarian of Congress 107 AALL Comments, at 3 (noting that the applications, correspondence, and proposal ‘‘would assist users who are attempting to registrations, which creates challenges noted that ‘‘a change to a default digital obtain permission to use a work with accurately for the Office and users. To streamline deposit requirement would critically identifying and contacting the current copyright identification methods, the 2018 NOI affect our ability to serve some of our owner’’); ABA–IPL Comments, at 7 (‘‘The Section strongly supports connecting registration and proposed to unify the Office’s 114 recordation records.’’); Authors Alliance Comments, identification numbers to create a clear 83 FR at 52344. at 5 (Jan. 15, 2019) (noting that the proposal would 115 See generally AIPLA Comments, at 7 (‘‘AIPLA strongly supports this proposal.’’); AAP Comments, ‘‘increase[] the likelihood that users will be able to 108 RIAA Comments, at 8. locate current and accurate contact information for at 8 (‘‘AAP members are in favor of unified case 109 RIAA Comments, at 8. copyright holders, better facilitating licensing and numbers to track and identify a work or group of 110 permissions requests’’); INTA Comments, at 15 MPAA Comments, at 13. works through the registration and appeals (expressing support for ‘‘provid[ing] chain of title 111 U.S. Copyright Office, Circular 22: How to process’’); PPA Comments, at 16 (‘‘PPA supports a information’’); NMPA Comments, at 18 (‘‘The Investigate the Copyright Status of a Work 3 (Feb. single case number which remains with the registration and recordation systems should be fully 2013), https://www.copyright.gov/circs/circ22.pdf; application through the registration process and integrated and should be part of the same see also U.S. Copyright Office, Request a Search after the registration is issued. This will help with _ database.’’); Nanette Petruzzelli Comments, at 5 Estimate, https://www.copyright.gov/forms/search tracking and consistency.’’). (Jan. 14, 2019) (supporting the proposal so that estimate.html. 116 83 FR at 52344–45. ‘‘public inquiry about the current copyright status 112 ABA–IPL Comments, at 7. 117 Library of Congress Library Services of a work can be found in one record/file’’). 113 NYIPLA Comments, at 5. Comments, at 1–2 (Jan. 15, 2019).

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largest user groups, either by not concluded that consideration of changes overwhelming majority of commenters meeting their preferences or by denying to the deposit requirements are beyond supported this proposal.131 AALL noted service altogether.’’ 118 the scope of this current notice. As that it would ‘‘better ensure that the Other commenters representing noted, however, the Office and the information remains up-to-date, thereby copyright owner interests raised Library will work collaboratively to reducing the risk of a work becoming an potential security concerns. For develop alternative deposit options orphan work, encouraging proper example, the Copyright Alliance ‘‘that appropriately balance security attribution by others, and facilitating pointed to the possibility of cyberattacks with ease of use. These kinds of users [in] properly obtaining permission resulting in unauthorized access to important issues will be addressed or a license to use a work.’’ 132 Authors deposit copies.119 AAP stated that using transparent processes that invite Alliance similarly noted that ‘‘the costs ‘‘[p]ublishers would welcome a public comment and participation.’’ 125 associated with updating the Rights and registration deposit regime that is less Permissions field discourages users II. Additional Subjects of Inquiry burdensome, but only if it is operated in from updating contact information, a wholly secure IT system and kept In addition to the foregoing practice leading to inaccurate records and wholly separate from the collections of changes, the Office is continuing to contributing to the orphan works the Library and its access or interlibrary consider additional issues raised in the problem.’’ 133 lending or surplus books policies.’’ 120 2018 NOI and now seeks further While there was general support for In its view, such changes are comment on the following topics. this proposed change, several ‘‘premature and will remain so until the (A) The Rights and Permissions Field commenters noted the importance of Copyright Office is permitted and able implementing a corresponding method to develop the necessary IT systems and Presently, at the conclusion of an for authenticating or confirming the security.’’ 