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September 26, 2018

Copyright Registration

The ABA filed an amicus brief with the U.S. Supreme Court Sept. 4 in the Fourth Estate Public Benefit Corp v. Wall and Jerrold D. Burden copyright law case, arguing that copyright owners are entitled to seek recourse against infringers in court after sending in their copyright applications to the Copyright Office and do not have to wait until the Copyright Office acts upon that application. The Fourth Estate case will decide which standard is to be used to determine when registration of a copyright claim has been made within the meaning of 17 U.S.C. §411. Specifically, the ABA supported the “application approach” for copyright registration, which the association maintains better reflects the text of the Copyright Act. Under the application approach, copyright holders are permitted to enforce their copyrights immediately after submitting to the Copyright Office a complete set of registration materials, which include the application, deposit and fees. According to the ABA brief, this approach serves U.S. authors and the judicial system at large better than the “certificate approach,” which requires copyright holders to wait to seek relief for copyright infringement until a certificate of registration is issued or refused by the Copyright Office. The ABA brief notes that the processing of a certificate of registration by the Copyright Office may take between three and 28 months. The brief also explains that there is a discrepancy between when U.S. authors and foreign authors may file infringement lawsuits under the Berne Convention for the Protection of Literary and Artistic Works. Foreign authors are exempt from the Copyright Act’s requirement that a copyright must be registered before an infringement suit can be filed, which puts U.S. authors at a disadvantage. "The application approach reduces the burden of this registration formality and lessens discrimination against the owners of copyrights in U.S. works," the brief maintained.