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Mandatory Deposit of Published Electronic Works Available Only Online

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Background Edit

Under Section 407 of the Copyright Act of 1976, Title 17 of the United States Code, the owner of copyright, or of the exclusive right of publication, in a work published in the United States is required to deposit two complete copies (or, in the case of sound recordings, two phonorecords) of the best edition of the work with the Copyright Office for the use or disposition of the Library of Congress. The deposit is to be made within three months after such publication. Failure to make the required deposit does not affect copyright in the work, but it may subject the copyright owner to fines and other monetary liability if the owner fails to comply after a demand for deposit is made by the Register of Copyrights.

These general provisions, however, are subject to limitations. Section 407 provides that the Register of Copyrights "may by regulation exempt any categories of material from the deposit requirements of this section, or require deposit of only one copy or phonorecord with respect to any categories."[1]

Accordingly, in 1978 the Copyright Office, with the approval of the Librarian of Congress, established regulations governing mandatory deposit, which are set forth in Chapter II, Part 202 of Title 37 of the Code of Federal Regulations. Section 202.19 establishes the standards governing mandatory deposit of copies and phonorecords published in the United States for the Library of Congress, and section 202.21 allows for a deposit of identifying material in lieu of copies or phonorecords in certain cases, for both mandatory deposit and registration deposit.

In addition, the Library of Congress's Best Edition Statement in Appendix B of Part 202 specifies the required deposit in instances where "two or more editions of the same version of a work have been published." At that time, the Copyright Office also adopted a regulation exempting machine-readable literary works from mandatory deposit. Copies of machine-readable works were not widely marketed to the public and the Library had no interest in collecting these works, so it decided not to require their deposit. However, in 1989, in response to the increased use of databases and computer programs distributed in CD-ROM and other formats and an increased demand by Library users for these works, the Copyright Office amended the machine-readable copies exemption so that machine–readable works published in physical form were subject to mandatory deposit, and only "automated databases available only online in the United States" were exempted.[2]

The Copyright Office identified the exempted category of works as such to refer to all online–only publications since, for all practical purposes, the only works being published online in 1989 were automated databases, e.g., Westlaw and Nexis. As other categories of works, such as articles and serial titles, began to be published only online, the Copyright Office included them in the exempted category because the Library in the early 1990s had neither the intention nor the technology to collect such works, and it also continued to use the term "automated databases available only on–line in the United States" as a matter of convenience. Hence, Copyright Office practice to date has been to interpret "automated databases available only online in the United States" broadly as encompassing all electronic works published only online.

Much has changed in the twenty years that have passed since the adoption of the regulation used to exclude electronic works published in the United States and available only online from mandatory deposit. In that time, the Internet has grown to become a fundamental tool for the publication and dissemination of millions of works of authorship. To cite just one pertinent example, the Library has determined that there are now more than five thousand scholarly electronic serials available exclusively online, with no print counterparts. In some cases the Library has purchased subscriptions to these periodicals, but such subscriptions are typically "access only," and rarely allow the Library to acquire a "best edition" copy for its collections. However, the current inability of the Library to acquire online–only works through mandatory deposit places the long–term preservation of the works at risk.

Thus, to fulfill its mission to sustain and preserve a universal collection of knowledge, and to inform Congress, the Library is currently developing technological systems that will allow it to ingest electronic works, including those available exclusively online, and maintain them in formats suitable for long–term preservation. In addition, the Copyright Office is amending the mandatory deposit regulations to enable the on–demand mandatory deposit of electronic works published in the United States and available only online (i.e., not published in physical form).

To date, mandatory deposit of works in physical formats has been one of the most important methods for building the Library's collections and making it the world's largest repository of knowledge and creativity. With the adoption of this amendment, mandatory deposit will apply in a measured and balanced way to works offered only in the digital environment as well.

Overview Edit

In its July 15, 2012 notice, the Copyright Office proposed that the current §202.19(c)(5) exemption be amended so that all electronic works published in the United States and available only online enjoy a qualified exemption from mandatory deposit, which means that any work in this class would be exempt until the Copyright Office issues a demand for its deposit. This revised exemption would apply to all published electronic works available only online. The exemption would apply to serials, monographs, sound recordings, automated databases, cartography, and all other categories of electronic works.

Furthermore, because the revised exemption would apply exclusively to published online–only works, there would be no need to retain the current list of machine-readable works in physical formats to which the exemption did not apply. Finally, the notice emphasized that the revised exemption would not apply to those works published in both physical and online formats. These works, because they are not published "only" online, were never exempted from mandatory deposit by §202.19(c)(5).[3] The interim regulation promulgated by this notice is consistent with all of the above aspects of the notice of proposed rulemaking.