121 online registration application, the identity of registrants, assignees, or their The Copyright Office is committed to applicant is asked to provide Rights and authorized representatives. RIAA stated pursuing any updates to the registration Permissions information, which may there must be ‘‘robust security and deposit system in a reasonable and include ‘‘the name, address, and other authentication surrounding the conscientious manner. At the same contact information for the person and/ authorized user’s credentials and access time, due to the wide variety of or organization that should be contacted to the registration database.’’ 134 expressive works that can be registered, for permission to use the work.’’ 126 Likewise, the Copyright Alliance spanning physical and digital formats, Currently, applicants may provide only suggested that ‘‘[t]he ability to make from individual to large corporate one name and address. This information these changes should be restricted to authors, the ECS must be designed in a appears in the online public record for accounts belonging to the rights holder manner to accommodate submission of the work to facilitate licensing and (including a previous rights holder’s both physical and electronic similar transactions.127 Once a verified successor in interest) or their deposits.122 Under the current certificate of registration is issued, agent’’ to protect ‘‘rights holders and framework, the Office has recently interested parties may update the Rights users of the public record from fraud, noted that ‘‘[a]ny future expansion of and Permissions information by either misrepresentation, inadvertent mistakes electronic deposits to additional (1) requesting that the Office remove and unauthorized changes to the record categories of works will require careful certain personally identifiable by third parties.’’ 135 consideration of several factors, information from the online public In principle, the Office agrees that the including the Library’s collection needs, record and replace it with substitute ECS should be designed to encourage technological capabilities, and security information,128 or (2) submitting an copyright owners to keep their contact and access issues.’’ 123 Meanwhile, the application for a supplementary information up to date, including in Office notes that these issues may registration.129 cases of transfer, and also that security overlap with ongoing legislative To achieve a more flexible and access controls will be key to discussion.124 The Office therefore has amendment process, the 2018 NOI implementing self-service edits.136 The proposed allowing users to update 118 Carla Hayden, Librarian of Congress, Rights and Permissions information, as 131 ABA–IPL Comments, at 6 (‘‘[T]he Section Responses to Questions for the Record, Subcomm. necessary, without having to submit a supports allowing registrants to update the Rights on Intell. Prop. of the S. Comm. on the Judiciary formal written removal request and fee and Permissions information for their works posted at 3–4 (Jan. 7, 2020), https:// and without having to seek a on the public record in a simplified manner’’); www.judiciary.senate.gov/imo/media/doc/ AIPLA Comments, at 5 (‘‘AIPLA supports allowing 130 Hayden%20Responses%20to%20QFRs.pdf. supplementary registration. The authorized users to make changes to this field’’); 119 Copyright Alliance Comments, at 25. Authors Alliance Comments, at 4 (‘‘Authors 120 AAP Comments, at 2. on Intell. Prop. of the S. Comm. on the Judiciary Alliance supports the Office’s efforts to build a 121 Id. at 3. at 3 (Jan. 7, 2020), https://www.judiciary.senate.gov/ registration interface that allows users to update 122 The current statutory default instructs owners imo/media/doc/ Rights and Permissions information without having to submit a deposit of a complete copy of the work Hayden%20Responses%20to%20QFRs.pdf to submit a supplementary registration together and, for works published in the U.S., the best (responding to question about draft legislation on with the associated fee’’); INTA Comments, at 9 edition of that work (unless regulations permit the the deposit requirement). (‘‘INTA strongly supports making the Online Public deposit of alternate identifying material). 17 U.S.C. 125 Id.; see also id. at 4 (‘‘The Library would like Record a more dynamic system by allowing 407, 408; 83 FR at 52344. But the statute does not to work closely with the Copyright Office to update authorized representatives to update rights and compel authors or publishers to create a special the best edition statement on a consistent and permission information’’); NMA Comments, at 5 copy for the purpose of copyright registration or to regular basis.’’). (‘‘The Alliance supports the proposal to allow fulfill the separate obligation under section 407. See 126 Compendium (Third) sec. 622.1. There is no authorized users to make changes to the Rights and Mandatory Deposit of Electronic-Only Books, 83 FR corresponding space for providing Rights and Permissions field in a completed registration’’). 