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The Next Copyright Act – A Shortened Term?

Should the current term of copyrights be shortened? That is a rather significant topic that has been brought up in discussions over the last 10 months after Maria Pallante (U.S. Register of Copyrights) presented her “The Next Great Copyright Act” in March of 2013. In a section of her presentation titled “Thinking A Little More Boldly”, Ms. Pallante introduces the idea by saying, “Perhaps the next great copyright act could take a new approach to term…for the purpose of injecting some balance into the equation. More specifically, perhaps the law could shift the burden of the last twenty years from the user to the copyright owner, so that at least in some instances, copyright owners would have to assert their continued interest in exploiting the work by registering with the Copyright Office in a timely manner. And if they did not, the works would enter the public domain.”

Ouch. I think I have some problems with that on the surface. But first, let’s break it down and make sure we’re all on the same page. Is this really a call to shorten the copyright term, or is it more an attempt to motivate owners to keep records up to date for the benefit of the public?

Historically, copyright terms have only increased in prior copyright law revisions. The Copyright Act of 1909 defined the term of protection for 28 years, and added an additional 28 years if the song was “renewed” properly. The Copyright Act of 1976 then extended pre-1978 copyrights by adding 19 years to the renewal period, for a total of 75 years of protection. It also defined post-1978 copyrights as life of the author plus 50 years. The 1998 Copyright Term Extension Act increased the term another 20 years to a total of 95 years for pre-1978 works, and life plus 70 years for post-1978 works.

Even after the 1976 Copyright Act, works were inadvertently thrown into the public domain through inaction, or even wrong action, due to requirements that were difficult for many owners to fully understand. Years ago, I was personally involved with a pre-1978 copyright that was found to be in the public domain simply because a copyright notice had not been correctly affixed to a print publication by the owner during its first 28 year term. And in multiple cases, I’ve worked with pre-1978 copyrights that entered the public domain because the renewal application had either not been filed in a timely manner during the 28th year, or the form was simply not filled out correctly. The law was then updated to prevent some of these “premature” losses to the world of public domain, including a change effective 1992 where renewals were considered automatic and valid even if an actual renewal application was not registered in the Copyright Office. There are some benefits defined in order to entice owners to actually file paper renewal registrations (Circular 15, Renewal of Copyright), but the benefits were not that significant, and didn’t seem to make much of a difference in motivating owners to file.

So what influenced congress to change this law requiring owners to file an actual renewal application? One was a testimony by Jacqueline Byrd, the widow of songwriter Robert Byrd, author of “Little Bitty Pretty One”, a 1957 hit song, who told the legislatures she intercepted a letter from the Copyright Office to her husband, who was dying of cancer at the time, that the office had not received a renewal application for his hit song in the 28th year, and that royalties will stop being paid because the song is now in the public domain. Mrs. Byrd never told her husband, who died shortly afterward. Had the song been renewed properly, she and her four children would have been able to receive royalties on the song through 2037. Lawmakers made the right decision, and got rid of the necessity of timely registration that many times had to be understood and completed by family members who had no idea of this critical copyright requirement.

Think about the fact that the actual owners of a copyright nearing its last 20 years are not the authors, but likely the spouse, children, or even grandchildren. These people simply don’t know what needs to be done. And why, or how, would they? We’re potentially putting an undue burden of understanding technical and complicated registrations on a person who just received ownership in a copyright either by will, or even in the absence of one, simply by the death of a spouse, parent or family member. How would we expect them to understand something that most publishing industry people struggle to grasp effectively?

In a statement published January 17, 2014 by Pamela Samuelson, Faculty Director of the Berkeley Center for Law & Technology, she referred to consensus during a 2013 conference entitled “Reform(aliz)ing Copyright for the Internet Age”, where the speakers concluded that “the formalities regimes of the past – the “traps for the unwary” – should not be reintroduced, but that a formalities regime of the future should take full advantage of the technological advancements that can functionally achieve the same (or better) results of past regimes without imposing a significant burden on creators or owners.” I like that phrase – “the traps for the unwary”. We were able to get rid of some of those “traps for the unwary” over the last few decades. Let’s not go backward.

But maybe this notion introduced by Ms. Pallante is not so much to shorten the term, but rather an attempt to motivate owners to keep records up to date for the benefit of the public. After all, she says, referring to this section, “We believe further consideration of this proposal…would serve to improve the functioning of our copyright system.” I sat down with a group of attorneys and key staff in the Copyright Office a few months ago and brought this very issue up. The response I received, although a little vague, seemed to confirm the thought that this is more about motivating heirs to keep records up to date, as well as streamlining Copyright Office operations, rather than promoting shorter terms.