The rule establishing a qualified mandatory deposit exemption for online–only works seeks to balance the current needs of the Library of Congress against the imposition of a mandatory requirement on all copyright owners of works published exclusively online to deposit one complete copy of the best edition. By exempting published electronic works available only online until a demand is made, the qualified exemption addresses the practical difficulties of acquiring works published in non–physical formats, ensures that the Library will only receive those works that it needs for its collections, and reduces the burden on copyright owners, who will only have to deposit those works demanded by the Copyright Office.

Category–by–category demands, beginning with electronic serials Edit

The initial category of online–only works that will be subject to demand deposit is "electronic serials." ("This class includes periodicals; newspapers; annuals; and the journals, proceedings, transactions, etc. of societies.")

In its comments, West supported the decision to begin with electronic serials because they "appear to be analogous to print serials which are printed in separate, successive discrete editions. This is, in fact, the same rationale applied by the Library. While serials encompass everything from scholarly journals to daily newspapers to semiweekly newsletters, the Library's demands for electronic serials initially was restricted to journals that publish no more often than weekly, and have the same, or similar, appearance, formatting, and regular issue schedule as print journals.

The interim rule was revised to say that an electronic serial must be "issued or intended to be issued on an established schedule, in successive parts bearing numerical or chronological designations, without subsequent alterations." This limitation, the Copyright Office believes, does in fact exclude works like databases and blogs that are constantly updated with no demarcations between particular, discrete issues of the publication.

While online–only digital files may not be visible or perceptible to touch they are still fixed in a tangible medium of expression by virtue of their embodiment on a computer's hard drive, on a server, or on any other device that allows them to be communicated.[4] The interim rule defines the term electronic serial in the mandatory deposit context as "works fixed and published solely in an electronic format."

Best Edition Statement Edit

The best edition criteria for other categories of electronic works published in the United States and available only online will follow as new categories become subject to demand deposit.

The Copyright Act states that the "best edition" of a work "is the edition, published in the United States at any time before the date of deposit, that the Library of Congress determines to be most suitable for its purposes."[5] In other words, an edition of a work, no matter its quality, is not the "best edition" unless it has been published. Thus, if the published format of a demanded electronic serial does not meet any of the best edition criteria, the publisher is still obligated to send a copy of the serial in whatever form it is published. Furthermore, the Copyright Office may not require that a rights holder deposit an edition of the work that has not been published.

Demand Deposit Process Edit

The process by which the Copyright Office will demand electronic serials is similar to that used to demand other published works under 17 U.S.C. §407(d). Once a category of works is identified as being subject to demand under the qualified exemption of §202.19(c)(5), the Copyright Office may make a demand on the owner of the copyright or of the exclusive right of publication for a single complete copy of a work in that category, for any such work published on or after the date that this proposed regulation goes into effect.

The owner of copyright or of the exclusive right of publication will have three months from the date of receipt of the notice in which to make the deposit, in keeping with the time period allotted by statute for deposit of the best edition of a published work not subject to an exemption.[6] The regulation also includes a provision allowing special relief to accommodate, for example, situations where a publisher may need more time to make the deposit or wishes to arrange for alternative means of making a deposit. Special relief, however, is granted at the discretion of the Library.

The mandatory deposit provision in the copyright law grants the Copyright Office authority to reduce the required number of deposit copies from two to one.[7] Pursuant to this authority, the interim rule states that only a single copy or phonorecord of a demanded work is required. The Office has determined that transmitting duplicate electronic files presents a risk of slowing down the electronic ingest system of the Library, particularly in the case of a work consisting of a single large file or of many small files. Nevertheless, the Library may allow two on–site users to simultaneously access the single copy of an online–only work. This achieves, in an efficient and flexible manner, the statute's goal of providing two copies of a published work to the Library of Congress.

On the other hand, commenters did raise questions and express concerns about the method, form, version, frequency, and format of depositing copies of online–only works with the Copyright Office in response to a demand. The Office believes, at least for the purposes of this interim rule that these issues will require a flexible approach and are not currently suited to resolution via this rulemaking. The present interim rule is an early step in the Library's program of acquiring online–only works, and the Library requires more information and experience with electronic publications before considering specific regulations to govern the demand deposit process.

That said, rights–holders should note that the Best Edition Statement for electronic serials contains detailed technical standards for the preferred deposit formats, and should be consulted in the event an online–only work exists in more than one version. Regarding the possibility of a rights–holder providing a direct feed to the Copyright Office, this is one option that may be explored once the demand deposit system is operational and adjustments are made. However, the Copyright Office is unprepared at this time to implement a regulation allowing rights–holders to meet their mandatory deposit obligations by providing a website link to the Office so that the Office may download an electronic serial itself. The Library recognizes that this approach represents an attractive alternative to publishers of works made available online, but it needs to examine the issue in more depth before considering including a link–and–download option in the regulations. Thus, for the immediate future, such an arrangement should be a matter of special relief.

