SUPPLEMENTARY INFORMATION:

I. Background

The Copyright Act authorizes the Register of Copyrights to specify by regulation the administrative classes of works for the purpose of registration and the deposit required for each class.^[1] In addition, Congress gave the Register the discretion to allow registration of groups of related works with one application and one filing fee.^[2] This procedure is known as “group registration.” ^[3] Pursuant to this authority, the Register has issued several regulations permitting group registrations for certain types of works, including newspapers, newsletters and serials, unpublished works, unpublished and published photographs, contributions to periodicals, secure test items, works on an album of music, short online literary works, and database updates.^[4]

This rulemaking expands the available group registration options because of several factors specifically impacting news websites. Along with receiving requests from online publishers, the Office observed the increase in news content offered online and the dynamic nature of such material.^[5] It also reviewed stakeholder comments in prior proceedings that discussed the challenges associated with registering online news content, including those submitted in response to its 2022 Copyright Protections for Press Publishers report.^[6] Finally, the Office acknowledged the deposit challenges associated with websites, particularly news websites, in its 2011 publication titled Priorities and Special Projects of the United States Copyright Office (October 2011-October 2013) .^[7]

On January 3, 2024, the Office published a Notice of Proposed Rulemaking (“NPRM”) to establish a new group registration option for frequently updated news websites.^[8] The proposed rule would allow an applicant to register a news website as a collective work (including any individual component works it fully owns, such as literary works, photographs, and/or graphics) ^[9] with a deposit composed of identifying material, rather than the complete contents of the website. The proposed rule would also allow registration of the news website and any updates published within one calendar month, if the deposit evidences a sufficiently creative selection, coordination, or arrangement within each collective work to constitute a copyrightable compilation.^[10] Each ( printed page 58992) collective work must have been created as a work made for hire, with the same person or entity named as both the author and copyright claimant. The proposed rule stated that applicants would be required to submit their claims through the online copyright registration system, using the application currently in use for a group of newspaper issues.^[11]

The Office received twenty comments in response to the NPRM.^[12] All but one ^[13] supported the Office's proposal to create the new group registration option, though the majority requested various modifications. Two commenters, however, expressly conditioned their support on substantive changes to the rule, which would substantially change its scope.^[14] In general, commenters were interested in expanding eligibility for this option to a greater number of works and changing the deposit requirement. Proposals included revising the definition of “news website,” removing the work made for hire and author/claimant requirements, increasing the time limitation for updates to the news website, clarifying the “home page” deposit requirement, and asking the Office to confirm the scope of remedies for copyright infringement of a collective work.^[15] Finally, one commenter encouraged the Office to “identify opportunities for improvement” and to remain “adaptive to technological changes.” ^[16]

Having reviewed and carefully considered each of the comments, the Office now issues a final rule that is nearly identical to the proposed rule, with one modification reflecting concerns raised by some commenters regarding the “home page” deposit requirement and one modification concerning the application form for this option. These modifications are discussed in more detail below. With respect to requests that we received to expand the scope of the rule, the Office will closely monitor how the new group option performs, including the number and complexity of the claims submitted, the amount of time needed to examine these claims, and the modest filing fee for this option. The Office remains open to revisiting these issues in the future based on this rule's performance.

II. Final Rule

A. Eligibility Requirements

1. Works That May Be Included in the Group

In the NPRM, the Office proposed to limit this group registration option to updates to a “news website,” defined as “a website that is designed to be a primary source of written information on current events, either local, national, or international in scope, that contains a broad range of news on all subjects and activities and is not limited to any specific subject matter.” As described in the NPRM, the proposed rule stems from the rapid development and predominance of news websites over print newspapers,^[17] and requests from news publishers for a feasible way to register “newspaper websites” that are “updated frequently.” ^[18] Thus, the proposed rule is an extension of the existing group newspaper option that has been available for decades.^[19] Consistent with the Compendium of U.S. Copyright Office Practices, the proposed rule defines a “website” as “a web page or set of interconnected web pages that are accessed using a uniform resource locator (“URL”) organized under a particular domain name.” A number of commenters encouraged the Office to expand the type of works eligible under the rule and recommended revisions to both definitions.

