Copyright registration should be easier, less costly

At the US Copyright Office, May 8, 2018 (L to R): Edward Hasbrouck (NWU), Tam Harbert (ASJA), Cheryl Davis (Authors Guild), David Christopher (Chief of Operations, US Copyright Office), Mary Rasenberger (Authors Guild). Photo by Michael Capobianco (SFWA).

In January 2017, the NWU and three other national organizations of writers petitioned the U.S. Copyright Office to establish “group registration” procedures that would allow a writer to register multiple stories, articles, blog posts, Web pages, or other short-form works with a single form and a single fee. Since then, our petition has been endorsed by a growing list of writers’ organizations.

The Copyright Office has taken no action on our petition. Instead of reducing the burden of copyright registration, the Copyright Office has proposed to increase the fees charged to creators’ to register copyright in our works.  The proposed fee increases would be most onerous for writers of the sorts of short-form works that would benefit from the “group registration” option for which we have petitioned.

This week the NWU, Society of Children’s Book Writers and Illustrators, Dramatist’s Guild of America, and Textbook & Academic Authors Association filed comments with the U.S. Copyright Office objecting to the proposed increases in copyright registration fees, renewing our petition for rulemaking on group registration, and urging the Copyright Office to defer any action to increase copyright registration fees until they have acted on our petition and finalized new rules providing for group registration of multiple writtten works for a single form with a single fee.

The Berne Convention on Copyright recognizes copyright as a human right, and prohibits the U.S. or any other country that has ratified the traty form imposing “formalities” as a condition of copyright protection. The WIPO Copyright Treaty requires the U.S. and other countries to provide effective means of redress for all violations of writers’ copyrights.

In flagrant violation of these treaties, the U.S. requires writers to “register” copyright in each discrete “work” before we can bring a lawsuit to enforce our rights. If copyright in a work isn’t registered within 90 days of first publication, the author loses the rights to recover attorney’s fees or “statutory damages,” even if they later register the work and are successful in a copyright infringement lawsuit.

The Copyright Office is proposing to increase the fee for the most common type of copyright registration from $55 to $75. As we note in our comments:

The burden of the current and proposed fees… is greatest for authors of multiple short-form works that aren’t published in formats that qualify for “group registration” with a single application form and for a single fee. For authors of works in these formats, the registration fees and the consequences of any increases in fees are multiplied.

For example, an author may work for months or years on the text of a long-form work which, if first published as a single book, can be registered for $55 or possibly only $35. But if the same text is first published in a series of entries in the author’s blog, with at least one entry each day for a year, registering copyright in the same work will require a separate application form and fee for the work first published on each date. Currently, that would cost $55 times 365 days, or $20,075. The NPRM [Notice of Proposed Rulemaking] proposes to increase that to $75 times 365, or $27,375.

A writer who wants to register copyright in her Facebook and Twitter feeds and her personal website or blog would have to fill out more than a thousand registration forms a year. Under the current registration fee schedule, registering these copyrights would cost $20,075 times three, or $60,225 per year. The NPRM proposes to increase this to $27,375 time three, or $82,125 per year – far more than the annual income of all but the best-paid writers.

The current and proposed fees for registering multiple short-form works of flash fiction, poetry, or non-fiction published on the Web or in print or digital anthologies, collections, or formats that don’t fit any of the current criteria for “group registration” are similarly prohibitive….

If a website is generating only hundreds or even thousands of dollars a year in revenue, there’s no business case for spending twenty thousand dollars a year to register copyright. Only a handful of the most commercially successful websites generate sufficient revenues to be able to even consider copyright registration under the current, much less the proposed, fee schedule….

There’s one word for these registration fees: unconscionable.

We do not believe that it is fair or equitable to charge hundreds of times more for registration of otherwise-similar amounts of writing if they are broken into smaller elements (each of which is a distinct “work” for copyright registration purposes) and published incrementally over time than if they are published in a single collection on a single date….

The combination of prohibitively high registration fees, prohibitively high costs of litigation, and the requirement for timely registration as a prerequisite for recovery of attorney’s fees together create a situation in which no effective action is available under U.S. law and legal procedures for most infringements of writers’ copyrights, in flagrant violation of U.S. obligations pursuant to the WIPO Copyright Treaty.

The NWU has always opposed the U.S. copyright registration requirement as a violation of writers’ rights and U.S. obligations under international treaties. We continue to urge Congress to repeal the registration requirements in Sections 411 and 412 of the Copyright Act.

In the meantime, however, we will continue to work to mitigate the burden on writers of these internationally prohibited U.S. copyright formalities.