Unless a publisher decides to deposit its online–only serials via group registration, it must deposit the work with the Library within three months of receipt of the demand notice, and it is expected that each issue of a demanded serial will be deposited with the Copyright Office thereafter as is the current practice, without the need for additional demand notices. The mandatory deposit requirement does not vary by business model, and the Library's need for timely deposits of serials does not change depending upon the format in which a serial is published.

Standards regarding the specific method of transmission of online–only works will be developed by the appropriate divisions of the Library and the Copyright Office, in consultation with rights–holders as warranted. These standards will be posted on the Copyright Office [website] and depositors will be able to contact the Office by telephone with any questions.

Complete copy Edit

The interim rule clarifies that a complete copy of a published electronic work available only online includes the associated metadata and formatting codes that make up the unit of publication. Section 407 of Title 17 requires the deposit of a complete copy of the best edition of a work published in the United States. Section 202.19(b)(2) of the Copyright Office regulations defines a complete copy of a work for purposes of mandatory deposit as one that includes all elements comprising the unit of publication of the best edition of the work, including elements that, if considered separately, would not be copyrightable subject matter or would otherwise be exempt from mandatory deposit requirements under paragraph (c) of this section. Published electronic works often contain elements such as metadata and formatting codes that, while they are not perceptible to the naked eye or ear, are part of the unit of publication. These elements are also critical for continued access to and preservation of a work once it is deposited.

As has been stressed in this notice, the Library and Copyright Office will be focusing their initial demands on the subset of electronic serials that are analogous to print journals. This means that the works will be self–contained documents with no ability for the user to affect the content. The Office recognizes that future demands for online–only newspapers, web sites, and other categories may require adjustments to what constitutes a complete copy. This is one of the reasons that, as the Library expands its collection of online–only works to other categories, the Office will seek public comment before adding a new category to §202.19(c)(5) as being subject to demand.

On the related question of what constitutes an online–only work, the Office notes that the interim regulation does exclude works published in both physical and online editions from the definition of online–only in the last sentence of section 202.19(c)(5) ("This exemption does not apply to works that are published in both online, electronic formats and in physical formats, which remain subject to the appropriate mandatory deposit requirements.') In other words simply publishing the same content in both print and electronic formats does not create two separate copyrightable works. This guidance can, the Office believes, be profitably applied to print and online versions of a newspaper, but recognizes the possibility of the need to revisit this issue at a later date. The Library, however, will not initially be demanding online–only newspapers, or the online–only content of newspapers published both electronically and in print.

Access to deposit copies Edit

As the AAP points out, online–only works may be regulated with digital management technology. The Copyright Office acknowledges that many publishers rely on such technology to prevent unauthorized access to or use of their works. However, copies of works submitted to the Copyright Office under this interim rule must be accessible to the Office, the Library, and the Library’s users. Thus, the following provision has been added to the regulation’s demand deposit conditions in § 202.24: ‘‘Copies or phonorecords deposited in response to a demand must be able to be accessed and reviewed by the Copyright Office, Library of Congress, and the Library’s authorized users on an ongoing basis.’’ In addition, the Best Edition Statement for electronic serials has been revised so that the final criterion now reads, ‘‘Technological measures that control access to or use of the work should be removed.’’

In its July 15th notice, the Office stated that "the Library will . . . establish policies and practices to insure the security and integrity of its electronic collections, and to provide appropriate, limited access as allowed by law." The Library and the Copyright Office recognize that electronic works, because of their ease of reproduction and distribution, present special security concerns. For this reason, access to these works will be available only to authorized users at the Library of Congress (including its Packard Campus for Audio–Visual Conservation in Culpeper, VA and its National Library Service for the Blind and Physically Handicapped at the Taylor Street Annex in Washington, DC) and Capitol Hill facilities in accordance with the policies listed below.

  • Access to electronic works received through mandatory deposit will be as similar as possible to the access provided to analog works.
  • Access to electronic works received through mandatory deposit will be limited, at any one time, to two Library of Congress authorized users.
  • Library of Congress authorized users will access the electronic works via a secure server over a secure network that serves Capitol Hill facilities and remote Library of Congress locations. The term "Library of Congress authorized users" includes Library staff, contractors, and registered researchers, and Members, staff and officers of the U.S. House of Representatives and the U.S. Senate. The Library will not make the copyrighted works available to the public over the Internet without rights holders’ permissions.
  • Authorized users may print from electronic works to the extent allowed by the fair use provisions of the copyright law (17 U.S.C. §§107 and 108(f)), as is the case with traditional publications. However, users may not reproduce or distribute (i.e., download or email) copies of deposited electronic works until the Library has explored the advisability of permitting these options and the security and feasibility of the implementing technologies. As part of this process, the Library will seek comment from the public, including copyright owners and publishers, before adopting additional policies governing electronic copying or distribution by electronic transmission.