i. Constitutional Challenge

Before turning to the requests to expand the rule, the Office addresses the argument made by a small number of commenters that the proposed group registration option would violate the First Amendment by limiting the option to a particular type of work. In a joint comment, NWU, NPPA, and NASW stated that restricting the option to “news” websites constitutes “[c]ontent-based discrimination,” which they considered “[c]onstitutionally suspect and subject to strict scrutiny” that the rule “cannot meet.” ^[20] In support of this argument, they cited Arkansas Writers Project v. Ragland, 481 U.S. 221 (1987), which reviewed a state sales tax scheme that taxed general interest magazines, but exempted newspapers and religious, professional trade, and sports journals. Because Arkansas “advanced no compelling justification for selective, content-based taxation of certain magazines,” the Supreme Court held the tax scheme invalid under the First Amendment.^[21] Analogizing the tax scheme in Arkansas Writers Project to the proposed registration option, NWU, NPPA, and NASW argued that the exclusion of any web content that does not meet the “news website” definition is unconstitutional.^[22]

Aligned with NWU, NPPA, and NASW, another commenter, Gordon Firemark, contended that, by limiting the group option to updates to news websites, the proposed rule “excludes other types of content from [its] benefits” and denies content creators “relief from the burdens of the current system.” ^[23] He argued that recent Supreme Court precedent concerning trademark registration requires a content-neutral approach.^[24]

The Office disagrees with these arguments. It is correct that the Supreme Court has held that content-based laws—laws restricting or compelling ( printed page 58993) speech based on its communicative content—are presumptively unconstitutional,^[25] and subject to strict scrutiny, under which the government must show that the law is the “least restrictive means” of advancing a “compelling” governmental interest.^[26] A regulation can be content-based “on its face,” if its text applies to speech based on the subject matter, topic, or viewpoint of that speech. It can also be content-based if it has a discriminatory purpose that “cannot be justified without reference to the content of the regulated speech” or was “adopted by the government because of disagreement with the message” conveyed.^[27] However, a regulation that places “a differential burden on speakers is insufficient by itself to raise First Amendment concerns.” ^[28] The tax scheme in Arkansas Writers Project was found to violate these principles by being directed at particular subjects, thus targeting a small group within the press.^[29] That is not the case here.

The Office's proposed group registration option is not analogous to the unconstitutional tax statute in Arkansas Writers Project for multiple reasons. First, the option does not restrict or compel speech based on its communicative content. Nor does it favor or disfavor particular topics or subjects, or exclude a small group of the press.^[30] Instead the option is available for updates to news websites that contain a broad range of topics regardless of the content of the speech involved.

Second, the registration option is viewpoint neutral and operates not as a restriction on speech, but as a condition for qualifying for one of many options available to register copyrights, including online websites and other publications. The Standard Application is available to any type of author for any type of work within the statutory categories.^[31] Group registration options are discretionary accommodations offered by the Office in a number of areas. Currently, the Office administers ten group options covering unpublished works, short online literary works, works on an album of music, serials, newspapers, newsletters, contributions to periodicals, published and unpublished photographs, automated databases, and secure test items.^[32] For online publications, group serials and group newsletters are other registration options for publications that fall outside of the “newspaper” or “news website” definitions.

The Supreme Court's recent ruling in a case involving trademark regulations supports the Office's view. There the Court reviewed a rule of the U.S. Patent and Trademark Office (“USPTO”) barring the registration of trademarks that use the names of particular living individuals without their written consent.^[33] The Court held that this bar, though content-based, is viewpoint neutral and does not violate the First Amendment.^[34] The Court noted that while its precedents “distinguish between content-based and content-neutral regulations of speech,” ^[35] they further distinguish “a particularly `egregious form of content discrimination'—viewpoint discrimination,” which targets not merely a subject matter, “but particular views taken by speakers on a subject.” ^[36] The Court identified “[s]everal features of trademark [law]” that “counsel against a per se rule of applying heightened scrutiny to viewpoint-neutral, but content-based trademark regulations.” Most notably, it found that “trademark rights have always coexisted with the First Amendment, despite the fact that trademark protection necessarily requires content-based distinctions.” ^[37] Accordingly, the Court held that USPTO's “content-based, but viewpoint-neutral, trademark restriction [ ] is compatible with the First Amendment.” ^[38]

