On July 22, 2024, the U.S. Copyright Office finalized new procedures through which the publisher of a “news website” will be able to register the copyright in an entire month of updates to their site with a single application for a $95 fee.
Creators of Web content will remain unable to register more than 50 “works” (articles, blog posts, new or revised Web pages, social media posts, etc.) at a time, and will continue to be required to use a hugely more complex and time-consuming procedure that requires saving, labeling, and listing each new or revised work as a separate file in a different format than the way they are saved in any Web content management system. That group registration option for writers was a partial victory for NWU, but falls far short of what the law and international treaties require, what NWU and our allies had asked for, or what the Copyright Office has now done for news publishers.
Eligibility to use the new procedure for Group Registration of Updates to a News Website (GRNW) is defined to categorically exclude any use by writers or creators. Each registered work must be a “work made for hire”, which means that in the contract the writer has designated the publisher as the legal creator and owner of all rights to the work.
In addition, the new GRNW copyright registration option is available only to certain types of websites whose content is deemed by the Copyright Office to constitute “news”. This gives the Copyright Office the dangerous authority to decide what is, and what isn’t, news entitled to affordable copyright protection.
This overtly content-based discrimination between types of Web content is patently unconstitutional. Like the restriction to “works made for hire”, the restriction to “news” websites is also both entirely arbitrary and entirely unnecessary.
NWU and our allies the National Press Photographers Association (NPPA) and the National Association of Science Writers (NASW) had explained in our comments in response to the draft Copyright Office regulations that small, simple changes could make the new procedure usable by creators as well as publishers of all types of websites, not just those containing content that the Copyright Office decides is news. The changes we proposed would also have made the rules simpler and easier for the Copyright Office to administer, eliminating the need to adjudicate whether content is or isn’t “news” or “work made for hire”.
In finalizing the new rules, the Copyright Office brushed off our some of objections and entirely ignored others, such as the absence of the legally required assessments of the time and cost of complying with copyright registration formalities.
As we noted in our comments on the draft rules, the only available workaround for independent journalists who self-publish their own news websites would be to create a personal corporation, make themselves an employee of the personal corporation, and enter into an “employment” contract that defines their work as a work made for hire of the personal corporation. Few authors are likely to choose this awkward and complex course of action, which could have other negative consequences. As we said in our comments, “Who would actually do this? And why would the Copyright Office want to set up an incentive for authors to do this? We shouldn’t have to jump through hoops like this to enforce our rights.”
The only change made from the proposed rule to the final rule was one requested by publishers, allowing the PDFs of the homepage filed with the Copyright Office to be limited to 25 pages (rather than including the complete home page) if it is impossible to reproduce the complete homepage because it allows infinite scrolling. All of the changes proposed by NWU were rejected.
In short, publishers got everything they asked for from the Copyright Office, and a little more. Authors got nothing.
Eliminating copyright registration formalities is a longstanding Federal legislative priority for NWU. Making it easier and cheaper to register Web content has been and remains an important interim goal for NWU, as long as copyright registration is a prerequisite to being able to enforce our rights as creators.
Going forward, publishers will be able to register their work-for-hire news content through this new procedure, and then seek statutory damages and attorneys fees for infringement. This is likely to be especially significant with respect to copyright-infringing “ingestion” and use of masses of Web content by generative AI companies and other Web scrapers. Self-published Web content will remain prohibitively burdensome and costly to register and thus de facto fair gain for infringement.
