Copyright Law in 2018: Focus on the Copyright Office

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Copyright Law in 2018: Focus on the Copyright Office

It certainly seemed as if the Copyright Office had never been busier than they were in 2018. Here’s a short synopsis of various highlights from Copyright in 2018 at the Copyright Office.

New Final Rules

In January, the Office published a final rule “modif[ying] the procedure for registering groups of published photographs (GRPPH), and establishing a similar procedure for registering groups of unpublished photographs (GRUPH).” The process will require applicants “to use a new online application specifically designed for each option, instead of using a paper application, and will allow including “up to 750 photographs in each claim.” The rule, which became effective in February, alters the existing registration procedure for groups of published photographs (GRPPH), and establishes a new registration process for groups of unpublished photographs (GRUPH), while maintaining the pilot program for registering photographic databases. The rule also eliminates the current pilot program for registering groups of published works and the “unpublished collection” option.

Perhaps the most significant detail of the rule is that it limits each registration claim to 750 photographs. Other significant changes include: copyright owners are required to use an online registration application instead of a paper application; digital copies of each photograph must be deposited, limited to certain formats, along with identifiable information about each photograph; and, for published photographs, the applicant must identify the month and year of publication for each photograph within the group registration. The new rule makes clear that each individual photograph within a GRUPH or GRPPH group registration will be “treated as a separate registration,” thereby providing a copyright owner with the ability to seek multiple awards of statutory damages versus the single award provided to photographic databases.

Also in January, the Copyright Office also issued a final rule (which went into effect in March) to update its regulations governing group registration of newspapers by, among other things, “require[ing] applicants to file an online application rather than a paper application, and upload a complete digital copy of each issue through the electronic registration system instead of submitting them in physical form (although applicants may continue to submit their issues on microfilm on a voluntary basis if the microfilm is received by December 31, 2019).

In October, in its sixth 1201 triennial rulemaking, the Copyright Office published a final rule adopting exemptions to the provision of the Digital Millennium Copyright Act (DMCA) that prohibits circumvention of technological measures that control access to copyrighted works. The Acting Register recommended renewal of all existing exemptions, along with expansions to existing exemptions related to audiovisual works and computer programs.

The Office also published a final rule on group registrations for newsletters and serials, effective December 30, 2018. The final rule requires applicants to file online rather than use a paper application and upload a complete digital copy of each issue through the electronic registration system instead of submitting them in physical form. To satisfy the mandatory deposit requirement, if the newsletter or serial is published in the United States in a physical format, two complimentary subscriptions must be provided directly to the Library of Congress (unless the Library notifies the publisher otherwise). In addition, for group newsletters, the rule eliminates requirements that each issue be a work made for hire and be registered within three months of publication. For group serials, the rule clarifies registration requirements, including that serials must generally be published at intervals of at least a week and that the publication dates need not match the dates on the issues themselves.

Lastly, at the very end of the year, the Office published a final rule on streamlining the single application and clarifying the eligibility requirements, which becomes effective January 28, 2019. The new rule adopted by the Office sets forth the eligibility requirements for the Single Application, an online registration option that allows a single author to register a claim in one work that is solely owned by the same author and is not a work made for hire. The rule confirms that the Single Application may be used to register one work that is created by and solely owned by one author and is not a work made for hire, and that it may be used to register one work (including one sound recording). The rule also clarifies the eligibility requirements for the Standard Application and eliminates the “short form” version of the Office’s paper applications.

New Rulemakings

In April, the Copyright Office published a Notice of Proposed Rulemaking regarding mandatory deposit of electronic-only books, which would – among other things – “create a new demand-based mandatory deposit scheme for electronic-only books, similar to that for electronic-only serials”; “define electronic-only books to be an electronic literary work published in one volume or a finite number of volumes published in the United States and available only online”; and “create ‘best edition’ requirements for electronic-only books, mirroring the Library’s Recommended Formats Statement.”

In May, the Office also published a notice of proposed rulemaking for the establishment of a new fee schedule for Copyright Office services. The new schedule would significantly raise several fees. In addition to fees for electronic standard applications increasing from $55 to $75, the Office is proposing to raise fees for group registration of published photographs (“GRPPH”) and group registration of unpublished photographs (“GRUPH”) from $55 to $100; and fees for electronic applications of group registration of newspapers and newsletters, from $80 to $95, among other changes. Based on a fee study by an outside consultant, the Copyright Office determined “that [overall] fees should increase an average of 41%” and estimated that “revenues generated by these proposed fees will be roughly $41 million per year.”

At the end of the year, the Office published a notice of proposed rulemaking to potentially create a new group registration for short online literary works. The rule would create a new group registration option to allow 50 works to be registered with one application, as long as the works meet the following criteria: they must “contain at least 100 but no more than 17,500 words”; “[be] created by the same individual, and that individual must be named as the copyright claimant for each work”; and “[are] all published online within a three-calendar-month period.” (As noted in part I of this series, the Office also has begun the process of implementing the MMA, which involved various rulemakings and studies.)

Other U.S. Copyright Office News

On May 29, Regan Smith became the new General Counsel and Associate Register of Copyrights, succeeding Sarang (Sy) Damle who left earlier in the year for private practice.

The Office also joined the Solicitor General in filing an amicus brief with the Supreme Court in the Fourth Estate case in favor of the application approach; and an amicus brief in Rimini Street v. Oracle in support of Rimini Street, in favor of the view that full costs does not include nontaxable fees.

On October 12, American Airlines filed a lawsuit against the Copyright Office, seeking judicial review of its decision denying the airline’s copyright registration application for its logo. Shortly thereafter, the case became moot when the Office’s Review Board reversed a previous refusal to register American Airlines’ logo as a two-dimensional artwork, upon finding that the work is copyrightable after review of higher resolution images submitted by American that “illustrated additional creative choices and details that were not viewable in the original deposit material.”

Predictions for 2019

With the MMA now passed into law, the Office will be busy in 2019 working with stakeholders on all the different rules and studies required by the new legislation. The Office began that process in November of 2018 and will continue throughout 2019 and beyond. We also expect to see the results of several Office studies, including studies on section 512 (of the DMCA), moral rights, and visual artists.

In addition to all of these initiatives, many Copyright Office activities during 2019 will involve efforts to modernize its IT processes. The Office infrastructure and IT systems are seriously outdated. So, after finally receiving funding from Congress, it has begun the long process of modernization. In so doing, it has requested comments by mid-January on various registration modernization initiatives and continues to solicit input from stakeholders on its new registration and recordation systems. There can be little doubt that the modernization of the Office will be a major focus in 2019.

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Keith Kupferschmid

Author: Keith Kupferschmid

Before joining the Copyright Alliance, Keith served as the General Counsel and Senior Vice President for Intellectual Property for the Software & Information Industry Association (SIIA). During his 16 years at SIIA, he represented and advised SIIA member software and content companies on intellectual property (IP) policy, legal and enforcement matters. He has testified before Congress and various federal and state government agencies on IP issues and also supervised SIIA’s Anti-Piracy Division, including working with federal and state government officials on civil and criminal piracy cases. Prior to joining SIIA, Keith worked as an IP attorney at the law firm of Finnegan, Henderson, Farabow, Garrett & Dunner, IP attorney-advisor at the U.S. Patent and Trademark Office (PTO), Director of Intellectual Property at the United States Trade Representative, and Policy Planning Advisor at the U.S. Copyright Office.

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