The Copyright Office Response to the COVID-19 Outbreak

Schnader Harrison Segal & Lewis LLP

On March 31, 2020, the Acting Register of the United States Copyright Office announced that she will exercise her authority under section 710 of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to adjust certain timing provisions in cases where compliance would have been possible but for the national emergency caused by the COVID-19 outbreak. Since then, the Copyright Office has made several such adjustments, and has expanded the rules on electronic submissions.

Time Adjustments

The Office recognizes that the stay-at-home orders issued by various state governments and the resulting closure of physical offices, including the Library of Congress Offices, have significantly disrupted the functioning of the copyright system and the ability of authors, copyright owners, and licensees to submit physical materials required under the Copyright Act. To mitigate the effects of the disruption, the Copyright Office will either temporarily toll or extend the time in which those physical materials may be submitted, provided that the party claiming the time adjustment can satisfy certain requirements.

The time adjustments apply to the following types of required submissions:

  • Physical deposit copies;
  • Notices of Termination relating to transfers of copyright interests and their recordation;
  • Notices of Intention and Statements of Account relating to compulsory licenses to make or distribute phonorecords of a musical work.

All parties seeking to make use of the time adjustments must submit the physical material within thirty (30) days of the date the Acting Register declares the disruption to have ended. In addition, the party must submit a declaration certifying, under penalty of perjury, that the party was unable to make the required submission and would have made the submission but for the disruptions due to the national emergency. The declaration should include an explanatory statement and satisfactory evidence in support of the certification, for example:

  • A statement that the applicant is subject to a stay-at-home order issued by a state or local government;
  • A statement that the applicant did not have access to a computer and/or the internet; or
  • A statement that the applicant is unable to access required physical materials due to closure of the business where they are located.

In addition to the above, further specific requirements applicable to each type of physical submission must be met by the party seeking to invoke the time adjustments.

For now, these timing adjustments are effective until May 12, 2020. Due to the changing nature of the pandemic, the Acting Register may conclude that the disruption due to the national emergency has ended prior to that date, or that further extensions of time are necessary.

Additional Allowances for Electronic Submissions

The Copyright Office has additionally established interim rules to address the effects the temporary closure of the Office has on the examination of applications accompanied by physical deposits. For applications filed prior to April 2, 2020, a registration specialist will contact the applicant and offer the option to upload an electronic version of the deposit copy to facilitate remote examination. If the applicant declines to use this option, the claim will be examined when in-Office examination can resume. If the applicant accepts the option, an electronic deposit copy and a declaration form stating that the electronic copy is identical to the physical deposit copy must be submitted.

For applications filed after April 2, 2020, that require the submission of best edition physical copies of the deposit, applicants will have the option of uploading an electronic copy of the work in addition to mailing the physical copy. The applicant must use the declaration form provided by the Office to state that the electronic copy is identical to the physical deposit copy that will be submitted along with a shipping slip generated in electronic Copyright Office. If the applicant makes use of this option, the application will be examined remotely once the Office receives the application, the fee, the electronic deposit copy, and the declaration form. If the applicant cannot or decides against using this option, the application will be examined when in-Office examination can resume.

The Copyright Office has also expanded electronic submissions so that applicants, who may have difficulty sending physical mail during the national emergency, may submit by email certain filings that were required by regulations or practice to be in physical form. These submissions include notices of termination for recordation, requests for reconsideration of refusals to register, and requests for removal of personally identifiable information from the public record.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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