Did you Miss Any of the Major Changes Taking Place at the U.S. Copyright Office?
Don’t worry if you did. We compiled a list of all of them here.
Over the past four weeks, there have been major changes taking place at the Copyright Office. Most of these changes are a result of COVID-19 considerations, which forced the Office to close its doors to the public and Office staff to work remotely. As a result, many, but not all, of the changes are temporary and very narrowly tailored to make specific changes to the registration system or other processes to account for the fact that people are sheltering at home and may not be able to meet a particular deadline or submit the necessary materials to the Office in the usual manner.
To ensure that you don’t miss any of these changes, we have compiled them into this blog to help you stay updated and in the loop. Check out the information below and be sure to also visit the Office’s website for more information.
Before we delve into the many changes, we want to first commend the staff of the Copyright Office, and especially the leadership, not only Acting Register Maria Strong, but also the General Counsel Regan Smith and her team; and the Associate Register for Registration Policy & Practice Rob Kasunic and his team for their quick and seamless response to the COVID-19 pandemic. These are difficult times and the changes demanded of the Office are not easy. Their concerted efforts have been truly extraordinary.
We also want to note that, while the Copyright Office is closed to the public and there are many changes in the registration system and other Office operations, it remains “open for business.” Users of the Office’s services may continue to submit their applications online, browse FAQs and Office circulars, and submit emails with questions through the Office’s website. The Office is also reachable by phone at (202) 707-3000.
On March 27, the President signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act. With regard to copyright, this legislation authorizes the Register of Copyrights to temporarily adjust timing provisions in the Copyright Act if she determines that a national emergency is generally disrupting the normal operation of the copyright system. The Acting Register availed herself of this new authority relatively quickly, making three changes:
Three-Month Window for Statutory Damages
- Under existing law, one must register a copyrighted work before the infringement takes place or within three months after first publication in order to be eligible to be awarded statutory damages and attorney’s fees. The Acting Register extended “the three-month window for applicants who can show that they were unable to comply due to the emergency – for example, because they could not mail physical materials or lacked access to a computer. To qualify, an applicant must submit a statement certifying under penalty of perjury that they would have met the deadline but for the national emergency.” This extension does not apply to electronic applications generally but may apply: (i) to electronic applications where the applicant is unable to submit a physical copy of the deposit, where required, and (ii) when the applicant is unable to submit an application electronically or physically during the disruption.
- Acting Register Strong also extended the time for people who are prevented from serving or recording notices of termination within statutorily required time periods established in sections 203 and 304(c) of the Copyright Act. Where the termination window is expiring, “the five-year window for terminating a transfer will be extended during the period of disruption if: (1) the author’s five-year termination window expires on or after March 13, 2022, and less than two years after the date the disruption ends; (2) the author serves a notice of termination within thirty days after the date the Acting Register announces as the date the disruption has ended; and (3) the notice of termination is accompanied by a declaration or similar statement certifying, under penalty of perjury, that but for the national emergency, the author would have been able to serve the notice at least two years before the close of the five-year window, and setting forth an explanatory statement in support of that certification. This statement must also be included in the material sent to the Office when the notice is later recorded.” Where the window to record is expiring, “the requirement that a notice be recorded before the date of termination will be waived if (1) the author has already served the notice on the transferee; (2) the termination date listed on the notice is on or after March 14, 2020, and on or before the date the Acting Register announces as the date the disruption has ended; (3) the author records the notice within thirty days after the date the disruption has ended; and (4) the recordation submission includes a declaration or similar statement certifying, under penalty of perjury, that the author would have submitted the notice in a timely manner but for the national emergency, and setting forth satisfactory evidence in support of that statement. As is true for registration applications, satisfactory evidence would include, but not be limited to, a statement that the author was prevented from accessing or mailing the required physical materials.”
Section 115 Paper Processes
- Due to the fact that some entities may not presently be able to provide paper Notices of Inquiry (NOIs), Statements of Account (SOAs), and associated royalty payments under section 115, the Copyright Office announced a temporary adjustment in timing provisions regarding section 115 paper processes. According to the Office, “This timing adjustment … requires entities to provide copyright owners with certain information, including a certification that the entity is unable to process paper materials and contact information on how to temporarily opt-in to electronic delivery of materials.”
The Office also made several other changes that did not require using the new authority provided under the CARES Act. These changes include the following:
The Office is now temporarily allowing applicants who submit electronic registration applications to provide an electronic deposit copy of the work so that the application can be examined remotely. For electronic applications filed before April 2, for which a physical deposit copy has already been received, a registration specialist may contact the applicant andÊoffer the option of uploading an electronic copy of the work, accompanied by a declaration form (which would be sent to the applicant by the registration specialist), stating that – under penalty of perjury – the electronic copy is identical to the physical copy previously submitted. With regard to electronic applications for published works filed on or after April 2, the applicant has the option of uploading an electronic copy of the work in addition to mailing the required physical copies, which will allow the claim to be examined remotely. “Applicants who use this option must submit both an electronic deposit copy and a declaration form, under penalty of perjury, stating that the electronic copy is identical to the required physical copies that the applicant will mail to the Office together with the shipping slip generated in eCO.”