Similarly, copyright registration, and the broad administrative classification authority Congress granted to the Register, necessarily requires content-based distinctions. Indeed, since its passage in 1976, the Copyright Act has authorized the Register “to specify by regulation the administrative classes into which works are to be placed for purposes of deposit and registration” and to permit “ for particular classes, the deposit of identifying material instead of copies or phonorecords, the deposit of only one copy or phonorecord where two would normally be required, or a single registration for a group of related works.” ^[39] Like the USPTO's name bar, these administrative distinctions are not based on the particular views taken by authors and have always coexisted with the First Amendment. The addition of an administrative classification for this new group registration option, which adopts near-identical criteria for determining “news” content to that of the existing group option for newspapers, is “a matter of policy and discretion” ^[40] fully compatible with the First Amendment.

Further, unlike the viewpoint-based trademark provisions held unconstitutional for barring registration of scandalous or disparaging marks,^[41] the Office's viewpoint-neutral administrative classification does not bar registration for non-news content or websites. Quite the opposite: to increase participation in the registration system, the Office has created several group options for the registration of works that are published online.^[42] The Standard Application also remains available to any type of author for any type of work within the statutory categories. This rule does not prevent anyone's ability to register non-news works.

ii. News Website Limitation

Multiple commenters urged the Office to expand the rule's definition of “news website” by removing the condition that the website must contain news on all subjects and activities.^[43] In encouraging ( printed page 58994) the Office “not to exclude . . . specialized websites,” the ABA-IPL noted that the “proposed rule may provide especially meaningful benefit to smaller news websites—including those that focus on certain `specific subject matter.' ” <sup>[44]</sup> HBP argued that “websites, like HBR.org, that focus on a particular area of news . . . still face the same registration problems afflicting all news websites.” <sup>[45]</sup> The Authors Guild also expressed concern that the rule would exclude more specialized news publications, such as those that focus on political news. It argued that “these publications clearly qualify as news websites under any ordinary understanding of that term.” <sup>[46]</sup> Relatedly, commenters claimed that content restrictions “put[ ] examiners in an untenable position of deciding what is or is not `news.' ” ^[47] Finally, four commenters asked the Office to abandon the “news website” definition and extend the group option “to any periodically-produced content distributed through the internet.” ^[48]

After considering this request and in the interest of implementing this final rule as quickly as possible, the Office declines to revise the definition at this time. As an extension of the newspaper group option, the “news website” definition is modeled on the Office's longstanding regulation defining a “newspaper” as a publication that is “mainly designed to be a primary source of written information on current events, either local, national, or international in scope,” that “contains a broad range of news on all subjects and activities and is not limited to any specific subject matter.” ^[49] This definition is very broad and it is intended to “make any newspaper eligible for a group registration.” ^[50] It is also intended to distinguish a “newspaper” from a “newsletter,” which is defined elsewhere in the regulations as a publication that contains “news or information that is chiefly of interest to a special group, such as trade and professional associations, colleges, schools, or churches.” ^[51]

Under this definition, newspapers are aimed at any member of the general public who may be interested in newsworthy information or events that are reported on a given day.^[52] By applying a similar definition to websites, the final rule recognizes that “news websites” are also intended to have universal appeal.

This definition would encompass news websites that cover current events and provide information on diverse topics, including some political websites like those identified in the Authors Guild's comment.^[53] Although these sites focus primarily on issues involving politics and events with political implications, they do not limit their coverage to a particular subject matter nor are they directed at narrow or discrete groups of readers.^[54]

The Office also disagrees with commenters that the “news website” eligibility requirement places a burden on examiners. Indeed, the definitions for “news website” and “newspaper” are similar, in part, to enable consistent application of both rules. Examiners are accustomed to assessing eligibility based on this definition.

