The U.S. Copyright Office has extended certain deadlines to accommodate copyright owners that are prevented from completing or submitting applications for copyright registration or other documents for filing with the Copyright Office due to the Coronavirus (COVID-19). Much like the trademark and patent relief provided by the U.S. Patent and Trademark Office (USPTO), the extensions were authorized under Coronavirus Aid, Relief, and Economic Security Act (CARES Act).
As set forth in a Public Notice issued on April 6, 2020, the Copyright Office is allowing impacted copyright owners to receive additional time to register a work. This is significant, given that under Section 412 the Copyright Act, a copyright owner’s right to be awarded statutory damages in a copyright infringement action may be negatively impacted if the work allegedly being infringed is not registered prior to the infringement or within three months of the work’s first publication. The Copyright Office is providing similar accommodations for those who are prevented from serving or recording notices of termination within statutorily required time periods.
First, it is important to note that not all registration deadlines have been extended. For all copyright applications that can be submitted entirely in electronic form (i.e., those that do not require submission of a physical deposit), the timing provisions have not changed. Below are the accommodations that the Copyright Office is providing:
- If an applicant can submit an application electronically but is unable to submit a required physical deposit, the applicant should upload, together with the application, a declaration or similar statement certifying, under penalty of perjury, that the applicant is unable to submit the physical deposit and would have done so but for the national emergency, and setting forth satisfactory evidence in support. If this requirement is met, and the three-month window for registration after the date of first publication was open as of March 13, 2020, the window will be extended such that the applicant will be eligible for the remedies under section 412, provided that the applicant submits the required deposit within thirty days after the date the disruption has ended, as stated in a public announcement by the Acting Register. Examples of satisfactory evidence include, but are not limited to, a statement that the applicant is subject to a stay-at-home order issued by a state or local government; or a statement that the applicant is unable to access required physical materials due to closure of the business where they are located.
- If an applicant is unable to submit an application electronically or physically during the disruption, the applicant may submit an application after the Acting Register has announced the end of the disruption, and include a declaration or similar statement certifying, under penalty of perjury, that the applicant was unable to submit an application electronically or physically and would have done so but for the national emergency, and providing satisfactory evidence in support. If this requirement is met, the three-month window under section 412 will be tolled between March 13, 2020, and the date that the disruption has ended. For example, if a work was first published on February 13, 2020, the applicant would have two months following the end of the disruption to register the work in order to be eligible for the remedies under section 412. Satisfactory evidence for purposes of this option includes, but is not limited to, a statement that the applicant did not have access to a computer and/or the internet; or a statement that the applicant was prevented from accessing or sending required physical materials for reasons such as those noted above.
Notice of Termination
The Copyright Office is also relaxing the timing requirements for serving and recording notices of termination. Under section 203 and section 304(c) of the Copyright Act, individual authors may reclaim copyright interests previously transferred to another party in specified circumstances. In general, an author may terminate a transfer within a five-year window, provided that the author serves notice on the transferee between two and ten years before the chosen termination date. After service, the notice must be recorded with the Copyright Office.
To ensure that these authors are not deprived of their ability to effectively terminate a transfer, the Copyright Office will temporarily adjust the section 203 and 304(c) timing requirements to the extent they apply to persons affected by the national emergency. These adjustments will apply as follows:
- 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 Copyright Office when the notice is later recorded. The Office will then annotate the public record to reflect this certification. When an author meets these requirements, the notice will be considered timely served under section 203(a)(4)(A) or 304(c)(4)(A). The author still would have to choose a termination date at least two years after the date of service.
- 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. When an author satisfies the above requirements, the notice will be treated as timely recorded for purposes of section 203(a)(4)(A) or 304(c)(4)(A). The Copyright Office will annotate the public record to reflect that determination.
According to the Copyright Office, it will consider additional “appropriate” modifications as it becomes aware of sufficient disruption to the copyright system caused by the COVID-19 pandemic. Members of the public who have been affected in their ability to participate in the copyright system should consult with intellectual property attorneys regarding their options.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, David Einhorn, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.