Ordinarily, when the Office refuses to register a copyright registration application, the refusal letter is sent to the applicant through the U.S. Mail. Because most Office staff are working remotely, examiners cannot send physical letters. To ensure that applicants receive a timely registration decision, the Office will now send refusal letters via email, instead of sending a physical copy through the mail. When a claim is refused, the refusal letter will be sent to the email address provided in the registration application. Instructions for responding to the Office’s registration decision will be provided in a PDF attached to the Office’s refusal email. If the applicant wishes to request reconsideration of the refusal, the request must be mailed to the Office according to the instructions in the PDF, and should not be sent via reply email.
Requests for Reconsideration
The Office will follow a similar approach when responding to a first or second request for reconsideration: the response will be sent to the email address provided in the reconsideration request. Responses to first requests for reconsideration will include instructions on how to submit a second request for reconsideration. Responses to second requests for consideration via email will constitute final agency action under section 202.5(g) of the Code.
The Office has also adopted an interim policy for the “special handling”Êof applications for registration on an expedited basis. For special handling applications that are submitted electronically and for which electronic deposits are permissible under the regulations, these applications will continue to be examined within five business days. For electronic applications that require the submission of physical deposits of the best edition, applicants must still send the physical deposits, but the Office is temporarily allowing applicants to additionally upload an electronic deposit of that same work. The electronic deposit must be accompanied by a declaration or similar statement certifying, under penalty of perjury, that the electronic deposit is identical in content to the physical deposit that has been sent to the Office.
Allowance of Electronic Submissions and Responses
While many of the Copyright Office’s services are already electronic, in some cases Office regulations still require users to submit materials through traditional mail services. To help ensure that people can continue to access its services and that Office staff can respond to inquiries in a timely manner, the Office updated various regulations which allow certain types of submissions and responses to be made electronically in order to facilitate the public’s ability to access Office services during the COVID-19 pandemic. These changes, which became effective on April 8, effect regulations relating to submitting notices of termination for recordation; supplementary registrations for restored works, non-photographic databases, and renewal registrations; requests for full-term retention of copyright deposits and numerous other regulations.
Not only will the Office be allowing electronic submissions, it will also be updating several of the regulations to remove the requirement that submissions to the Office contain a handwritten signature. The regulations will instead adopt a more flexible requirement that submissions contain “a legally binding signature, including an electronic signature as defined in 15 U.S.C. 7006.” As new electronic submission options for these services are implemented by the Office, the Office will provide instructions on its website and on any relevant Office forms.
For any questions about these changes or further details, we strongly encourage you to contact the Copyright Office directly or go to the new page on the Office’s website that is devoted to the operational changes made in response to the COVID-19 pandemic for more information.
There have also been some changes unrelated to COVID-19. These include:
New Registration Fees
On March 20, the Copyright Office’s new fee schedule went into effect. These changes impact the areas of registration, recordation, record retrieval, search and certification, licensing, and other services. The Office commenced its cost study in June 2017 and, last October, it presented Congress with a final proposed schedule and analysis of fees for its services. The new schedule is a product of this cost study and consideration of well over one hundred comments. According to the Office, “while a number of fees, including the fee for standard registrations, have been increased to permit [us] to more fully recoup expenses, some fees have decreased, and others, such as the group application for photographs, remain the same.” Further details on the fee changes can be found here.
Deadlines Extended for Submitting Comments on Registration Modernization NOI and Reply Comments for Online Publication NOI
On March 3, the Office published a Statement of Policy and Notice of Inquiry as a follow-up to its October 2018 NOI on Registration Modernization, announcing practice updates that will be adopted in conjunction with the Library’s updated IT system that is currently under development. Specifically, the Office intends to adopt “eleven registration practice updates that it will identify as business needs to the OCIO, so that they may be incorporated into the design of the new [Enterprise Copyright System (“ECS”)] to support a more user-friendly and efficient registration process that is simpler, clearer, secure, and adaptable.”In addition to announcing practice updates, the Notice seeks additional information on issues raised in the 2018 NOI regarding the rights and permissions field on the application, and additional data that can be submitted voluntarily to enhance the public record. Initially, written comments were due by April 2, but that date was later extended to June 1. The Office also announced that the deadline for submitting reply comments to theÊnotice of inquiry seeking input on issues related to the determination of a work’s publication status for registration purposes (i.e., the online publication NOI) is extended (from April 16) to June 15.