This is a guest post from IP attorney Carol Ruth Shepherd, and is reprinted with permission from her blog, arborlaw. Below her post are links and summaries to comments in the proceeding from five Copyright Alliance members.

The Copyright Office has proposed changes to the mandatory deposit requirements for copyright registration for online-only works — a huge category which encompasses websites, blogs, online journals and publications, and online photo archives. While they vary for each category of copyrightable work, the mandatory deposit rules (37 CFR 202) typically require a copyright owner to deposit copies of the “best edition” of the work being registered with the Copyright Office. Due to the fact that online-only works are a rapidly growing category and ever-changing, the Copyright Office is proposing to drop the mandatory deposit requirements for registration of online-only works and substitute a right for the Copyright Office to demand a mandatory deposit of certain works as may be necessary or as it sees fit for the Library of Congress collections.

As with every proposed change in copyright regulations, there is a public comment period. The period for commenting on these proposed regulations closes October 11, 2009. Several industry associations have commented, including the American Society of Media Photographers (ASMP), the Association of American Publishers (AAP), the American Library Association (ALA), the Software and Information Industry Association (SIIA), and the Professional Photographers of America and the Newspaper Association of America. One concern identified goes to one of the most critical reasons for mandatory deposit: proof of the work, for purposes of litigation. In copyright infringement litigation, the mandatory deposit frequently comes into play as evidence of what exactly constituted the work at the time of registration. Not having a mandatory deposit will greatly increase the possibility that a plaintiff or defendant in an online copyright plagiarism dispute might change the contents of an online work to help its legal case. Another concern is the Copyright Office’s proposal to require a deposit of all code associated with an online-only publication (including scripts and metadata) raises both technological and digital rights issues. What constitutes a “complete copy” of the “best edition” of an online work?

The proposed federal regulations to change the copyright mandatory deposit procedure are here [PDF]. Existing public comments on the proposed mandatory deposit regulations are at the Copyright Office site. I consider this to have far-reaching implications for all websites, bloggers, and online publishers: it’s the most significant change in copyright law for these industries since the DMCA. The Copyright Office particularly needs feedback on the technological issues. If you are in the industry, as many of my clients are, you owe it to yourself to read the materials and educate yourself (and possibly the Copyright Office).

Copyright Alliance editor’s note: Five Copyright Alliance members have filed comments in the proceeding. Links to their comments and brief excerpts are below (please read the entire comments, the excerpts are not fully representational):

American Society of Media Photographers:

ASMP supports and encourages all Copyright Office attempts to improve the speed, efficiency and economy of the registration system. It has encouraged its members to utilize the on-line electronic registration system ever since the Copyright Office first introduced it. The current mandatory deposit requirements are particularly burdensome for photographers, and ASMP applauds even a limited exemption from them for electronic works available only on-line. Indeed, ASMP would encourage the Copyright Office to explore possible ways for expanding the proposed exemption. The difficulties presented by the current mandatory deposit requirement are particularly obvious in the context of electronic registration. Under the current system, the registration of a work published in print may be initiated and submitted on-line, but the electronic application and payment must be accompanied by a separate submission of the mandatory deposit copy in hard copy. In this context, the on-line registration system has the effect of turning registration into a two-step combination of digital and analog tasks, rather than simplifying and accelerating registration. ASMP hopes that can be changed.

Association of American Publishers:

From the perspective of interested AAP members, the proposed amendments to the Copyright Office’s regulations regarding mandatory deposit for “electronic works published in the United States and available only online” appear to be sensible and noncontroversial. The concept of a “qualified exemption” for such works, requiring deposit only upon receipt of a demand from the Copyright Office, appears to be a practical and efficient approach for serials and other electronic works, recognizing that a demand for a copy of an online-only periodical or other serial would cover not only the issue or issues specified in the demand, but also all subsequent issues of the serial title. Of course, this preliminary assessment is subject to the receipt of further clarification regarding a few of the issues addressed in the NPRM, both to resolve possible concerns for AAP members and to confirm their understanding of the intended implementation of the amended regulations.

Newspaper Association of America:

NAA requests that the Copyright Office, in reviewing its practices to ensure that electronic serials published online are reflected in the national collection, also consider how the related registration deposit practices can be clarified to meet industry changes to better accomplish registration of newspapers in the digital era. NAA asks the Copyright Office to consider permitting group registration of newspaper website content, similar to the registration practice allowed for print daily newspapers or for updates and revisions published over a period ofup to three months for automated databases. NAA respectfully asks that the Office include newspapers as active participants in helping to identify the form that electronic deposit copies should take and the means by which they should be submitted to the Copyright Office and Library of Congress, both for online-only newspapers and for online-only contents of a daily newspaper. With respect to submission of a “complete copy” ofthe work, NAA does not oppose in principle submission of formatting codes and some types of metadata to allow preservation of and limited on-site access to deposit copies, under appropriate security measures that protect the integrity of online works by the Newspaper Section of the Serials and Government Publications Division of the Library of Congress. In the case of newspaper websites or online-only content of print-and-online newspapers, however, the feasibility of providing “the complete work as published” including metadata and formatting codes and without access and copy controls raises technological as well as legal questions that require an opportunity to comment on a more detailed proposal. Newspapers would welcome the opportunity to help identify means of providing mandatory and registration deposit copies to the Copyright Office and Library of Congress in a way that both “ensures that the Library will only receive those works that it needs for its collections” and “reduces the burdens on copyright owners.”

Professional Photographers of America:

The exemption as proposed is of great concern as it does not apply to works published in both physical and online formats. While we recognize works distributed in both formats are also excluded under the exemption originally carved out in 1989; as described this exemption continues to exclude one ofthe largest classes of copyright holders; professional photographers, from attaining any benefit from such a change. As a result, we believe there is a need for the Copyright Office to revisit two points as they relate to the proposed rule. The first is providing clarity to the definitions of “published” and “unpublished” works. The second is the exemption of photographic works from mandatory deposit.

Software and Information Industry Association:

While we understand the need to examine and potentially amend these regulations, we have many questions and concerns with the manner in which the amended rules would apply in practice, which are outlined below. Because the Federal Register Notice identifies serials as the first category of works that will be subject to the amended deposit requirements, in most instances we have limited our comments to serials. Deposit of other types of works, such as databases and software as a service will no doubt raise additional, and likely more complex, issues. We look forward to working with the Copyright Office and other interested stakeholders going forward to craft deposit rules that make sense for all the parties involved and to ensure that any new deposit requirements do not unduly burden publishers or adversely affect the market for their works.

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This entry was posted on Thursday, September 24th, 2009 at 11:02 am by Patrick Ross and is filed under US Copyright Office, copyright law, creators, internet. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.