16269, 16274 (notice of proposed rulemaking). Permissions information in a paper application. 132 AALL Comments, at 3. 123 Jody Harry, Chief Financial Officer, U.S. 127 Id. 133 Authors Alliance Comments, at 4. Copyright Office, Responses to Questions for the 128 37 CFR 201.2(e)(1); Compendium (Third) sec. 134 RIAA Comments, at 6. Record, Subcomm. on Intell. Prop. of the S. Comm. 622.1. See generally Removal of Personally 135 Copyright Alliance Comments, at 19. on the Judiciary at 13 (Dec. 17, 2019), https:// Identifiable Information from Registration Records, 136 The option to edit Rights and Permissions www.judiciary.senate.gov/imo/media/doc/ 82 FR 9004 (Feb. 2, 2017) (final rule). information will not affect the recordation of Harry%20Responses%20to%20QFRs.pdf. 129 37 CFR 202.6(d), (e); Compendium (Third) sec. documents pertaining to copyright. Rights and 124 Carla Hayden, Librarian of Congress, 1802. Permissions information is limited to contact Responses to Questions for the Record, Subcomm. 130 83 FR at 52341–42. information (e.g., mailing and/or email addresses).

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Office seeks additional stakeholder made mandatory.140 Commenters were both users and rightsholders.’’ 145 feedback on how the ECS might also in favor of being able to provide Noting that ‘‘[t[he technology to search administer such a service. Specifically, unique identifiers to pending and by images . . . is widely commercially what eligibility criteria should be completed registration records, on an available,’’ PK and AREP stated that the considered in evaluating the parties optional basis.141 The Office agrees that ability to ‘‘reverse image search existing seeking to edit Rights and Permissions any new requests for information should registrations would assist photographers information? Should this service be not be mandatory. Recognizing that . . . in protecting their rights limited to users with access to the certain standard identifiers may not online.’’ 146 account through which the original always be available at the time of the Other commenters, however, noted registration was made, or should those registration application, the Office also that there may be complications in users be able to consent or transfer appreciates the desire to add identifiers accepting low-resolution or incomplete account authorizations associated with to the record after submission of a deposits. Specifically, RIAA argued that individual registrations? Should this registration application, provided the collecting sound clips ‘‘would create service be limited to parties named on online public record identifies when additional burdens (including, but not the registration certificate and their such amendments are made to limited to, the need to provide ever authorized agents? The Office also seeks completed registration records. The expanding storage resources for clips) stakeholder feedback on whether to acceptance of post-registration unique on the Office with, at best, marginal expand the Rights and Permissions field identifiers would seem to potentially increased utility.’’ 147 It also expressed raise eligibility questions similarly to allow users to provide more than one concern that ‘‘the collection and presented with post-registration updates name and address. The Office will share inclusion of sound clips in the Office’s to the rights and permissions field, this information with the OCIO to registration database could turn the discussed above. Subject to additional explore technological feasibility, and database into a de facto, on-demand public comment, the Office will work both the Office and the OCIO have streaming service that would effectively with the OCIO to explore the best ways committed to facilitating compete against commercial services to enable these types of voluntary licensed by our member companies.’’ 