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This One Weird Trick Could Improve Copyright Registration

This One Weird Trick Could Improve Copyright Registration by Terry Hart

January 28, 2019

What if there was a simple way that could make copyright registration easier for individual creators and help reduce the costs and administrative burdens of the U.S. Copyright Office?

Under U.S. law, copyright protection is automatic and covers a work the moment it is fixed in a tangible medium without the need for any action by the creator. But the law still allows for copyright registration with the Copyright Office. Registering a copyright is not necessary, but it does provide a number of legal benefits. For example, registration of U.S. works is needed before a copyright owner can file a lawsuit, and timely registration allows copyright owners to seek statutory damages and attorney’s fees in court.

But registration is not free, and it takes time, so individual creators often have to weigh the costs and benefits to determine when to register a work they’ve created. This is especially challenging for creators who create a high volume of individual works, particularly photographers, but also songwriters and authors. The Copyright Office is aware of these challenges and offers a number of registration options to help reduce those burdens, such as group registration options, or the Single Application form.

Aside from the cost of registering their works, perhaps the biggest registration-specific challenge for individual creators is determining if a work is considered “published” or “unpublished” under copyright law. This information is required for every work being registered, and this challenge results in many creators simply foregoing registration.

It’s far more difficult than it may sound. The concept of publication under copyright law is a vestigial holdover from earlier versions of the copyright law, before Congress completely revised the Copyright Act in 1976. Under the earlier law, publication served as the boundary between common law copyright protection and federal copyright protection. Works could only be protected by federal copyright when they were published. And if a creator did not affirmatively seek copyright protection—and comply with the formalities involved—when she published her work, the work entered the public domain.

The meaning of publication was left to courts, and, in part to avoid the harsh consequences of publishing a work without seeking copyright protection, this definition evolved and became very complex. For example, by the early twentieth century, it was the rule that a performance of a work, even though it took place in the public, was not a publication under copyright law.

But when Congress changed the threshold for federal copyright protection from publication to creation in the 1976 Copyright Act, it still retained the concept of publication, and the distinction between unpublished and published works retains significance for a number of copyright provisions, including, just to name a few, duration, national origin, fair use, other exceptions, the mechanical license, and limitations on certain remedies.

Unlike earlier laws, the 1976 Copyright Act does define publication, while still retaining the exception that public performance and display by itself does not constitute publication. Yet there are still challenges when determining when a work has been published. Those challenges have grown exponentially in the online context. When does uploading a work to the internet constitute publication? The question has confounded courts, copyright experts and even the Copyright Office.

So imagine the position of individual creators, who are not necessarily as versed in the law as judges and copyright experts, are in when they register their works. They must determine whether and when a work was published and indicate it on a registration application. Group registration options are available, but unpublished and published works must each be registered separately. In recent comments to the Copyright Office, a coalition of visual artist organizations wrote,

Visual creators are endlessly confused by distinctions such as what is “published” vs. “unpublished”, and why they can’t submit photographs published in different years in one registration. Compounding the fact that the definition of “published” in the digital era is confusing, many creators simply don’t know the answer to the question–they deliver multiple works to their clients and are never informed which ones end up being published. The Copyright Office will not make that determination for the applicant. And if the applicant’s guess as to published or unpublished status is later deemed incorrect; the registration may be invalidated.

As sympathetic as the Copyright Office is toward these concerns, however, it has taken the position that the Copyright Act prevents it from changing the requirement that applicants indicate the whether the work is published in registration applications. 17 USC § 409 of the Copyright Act prescribes what information the Register of Copyrights must include on registration applications. That information includes, in subsection 8, “if the work has been published, the date and nation of its first publication.”

So what could be done? How about this: delete subsection 8.

It’s a very small fix that could provide a very big improvement. Without the statutory mandate in subsection 8, the Copyright Office would have the flexibility to determine when it needs to ask for publication status, and, more importantly here, when it doesn’t. The Office would also be able to provide group registrations that allow both unpublished and published works to be registered on the same application. This would reduce one of the most significant obstacles individual creators face when registering their works. And it should simplify the Office’s own processes, which in turn would lower costs and save taxpayer dollars.

Importantly, this change is far less radical than it sounds. It wouldn’t eliminate the concept of publication from the Copyright Act—the distinction would still remain relevant where it currently holds relevance. All it would do would eliminate the requirement that the Copyright Office collect that information on registration applications, and instead leave it up to the Copyright Office to decide when it does and doesn’t need this information. If the question of publication arises during litigation, courts are well-equipped to answer it on their own—and, in fact, already do. And it’s not like the Copyright Office makes its own legal determination regarding publication during its examination process—it relies on the applicant’s own determination about whether a work is published or unpublished, “unless that statement is implausible or is contradicted by information provided elsewhere in the registration materials or in the Office’s records or by information that is known to the registration specialist.”[1]

Now, there may be circumstances where publication information would provide value to the public record and thus should still be collected by the Copyright Office. For example, in the case of works made for hire, anonymous works, and pseudonymous works, the term of copyright protection may be based off the year of first publication, so it would be beneficial to require applicants to include this information when registering. But the term of protection for works made by individual authors—where the burden of distinguishing between unpublished and published works is the greatest—is the same regardless of when the work is published (or even whether it is ever published at all), so there is less of a need for that information to be part of the public record.

And though the statute might eliminate the requirement that the Office collect publication information, it could still allow for the voluntary collection of it. The statute already provides incentives for applicants to volunteer that information, such as the evidentiary presumption provided by 17 USC § 410(c).

And finally, some amendments to the deposit requirements in §408(b) and (c) may be necessary to completely eliminate the need for distinguishing between unpublished and published works during copyright registration.

It’s a simple change, but it could go a long way toward improving the copyright registration system and reducing the burden on individual creators—which in turn would encourage them to register more works.

[1] Compendium of US Copyright Office Practices, §612.3.

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