On September 15, 2006, Register Marybeth Peters met with the Intellectual Property Section of the District of Columbia bar and the DC Chapter of the Copyright Society to discuss recent legislative and administrative developments affecting copyright law and practice. She provided some valuable insights on several major developments. Here is a brief recap of the meeting:
- Register Peters first provided an update on the relatively recent pre-registration procedure for select classes of work. Pre-registration allows a copyright owner to sue for infringement while a work is still being prepared for commercial release. Works eligible for pre-registration are limited to the following 6 categories: motion pictures, sound recordings, musical compositions, literary works being prepared for publication in book form, computer programs (which may include video games), and advertising or marketing photographs. Pre-registration is not the end of the registration process—the claimant must file a registration within three months of publication, along with the best available copy of the work, to convert the pre-registration certificate to a registration.
Register Peters reported that only 200 pre-registrations have been issued since the procedure has been implemented, none of which have been in the sound recordings area (one of the areas for which the pre-registration system was specifically designed to protect).
- The Copyright Office is diligently working on re-designing the entire registration process to become totally electronic by July 2007. Register Peters expressed some apprehension that this date would be met. The biggest issue will be determining how and in what form to receive deposits electronically. As part of the system re-design, the Copyright Office will be looking to substantially change the regulations regarding registration to be more up to date with existing technology.
The Copyright Office raised its fees for basic copyright registrations and other filings. For instance, registration of a basic claim was raised from $30 to $45. Fees will likely be adjusted again toward the end of 2007 when the new electronic filing system is released.
- On the legislative proposal front, Register Peters provided a summary of H.R. 6052, the Copyright Modernization Act of 2006, which was introduced in the House on September 12, 2006. The proposed legislation covers three general areas: the "mechanical" licensing scheme of Section 115 of the Copyright Act as it pertains to digital music downloads; orphan works; and select amendments to certain parts of the Copyright Act that are designed to eliminate barriers to enforcing copyright protection.
Article I of the Bill proposes to revise Section 115 to establish a blanket mechanical license for all online music deliveries. Digital music services like iTunes would obtain blanket licenses from a designated agent chosen by the copyright owners. The Copyright Royalty Board would set the licensing rates and terms. Register Peters indicated that the Copyright Office opposes this piece of H.R. 6052.
Title II of the Bill pertains to Orphan Works. Title II would establish a new Section 514(a) of the Copyright Act that would limit infringement remedies if, before an infringing use began, the user was unable to locate the owner of a protected work despite performing a good-faith search. Register Peters stated that the bill essentially adopted a version that the Copyright Office had initially proposed. Industry groups are still working to resolve concerns with various aspects of the bill.
- Title III of the Act would make certain modifications to various elements of the Copyright Act that are important for copyright enforcement. One item of particular interest is a proposed amendment to Section 504(c)(1) that would give federal judges greater discretion in awarding damages. Under the current version of 504(c)(1), all parts of a compilation or derivative work are treated as "one work" for purposes of assessing statutory damages. The Bill would change this to give courts the discretion to determine that such parts are separate works if the court concludes that the parts are distinct works having "independent economic value." This could, in theory, serve as a basis for more than one statutory damages award for "one work."
Register Peters stated that there is still a lot of work to be done on H.R. 6052 so its outcome is far from certain. We will continue to monitor these and other developments affecting copyright law and practice.