However, if the definition proves too rigid or unworkable, the Office is willing to revisit this issue based on its experience in administering this rule. Importantly, however, this new group option is not intended to extend to the websites of all serials or newsletters, which in print or ePrint form have the benefit of separate group registration options.^[55]

iii. Website Limitation

The Office received requests to expand the rule beyond websites. Commenters recommended that the proposed rule be amended to include mobile applications (“apps”) in the definition of “website.” ^[56] They argued that “[m]any news publishers encourage users to access content on an app rather than a website.” ^[57]

The Office declines to amend the definition. It considers an app to be “a computer program that is used directly or indirectly in a computer or handheld electronic device.” ^[58] The Office has a procedure for registering the underlying code that operates the app.^[59] To the extent that news publishers seek to register the works published on the app, a registration for a newspaper or a news website would protect those works if they contain the same content.

AIPLA encouraged the Office to revise the definition of “website” to clarify that a website is not limited to content accessed using a single domain name.^[60] It explained that “web pages are composed of various elements, like text, images, and videos” that “might be hosted on a different server than the one hosting the main web page for reasons such as efficiency, speed, and cost.” ^[61] The Office appreciates this distinction but declines to revise the definition. To qualify for this option, each collective work in the group must be published under one particular domain name. For registration purposes, the Office does not assess eligibility based on where component digital works may be stored. The Office believes the “particular web page” requirement is necessary to prevent applicants from using the option to register collective works published under different domain names on the same application, which would make it difficult to identify the website that is covered by the registration. Therefore, the final rule retains the definition proposed in the NPRM.

2. Scope of Collective Work

The proposed rule provides that claims registered under this option will be limited to the collective work authorship based on the selection, coordination, and/or arrangement of the individual component works, and that all parts of the collective work will constitute one work for purposes of 17 U.S.C. 504(c)(1).^[62] Additionally, the ( printed page 58995) Office made clear that the registration will also cover the individual contributions contained within the collective work if they are fully owned by the copyright claimant and were first published in that work.

NPR asked the Office to confirm that “the scope of the collective work will explicitly include all copyrightable contributions made by the claimant, not just textual works.” ^[63] As noted above, a “news website” is defined as “a website that is designed to be a primary source of written information.” ^[64] If the collective work contains individual contributions that are fully owned by the copyright claimant and were first published in the work, then the registration will cover those contributions, so long as they are copyrightable subject matter. However, a component work “that is perceptible to the user only by downloading or separately purchasing that particular work is not considered part of the website for registration purposes and must be registered separately.” ^[65] Additionally, any “externally linked content [ i.e., content residing on another website] is not considered part of the website's content for registration purposes.” ^[66]

HBP recommended that the Office permit applicants to disclaim content that is licensed and not owned by the applicant. As with group newspapers, the Office does not see the need for a limitation of claim for news websites, because the proposed rule expressly states that “[e]ach update to the website must be [an original] collective work.” A registration issued by the Office pursuant to this rule will only cover the new contributions owned by the copyright claimant. Consistent with any collective work registration, any articles, photos, or other contributions included in the collective work that were previously published, previously registered, owned by another party, or in the public domain are automatically excluded from the claim. As a practical matter, therefore, a disclaimer to expressly exclude material in the application is unnecessary.

Port. Prerogative Club asked the Office to “[c]larify whether updates to numerical information, such as prices, volumes, retweets, or other metrics, qualify as registrable under the rule, and whether the Office has changed its policy on the registrability of short phrases and headlines.” The Office states that its longstanding regulation denying protection for words and short phrases has not changed.^[67] Regarding “prices, volumes, retweets, or other metrics,” it is unclear whether the commenter is referring to individual works of authorship, or whether these items appear in a compilation. Individual numbers and short phrases are not copyrightable. However, a copyrightable compilation of these items may be registrable.

