New Group Copyright Registration Option Raises Questions Around Definition of ‘Published’ in the Digital Age

By IPWatchdog
September 1, 2020

“The Copyright Office acknowledged that determining ‘the fact and timing of publication may present difficult legal questions, especially in the online context’, but noted that the statute, 17 U.S.C. 409(8), ‘requires that the registration application include, for published works, the date and nation of the work’s first publication.’”

Copyright registration - https://depositphotos.com/11611355/stock-photo-copyright-symbol-on-digital-screen.htmlThe United States Copyright Office recently released a New Group Registration Option for Short Online Literary Works (GRTX), which would allow an applicant to register up to 50 short online literary works with one application and one filing fee. A group registration covers the copyrightable text in each literary work submitted with the group registration, such that the copyright owner may seek a separate award for each work infringed.

GRTX Overview

In general, a short online literary work must contain at least 50 and no more than 17,500 words in order to qualify as an online literary work eligible for group registration. In addition, the “work must be first published as part of a website or online platform, such as an online newspaper, social media website, or social networking platform.” In particular, the requirements of the GRTX include:

  1. The group must contain at least two and up to 50 separate works.
  2. Each work must contain between 50 and 17,500 words.
  3. The claim is limited to the text that appears in each work.
  4. All the works in the group must be first published online.
  5. All the works must be published within three consecutive months.
  6. The text in all the works must be written by the same individual author or co-written by the same joint authors.
  7. The author or joint authors must be named as the claimant(s) for each work, even if an author is not the current copyright owner of one or more works in the group.
  8. The works in the group cannot be works made for hire.
  9. Each individual work must have a title and each title must be on the application.
  10. The applicant must include a title for the group as a whole.

In order for a work to satisfy the requirement of being part of an online platform, the work must have been “first distributed to the public as part of a website or online platform, first distributed on a website or platform protected by a paywall or password, or published simultaneously online and in physical form.” However, a work would not be eligible if published only in physical form or if published in physical form prior to being published online. Further, a website or online platform itself cannot be registered using the GRTX option and the following works are not eligible: emails, podcasts, audiobooks, computer programs, compilations, and collective works.

Publication Requirement

Since a work must be “published” in order to be registered using the GRTX option, the mechanism has been criticized as not benefiting the individual authors and bloggers who need it the most.  According to an article by Aaron Moss “[t]he definition of ‘publication’ hasn’t changed since the 1976 Copyright Act was first enacted, even though our conception of publishing certainly has evolved in the digital age [and] the statutory definition is clear that the public performance or public display of a work does not, in and of itself, constitute publication.” Therefore, “the act of hitting ‘publish’ and displaying a blog or online article on a live website does not in and of itself constitute publication under the Copyright Act.”

The Final Rule in the Federal Register explained that the “Copyright Alliance and the Authors Guild argued that authors should be allowed to register their works under this option regardless of whether they are published or unpublished [noting that] many authors struggle with the complex legal distinctions between published and unpublished works [and] that the distinction serves no apparent need and exacerbates the potential for confusion.”

The Copyright Office acknowledged that determining “the fact and timing of publication may present difficult legal questions, especially in the online context”, but noted that the statute, 17 U.S.C. 409(8), “requires that the registration application include, for published works, the date and nation of the work’s first publication.”

The Office further explained that including both published and unpublished works in the GRTX option “would undermine the efficiency of the examination process.” Noting that the final rule retained the requirement that that works be published, the Office explained that it ‘‘will accept the applicant’s representation that website content is published or unpublished, unless that statement is implausible or is contradicted by information provided elsewhere in the registration materials or in the Office’s records or by information that is known to the registration specialist.’’

The Office also noted that it is exploring the general issues regarding publication in order to provide greater guidance to registration applicants.

Image Source: Deposit Photos
Copyright: maxkabakov
Image ID: 11611355 

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IPWatchdog

IPWatchdog

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