The NWU and American Photographic Artists (APA) called on the Copyright Office and Congress in March 2020 to reform requirements for copyrighting works published or made available online.
Though intended for writers’ and visual artists’ to protect their works without excessive “formalities,” the US Copyright Act is still requiring authors to register each of their works, in the correct category, and within a limited time after the work was created. This leaves authors to guess whether their works are deemed “published” or “unpublished,” and in which country they were first published. If they guess wrong and later have to go to court to defend their copyright, they can irrevocably lose some of their rights, including the ability to recover attorneys’ fees or statutory damages for copyright infringement.
It’s especially difficult to register works in the correct category if they’ve been distributed only online. Neither the Copyright Act nor court decisions explicitly define whether works distributed online are “published” or unpublished,” or how to determine this. Most Web-hosting platforms are “cloud” services with servers in multiple countries, which makes it almost impossible to know the country from which copies were first distributed.
For more than 25 years, the NWU has argued that the copyright registration requirements of the Copyright Act should be repealed because they violate both US treaty obligations and the rights of authors.
In the meantime, the NWU and our allies continue to work to reduce the unfair burden copyright registration formalities on authors.
In late 2019, the Copyright Office responded to concerns raised by the NWU and allied organizations two years earlier, and opened a public inquiry into whether the Copyright Office should issue “guidance,” or should recommend that Congress amend the Copyright Act to address problems with works published or distributed online.
Second, we assert that “if registration requirements are retained, the violations of the Berne Convention and of the rights and interests of US creators can best be mitigated by legislation ‘to amend section 409 so that applicants for copyright registrations are no longer required to identify whether a work has been published and/or the date and nation of first publication,’ as suggested in the Notice Of Inquiry.”
Third, “if the Copyright Act and/or Copyright Office regulations continue to require creators to specify whether our works are ‘published’ or ‘unpublished,’ or make distinctions in rights and/or eligibility for remedies on that basis, we believe that the best interpretation of the current Copyright Act provisions is that all works made available on the World Wide Web should be considered ‘published.’ “
There will be a second round of “reply” comments from the public before the Copyright Office takes any action or makes any recommendations to Congress. The NWU and our allies will continue to advocate for elimination or minimization of the burden on authors.