3. One-Month Limitation

The proposed rule permits an applicant to include updates published on the same website within the same calendar month. Three commenters urged the Office to remove the limitation, arguing that it is too “onerous.” ^[68] NPR recommended that the Office allow for the option to cover “three months, or six months, or a calendar year” to “reduce registration costs.” ^[69] Noting that “attorneys' fees and statutory damages can be awarded as long as copyright is registered within three months of first publication,” NWU, NPPA, and NASW requested that the rule be amended to allow registration of updates published “during any specified three-month period.” ^[70]

At this time, given administrative capabilities, the Office cannot expand the option to cover more than one month of updates. As the NPRM explained, to deliver the option promptly, and to minimize development time, the Office is adapting the existing group application for newspapers, which is used to register up to one month of newspaper issues and contains technical validations that prevent applicants from entering publication dates that are more than one month apart. Changing the limit would require additional modifications to the application and delay implementation of the final rule. Further, the Office seeks an appropriate balance between the interests of copyright owners and the administrative burden to the Office. Based on the modest fee set for this option, some limit on the number of works included in each claim is necessary. The Office will reassess whether the limit can be increased after it has gained sufficient experience administering the rule.

4. Authorship, Ownership, and Work Made for Hire Requirements

Under the proposed rule, to be eligible for the option, each collective work in the group must have been created as a work made for hire, with the same person or entity named as the author and copyright claimant. Multiple commenters questioned this requirement.^[71] The Authors Guild argued that the work made for hire requirement “arbitrarily and unfairly confines the benefit of the rule to corporate entities even where other creators are producing substantially the same type of content.” ^[72] While they recognized that this requirement reflects practical and technical limitations, NMA and AIPLA noted that “there does not seem to be a fundamental reason for such a limitation in principle, and in many business cases, the work may be fully owned by the publisher, or obtained via assignment or operation of law.” ^[73]

The Office acknowledges that the work made for hire requirement may not reflect every business case of ownership. However, this requirement streamlines the registration procedures, which, as noted above, will adapt the existing group application option for newspapers. Under that option, the same person or entity must be named as the author and copyright claimant, and each issue must be a work made for hire. The Office retains the same requirements for the news websites option to minimize the need for additional development time that would otherwise be required. ( printed page 58996)

Additionally, under general Copyright Office practice, if the author and claimant are not the same person, the applicant is statutorily required to provide a transfer statement explaining how the claimant acquired all of the rights initially belonging to the author.^[74] If an applicant names a third party as the copyright claimant, but fails to provide a transfer statement, then the Office must correspond to determine whether the claimant actually owns all of the exclusive rights in the works, which delays the registration decision. The corresponding additional time and costs that the Office would incur are inconsistent with the reduced fee for examination of multiple collective works.

Moreover, imposing a work made for hire limitation is consistent with the goal of this rulemaking, which is to address obstacles to registering online news content produced by news publishers, who often also publish newspapers. Based on its experience with the existing group newspaper registrations, the Office expects that this requirement will produce an optimal public record, while reducing the administrative burden that these claims impose. The final rule accordingly retains the work made for hire requirement. Applicants who do not qualify for the option may still register their works individually using the Standard Application.

5. Subjects of Inquiry

i. Permitted Additional Title Information

The Office invited public comments on whether it should give applicants the opportunity to provide additional information, such as individual article or photograph titles, as part of this group registration option. Commenters expressed support for the implementation of an opportunity to include granular information concerning individual component works at the applicant's discretion.^[75] The Authors Guild noted that “in the event an individual article is the subject of a later infringement action, the applicant may need to rely on its own recordkeeping to establish that the article was on the website during the period covered by the registration.” ^[76] It concluded, “[t]he listing of individual titles or other information on the application may provide additional evidence relevant to that showing.” ^[77] The Office agrees and will provide instructions on its website explaining how applicants may submit additional information regarding component works on an optional basis.^[78]

ii. Permitted Archived URLs

The Office also invited public comments on the availability and effectiveness of technological solutions for saving or archiving websites that could assist or supplement news websites' recordkeeping efforts while also informing the public of the contents of the website and/or any updates registered. The Office suggested that applicants may provide in the “Note to Office” field additional information regarding the contents of the work, such as archived URLs that capture the complete content of each collective work submitted for registration. The Copyright Alliance expressed support for this suggestion, provided that doing so is voluntary.^[79] Therefore the Office encourages applicants to submit archived URLs in the “Note to Office” field on a voluntary basis.

