The public has until May 26, 2021 to comment on the United States Copyright Office’s Notice of Proposed Rulemaking concerning expedited copyright registration procedures for the Copyright Claims Board created by the Copyright Alternative in Small-Claims Enforcement (“CASE”) Act as well as the disclosure of Board materials under the Freedom of Information Act (“FOIA”). The expedited registration procedures will likely impact the ease with which potential claimants can access proceedings. In particular, the Office is proposing that the additional fee for a new “small claims expedited registration” be set at US $50, which is far less than the current additional US $800 “special handling” fee charged for expedited registration in anticipation of litigation.
Expedited registration is likely to be an important feature of the new Copyright Claims Board proceedings. Although the Supreme Court of the United States resolved a split between federal circuit courts in 2019 by holding that the Copyright Act requires copyright registrations to issue before an infringement action may be instituted, Congress incorporated the alternative rule into the CASE Act. Board claims may be made as soon as an application to register is filed with a deposit and the corresponding fee is paid, although they will be held in abeyance until the registration is granted. To ensure that an inexpensive expedited registration mechanism is not misused, the Office proposes that it not be available until the Office has reviewed a claim, the claimant has served it on the respondent and the respondent has either opted into the proceeding or failed to opt out. Nevertheless, because the Board is in some respects best suited to handle disputes concerning infringement of unregistered works, the mechanism could be used in a significant portion of claims that would proceed to discovery, a hearing and a final decision.
Please feel free to reach out with any questions or comments about the CASE Act. If any of the above topics are of interest and you would like more information, or if you are interested in submitting public comments prior to the May 26 deadline, we would be delighted to hear from you. Meanwhile, the period for initial comments to the Copyright Office’s earlier Notification of Inquiry on a broader assortment of issues related to implementing the CASE Act closed on March 26, 2021, but the Office will continue to collect reply comments until May 10, 2021. We look forward to sharing additional updates from the U.S. Copyright Office, as well as to keeping you apprised of other intellectual property developments.
For further information regarding the content of this article, or to discuss this or other intellectual property matters, please contact any of the following Winterfeldt IP Group team members:
Brian Winterfeldt, brian@winterfeldt.law, +1 202 903 4422
David Rome, david@winterfeldt.law, +1 202 759 5833
