Two Copyright To-Dos Before Year End
Tackle the following two tasks before year end to help protect your company from copyright infringement liability and secure your copyright assets in 2018.
Re)Register Your DMCA Agent With The Copyright Office
If your company operates a website that allows third parties to post content (text, pictures, or video), then it may be liable for copyright infringement if any of that content is posted without permission from the copyright owner. Fortunately, Section 512 of the Digital Millennium Copyright Act (DMCA) provides immunity from copyright infringement claims based on content posted by a third party if you have designated a DMCA agent to receive and act on notices of infringement and have registered your DMCA agent with the U.S. Copyright Office.
However, the Copyright Office recently adopted a new system for receiving DMCA agent registrations and imposed a requirement that all DMCA agent registrations filed prior to December 1, 2016 must be re-filed no later than December 31, 2017 to remain effective. Accordingly, any company that may have previously qualified for immunity under Section 512 will lose safe harbor protection if it does not re-register its DMCA agent using the new online registration system before the end of the year.
File Copyright Applications On Important Work Product
Although copyright registration is voluntary, the U.S. Copyright Act incentivizes copyright owners to register their works with the Copyright Office. For example, you cannot file a civil action for copyright infringement until "registration of the copyright claim has been made…" 17 U.S.C. § 411(a). Until this summer, the majority of circuits had held the act of filing an application with the Copyright Office satisfied this requirement. However, the Eleventh Circuit has now joined the Tenth Circuit (and possibly the Seventh Circuit) in requiring the Copyright Office to act on an application for registration before the precondition to filing suit is satisfied. See Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, 856 F.3d 1338 (11th Cir. 2017). This leaves copyright owners in at least these circuits with the choice of waiting eight months or more after filing an application for the Copyright Office to act or paying additional fees to expedite examination before they can file a copyright infringement lawsuit. This delay may be particularly troublesome in cases where a temporary restraining order would be appropriate.
Other incentives for registering your copyrights include the ability to elect statutory damages (instead of actual damages) and request attorney fees for a successful infringement claim. The availability of these options in litigation also provides leverage to diffuse an infringement situation at the cease and desist letter stage. Therefore, we recommend a year-end review of your company's original works to determine which are good candidates for registration due to their value or risk of infringement.