Submitted by Susan Chertkof on behalf of The American Association of Independent Music (“A2IM”) and Recording Industry Association of America, Inc. (“RIAA”) Before the UNITED STATES COPYRIGHT OFFICE Washington, D.C. In the Matter of: Group Registration of Works on an Docket No. 2019-4 Album of Music COMMENTS OF THE AMERICAN ASSOCIATION OF INDEPENDENT MUSIC AND RECORDING INDUSTRY ASSOCIATION OF AMERICA, INC. The American Association of Independent Music (“A2IM”) and the Recording Industry Association of America, Inc. (“RIAA”)(together the “Commenters”) are pleased to provide these comments in response to the Notice of Proposed Rulemaking (“NPRM”) published by the Copyright Office (the “Office”) on May 20, 2019. See 84 Fed. Reg. 22762. A2IM is a nonprofit trade organization that supports and promotes the creative and financial vitality of a broad coalition of more than 600 independently owned U.S. music labels. RIAA is a nonprofit trade organization that supports and promotes the creative and financial vitality of the major record companies in the United States. The members of A2IM and RIAA collectively create, manufacture and/or distribute nearly all of the sound recordings commercially produced and distributed in the United States. Our members produce, release, and register albums of music on a frequent and regular basis and thus have a keen interest in the registration options for those albums that are made available to them through the Office. The Commenters appreciate the opportunity to share our views on the issues raised by the NPRM. In these Comments, we respond to issues of concern raised by the proposal to allow Group Registration of Works on an Album of Music (“GRAM”). Introduction We applaud the Office for creating a mechanism that, under appropriate conditions, will enable sound recording copyright owners to register works on an album of music, along with any associated album art, liner notes, posters, and so forth, by filing a single copyright registration application and paying a single filing fee. By making it easier and more affordable for owners of sound recordings to register multiple works at the same time, this new registration option will likely facilitate broader participation in the copyright registration system. In addition, the new GRAM option should further incentivize registration by making clear that each individual work included in a GRAM registration is eligible for a separate award of statutory damages in the event of infringement. The GRAM proposal addresses two recurrent problems that have been of concern to our members. First, the Copyright Office has implemented what amounts to a de facto bright line test for determining what constitutes a collective work. As a result, the Office now regularly refuses to register as collective works “extended play” albums (“EPs”) with three or fewer tracks (hereinafter “Short EPs)”. See NPRM at 22763, n. 14 (citing Compendium (Third) sec. 312.2 “selection[s] consisting of less than four items will be scrutinized for sufficient authorship”); see also NPRM at 22765 (“This [GRAM] option also benefits copyright owners that are seeking to register two or three works that likely would not meet the statutory requirements for a collective work.”)1 Second, the Office has refused to extend the unit of publication registration option to digital bundles. The unit of publication option is “an administrative procedure that allows an applicant to register a number of works that were physically packaged or bundled together as a single unit by the claimant (e.g., a CD packaged with cover art and liner notes) and first published on the same date.” NPRM at 22763 (citing Compendium (Third) secs. 1103, 1107.2). According to the NPRM, “[b]ecause the unit of publication option is restricted to works that 1 Although we appreciate this effort to create an alternative means of registering Short EPs, we continue to disagree with the Office’s reliance on a single example in the legislative history of the 1976 Copyright Act to justify its refusal to register collective works with three or fewer individual contributions. See, H.R. Rep. No. 94-1476, at 122 (1976) (stating that “three one-act plays, where relatively few separate elements have been brought together” would not qualify for registration as a collective work); see also Compendium (Third) sec. 312.2 (quoting H.R. Rep. No. 94-1476, at 122). For a work to constitute a collective work, it need only comprise individual works that have been “selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” 17 U.S.C. § 101 (definition of compilation) (emphasis added). In applying this standard to Short EPs, the Office seems to have focused on the arrangement prong (arguing that there are a limited number of ways in which to order two, or even three, tracks) to the exclusion of the selection prong. We disagree that there is insufficient arrangement authorship; record labels put considerable effort into the ordering of tracks even on a Short EP. But, even if the Office is unpersuaded that there is sufficient arrangement authorship, it should be persuaded that there is sufficient selection authorship. When creating a Short EP, the artist and/or record label must select from the body of the artist’s sound recordings the two or three that will be grouped together to form the EP, along with any cover art, photos, text and other materials, if any, that will comprise the finished work. That selection should meet the test for a collective work, even where the EP includes only two or three tracks. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (holding originality in selection, coordination or arrangement must only “display some minimal level of creativity” and “[t]here remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.”); Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003), cert. denied, 540 U.S. 983 (2003) (distinguishing between original selection and arrangement, only one of which is required to defeat a plaintiff’s claim of infringement); see also Compendium (Third) sec. 312.2 (citing a number of factors the Office may consider, including, among others, whether “the selection, coordination, and/or arrangement [was] made from a large or diverse pool of material or data”). 2 were first published in a physical unit, this option is not available for works first published, or published solely, on a digital album . .” NPRM at 22764.2 We commend the Office for offering a solution to these problems. In its current form, the GRAM proposal offers an attractive option for record labels and other sound recording copyright owners to register Short EPs using a single registration form and paying a single registration fee. However, the GRAM option would be far more useful to the Commenters’ members if the changes described below were adopted by the Office so that our members could use the GRAM option for more than just Short EPs. The two most important of our proposed changes would allow the full album, as a collective work, to be included as one of the individual works listed in the GRAM application (and covered by the resulting GRAM registration) and replace the definition of album along the lines suggested below. Recommended Changes to the GRAM Proposal Below we have divided our recommendations into two groups, the first of which are those of greatest importance to us. 1. Key Recommendations a. Collective Work Authorship. According to the NPRM, if a copyright owner wishes to “register the authorship involved in selecting and arranging the works, the applicant must separately register the album as a collective work or compilation.” NPRM at 22765. Rather than requiring a separate application and separate fee to register the collective work, we urge the Office to permit copyright owners to include the full album as a collective work as one of the individual works that can be registered using the GRAM option. This would make it more akin to the unit of publication option, which expressly permits a collective work to be included as one component of the unit of publication. See NPRM at 22764 (“This registration accommodation has long-allowed one application to not only extend to any collective work that is included within the unit (e.g., a compilation of sound recordings), but also the cover art, liner notes, and any other separately fixed work contained in the unit and owned by the same claimant.”) (emphasis added). It is not clear why the proposed GRAM option does not do so, nor why it could not offer the same type of coverage. Other group registration options encompass both individual works and collective works. For example, the existing group registration option for serials expressly permits the applicant to include both the collective work and the underlying contributions to that collective work in one application. According to Section 1109.2 of the Compendium (Third): 2 The Office’s refusal to extend the unit of publication registration option to digital bundles ignores the fact that even full-length albums and EPs that are released in digital-only form are marketed under a single UPC and single internal catalog number -- making clear that they constitute one bundled product. The policy poses a particular problem for Short EPs which, unlike full-length albums (which are still commonly released in both physical and digital form), are released primarily in digital form. 3 Both forms of authorship [i.e., the compilation authorship in creating the serial and the authorship in the separate and independent works included within the serial] may be registered using the group registration option for serials, provided that (i) the contributions and the collective work as a whole were created by the author named in the application, and (ii) the author and the claimant are the same (i.e., the author owns the copyright in that material).