Notice of publication Edit

The interim rule does not include a requirement that rights–holders notify the Library of Congress upon the publication of a new electronic serial, or any online–only work, in the United States. The Copyright Office requested comments on whether such a requirement would be necessary, prudent, or consistent with the Office’s authority as granted by 17 U.S.C. §407. All commenters who addressed this question did so in the context of whether it would be necessary or prudent. These commenters opposed the requirement on the grounds that it would be too burdensome to rights–holders, particularly those who publish new works on a frequent basis. Some also asserted that the Library alone should bear the responsibility of researching electronic serials, particularly given the numbers of small publishers who would likely remain ignorant of the rule.

The Copyright Office believes that the question of a notice requirement need not be addressed in the present rulemaking. As indicated in the July 15th notice, there currently exists an adequate level of bibliographic control over electronic serials. However, as the Copyright Office and the Library gain experience with electronic serials, and other categories of online–only work are removed from the exemption and become subject to demand, the issue of the most efficient and comprehensive way to make the Library aware of what online–only works are available will likely be raised again.

On the subject of publication, Patrice Lyons also queried whether works available only online are truly published within the meaning of the Copyright Act. Section 101 of title 17 defines publication as: ‘‘The distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.’’ It defines ‘‘copies’’ as ‘‘material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

As a threshold matter, it appears well–settled electronic files are ‘‘fixed’’ in the sense that they reside on server

5 ‘‘Phonorecords’’ are similarly defined as ‘‘material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term ‘phonorecords’ includes the material object in which the sounds are first fixed.’’ 17 U.S.C. 101. For convenience, this notice uses ‘‘copies’’ to refer to both copies and phonorecords.

hard drives which are, as discussed above, material objects, and thus the files meet the ‘‘copies’’ requirement of publication and distribution. To the extent that Ms. Lyons is questioning whether publication can take place by means of electronic transmission, that issue has also been settled. In New York Times Co. v. Tasini, 533 U.S. 483 (2001), the Supreme Court concluded that online databases that made copies of articles available electronically ‘‘reproduce and distribute’’ copies of those articles. Cases involving peer–to– peer file–sharing on the Internet have also recognized that online transmission constitutes distribution. See Metro– Goldwyn–Mayer v. Grokster, 545 U.S. 913 (2005) (noting that ‘‘peer–to–peer networks are employed to store and distribute electronic files‘‘ and that peer–to–peer software ‘‘enabled users to reproduce and distribute the copyrighted works in violation of the Copyright Act.’’); London–Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 170– 172 (D. Mass, 2008) (stating that ‘‘an electronic file transfer is plainly within the sort of transaction that § 106(3) [the distribution right] was intended to reach.’’). Because ‘‘[u]nder the definition in section 101, a work is ‘published’ if one or more copies or phonorecords embodying it are distributed to the public,’’ H.R. Rep. No. 96–1976, at 138 (1976), it follows that the electronic transmission of copies of a work to the public, as addressed in the distribution context in Tasini and Grokster, constitutes publication of that work.

References Edit

  1. 17 U.S.C. §407(c).
  2. 54 Fed. Reg. 42295 (Oct. 16, 1989).
  3. Note that the Library's current Best Edition Statement for Works Existing in More Than One Medium does not currently list electronic formats. See, e.g., 37 C.F.R. 202.20(b)(1) "For purposes of this section, if a work is first published in both hard copy, i.e., in a physically tangible format, and also in an electronic format, the current Library of Congress Best Edition Statement requirements pertaining to the hard copy format apply.") Nevertheless, the Library of Congress retains the authority to determine what constitutes best edition and it may decide at a future time that, when a particular work is published in both print and electronic editions, the electronic edition is the ‘‘best edition’’ for purposes of mandatory deposit.
  4. The proposition that electronic works are sufficiently ‘‘fixed’’ on the computers where they originate so as to be copyrightable has been ratified, albeit tacitly, by numerous courts. See, e.g. London–Sire Records, Inc. v. Doe 1, 542 F.Supp.2d 153, 170–71 (D. Mass, 2008) (full-text); A&M Records v. Napster, 239 F.3d 1004, 1014 (9th Cir. 2001) (full-text); Marobie FL v. National Ass'n of Fire Equip. Distributors, 983 F. Supp. 1167, 1177–78 (N.D. Ill. 1997) (full-text).
  5. 17 U.S.C. §101.
  6. See 17 U.S.C. §407(a).
  7. See 17 U.S.C. §407(c)(1).

Source Edit

  • U.S. Copyright Office, Mandatory Deposit of Published Electronic Works Available Only Online, Interim Rule, 75 Fed. Reg. 3863 (Jan. 25, 2010).

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