[Federal Register: March 28, 2005 (Volume 70, Number 58)]
[Rules and Regulations]               
[Page 15587-15590]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28mr05-15]                         

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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 202

[Docket No. RM 2005-3]

 
Registration of Claims to Copyright, Group Registration of 
Published Photographs

AGENCY: Copyright Office, Library of Congress.

ACTION: Final regulations.

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SUMMARY: The Copyright Office of the Library of Congress is amending 
its final regulations concerning group registration of published 
photographs to limit to 750 the number of photographs that may be 
identified on continuation sheets submitted with a single application 
form and filing fee. The regulation continues to place no limit on the 
number of photographs that may be included in a single group 
registration when the applicant elects not to use continuation sheets 
and instead identifies the date of publication for each photograph on 
the deposited image and the applicant meets the other

[[Page 15588]]

regulatory requirements for group registration of published 
photographs. The regulation also clarifies that the date of publication 
for each photograph may be identified in a text file on the CD-ROM or 
DVD that contains the photographic images or on a list that accompanies 
the deposit and provides the publication date for each image.

DATES: Effective March 28, 2005.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, or 
Charlotte Douglass, Principal Legal Advisor, P.O. Box 70400, 
Washington, DC 20024-0400, Telephone (202) 707-8380. Telefax: (202) 
707-8366.

SUPPLEMENTARY INFORMATION: The copyright law permits a claim to 
copyright to be registered in the Copyright Office at any time during 
the subsistence of the copyright, when an application form is 
accompanied by the appropriate deposit of a copyrightable work and a 
filing fee. 17 U.S.C. 408(a). Section 408(b) generally requires the 
deposit of two complete copies or phonorecords of a published work, but 
it authorizes the Register of Copyrights by regulation to reduce the 
number deposited for particular classes. 17 U.S.C. 408(c)(1). The 
Register may also ameliorate the requirement for individual 
registrations where a group of separately published related works is 
sought to be registered together. Id. The legislative history of the 
1976 Copyright Act offers ``a group of photographs by one 
photographer'' as a possibly appropriate grouping. H.R. Rep. No. 1476, 
94th Cong., 2d Sess. 154 (1976).
    In 2001, after notice, public comment, and careful consideration, 
the Office established a regulation permitting group registration of 
published photographs. 37 CFR 202.3(b)(9). 66 FR 37142 (July 17, 2001). 
That rule permitted an unlimited number of photographs that were taken 
by the same person and published within the same calendar year, and for 
which the copyrights are owned by the same person or entity, to be 
registered with one application and fee. An applicant may choose from 
three options to register such a group: The applicant may either (1) 
submit a group of photographs published within three months before 
receipt in the Copyright Office and give the range of dates within that 
period on the application for registration at space 3b; (2) submit a 
group of photographs published within a calendar year, give the range 
of dates within that period on the application for registration at 
space 3b, and identify with each deposited image the date of its 
publication; or (3) submit a group of photographs published within a 
calendar year, give the range of dates within that period on the 
application for registration at space 3b, and identify each photograph 
on a continuation sheet noting thereon its date of publication.\1\
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    \1\ The regulation encouraged applicants to use the latter 
option because the registration certificate, of which the 
continuation sheets are a part, serves as prima facie evidence of 
the date of publication of a work when it is registered within five 
years of first publication.
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    During the rulemaking process for group registration of 
photographs, the Office proposed a rule that would limit the number of 
photographs that could be registered in a group to no more than 500. 65 
FR 26162, 26166 (May 5, 2000). In response to the request for comments, 
many depositors asserted that the number of photographs should not be 
so limited. 66 FR 37143, 37145 (July 17, 2001). One commenter stated 
that some photographers took more than 500 images in one or two days. 
Another commenter noted that she produced thousands of images per 
quarter. Id. In response, the Office issued a final rule that did not 
limit the number of photographs that could be submitted with one group 
photograph claim. The Office stated that:

    In light of the comments from photographers observing that the 
proposed 500-photo limit is too low, the Office has reexamined its 
reasons for proposing such a limit. The Office has concluded that 
the administrative burdens of processing a group registration of a 
large number of photos in excess of 500 would be acceptable. 
Therefore, the final rule contains no limitation on the number of 
photographs that may be included in a group.