B. Filing Fee

The NPRM provided that the filing fee for this option will be $95, the same fee that currently applies to a claim in a group of newspapers. It noted that the Office believes it is reasonable to charge the same fee as for the group newspaper option, given the similarities in expected workflow associated with examining these claims. The NMA expressed support for this modest fee, describing it as “reasonable and unarbitrary.” ^[80] The final rule establishes this fee.

C. Deposit Requirements

The NPRM proposed that for each collective work submitted under this group registration option, applicants must “submit a deposit that is sufficient to identify some of the updates that were made to the website.” ^[81] The Office specified that “applicants will need to submit separate PDF files that each contain a complete copy of the home page for the site. Each PDF must show how the home page appeared at a specific point during each day of the calendar month when new updates were published on the site.” ^[82] Additionally, the NPRM required that each deposit demonstrate “that the home page contains a sufficient degree of selection, coordination, and/or arrangement to be registered as a collective work.” ^[83] Several commenters requested that the Office consider different deposit requirements, though commenters varied on the specific changes they requested or discussed deposits generally. The Office addresses each suggested change below.

1. “Home Page” Requirement

i. Timing of Deposit Capture

After considering NMA's request to resolve a purported ambiguity in the proposed rule regarding the time of day for daily deposits of home pages, the Office is clarifying the time period for capturing deposits.^[84] The language within section (m)(6)(i) requiring “[e]ach PDF [to] show how the home page appeared at a specific point during each day of the calendar month” does not require applicants to capture PDFs of home pages at the same exact time every day.^[85] Instead, PDFs of home pages must show how the home page appeared at some point during each day, in addition to satisfying other applicable deposit requirements.

ii. “Complete Copy”

Three commenters specifically requested that the Office expand the identifying material it will accept to encompass more than “a complete copy of the home page for the site.” ^[86] The NAB stated that “the Office should amend the deposit requirements proposed in § 202.4(m)(6)(i) to allow for the submission of a copy of identifying material in lieu of a complete copy of the home page.” ^[87] It explained that “many news websites utilize an `infinite scroll' feature that automatically and continuously loads more content as users scroll down the web page” making ( printed page 58997) it “technologically impossible for an applicant to satisfy the deposit requirement of providing a PDF of the home page in its entirety.” <sup>[88]</sup> Copyright Alliance echoed this sentiment stating “a user is able to continuously reveal additional content on the web page without having to leave the page to view the content on a separate web page. For such web pages, it is not possible to capture an `entire copy' of the page since the user can endlessly reveal the contents of the page.” ^[89] Similarly, NMA noted that, due to the difficulties posed by “extensive or close-to-infinite scroll,” the Office should clarify that an applicant could meet the deposit requirement “as long as [the PDF] captures the masthead, URL identifier, and a defined minimum amount of the homepage (which in most cases will encompass all of it), including representative updates from the previous deposit copy.” ^[90]

After considering these comments, the Office concludes that the requested modification to the proposed rule is reasonable and supports the overall goal of this group registration option. Accordingly, the final rule includes an alternative to the “complete copy of the home page” requirement where submitting a complete copy is not feasible due to the size or continuous nature of the home page. In such circumstances, applicants may “submit the first 25 pages of the home page that demonstrates updates from the previous deposit copy.” This portion of the rule is designed to decrease the burden on applicants that wish to utilize this group registration option, but are unable to satisfy the “complete copy” deposit requirement. The Office believes that this modification will facilitate registration, while also ensuring that the deposit provided is sufficient to identify the work and the copyrightable authorship covered by the registration. Applicants utilizing this provision are advised that any deposit should only include updates within the time period covered by the application. In the event that an applicant includes updates outside the time period, they would be considered previously published material, and would not be covered by the registration. Additionally, as stated in the NPRM, if a copyright owner is required to prove to a court or an alleged infringer “the specific contents of a website at any particular point in time, it will need to preserve and maintain its own copy of the site and rely on its own recordkeeping to provide such proof.” ^[91]

