Any discussion of the DMCA necessarily involves the Copyright Office, but few people know how the Copyright Office functions. Let’s take a look at this critical entity and its unusual configuration.
Copyright…With No Office
The U.S. Copyright Office has been around for a long time, although not as long as the Copyright Act itself, which was enacted in 1790. Originally, there was no Copyright Office to register copyrights with. Copyrights were, instead, recorded in federal district courts around the country. The problem with this approach, of course, was Bob Hatfield didn’t know what Jon McCoy had filed in Knoxville, Tennessee, and Jon didn’t know what Bob had filed on that one wild weekend in Branson, Missouri…and we know how that worked out.
In 1870, the process was centralized under the supervision of the Library of Congress. Since 1897, the U.S. Copyright Office has been a separate department of the Library, with a Register of Copyrights appointed to be in charge of the Office and its functions. The Register may sound like an evil robot from the future, but it is actually a person. Famous people filling the Register position through time include Thorvald Solberg, Richard Crosby De Wolf, Elvis Presley, That Guy From Game of Thrones, and Ivanka Trump. Okay, maybe not those last three, but De Wolf was a real Register. Just wanted to see if you were still with me here.
Why the Library of Congress? If you’ve ever registered copyright, you already know the answer: a copyright application has traditionally required the submission of two physical copies of the material under what’s known as the “Mandatory Requirement” registration…err, requirement. Where better to store that enormous volume of material than the world’s largest library? It was that or Dr. Frankenstein’s basement, a questionable proposition as this home video reveals:
You’d be right to think that cataloging and storing of works submitted for copyright protection would require not only a ton of space but a large staff. The original staff consisted of 40,000 gilded monkeys with wings on skates, but then an unfortunate “accident” involving the head Register and a terrorist named Dorthy put an end to that. These days, about 400 people currently work in the Copyright Office. They are not matronly librarians [or smoking hot ones depending on your personal fantasies] guarding huge stacks of books and maintaining rows and rows of file cabinets, as may have been the norm in the pre-computer age.
The Office is now fully computerized. All works submitted since 1978 are cataloged electronically in a database that’s available online, although the old pre-1978 Copyright Card Catalog holding 45 million separate registration cards still exists. Think about that. Some poor souls filled out registration cards 45 MILLION times. The majority of employees these days spend their time processing the nearly 500,000 copyright applications filed each year and examining submissions of books, photos, and electronic media like DVDs and CDs to ensure that they meet all legal requirements and are eligible to be copyrighted.
In today’s world, physical copies aren’t always practical or even possible. Naturally, the Copyright Act never anticipated the existence of websites, let alone the ability or need to copyright them, so operations of the Copyright Office had to adapt to new realities. If you’re copyrighting material that’s only been published online, you can submit a .pdf file in order to satisfy the Act’s “Mandatory Requirement” section. Submitting modern removable media like thumb drives, unfortunately, still isn’t acceptable, although CD-ROMs are fine.
The good news is that it’s simple to provide a .pdf file since the Copyright Office now accepts applications for all copyrights online. In fact, the Office encourages online submissions with lower fees ($35 vs. $65) and faster processing times than for material submitted via mail. How much quicker? It will take 6-8 months for the Copyright Office to send you an official registration if you file online, but the process can take 8-10 months for those sending in a printed form and payment by mail.
How about that for efficiency?
Bear in mind that the clock only starts ticking once the Office has received everything that’s required, including hard copies of the protected work being submitted. However, the copyright takes effect on the date that processing begins, so once everything’s been sent to the Copyright Office the © symbol can be used on all published versions of the work.
Why Certify?
You’re probably aware that it’s not even necessary to clear all of these hurdles in order to claim that your work is copyrighted. An original work is automatically protected under copyright law as soon as it’s published, and no certification from the Copyright Office is required.
Where certification becomes crucial is if someone infringes on your copyright. You need to have a registered copyright before you can file suit. No registration, no lawsuit, and no lashes for the swine thief.
The good news is there is another benefit to registering if you do so within 90 days of the creation of the work. If you were to bring suit against someone else for copyright infringement and win your case, you’d typically only be guaranteed compensation for the actual damages you’ve suffered and can prove, such as lost book sales or lost music licensing fees, plus excess profits the infringer may have earned. U.S. copyright law also specifies so-called “statutory” damages from $200 to $150,000 per infringement depending on intent as a penalty for those who’ve unlawfully published works that have been copyrighted by someone else. But those damages are only awarded if the works had previously been protected with a certification from the Copyright Office applied for within 90 days of completion of the work; no copyright certification, no payoff. Similarly, a plaintiff can only recover legal fees if the lawsuit if their copyright has been certified.
Why all the confusing rules? The Copyright Act is over 200 years old. The Copyright Office clocks in at over a century. Let’s be honest. They’re winging it. What really needs to happen is for someone to come in, void all the rules, and start again. Revolution! Librarians – to me!
You may have noticed earlier that “the majority” of Office employees process applications and examine submissions. What do the rest do? Well, since the Library of Congress is actually part of the legislative branch, some employees advise House and Senate members on copyright issues and do research for them. Other employees meet with industry officials, lawyers and others involved in copyright law, or staff the International Copyright Institute, which is operated by the Copyright Office and trains officials from other nations to run their own copyright services. And of course, some staffers deal directly with inquiries from copyright holders or the public.
There’s one other operation staffed by the U.S. Copyright Office: the DMCA agent registration system.
The Digital Millennium Copyright Act And The Copyright Office
The Digital Millennium Copyright Act (DMCA) was enacted in the late 1990s to both address the concept of copyright in a digital world and abide by a few international treaties. In general terms, the law establishes procedures that owners of copyrighted content can use to stop others from appropriating that content and using it online without permission. The Copyright Office was the natural choice to deal with some of the nuts and bolts of the DMCA since it was already charged with ruling maniacally over the world of copyright. Tacking on authority over the DMCA was easy-peasy.
As you likely know by now [or you wouldn’t be visiting this site], the DMCA contains a “safe harbor” provision. A service provider (YouTube or any site allowing user-generated content ) is exempted from legal responsibility for copyright infringement claims based on content uploaded by users. Of course, there’s always a price. [I really should’ve thought through the my-soul-for-a-bottle-of-Gatorade-the-morning-after-New-Years deal I made with that horned bloke.] In the case of the DMCA, a strict compliance process must be followed when a copyright owner submits an infringement complaint to the site or app. One aspect of that compliance process is registering an agent to receive complaints with the Copyright Office. An agent with the gadgets of James Bond, the abs of the Rock, and the good looks of Brad Pitt. An agent like us, for example.
The Copyright Office has often been criticized for being out of touch. The criticism has certainly been justified when it comes to the field of the DMCA. Although the DMCA was enacted in 1998 and solely addresses online copyright issues, the Copyright Office took 18 years to finally launch an online designation system for DMCA agents. The “DMCA department” at the Copyright Office now consists primarily of programmers who make sure the online system is functioning. And prior to 2016? A single woman named Sue handled all filings from around the world. Nice lady.
And there you have it. Probably more than you ever wanted to know about the Copyright Office, but a good foundation for understanding how the entity came to be and functions. Reciting this information is also an excellente’ way to get your annoying uncle to leave you alone at Christmas.
Rick Chapo