As an update to prior Freeborn alerts (available here and here), the United States Copyright Office announced on January 7, 2021 that, as discussed below, it is extending certain timing adjustments due to the pandemic through March 9, 2021.
Under the Copyright Act, a copyright owner generally is eligible to recover attorney's fees and costs and statutory damages ("Remedies") in an infringement action only if the work is registered prior to the infringement or within three months of the work's first publication. The effective date of registration is the date when the Copyright Office receives the application, deposit, and fee.
To mitigate the effects of the disruptions caused by the pandemic, the Copyright Office is temporarily adjusting its timing provisions as follows:
- For 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 are unchanged.
- If an applicant can submit an
application electronically but is unable to submit a required
physical deposit, the applicant can provide a declaration
or similar statement that the applicant is unable to submit the
physical deposit and would have done so but for the national
emergency and also providing "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, or opened after that date, the window will be
extended such that the applicant will be eligible for the Remedies
if the applicant submits the required deposit within thirty days
after the date the disruption has ended, as stated by the Copyright
Office. 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 Copyright Office has announced the end of the disruption with a
declaration or similar statement certifying 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 will be suspended 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. 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.
The new timing adjustments also apply to notices of termination under the Copyright Act. The Copyright Act allows individual authors to terminate assignments or transfers of copyrights during the period of 35 to 40 years after the transfer. The author must provide proper notice of termination which must be recorded with the Copyright Office.
The Copyright Office will extend the period required to give the notice of termination and to record during the period of disruption caused by the pandemic if the author serves a notice of termination or records it within thirty days after the date the Copyright Office announces that the disruption has ended and the notice/recordation 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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.