66 FR 37148.
    On the basis of this assumed technical capability of the Office 
system to handle a large number of photos, the Office did not 
contemplate that it would receive continuation sheets listing nearly 
15,000 photographs, nor did it contemplate that the production of such 
certificates would be as disruptive as it has been to Office 
operations. Recent experience with the end-stage processing of 
continuation sheets of a group of photographs that include more than 
750 photographs listed on more than 50 continuation sheets has proved 
administratively burdensome. Whatever the technical capability of 
Office equipment might be to produce certificates with an unlimited 
number of continuation sheets, the practical reality of doing so 
requires an excessive amount of staff, time, equipment, and materials. 
As a consequence, the cost effectiveness of making these group 
registrations, at the current filing fee of $30.00 per group, is 
seriously out of balance.
    To relate recent empirical evidence, one recent claim consisted of 
a staggering total of 1,776 continuation sheets. The Office required 
three hours for initial processing of the claim, including stamping, 
examining, labeling, scanning and packaging the claim for imaging. The 
next step to process the claim, producing the image for the 
registration record, required four and one-half hours to complete and 
used 1777 registration number bar code labels. To print the 1777 page 
certificate took an additional one and one-half hours during which no 
other printing could be accomplished on that equipment. Then, the 
certificate had to be packaged and mailed, at an inordinate expenditure 
of three and one-half reams of certificate paper, postage and packaging 
costs. Altogether, at the end stage of the registration process, this 
single registration required more than 12 hours to complete. Making 
matters worse, the Office currently has on hand 15 additional claims of 
this kind, at various stages in registration processing. Each of these 
claims is accompanied by continuation sheets ranging from approximately 
1090 to 2423 in number. The Office production structure for 
registration of claims simply does not accommodate such a time frame 
for a single registration--group or otherwise--in a system which 
registered nearly 661,500 claims in fiscal year 2004.
    At the time the final rule on group registration of photographs was 
announced in 2001, the Copyright Office did not predict that the amount 
of staff time, equipment usage, and production materials that would be 
required to produce certificates with a large number of continuation 
sheets would prove so impracticable as to undermine the Office's 
productivity. In view of recent claims that the Office has received, 
including three claims of 2068, 2118 and 2423 pages respectively, as 
well as other claims that it anticipates receiving should this 
registration pattern take hold, the Office has determined that it must 
now limit to 50 the number of continuation sheets that may accompany a 
group registration for published photographs. The amended regulation 
allows for 750 photos to be listed on the continuation sheets that are 
part of the application and made part of the certificate of 
registration, and permits the applicant to submit additional claims in 
groups of 750 or fewer photographs with additional filing fees for 
registration where the continuation sheet option is preferred. 
Applicants may continue to submit

[[Page 15589]]

