Back in the eighties, the United States entered into the Berne Convention, a widely adopted international treaty to do away with a lot of the weird formalities that used to exist around copyright protection. Those formalities made it really easy for a content owner to lose protection, like if they accidentally published a copy of their work without the (c) symbol on it. Most of those formalities were dropped under the Berne Convention, but the United States made one glaring exception and held on to its registration requirement. One of the goals of the Library of Congress has, since its inception, to be the archivist of All Things Made By Americans, and registration is how this is done. One can certainly argue whether this goal makes any sense in the 21st. (Rick explained the reasoning behind our registration scheme in a lot more detail when he blogged about SCOTUS agreeing to take this case back in June).
But currently, the registration requirement Copyright Act reads as follows: . . . “no cvil action for infringement of the copyright in any United States work shall be institute until preregistration or registration of the copyright claim has been made in accordance with this title.” (Preregistration is an option available when you have good reason to believe a work will be infringed before the copyright registration issues, like with the wide release of a major film.) The Court was left to decide the meaning of “registration . . . has been made.” The 2nd and 9th Circuits, who handle the majority of copyright-related cases in the U.S. and whose opinions on these matters hold a lot of weight, had said that mere application was good enough. The 11th Circuit said you had to wait until the registration issued.
The opinion delves into the legislative history and a lot of the other provisions in the Copyright Act that support the holding, but in the end, it was a unanimous decision affirming the 11th Circuit’s holding that registration means registration. Merely filing an application and then rushing to the courthouse won’t work any more, not even in New York or California.
Practically speaking, this is probably not a sea change for most content owners. You likely already were in a circuit that required registration, and if you weren’t, this is mostly a question of timing. It is significant, of course, if you own lots of content and you are trying to make a decision which pieces to register, which is often a case of guessing which pieces are likely to be infringed. One stated purpose of registration is to allow the public to search for owners of copyright, but literally no one does that in the age of Google. (And even before Google, it was really really hard to do). The cost is not substantial at $35.00, but that low fee can add up quickly if you a registering a large portfolio of works. And if a content owner finds herself in a situation where she is bumping up against the three-year statute of limitations to bring an infringement suit and needs to get an expedited registration, the cost is $800. Currently, it’s averaging 7 months from the date of application to the issuance of a registration certificate.
In the opinion, Justice Ginsburg does encourage Congress to fund the Copyright Office to solve this problem of delay, but the “unfortunate administrative lag” did not persuade the Court that the Copyright Act didn’t mean what it says.
For the copyright lawyers who had clients not yet convinced that registration was an important part of protecting their work, maybe the Supreme Court can help convince them.
