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How Long Should Copyright Owners Have to Wait for Their Day in Court?

How Long Should Copyright Owners Have to Wait for Their Day in Court? by Cameron Rocha

September 6, 2018

On June 28, 2018, the Supreme Court agreed to resolve a circuit split on copyright registration. The Fourth Estate Public Benefit Corp. v. Wall-Street.com decision will address when copyright owners are able to file a lawsuit for infringement, an issue especially important to independent creators.

The Copyright Act says no civil action for copyright infringement shall be filed prior to “registration” of the work. The question is whether this means a copyright owner may file an infringement lawsuit after submitting a registration application to the U.S. Copyright Office, but before the Register of Copyright grants or denies a certificate of registration. The U.S. Courts of Appeals for the Fifth and Ninth Circuits have adopted the application rule, under which copyright owners are able to file an infringement lawsuit after delivering the proper deposit, application, and fee to the Copyright Office. The U.S. Courts of Appeals for the Tenth and, in the decision below, the Eleventh Circuits have adopted the certificate rule, under which copyright owners are delayed from filing infringement lawsuits until the Register of Copyright acts on the application.

The Copyright Alliance filed an amicus brief supporting Fourth Estate and asking the Court to adopt the application rule. In our brief, we argue that the policies underlying the Copyright Act favor this approach and that the application rule better interprets the statutory language. The application rule accomplishes Congress’ primary objectives, whereas the certificate rule would harm authors and other copyright owners.

Copyright owners are still encouraged to register works and deposit copies of their works for collection in the Library of Congress under the application rule. The incentives to register, including increased available remedies, are the same under both approaches. Such incentives are based on when the registration application is submitted and not when the Copyright Office issues a certificate of registration; all registration certificates are back-dated to the submission date. Under the certificate rule, copyright owners are stuck in a legal limbo while they wait for the application to be processed.

On average, the U.S. Copyright Office currently takes seven to nine months to process an application. Processes designed to speed up examination are insufficient for avoiding the harm under the certificate rule. Preregistration, for example, is not available for every type of work. Even an expedited application, which requires payment of a steep administrative fee in addition to the registration fee, may be too long for a copyright owner to wait.

While copyright owners will eventually be able to file a lawsuit under either rule, the certificate rule subjects copyright owners to further damages from infringement by delaying when they can get into court. Infringement in the digital environment happens much faster than completion of the examination process—significant damage can occur if a copyright owner has to wait before getting a court order to stop it. Because the certificate rule can delay a lawsuit, copyright owners risk the expiration of the statute of limitations period or losing important evidence.

Ideally, the Copyright Office would have the technology, staffing, and budget it needs to process registration applications much faster, minimizing the stark difference between the application and certificate rules—and the Copyright Alliance has long advocated for Copyright Office modernization. We hope the Supreme Court does not compound this problem by closing the courthouse doors to copyright owners while they wait to receive their registration certificate.


Cameron Rocha is a Fall intern at the Copyright Alliance.

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