applications for group registration of photographs without any 
limitation on the number of photographs if they select one of the 
options that does not involve use of continuation sheets.
    At some future time, the Office may be able to resume group 
registration for photographs with an unlimited number of continuation 
sheets. When the Office's business processing systems have been re-
engineered, new information technology systems will be employed to 
accomplish much of the processing of claims digitally and it may at 
that time be possible to liberalize the current restriction.
    The Office is also clarifying that when an applicant for group 
registration of photographs elects not to use continuation sheets to 
identify dates of publication, the option that permits the dates of 
publication to be identified ``on the deposited image'' does not 
require that the date of publication appear on the deposited image 
itself. In order to make this clear, Sec.  202.3(b)(9)(iv) is being 
amended to state that the date of publication may be provided in any of 
four different ways: Either (1) on each deposited image, (2) in a text 
file on the CD-ROM or DVD that contains the deposited photographic 
images, (3) on a list that accompanies the deposit and provides the 
publication date for each image, or (4) on the continuation sheet 
provided by the Copyright Office.
    A notice and comment period is normally required prior to 
promulgation of a regulation. Administrative Procedure Act, 5 U.S.C. 
553(b). The Office has already conducted notice and comment on this 
issue and has given this issue consideration in promulgating its final 
rule (See Notice of Proposed Rulemaking, Registration of Claims to 
Copyright, Group Registration of Photographs, 65 FR at 26165 (May 5, 
2000); Final Regulation, Registration of Claims to Copyright, Group 
Registration of Photographs, 66 FR at 37148 (July 17, 2001).) That rule 
concluded that the administrative burden of processing a group 
registration of a large number of photos in excess of 500 would be 
acceptable based on a projection of what such processing would involve. 
66 FR 37148. As detailed above, however, actual experience has proved 
otherwise. Based on recent experience, the Office has determined that 
currently it is administratively unfeasible to continue to accept 
applications for group registrations of photographs with more than 50 
continuation sheets.
    The APA waives the requirement for notice and comment when ``the 
agency for good cause finds (and incorporates the finding and a brief 
statement of reasons therefor in the rules issued) that notice and 
public procedure are impracticable, unnecessary, or contrary to the 
public interest.'' 5 U.S.C. 552(b)(B). It is impracticable to conduct 
prepublication notice and comment where compliance with the normal APA 
procedures would jeopardize the agency's assigned missions. See S. Rep. 
No. 752, 79th Cong., 1st Sess. 14 (1945); S. Doc. No. 248, 79th Cong., 
2d Sess. 140, 148, 157 (1946). Although the Office provides a host of 
other services, a primary duty of the Copyright Office is to register 
claims to copyright. 17 U.S.C. 701(b); 410(a). Prompt registration is 
central to the mission of the Office because it meets the needs of 
applicants, obtains new works for Library of Congress collections, and 
promotes creativity by effectively administering the national registry.
    Providing notice and comment for this rulemaking would be 
impracticable because it has become apparent that providing such notice 
and awaiting and evaluating comments would have potentially serious 
adverse impacts on the Office's ability to comply with its statutory 
duties. At an increasing rate, the Office is receiving group photograph 
claims with escalating numbers of continuation sheets. As noted above, 
three recent claims have involved applications containing as many as 
2423 pages. The Office cannot consistently process thousands of 
continuation sheets with one claim and provide registration services 
for the volume of claims it is charged with managing each year. Further 
delay would aggravate the threat that this pattern will continue to 
uncontrollable proportions, thus indicating that notice and comment 
would in fact be counterproductive. If the Office provided prior notice 
and comment for its rule limiting the number of photographs identified 
on continuation sheets as part of a group claim, the delay would 
exacerbate the present difficulties by permitting continued large 
submissions and perhaps even encouraging a flurry of such submissions 
in order to take advantage of the existing rules before the amendment's 
effective date, jeopardizing even more the Office's ability to fulfill 
its responsibility under the copyright law.
    Specifically, pre-publication notice and comment would harm the 
Office's registration processing function for the reason that the 
continued submission of claims in this manner could affect the pendency 
of overall registrations. The time between filing for registration and 
receiving a registration certificate may increase, and the Office's 
expense in processing these extremely large group registrations would 
have no reasonable relationship to the fee charged. If the Office were 
to devote a disproportionate amount of time to register such large 
group claims, its ability to provide timely and cost effective service 
to the public at large would be negatively affected. On the other hand, 
from an applicant's point of view, the number limit is only being 
placed on registrations made under one group option. The other options 
will remain open for an unlimited number of photographs with one 
application form and one filing fee, currently $30.00.
    Section 553 of the Administrative Procedure Act also provides for a 
notice of not less than 30 days before the effective date of a 
regulation, except as otherwise provided by the agency for good cause 
found and published with the rule. 5 U.S.C. 553(d)(3). The reasons for 
expedited rulemaking here are to ease an immediate administrative 
burden and to forestall the likelihood of even further administrative 
hardship. The Office has only recently begun to receive applications 
for group registrations of photographs containing hundreds of 
continuation sheets, but recent experience indicates that such 
applications will continue to be received, perhaps at an increasing 
pace. The Office cannot take the risk of becoming inundated with a 
last-minute rush of large continuation-sheet submissions to take 
advantage of the final days of the present rule. The amendment's 
immediate effective date will preclude the submission of an 
overwhelming number of late claims, which would further exacerbate the 
negative effect such registrations have on the Copyright Office's 
processing operations.
    As part of the ``good cause'' calibration of the APA's section 
553(d)(3), the necessity for immediate implementation must be balanced 
against the necessity for affected persons to have a reasonable time to 
prepare for the effective date of the new rule. To date, it appears 
that the exceptionally large continuation sheet claims are being 
submitted by only one entity. The Office is directly notifying that 
entity of this amendment to the group registration regulation which has 
been necessitated due to problems caused by registration in this 
manner. For registration materials that have been received by the 
Copyright Office before the effective date of this amendment but are 
still being processed, the rules issued in 2001 will continue to apply, 
although in particular cases, the Office may request that the applicant 
resubmits separate applications, each with no more than 50 continuation 
sheets. In such cases, no additional fees