2. Site Maps

NWU, NPPA, and NASW disagreed that a home page would constitute sufficient identifying material for registration.^[92] They asserted that “requiring deposit of PDFs of images of the home page is disconnected from the reality that updates aren't necessarily visible on the `home page' of a website.” ^[93] While “[u]pdates appear on the home pages of some—but far from all—newspaper publishers' websites,” the home pages of other websites, such as self-published or references websites, are “mostly or entirely static,” with updates occurring on other “inside” pages that are not indexed or referenced on the home page.^[94] Instead, NWU, NPPA, and NASW suggested that the Office accept a “sitemap page or set of sitemap pages,” “as the way to indicate which pages of a site have most recently been added or modified, and when.” ^[95] Sitemaps, they alleged, “are structured, standardized, machine-readable, and human-readable” and “all updates in a given period can be identified by a single sitemap or set of sitemaps,” which the Office could “use[ ] immediately.” ^[96]

The Office declines to permit applicants to submit a sitemap page or a set of sitemap pages as identifying material for several reasons. First, it is not clear that sitemaps themselves provide information that would allow an examiner to determine whether each collective work within the group application contains sufficient creative selection, coordination, or arrangement.^[97] Second, sitemaps do not satisfy the public notice function that deposits serve, as they do not display the work requested for registration and are not sufficient to identify the updates made to the websites.^[98] As explained in the NPRM, any deposit requirement must “satisfy the public notice function of capturing, and making available for public inspection, a deposit that should be sufficient to identify” the work covered by the application.^[99] Lastly, accepting sitemap deposits would likely not aid in efficiency as suggested.^[100] If an examiner receives a sitemap, they would likely need to correspond with the applicant to determine what exactly the application covers. For these reasons, the Office declines to modify the final rule to include sitemaps.

3. Additional Deposit Suggestions

Commenters also suggested that the Office accept deposits comprised of annotated Portable Document Formats (“PDFs”) ^[101] or PDF deposits of apps.^[102] Specifically, one commenter encouraged the Office to consider accepting annotated PDFs of a single web page, where “[a]nnotations could circle content that is not included in registration, such as licensed content as compared to original news organization content” or “content already registered.” ^[103] Other commenters, including Copyright Alliance, NMA, and the Authors Guild, proposed that the Office should accept PDFs that “contain a complete copy of the home page of . . . mobile application[s]. ” ^[104] ( printed page 58998) They discussed the ease with which applicants could submit app PDFs ^[105] and how PDFs address record-keeping concerns and “concerns over whether the collective works stem from the same source.” ^[106] Copyright Alliance and NMA also suggested that the absence of a uniform resource locator (“URL”) from app PDFs, a requirement of the proposed rule, is immaterial because apps “generally prominently feature the logo or other visible identifier of the publication in question” and news content on an app is “organized and contained,” similar to a website.^[107] NMA further recommended that because the USPTO has “long accepted” app screenshots for trademark specimens, subject to certain requirements, the Office should adopt similar standards.^[108]

The Office declines to permit parties to submit annotated PDFs of a single web page. As discussed above, each update will be registered as a collective work. For that reason, there is no need to identify component works that are not owned by the claimant or component works that have been previously registered, because as a general rule, a registration for a collective work does not cover this type of preexisting material.

