Copyright Office Publishes Updates to Compendium

The Compendium of U.S. Copyright Office Practices—often referred to simply as the Compendium—outlines the official guidelines for Copyright Office practices ranging from the registration and recordation processes to substantive determinations on issues like copyrightability, ownership and authorship.

This summer, the Copyright Office released a Draft of proposed revisions to the Third Edition of the Compendium, followed by a two-month period for public comments. After reviewing comments from individuals and organizations including the Copyright Alliance, the Office revised 21 sections of the Draft resulting in the final updated version of the Compendium of U.S. Copyright Office Practices, Third Edition, published last week.

The Compendium is important, not just as internal Copyright Office guidance, but also a point of reference for those outside of the Office. Since it was first made public in 1967, the Compendium has served as a tool for attorneys, creators seeking to register their work with the Office, the general public, and—perhaps most importantly—the courts. It is not uncommon for a court to cite to interpretations presented in the Compendium when deciding issues within the scope of copyright. And because this document plays such a significant role in the registration and recordation processes as well as shaping case law, the Copyright Alliance submitted comments requesting clarification on a number of issues important to creators and reconsideration where the Compendium failed to accurately reflect the law. Below is a summary of the revisions made to the Draft Compendium as a result of comments received by the Copyright Office.

Applicability of the 2017 Update to the Compendium

The first revision was simple and straightforward. The Office clarified in the Introduction that “applications and documents registered or recorded on or after September 29, 2017, will be governed by the Final Version,” published last week. Those issued before that date will be governed by the 2014 version “except in cases where that version had been superseded by an amendment to the regulations, intervening case law, or previously announced changes in practice.” This was done in response to comments submitted by the Intellectual Property Owners Association (‘‘IPO’’).

Email Communication with the Office

In response to the Copyright Alliance’s comments which suggested that the Office permit applicants to list non-personal email addresses so that organizations can maintain a consistent means of communication with the Copyright Office despite personnel changes, the Office clarified that “applicants do not need to provide a personal email address or designate a specific person to receive emails from the Office” and instead may submit “a general email address that may be used by multiple people within the same organization, such as ‘copyrightadministrator@ publisher.com.’”

Best Edition Requirement

In the Copyright Alliance’s comments, we suggested a revision to the text in the Draft which read “[i]f a work was published in both a physical format and an electronic format, the applicant should submit the best edition of the work in the physical format,” explaining that the requirement would be especially burdensome in the music industry, for example, where an applicant would need to acquire a digital copy to submit to the Office even where a record is released only in physical form in the U.S. but digitally abroad. In response, the Office revised the language to clarify that this requirement only applies “if a work was published in the United States in both a physical format and an electronic format” (emphasis added).

Disclaiming Preexisting Material

The Draft contended that claimants should exclude preexisting material from a claim if that material was previously published, regardless of whether the claimant or a third party authored those parts of the work. However, after reviewing comments submitted by IPO explaining that the requirement was “inconsistent with the weight of legal authority holding that a registration for a derivative work may be used to enforce the copyright in a preexisting version of the same work, even if the preexisting version has been previously published and has not been separately registered with the Office,” the Office decided not to adopt the changes proposed in the Draft, and instead will investigate the issue further through a formal notice of inquiry. Importantly, the Office says that “[i]n the meantime, applicants should continue to add a disclaimer if a work contains an appreciable amount of previously published material.”

Computer Programs

The Office clarified “that the term ‘computer program’ may be used to assert a claim in both the executable code and non-executing comments within a computer program.” The Office also clarified that before it cancels a registration for failure to submit the correct deposit material, it will request the proper material, and will only cancel the registration “if the Office does not receive a response within 30 days, or if the claimant’s response does not resolve the problem.” Both clarifications come in response to comments submitted by IPO.

Choreographic Works and Pantomimes

The Office “removed ‘competitive ice skating,’ ‘synchronized swimming,’ ‘parades,’ ‘marching band routines,’ ‘magic acts,’ ‘circus acts,’ and ‘juggling’ from the examples of physical activities that cannot be registered as a pantomime or a choreographic work” in response to comments submitted by the Kernochan Center for Law, Media, and the Arts at Columbia Law School.

Notices of Termination Under Section 203 of the Copyright Act

In the Copyright Alliance’s comments, we urged the Copyright Office to reconsider its endorsement of an interpretation of Section 203(a)(3), dealing with termination, adopted by the Second Circuit in Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 33 (2d Cir. 2015). That interpretation, which was written into the Draft, held that “the phrase ‘date of publication’ [as its used in 203(a)(3)] means the date the work was published for the first time.” As the Copyright Alliance’s comments explained, that interpretation is contrary to both the plain reading of the statute and the legislative history, and it would be premature for the Office to endorse that view at this time. In response, the Office reverted back to its “initial interpretation reflected in the 2014 version of the Compendium, with an additional discussion of this issue” agreeing that the 2014 language is the interpretation “most consistent with the terms of the Copyright Act.”

Section 115 Compulsory License

In response to a comment expressing concern that the Draft “suggested that copyright owners must register their works as a condition for receiving royalties under the compulsory license set forth in section 115(c)(1) of the Copyright Act,” the Office clarified that “copyright owners may be entitled to receive royalties under this section if they are identified ‘in the registration or other public records of the Copyright Office.’”

A full summary of the comments, including those suggestions the Office declined to adopt, is available here.

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