On January 25, the U.S. Copyright Office issued its interim rule in Mandatory Deposit of Published Electronic Works Available Only Online. 75 Fed. Reg. 3863 (Jan. 25, 2010).

Under section 407 of the Copyright Act, 17 U.S.C., copyrightable works published in the United States are subject to mandatory deposit. Two copies of the best edition must be sent to the Copyright Office within three months of publication.

Under the new rule, published electronic works available online-only, beginning with electronic serials, will be exempt from mandatory deposit until a demand for those works is made.

Once the Copyright Office demands the online-only work, the owner of copyright (or of the exclusive right of publication) will have three months from receipt of the notice to make the deposit, unless special relief is granted. 37 C.F.R. §§ 202.19, 202.24, and App. B to Part 202.

The Office will demand only a single copy of the best edition of an online-only work, to avoid slowing the electronic ingest system; the Library will allow up to two on-site users to simultaneously access the copy, to achieve the statute's goal of providing two copies to the Library of Congress. The rule is interim because actual demands will reveal questions such as technical details of submitting works. The Office will request comments before the regulation becomes final.

At this time, the Copyright Office will not impose a requirement that publishers of online-only works notify the Library upon publication of a new online-only work in the United States. The Office considered this requirement, which NAA and others opposed, as a means to make the Library aware of what online works are available. The Office may consider the question later, when adding categories of online-only works subject to mandatory deposit.

The interim rule defines an electronic serial as one "issued or intended to be issued on an established schedule, in successive parts bearing numerical or chronological designations, without subsequent alterations." The Office said it believes this limitation will "exclude works like databases and blogs that are constantly updated with no demarcations between particular, discrete issues of the publication."

At this time, the Copyright Office will not allow rights-holders to fulfill mandatory deposit by providing a website link to the Office to download the electronic serial, but the Office will examine a link-and-download option, and consider it as a matter of special relief. Regarding the possibility raised by NAA of a rights-holder providing a direct feed to the Copyright Office, the Office said "this is one option that may be explored once the demand deposit system is operational and adjustments are made."

The Library and Copyright Office will focus initially on electronic serials that are analogous to print journals, meaning "self-contained documents with no ability for the user to affect the content." The Office recognized that future demands for online-only newspapers, web sites, and other categories may require adjustments to what constitutes a "complete copy" and will seek public comment before subjecting new categories of works to demand.

For example, the Office addressed NAA's comments that noted differences between the newspaper website and print editions, and that sought guidance on whether and when a newspaper website is sufficiently different from its print edition to constitute a separate, online-only work:

In response, 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 addition, the NAA itself points to the Library's Best Edition Statement guidance that if two editions of a work have ‘‘variations in copyrightable content, then each edition is a separate work.'' 37 CFR Ch.II, Part 202, App. B. 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.

75 Fed. Reg. at 3,867 (emphasis added).

In its statement above, the Copyright Office recognized this may not yet precisely resolve the question, because both NAA (expressly in its comments) and the Copyright Office (implicitly in its remarks) recognized that the newspaper website typically differs from the print edition. However, the Office graciously acknowledged the need to revisit the question later and provided the guidance that it will not initially be demanding either online-only newspapers or the online-only content of print newspapers.

The Office noted that related comments on registration, such as those from NAA on the need to register online-only content of newspaper websites, were outside the scope of this rulemaking on mandatory deposit. However, the Copyright Office and Library of Congress are working with NAA and a group of participating member newspapers to develop a pilot study seeking to accomplish group registration of online content of newspapers and mandatory deposit of that content. In addition, the Library may consider whether the newspaper electronic facsimile (e-Edition) may satisfy Best Edition Statement requirements for the print edition, in lieu of microfilm. For the pilot, NAA has gathered information from participating newspapers requested by the Library of Congress on technological methods newspapers use to distribute electronic content.

Finally, the interim rule provided detail on how the Library will protect security of electronic works. This is important because the Best Edition Statement will require that, when electronic serials are deposited, technological measures controlling access to or use of the work be removed, to ensure copies can be accessed on an ongoing basis. Library practices will limit access to two "authorized users" at the Library of Congress (including the Capitol Hill facilities, Packard Campus for Audio-Visual Conservation in Virginia, and National Library Service for the Blind and Physically Handicapped in Washington, D.C.) via secure server over a secure network. "Library of Congress authorized users'' will include Library staff, contractors, 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 works available over the Internet without permission.

In sum, the interim rule creates a qualified exemption for online-only works (subject to demand) from the overall mandatory deposit requirement for all published works. How might the interim rule affect newspaper online products?

• Online-only newspapers. The first category of online-only works to be demanded will be “electronic serials,” and they are defined in the rule to include online-only newspapers, but only those issued “without subsequent alterations.” Many newspaper online publications (such as the typical website) are updated and altered, and the Copyright Office said it wants to focus initially on electronic serials that are like traditional journals. So, although the Office envisions that some online-only newspapers (those issued without subsequent alterations) may be “electronic serials” subject to future demand, the Office said it will not initially be demanding online-only newspapers.
• Newspaper e-Editions. The newspaper e-Edition typically is an electronic facsimile of the print edition, published daily without subsequent alteration. But because the 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,” the e-Edition likely is not covered by the exemption, but remains subject to regular mandatory demand, for which the print edition on microfilm is presently the Best Edition for both mandatory and registration deposit.
• Newspaper Websites. The online-only content of a newspaper website is frequently updated and typically not published in physical format. This content may be covered by the qualified exemption for online-only works and subject to demand at a later time. The Copyright Office stated that it will not initially be demanding the newspaper website or the online-only content of newspapers published both electronically and in print. The Office said it will return to that issue at a later date and will seek public comment at that time.

Related documents:

• Interim rule
• NAA's comments