[[Page 15590]]

will be assessed and the effective date of registration will be the 
date the group of photographs was originally submitted in conformity 
with then current regulations. With respect to any applications 
including more than 50 continuation sheets that are received by the 
Office on or after the effective date of this amendment, the applicant 
will be given the option of obtaining a registration certificate that 
does not include the continuation sheets, with the continuation sheets 
being included with the deposit to identify the dates of publication of 
the photographic images as permitted under Sec.  202.3(b)(9)(iv).
    This amendment is therefore issued as a final rule effective on the 
date it is published in the Federal Register.

Regulatory Flexibility Act

    The Copyright Office, though located in the Library of Congress and 
part of the legislative branch, is not an ``agency'' subject to the 
Regulatory Flexibility Act, 5 U.S.C. 601-612. Nevertheless, the 
Register of Copyrights has considered the effect of a proposed 
amendment on small businesses. This amendment continues to offer 
photographers, who usually constitute small businesses, the ability to 
register their copyrights in large groups for a modest fee while it 
ensures that the Copyright Office can process those registrations in an 
efficient manner and at a reasonable cost.

List of Subjects in 37 CFR Part 202

    Claims, Copyright.

Final Regulation

0
For the reasons set forth in the preamble, the Copyright Office amends 
37 CFR part 202 as follows:

PART 202--REGISTRATION OF CLAIMS TO COPYRIGHT

0
1. The authority citation for part 202 continues to read as follows:

    Authority: 17 U.S.C. 408, 702.


0
2. Section 202.3 is amended as follows:
0
(a) By revising paragraph (b)(9)(iv);
0
(b) By redesignating paragraphs (b)(9)(v) through (ix) as paragraphs 
(vi) through (x); and
0
(c) By adding a new paragraph (b)(9)(v).
    The additions and revisions to Sec.  202.3 read as follows:


Sec.  202.3  Registration of copyright.

* * * * *
    (b) * * *
    (9) * * *
    (iv) If the photographs in a group were all published on the same 
date, the date of publication must be identified in space 3b of the 
application. If the photographs in a group were not all published on 
the same date, the range of dates of publication (e.g., February 15-
September 15, 2004) must be provided in space 3b of the application, 
and the date of publication of each photograph within the group must be 
identified either:
    (A) On each deposited image;
    (B) In a text file on the CD-ROM or DVD that contains the deposited 
photographic images;
    (C) On a list that accompanies the deposit and provides the 
publication date for each image; or
    (D) On a special continuation sheet provided by the Copyright 
Office. Dates of publication must be provided in a way that clearly 
identifies the date of publication for each individual photograph in 
the group.
    (v) If the applicant chooses to identify the date of publication 
for each photograph in the group on a continuation sheet, the 
application may include no more than 50 continuation sheets identifying 
no more than 750 photographs. For these purposes, the applicant must 
use the special continuation sheet for registration of a group of 
photographs made available by the Copyright Office.
* * * * *

    Dated: March 18, 2005.
Marybeth Peters,
Register of Copyrights.
    Approved by:
James H. Billington,
The Librarian of Congress.
[FR Doc. 05-6059 Filed 3-25-05; 8:45 am]

BILLING CODE 1410-30-P