Now, I believe in motivation. A carrot on a stick is not a bad strategy. But this seems more like a grenade on your butt. Rather than motivating copyright owners to move forward and receive a reward, they would be pushed from behind (blindly in many cases), and the result could be end of life (so to speak) without even realizing there’s a bomb back there. I think we can figure out a better way rather than introducing “traps for the unwary” with the consequences of “end of life”.

Now hang with me as I introduce one more thought into this discourse.

What truly motivates people? One of the obvious answers is money. If I move to a new home, I realize I need to update my information to people or companies who have my address on file. But the first ones I’m going to be motivated to update would be those who send me money. I don’t want to jeopardize that pipeline. I’ll then try and remember everyone else who has my information, but I’ll probably construct that list based on mail I’ve received in the last year or so; bills, memberships, notices, etc. The entities I’ll probably miss are the ones I haven’t heard from or dealt with in years. I’ve forgotten that they have my information, because we haven’t interacted with each other in ages.

Most song owners receive income for active songs on a somewhat regular basis. Those are the first “sources” they would be motivated to notify of a change in address, ownership, or payment methods. How often do these people correspond in any way with the Copyright Office?

The Copyright Office is an entity that attempts to keep valuable information up to date. However, it is not a “dynamic” entity in that it does not communicate with the copyright owners on a regular basis. While it may attempt to maintain dynamic and up to date records, much of what exists is “static” information. If this information is filed one time, and remains the same for 95 years, there is no need for further communications. The dynamic entities are those who ultimately make royalty payments to the owners. So would we be better served if this information was retained and maintained by a kind of “dynamic” entity? When the U.S. Copyright Office was first established in the late 1800’s, it was a central place where claims were recorded and physical copies of information were collected and maintained. Now that much of that information is digital and maintained “in the cloud”, do we still need to follow the old, physical, and static, model to maintain up-to-date ownership information?

A recommendation included in the statement published by Pamela Samuelson and The Berkeley Center for Law & Technology (mentioned above) suggests, “The Copyright Office should transition away from being the sole registry for copyrighted works and toward certifying the operation of registries operated by third parties, both public and private.” It further suggests the Copyright Office set the standards and specifications for such private registries, with the hope that this would create an environment of competition which could “lead to lower costs and innovations in registry design.” While I may not agree with everything Ms. Samuelson’s group suggests, this one is interesting.

The bottom line for me is the new copyright law should NOT introduce new “traps for the unwary” with the consequences of “end of life”, but rather open up the possibility of new “dynamic” registries, under the standards and specifications of the Copyright Office, and introduce new ways to motivate owners to keep registrations and information current. That’s more of a direction than a solution at this point, but that’s where the wisdom of the crowds comes into play.

What do you think?

John Barker

ClearBox Rights, LLC

© 2014 John Barker.  All rights reserved.  Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice.  Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

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Is Copyright Registration Necessary? (Part 3)

It is possible you could be missing certain royalties for your songs because you haven’t registered the copyright in the U.S. Copyright Office.

In Part 1, I answered the question, “Is copyright registration necessary for copyright protection”? The answer is a simple “no”. Copyright protection exists as soon as the song is put into any tangible form. In Part 2, I went over some of the advantages of registering your copyrights, which are 1) making a public record, 2) creating “prima facie evidence”, 3) the necessity in order to file an infringement suit, and 4) the ability to receive statutory damages and attorney’s fees. In this next and final Part 3 on registrations, I’ll address the ability, or lack thereof, to receive certain royalties for your copyrights.

The “Compulsory License” was first introduced in the Copyright Act of 1909, with the intent of making licenses more easily available for mechanical piano rolls, and the newly introduced phonorecord cylinders and discs. However, the practice throughout the years has been that most users of copyrights would negotiate a mechanical license, rather than jump through the numerous legal hoops defined in Section 115 necessary for such a compulsory license. (We’ll get into the details and terms of compulsory licenses in a later blog). The compulsory license was a little used clause for most of 100 years. In fact, Mary Beth Peters, the acting Register of Copyrights, testified to a subcommittee of Congress in 2004 that “Up to this day, very few notices of intention (for compulsory licenses) are filed with the Copyright Office”.

Then along came the increased activities of digital music delivery sites. With these digital providers attempting to clear millions of songs in order to launch their services, they began hiring “License Agents” to file for and administer compulsory licenses for their digital music offerings. They did this by having the License Agents send a “Notice of Intention” (NOI’s) of the use in order to comply with the compulsory license as defined in the Copyright Law.

