Copyright Office Proposes Deferred Examination for New Registrants

The US Copyright Office is studying whether to expedite the time it takes to obtain a copyright registration by allowing registrants to opt for “deferred examination” of their submissions, according to an announcement by the office issued December 10, 2021. Currently, when a copyright owner applies to register a copyright, the Copyright Office examines the underlying work to determine whether it contains copyrightable material and whether statutory formalities have been met. This process is time-consuming—it can take anywhere from two months to over a year¹—and the Copyright office will not issue a certificate of registration until it is complete. This timing matters because, in most cases, before copyright owners are allowed to bring infringement lawsuits or to recover either statutory damages or attorney’s fees, they not only must apply to register their copyright but also actually receive the registration certificate. The result is that many potential copyright plaintiffs are delayed, and in some cases denied, full relief for infringements until after the Copyright Office completes its lengthy examination process.  Under the new proposal put forward by the Copyright Office, registrants could choose to register their works and obtain the ability to sue and the right to statutory damages and attorneys’ fees on the same date they submit their materials, and examination of the submitted work would be deferred indefinitely—indeed, it would not happen unless and until someone requested it.           

The proposed restructuring comes in the wake of the 2019 Supreme Court Decision Fourth Estate v. Wall-Street.com, which held that, under the Copyright Act, a copyright holder’s registration, and therefore their right to sue, is effective only when the Copyright Office registers a copyright, not when the copyright owner submits the application to the Copyright Office.² In May, Senator Thom Tillis (R-NC), who serves on the Senate Judiciary’s Subcommittee on Intellectual Property, wrote a letter to Shira Perlmutter, Register of Copyrights, requesting that the Copyright Office conduct “a study regarding the feasibility, benefits, and costs of creating an option for deferring examination of an application.”³            

A system of deferred examination has potential advantages and drawbacks. Under the proposed system, a registrant would receive the benefits of copyright registration immediately upon submitting their materials. The system may encourage prompt registration and perhaps more registrations in general. The system may also alleviate some of the burden on the Copyright Office, as it “improv[es] the Office’s efficiency by removing the examination step, decreas[es] processing times,” and “lower[s] the Office’s expenses.”⁴ However, a deferred examination system might also prove a gift to copyright trolls, since claims could be brought faster based upon questionable registrations, and provide plaintiffs leverage by allowing the recovery of attorney’s fees sooner than under the current system.

On the other hand, the proposed changes would also work in conjunction with the newly enacted Copyright Alternative in Small-Claims Enforcement Act of 2020 (the CASE Act), which was signed into law on December 27, 2020. The CASE Act essentially created a small claims court for copyright infringement, the Copyright Claims Board (CCB), which is designed to fast-track and reduce expenses for infringement cases where the amount of dispute damages is less than $30,000.⁵ The CCB is set to begin hearing cases in the spring of 2022.⁶ (For more on the CASE Act, listen to this episode of the podcast TMT Time with Evan M. Rothstein.           

The conjunction of the proposed changes to the registration process and the CASE act leaves open a few questions. Copyright infringement claims have grown by an order of magnitude in the last few years: 2016 saw 448 infringement claims in federal courts, but the yearly average since then has been about 10 times that—around 4500. If the CCB, created by the CASE act, was intended to be a safety valve for the federal judiciary, siphoning off smaller infringement claims like those brought by copyright trolls, would that benefit be cancelled out by a deferred examination system which makes it easier to bring such claims? Further, the CCB will be staffed by three Copyright Claims Officers, recommended by the Register of Copyrights and appointed by the Librarian of Congress.⁷ Will the CCB be more friendly to copyright holders (and perhaps to copyright trolls) or those accused of infringement? This may hinge in large part on the proclivities of the appointed officers.

The Copyright Office is receiving comments on the proposed system, which can be submitted through regulations.gov until January 24, 2022.

© Arnold & Porter Kaye Scholer LLP 2021 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.