“Many proponents agreed that a DRE application should not entitle the filing party to any legal right to bring a copyright suit prior to the Office registering the work, undercutting Senator Tillis’ suggestion last May that deferred examination could address the legal changes wrought by Fourth Estate.”
On August 1, the U.S. Copyright Office sent a letter addressed to Senator Thom Tillis (R-NC) detailing the results of the agency’s study into the feasibility of a deferred registration examination (DRE) option for copyright applicants seeking registration under U.S. law. While the Office recognized the genuine concerns of those seeking the creation of such an option, the report issued by Register of Copyrights Shira Perlmutter concluded that alternative approaches for addressing those issues would achieve better results than the proposed deferred examination option.
Copyright Office: Deferred Examination is Much More Complex Than It Appears
The Copyright Office’s feasibility study on DRE applications follows a letter sent by Senator Tillis last May seeking studies into several issues being faced under U.S. copyright law. Along with research into digital deposits and the statutory definition of “publication,” Senator Tillis asked the agency whether it would be possible to create an option for copyright applicants that enables them to gain the benefit of an early effective date of registration while delaying substantive examination until a later date. Tillis also inquired into potential statutory changes that should follow the U.S. Supreme Court’s 2019 decision in Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, which held that copyright claimants may not lawfully bring a lawsuit for infringement until the Office registers the copyright to the asserted work.
“While the concept of a delayed examination of a registration application and its deposit materials may appear straightforward, the details of such a process are more complex,” the Copyright Office’s feasibility study found. While many public comments collected by the agency suggested that the Office should review its fee structure to see if reductions in registration fees were feasible, there was no consensus among proponents of deferred examination regarding the structure of such a registration process. Along with registration fees, those comments favoring a deferred examination option argued that allowing for deferred examinations could help the Office address budgetary shortfalls while increasing the number of copyright filings from creators.
The Copyright Office’s study found, however, that a DRE option would not necessarily lead to a reduction in fees because of the costs inherent to maintaining a copyright registration system. Further, the agency concluded that while a deferred examination option could increase the number of registration applications filed at the Office, there was no evidence that such an option would lead to an increase of examined registrations. Indeed, giving applicants the opportunity to defer examination could lead to fewer registrations and thus decrease the public record of registrations available for licensing, frustrating one of the major policy goals behind the maintenance of a national copyright registration system.
Deferred Examination Frustrates Policy Goals on Public Registration Record, Judicial Efficiency
Those supporting the creation of a deferred examination option were unable to reach common ground on several fundamental aspects of a working framework for handling requests for deferral. Points of difference included the time limit between application and full examination, with suggestions ranging from five years to the entire duration of copyright, as well as eligibility restrictions based on the type of work involved and whether such examinations should be expedited by the Copyright Office once requested. Many proponents agreed that a DRE application should not entitle the filing party to any legal right to bring a copyright suit prior to the Office registering the work, undercutting Senator Tillis’ suggestion last May that deferred examination could address the legal changes wrought by Fourth Estate.
Along with risks to the public record posed by the likely popularity of the deferred examination option, the Copyright Office identified other policy goals of a copyright registration system that could be threatened by the proposed deferral system. Registration provides courts with the Copyright Office’s views on copyrightability, so deferring examination required for registration could increase the inefficiency of infringement litigation if courts cannot quickly ascertain whether an asserted work is copyrightable. The report also found that deferred examination could negatively impact the process for selecting works for inclusion in the Library of Congress’ collections, which as of now operates concurrently with the Office’s regular examination processes.
Issues negatively impacting the feasibility of DRE applications include the strong likelihood that such an option would not lead to the reduced application filing costs that many proponents thought would result from the new registration option. Even without substantive examination, the Copyright Office performs procedural compliance review to ensure that applications have been filed through the appropriate form and include required deposit material and fees. Indeed, the introduction of administrative inefficiencies that could result from the proposed changes could lead to a higher combined fee for initial applications and later requests for examination, which effectively creates a double examination system.
“In that same vein, implementing a DRE option seems likely to increase the Office’s level of correspondence generally. Due to the amount of time that may pass between the DRE application and the request for examination, correspondence could be necessary to address other matters such as changes in the facts about the work, updates, and new points of contact. There could also be losses of memory and of records, especially where the original applicant is deceased or rights have changed hands several times.”
Modernization Efforts Will Create Better Cost-Efficiencies for Revising Fee Structure
The Office was also troubled by the possibility that statutory changes to copyright law enacted by Congress, especially any changes relevant to examination of registration applications, could create questions regarding which law should apply if an application is filed before the legal change and examination is requested after the change is enacted. Other feasibility concerns raised by the Office include impacts to processing time, as requests for deferred examination could create processing delays, as well as budgetary concerns if a low-cost filing option deferring examination processes becomes a popular choice among copyright applicants.
Although the Copyright Office’s report did not find deferred examination to be a viable path toward improving prospects for copyright applicants, the agency did identify alternative paths that could achieve many of the objectives being sought by proponents advancing those changes. Ongoing modernization efforts at the Office are expected to enable the agency to make registration processes more cost-efficient, creating the opportunity to revise fee structures for lower per-work registration fees based on filer status or expanded group registrations for graphic designs or illustrations.
“For a number of years, the Office has been working to modernize our IT systems and to develop new regulations, practices, and workflows, all with the aim of increasing efficiency and expanding access… On the whole, the new registration system should result in a less time-intensive registration experience for applicants and should enable the Office to achieve greater levels of efficiency, decreasing costs and providing greater flexibility in changes connected to registration fees.”
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