148 communication and outreach with users submissions in the ECS. of the prospective system. Still others discussed the availability In addition, the Office sought of technology to create low-resolution or (B) Additional Data comment on whether it should allow incomplete copies. For example, applicants to voluntarily upload public- ImageRights suggested that there would The 2018 NOI invited comment on facing deposit material, such as low- be ‘‘little point in asking users to what additional data could or should be resolution images or sound bites, as part provide’’ low-resolution images and 142 included in the online registration of the registration application. The sound bites because they ‘‘can be record on a voluntary basis in order to option to include this information created sufficiently well in an enhance the functionality and value of would be additive of the existing automated way.’’ 149 GiantSteps Media 137 the system. The 2018 NOI noted that registration deposit requirement. Such Technology Strategies suggested that the the current system already allows public-facing material might assist in Office use digital finger printing applicants to include a number of the identification of a work to serve technology to ‘‘allow registrants to unique identifiers, including an licensing, or even enforcement, deposit digital fingerprints of works, International Standard Book Number purposes. Commenters generally were perhaps in addition to low-resolution supportive of this proposal. INTA (‘‘ISBN’’), International Standard images, audio clips, and the like.’’ 150 opined that ‘‘developing a more robust Recording Code (‘‘ISRC’’), International To more fully explore these issues, Online Public Record through the Standard Serial Number (‘‘ISSN’’), the Office is interested in receiving uploading of these images and clips will International Standard Audiovisual additional input on whether and how be beneficial by enhancing recognition Number (‘‘ISAN’’), International the new ECS might be designed to of the work registered and will also aid Standard Music Number (‘‘ISMN’’), include the option to deposit low- in the licensing of those works.’’ 143 International Standard Musical Work resolution or incomplete copies of NMPA observed that ‘‘[a]llowing Code (‘‘ISWC’’), International Standard works for the online public record. Are applicants to include small sound bites Text Code (‘‘ISTC’’), or Entertainment there certain available technologies that of their works in their application could Identifier Registry number (‘‘EIDR’’).138 should be considered to automate The 2018 NOI inquired whether the improve the public record and assist the public in identifying copyright creation of lower-resolution or Office should consider expanding the 144 shortened clips works to be made number of unique identifiers that may owners.’’ Public Knowledge (‘‘PK’’) and the Association of Real Estate available to the public for identification be included on an application, requiring Photographers (‘‘AREP’’) suggested that purposes but that would not serve as a inclusion of unique identifiers if they ‘‘[i]mplementing reverse image search substitute for the work? Should the have been assigned, or establishing a capabilities . . . —and linking those Office establish specifications, such as a procedure for adding unique identifiers results to rightsholder information— 15-second limit on sound clips, or a to completed registration records, would prov[ide] significant benefits for specific resolution format, with respect similar to the proposed procedure for to the acceptance of additional, updating the Rights and Permission 140 See ABA–IPL Comments, at 6; AIPLA voluntarily submitted data, to minimize field.139 Comments, at 6; AAP Comments, at 7; AMI interactions with licensing markets? Comments, at 7; Copyright Alliance Comments, at Should this feature be preliminarily Commenters were in favor of having 20; Copyright Clearance Center, Inc. Comments, at the option to submit additional data as 2 (Jan. 14, 2019); GAG Comments, at 8; INTA 145 part of the registration application, as Comments, at 9; Shaftel & Schmelzer Comments, at PK & AREP Comments, at 3 (Jan. 15, 2019). 146 Id. long as adding such information is not 17 (Jan. 11, 2019). 141 See Copyright Alliance Comments, at 20; 147 RIAA Comments, at 6–7. INTA Comments, at 9; MPAA Comments, at 10. 148 Id. at 7. 137 83 FR at 52342. 142 83 FR at 52342. 149 ImageRights Comments, at 8. 138 Id. 143 INTA Comments, at 9–10. 150 GiantSteps Media Technology Strategies 139 Id. 144 NMPA Comments, at 15. Comments, at 3 (Jan. 15, 2019).

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explored in a pilot limited to certain The Office invites comment on any Dated: February 28, 2020. type(s) of works, and if so, which additional considerations it should take Regan A. Smith, type(s)? into account relating to these topics. General Counsel and Associate Register of Copyrights. [FR Doc. 2020–04435 Filed 3–2–20; 8:45 am] BILLING CODE 1410–30–P

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