The Office also declines to accept PDF deposits of apps to represent a news website. Initially, it is unclear whether the selection, coordination, and/or arrangement of material encompassed within the PDFs would be identical to the selection, coordination, and/or arrangement of a website's home page, regardless of whether the same content is present on both.^[109] Further, the Office continues to believe that the rule's deposit regulations offer flexibility, while still satisfying the public notice function of deposits. The regulation will permit applicants to submit a complete copy of the website's home page, and when that is not feasible due to the size or continuous nature of the home page, applicants may submit the first 25 pages of the home page demonstrating updates from the previous deposit copy.

4. Other Comments

Commenters made additional suggestions and remarks on the proposed rule's deposit requirements and the Office's deposit requirements generally. With respect to the Office's modernization efforts, ABA-IPL suggested that the Office consider generally expanding the “format of deposit copies accepted” and regularly reviewing and updating registration regulations.^[110] ABA-IPL stated that the Office should accept deposits in .xml format for regularly updated news content, such as content covered under the proposed rule, “as [.xml] and similar formats are widely used in digital content creation and management.” ^[111] The University of Michigan Library (“UM-Library”) expressed concerns with the proposed regulations regarding fixation and preservation.^[112] They asserted that the proposed deposit requirements are not “sufficiently fixed for copyright purposes” and that if deposit “materials are not collected and preserved—even as facsimiles or through emulation—then as a practical matter there will be a huge gap in the possibilities for research, scholarship, and understanding.”

The Office is sympathetic to commenters' desires to expand the file formats accepted for deposit purposes generally, including regularly updated news content. As stated above and in the NPRM, the current registration system only accepts certain file types.^[113] The Office anticipates revisiting its acceptable file formats in connection with ongoing improvements to its technology systems. Until then, the Office continues to actively engage in research about the suitability of other file formats.^[114]

The Office appreciates the fixation and preservation concerns about the proposed deposit requirements, codified in the final rule. It continues to believe, however, that the deposit requirements are sufficient. As stated above and in the NPRM, the Copyright Act imbues the Register with broad authority to accept identifying material in lieu of complete copies or phonorecords ^[115] where such copies or phonorecords are “bulky, unwieldly, easily broken, or otherwise impractical to [serve] . . . as records identifying the work[s] registered.” ^[116] This provision, and its legislative history, give the Register flexibility in determining the deposit requirements when identifying material is involved, and the Office has used this authority in the past. Within this rulemaking, the Office believes the proposed deposit requirements are appropriate, and less burdensome than general deposit requirements for websites.^[117] As the Office discussed in the NPRM, the proposed deposit requirements satisfy the public notice function and still require that deposits sufficiently “identify some of the updates” made to the website.^[118] Any fixation concerns may be alleviated by the fact that the proposed regulations are merely registration deposit requirements. They do not relieve a registrant from complying with other legal obligations, such as the obligation to maintain and preserve copies of a website, including its content, in the context of an infringement claim.^[119]

E. Application Requirements

The NPRM explained that the Office planned to use one of its existing group registration application forms to process these claims. Specifically, it said applicants would be required to submit their claims through the current electronic registration system using the application designated for a group of newspaper issues. None of the commenters objected to this proposal.

After consulting with the Library of Congress's Office of the Chief Information Officer, the Office determined that it would be feasible to create a separate application for news website claims that will be cloned from the corresponding application that is used for group newspaper claims. This should simplify the registration process for both applicants and Office staff by preventing potential confusion between claims involving newspaper issues and claims involving updates to a news website. The cloned application will include the same technical specifications and system validations that appear in the group newspaper ( printed page 58999) form. The final rule has been modified to reflect this change. Information and instructions on how to submit these claims will be provided in the application itself and on a dedicated page on the Office's website.

F. Conclusion

Based on requests from affected parties for the expeditious implementation of the rule ^[120] and the absence of arguments supporting a delay, the Office finds that good cause exists to issue these regulations as a final rule with an immediate effective date. Commenters have presented a record supporting “the demonstrable urgency of the conditions [the rule is] designed to correct.” ^[121] Finally, the registration option authorized by the final rule will be available to registrants at or near the rule's publication date.

Final Regulations

For the reasons set forth in the preamble, the Copyright Office amends 37 CFR parts 201 and 202 as follows: