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Copyright registration

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General Edit

In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. The copyright owner of a work (or the owner of any of the exclusive rights) may register the copyright in the work by depositing with the Copyright Office a completed copyright application form, registration fee and a copy or copies of the work.[1] The deposit requirement under the Act may be fulfilled through the registration procedures.[2]

Throughout much of U.S. history, copyright protection was predicated on certain formal requirements, such as the need to register published works with the Copyright Office, deposit copies with the Library of Congress, and mark copies of the work with a copyright notice. However, major revisions to copyright law in the 1970s and 1980s now protect a copyrightable work regardless of whether these formalities have been observed.[3]

For a work created on or after January 1, 1978, copyright subsists from the moment an original work of authorship is created by "fix[ing it] in any tangible medium of expression."[4] That is, a work is copyrighted the moment it is created, regardless of whether it has been registered or bears a copyright notice.

A copyright is the author's legal entitlement to the exclusive rights granted under 17 U.S.C. §106. Neither a copyright registration nor a registration certificate is equivalent to a copyright. A registration certificate signifies the Copyright Office's decision to register the work, which is a limited administrative decision that the work is copyrightable and that the application is proper.[5] That decision to register and the certificate of registration can, however, have legal significance at trial.

The Copyright Office classifies works into four broad categories for purposes of registration: nondramatic literary works, works of performing arts, works of visual arts, and sound recordings.[6] The Copyright Office notes that in cases "where a work contains elements of authorship in which copyright is claimed which fall into two or more classes, the application should be submitted in the class most appropriate to the type of authorship that predominates in the work as a whole."[7] However, the Copyright Act makes clear that the Copyright Office classification of works for purposes of registration "has no significance with respect to the subject matter of copyright or the exclusive rights provided."[8]

Registration process Edit

Copyright claimants submit works to the the Copyright Office for registration. The Copyright Office examines the works to determine the presence of copyrightable authorship and to ensure that other legal and formal requirements have been met. When a work is registered, the Copyright Office issues a certificate of registration and creates a public record of the registration.

More than 33.7 million copyrights have been registered in the United States since 1790, when Congress enacted the first Federal copyright law. Of these, approximately 150,000 were registered between 1790 and the centralization of copyright functions in the Library of Congress in 1870. In 2009, more than 382,000 basic copyrights were registered.

Advantages of registration Edit

Registration is not a condition of copyright protection.[9] Even though registration is not a requirement for protection, the 1976 Copyright Act provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:

Registration may be made at any time within the life of the copyright. Unlike the 1909 Copyright Act, when a work has been registered in unpublished form, it is not necessary to make another registration when the work becomes published, although the copyright owner may register the published edition, if desired.

Registration as a prerequisite to infringement claim Edit

Section 411 of Title 17 provides that "no action for infringement of the copyright of any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title."[13] The registration/preregistration requirement in Section 411 arguably applies only to civil lawsuits, not to criminal prosecutions.[14] The criminal copyright provisions are silent on the issue of registration.[15]

ReferencesEdit

  1. See 17 U.S.C. § 408(a), (b). Only one copy of the work is required for certain types of works, including unpublished works.
  2. Id. §408(b).
  3. See La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1198-1205 (10th Cir. 2005).
  4. 17 U.S.C. §102(a); see also id. §302(a).
  5. See 17 U.S.C. §408(a).
  6. See 37 C.F.R. §202.3(b)(i)-(iv).
  7. See 37 C.F.R. §202.3(b)(2).
  8. See 17 U.S.C. §408(c)(1) (1988); see also H.R. Rep. 94-1476, at 153, reprinted in 1976 U.S.C.C.A.N. 5769 ("[i]t is important that the statutory provisions setting forth the subject matter of copyright be kept entirely separate from any classification of copyrightable works for practical administrative purposes").
  9. Id. §408(a).
  10. Id. §411(a).
  11. Id. §410(c); Bibbero Sys., Inc. v. Colwell Sys., Inc., 893 F.2d 1104, 1106 (9th Cir. 1990). The weight to be accorded a certificate when registration has been made more than five years from the date of first publication is within the discretion of the court. Id. §410(c).
  12. Id. §412.
  13. Because either registration or the "preregistration" process satisfies Section 411(a), the term "registration" is used in below to refer to both registration and preregistration, except as otherwise noted. The term "pre-registration," including a hyphen, is used to refer to events occurring before registration. Also, Section 411 applies only to "United States works," meaning works first published domestically, or works created by U.S. nationals or "habitual residents." See 17 U.S.C. §§101, 411(a). Thus, registration is not required for civil or criminal cases involving foreign works.
  14. Section 411 refers only to "actions," a term used elsewhere in the Copyright Act to refer to civil actions, not criminal prosecutions. See, e.g., 17 U.S.C. §507 (using the term "civil action" in contrast to the term "criminal proceedings") and does not explicitly refer to criminal prosecutions. Cf. United States v. Cleveland, 281 F. 249, 253 (S.D. Ala. 1922) (holding statutory provision governing "action" not applicable to criminal case because "action" is not ordinarily used to describe criminal prosecution). But see United States v. Backer, 134 F.2d 533, 535-36 (2d Cir. 1943) (interpreting substantially identical language in the 1909 Copyright Act to require registration as a precondition to any action for infringement, whether civil or criminal because "action" includes both criminal and civil actions in other contexts); 4 Melville Nimmer, Nimmer on Copyright §15.01[A][2] (citing Backer); see also Mason v. United States, 1 F.2d 279 (7th Cir. 1924) (non-copyright case); Singleton v. United States, 290 F. 130 (4th Cir. 1923) (non-copyright case).
  15. Section 507 of Title 17, which sets forth the statutes of limitation for both criminal and civil cases, is entitled "Limitations on Actions," although §507(a) refers to "Criminal Proceedings," not "actions." Although the 1976 Copyright Act's legislative history is largely silent on the question, the Senate Judiciary Committee observed in 1988 that "registration is not a statutory precondition for criminal enforcement of copyright." S. Rep. No. 100-352 (1988), reprinted in 1988 U.S.C.C.A.N. 3706, 3743 (emphasis added). Although this isolated legislative statement came long after the registration requirement was first imposed, the legislative history appears to contain no other statements that are directly contrary. Instead, other legislative statements are at best inconclusive. See, e.g., 151 Cong. Rec. S450-01, 494 (daily ed. Jan. 25, 2005) (statement of Sen. Hatch) (stating that the Family Entertainment and Copyright Act of 2005 "will create a pre-registration system that will permit criminal penalties and statutory-damage awards [and] also provide a tool for law enforcement officials.") Moreover, that registration is not required for criminal prosecution seems to be the position of at least some past members of the Supreme Court. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 493 n.44 (1984) (Blackmun, J., dissenting on other grounds; Powell, J., Marshall, J., and Rehnquist, J. joining).

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