Separate Registrations for Published & Unpublished Work
Full Question: What is the rationale for having separate registration applications for published and unpublished works?
Answer: There was a significant historical difference under the 1909 Copyright Act, because published works had to meet certain formal requirements, such as notice, and only certain categories of unpublished works could be registered with the Copyright Office.
- If the work has been published, the date and nation of first publication should be provided in the application to register that work with the U.S. Copyright Office. See 17 U.S.C. § 409(8). For guidance in completing this portion of the application, see Compendium (Third), Chapter 600, Sections 612 and 617.
- As a general rule, the deposit requirements for registering a published work differ from the requirements for registering an unpublished work. For information concerning these requirements, see Compendium (Third), Chapter 1500, Sections 1503 and 1505.
- Works first published in the United States may be subject to mandatory deposit with the Library of Congress. For information concerning the mandatory deposit requirements, see Compendium (Third), Chapter 1500, Section 1511.
- The year of publication may determine the length of the copyright term for a work made for hire. For a definition and discussion of works made for hire, see Compendium (Third), Chapter 500, Section 506.
- The year of publication may determine the length of the copyright term for an anonymous work or a pseudonymous work, unless the author’s identity is revealed in records maintained by the U.S. Copyright Office. For a definition and discussion of anonymous works and pseudonymous works, see Compendium (Third), Chapter 600, Sections 615.1 and 615.2.
- The year of publication may determine the length of the copyright term if the work was created before January 1, 1978, and was first published between January 1, 1978 and January 1, 2003. See 17 U.S.C. § 303(a).
- 7.A certificate of registration constitutes prima facie evidence of the validity of the copyright and the facts stated in the certificate of registration, provided that the work is registered before or within five years after the work is first published. See 17 U.S.C. § 410(c).
- The copyright owner may be entitled to claim statutory damages and attorney’s fees in an infringement lawsuit, provided that the work was registered before the infringement began or within three months after the first publication of the work. See 17 U.S.C. §412, 504(c), 505.
- Many of the exceptions and limitations set forth in Sections 107 through 122 of the Copyright Act may be impacted depending on whether the work is published or unpublished. See, e.g., 17 U.S.C. § 107, 108, 115, 118, and 121.
- As a general rule, U.S. works first published in the United States before March 1, 1989 must be published with a valid copyright notice. Failing to include a valid notice on a U.S. work published during this period may invalidate the copyright in that work. For a detailed discussion of these notice requirements, see Compendium (Third), Chapter 2200, Sections 2203 through 2207.
There are additional regulatory differences, including the requirements for group registration options for certain published works and the registration accommodation for the registration of unpublished collections.
Rob Kasunic, Director of Registration Policy and Practices at the U.S. Copyright Office