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Copyright Office Solicits Comments on Deferred Examination Option

The US Copyright Office announced a public study to evaluate the merits of providing an option to defer examination of copyright registration materials until a later request by the applicant. Deferred Registration Examination Study: Notice and Request for Public Comment, 86 Fed. Reg. 70540 (Dec. 10, 2021). To aid in the effort, the Copyright Office is soliciting public comments, which are due by January 24, 2022.

Copyright protection automatically attaches to an original work of authorship as soon as it’s created and fixed in tangible form. Although registration is optional, the US Copyright Act provides significant incentives to encourage registration, which only occurs after the Copyright Office examines the work and determines that it is copyrightable. This process can often take many months. In 2019, the Supreme Court of the United States held that a lawsuit for copyright infringement can be brought only after the Copyright Office registers the copyright. Fourth Estate v. Wall-Street.com, Case No. 17-571 (US March 4, 2019) (Ginsburg, Justice).

There is currently no option to delay or defer examination of submitted application materials. In an effort to modernize its technological infrastructure, the Copyright Office has previously solicited public input concerning the registration process. Respondents have submitted various proposals involving a deferred examination proceeding, some of which included:

  • Allowing applicants to submit application materials at a discounted fee

  • Delaying examination but still intaking information about the work into the public catalog

  • Allowing formal examination to determine whether the work should be registered at a later time for an additional fee

  • If the work is registered, attaching statutory benefits with an effective date of when the original materials were received.

Commenters have indicated that benefits of permitting deferred examination include more registrations, more timely registrations, expansion of the public record, improved efficiency by removal of the examination step, decreased processing times, lower expenses and more deposits available for the Library of Congress’s collections.

In May 2021, Senator Thom Tillis, the ranking member of the Senate Judiciary Subcommittee on Intellectual Property, sent a letter to the Copyright Office requesting a study on the feasibility, benefits and costs of creating a deferred examination option for an application, including whether an applicant can obtain an effective date of registration upon submission and deposit while choosing to defer examination until a later time. He also asked the Copyright Office to consider whether statutory changes might be necessary to enable such an option.

In order to assess the viability of including a deferred examination option, the Copyright Office is inviting written comments on various subjects, including:

  • The deficiencies in the current registration process

  • The potential benefits and drawbacks of a deferred examination option

  • The possible legal or regulatory framework for the option

  • The impact of such an option on the Copyright Office, the Library and the ability to bring a lawsuit based on Fourth Estate

  • Whether the same goals that deferred examination is meant to achieve could be accomplished through alternative means.

All comments must be submitted by 11:59 pm EST on January 24, 2022.

© 2022 McDermott Will & EmeryNational Law Review, Volume XI, Number 357
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About this Author

Amol Parikh, McDermott Will Emery, Chicago, patent lawyer, Intellectual Property Litigation Attorney
Associate

Amol Parikh is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm's Chicago office.  He focuses his practice on IP litigation, counseling and prosecution. Amol has been recognized as a 2011 Illinois Rising Star in Intellectual Property by Law & Politics.  Rising Stars are lawyers under the age of 40 that have been in practice for 10 years or less.  No more than 2.5 percent of the lawyers in Illinois are named as Rising Stars.

Amol has...

312-984-6477
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