U.S. Copyright Office Finally Embraces Electronic Signatures

U.S. Copyright Office Finally Embraces Electronic Signatures

The U.S. Copyright Office is finally abandoning its requirement for a handwritten, signature. The agency will now accept copyright assignments and other documents with electronic signatures for recordation.

Enforcement of Electronic Signatures 

When it comes to executing business contracts, electronic signatures are generally considered valid. Under the Electronic Signatures in Global and National Commerce Act (ESIGN), which went into effect in 2000, digital and electronic signatures are just as legal as their paper and ink counterparts for transactions in or affecting interstate or foreign commerce. It specifically provides that a contract or signature “may not be denied legal effect, validity, or enforceability solely because it is in electronic form.”

The E-Sign Act defines an e-signature as “an electronic sound, symbol, process attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record and be legally bound.” It allows the use of electronic records to satisfy any statute, regulation, or rule of law requiring that such information be provided in writing, if the consumer has affirmatively consented to such use and has not withdrawn such consent.

New Copyright Regulation

As with many federal regulations, there are a few notable exceptions. Up until recently, documents recorded with the U.S. Copyright Office required a “wet” signature. As opposed to an electronic signature, a “wet” signature is created when a person physically marks a document, a nod to the process of waiting for ink to dry.

Pursuant to 17 U.S.C. § 205(a), which establishes the conditions under which the Copyright Office can record transfers and other documents:

Any transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. A sworn or official certification may be submitted to the Copyright Office electronically, pursuant to regulations established by the Register of Copyrights.

The Copyright Office previously interpreted the above-provision to mean that where a submitted document lacks a handwritten, wet signature (such as when it is signed electronically), the document is a “copy,” which must be accompanied by a sworn or official certification. In an attempt to further modernize its operations, the Copyright office recently implemented new rules for the recordation of transfers of copyright ownership, other documents pertaining to a copyright, and notices of termination.

The copyright regulations now define ‘‘actual signature’’ as any legally binding signature, including an electronic signature as defined by the E-Sign Act. They also require that where an actual signature is not a handwritten or typewritten name, such as when an individual clicks a button on a Web site or application to indicate agreement to contractual terms, the remitter should be required to submit evidence demonstrating the existence of the signature, such as by appending a database entry or confirmation email to a copy of the terms showing that a particular user agreed to them by clicking ‘‘yes’’ on a particular date. The Copyright Office will not evaluate the evidence submitted in such cases, but will presume that the signature requirement has been satisfied and record the document (if all other requirements for recordation have been met). The regulations provide, however, that this presumption is without prejudice to any party claiming that the document was not signed, including in court.

Next Steps for Businesses

Given the proliferation of online clickwrap agreements, the new regulations provide much-needed clarity that e-signatures can be used to satisfy the written signature requirements of the Copyright Act. To determine how the elimination of the “wet” signature requirement may impact your company’s operations, we recommend consulting with an experienced IP attorney.

Do you have any questions? Would you like to discuss the matter further? If so, please contact me, David Einhorn, at 201-806-3364.