Copyright Office Proposes Deferred Examination For New Registrants

• Published date: 31 December 2021
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Arnold & Porter
• Author: Mr Sean M. Callagy and Theresa M. House

The US Copyright Office is studying whether to expedite the time it takes to obtain a copyright registration by allowing registrants to opt for "deferred examination" of their submissions, according to an announcement by the office issued December 10, 2021. Currently, when a copyright owner applies to register a copyright, the Copyright Office examines the underlying work to determine whether it contains copyrightable material and whether statutory formalities have been met. This process is time-consuming-it can take anywhere from two months to over a year ¹-and the Copyright office will not issue a certificate of registration until it is complete. This timing matters because, in most cases, before copyright owners are allowed to bring infringement lawsuits or to recover either statutory damages or attorney's fees, they not only must apply to register their copyright but also actually receive the registration certificate. The result is that many potential copyright plaintiffs are delayed, and in some cases denied, full relief for infringements until after the Copyright Office completes its lengthy examination process. Under the new proposal put forward by the Copyright Office, registrants could choose to register their works and obtain the ability to sue and the right to statutory damages and attorneys' fees on the same date they submit their materials, and examination of the submitted work would be deferred indefinitely-indeed, it would not happen unless and until someone requested it.

The proposed restructuring comes in the wake of the 2019 Supreme Court Decision Fourth Estate v. Wall-Street.com, which held that, under the Copyright Act, a copyright holder's registration, and therefore their right to sue, is effective only when the Copyright Office registers a copyright, not when the copyright owner submits the application to the Copyright Office. ² In May, Senator Thom Tillis (R-NC), who serves on the Senate Judiciary's Subcommittee on Intellectual Property, wrote a letter to Shira Perlmutter, Register of Copyrights, requesting that the Copyright Office conduct "a study regarding the feasibility, benefits, and costs of creating an option for deferring examination of an application." ³

A system of deferred examination has potential advantages and drawbacks. Under the proposed system, a registrant would receive the benefits of copyright registration immediately upon submitting their materials. The system may encourage prompt registration and perhaps...