However, a little noticed clause in Section 115(c)(1) says, “To be entitled to receive royalties under a compulsory license, the copyright owner must be identified in the registration or other public records of the Copyright Office. The owner is entitled to royalties for phonorecords made and distributed after being so identified, but is not entitled to recover for any phonorecords previously made and distributed.”

So, according to the law, even though your song has been published (which is a requirement before a compulsory license is available), and you may have earned significant income from your song, and even though your song may be well known and identified in many public records, until your copyright is registered in some manner with the copyright office, you are not legally “entitled” to receive royalties from compulsory licenses; or even to recover past royalties earned after you register the copyright.

Having the song registered in the Copyright Office does not necessarily mean it has to have a copyright registration filed. But the law does say, “…the copyright owner must be identified in the registration or other public records of the Copyright Office.” Those “other public records” could include transfers of ownership, license agreements, termination of transfers, or other records where you, the owner of the copyright, are identified. But the law is clear that these public records must be filed in the Copyright Office in order for you (the copyright owner) to be “entitled” to receive these compulsory license royalties.

So, a song could be a number one hit on radio, or even number one on iTunes downloads, and yet have royalties legally withheld from any streaming service (Spotify, Rhapsody, etc.) which licenses their content through the practice of compulsory licenses, until the copyright and owner information has been registered in some manner in the Copyright Office.

This should be pretty good motivation for copyright owners to register, in some manner, their copyright and information in a timely manner, at least after the song has been released in some commercial manner, making it eligible for compulsory licenses.

I would love to hear any thoughts and comments from others in the industry about this practice.

John Barker
ClearBox Rights, LLC

“Education is learning what you didn’t even know you didn’t know.” – Daniel Boorstin

© 2013 John Barker. All rights reserved. Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

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Is Copyright Registration Necessary? – (Part 2)

In Part 1, we answered the question, “Is copyright registration necessary for copyright protection”? The answer is a simple “no”. Copyright protection exists as soon as the song is put into any tangible form. However, there are advantages to registering your copyrights when it comes to defending your work, which I’ll address in this Part 2.

Before I dive into that, I want to clarify something. The act of “registering a copyright” (on Form PA) is different from “recording a document” related to a copyright. The former is used to register the actual copyright, showing the authors and then current owners. The latter is simply to put in public record a document related to the copyright, which can be a transfer of ownership of the copyright, an assignment, a termination of transfer, or other types of actions. A chain of title in a copyright is found through a string of recorded documents, and not through the registration of the copyright. In other words, each time a copyright is assigned or sold, a new document may be recorded to substantiate the action. But under normal situations, a Registration of Copyright is necessary only one time, which is what we’re talking about here.

Now, on to the advantages of registering a copyright, in which I believe there are two primary areas. The first is the act of making the copyright available in public searches. While the copyright office may not be the most commonly used site people use to search for copyrights, it is arguably the safest for accurate information and the most recognized. So to make a public record of a copyright, and provide a way for others to find the copyright and the owner’s information, you may want to register it. But the real advantages to registering a copyright are in cases where you need to defend the copyright against any kind of misuse or infringement, which is the second primary area that I’ll break that down into three parts.

First, a registration becomes what is called “prima facie evidence”, which means evidence that is legally sufficient to establish a case or fact. In the Copyright Act, Section 410(c) reads, “In any judicial proceedings, the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate.” Other techniques in verifying your copyright, such as mailing it to yourself, or keeping recorded copies with dates, or other means of collecting witnesses to the fact that this was your copyright as of a certain date, can still be fine methods of eventually proving the facts. However, none may be as effective, or at least as easily proven and acceptable in the courts, as “prima facie evidence”.

Second, in the event your copyright is infringed, you cannot take the case to court until the copyright has been registered [Section 411(a)]. If you are aware of an infringement, you may immediately register the copyright. The valid date of registration will be the date stamped by the Copyright Office that your registration was received, not when the document was finally processed, which could be months later, (as long as the registration was ultimately acceptable by the Copyright Office).

Third, if you prevail in the infringement case, you are eligible, in most cases, to be awarded statutory damages and costs and attorney’s fees only if the song has been registered, and only for the infringements which took place after the effective date of registration, unless you happened to register the song within 3 months of the first publication [Section 412]. (By the way, statutory damages can be as high as $150,000.00 per infringement for “willful” infringements).

So there are advantages to registering the copyright in the U.S. Copyright Office. Are those advantages worthy of spending $35.00 – $65.00 per registration for all songs? That answer is dependent on your frame of mind and approach to these kinds of legal issues. I would say it is not a great danger to not register all your copyrights, but there is certainly a level of risk associated. I do know that most publishers and successful songwriters only register their copyrights once they are published, if at all. And if your initial decision is to not register the copyright, it can always be done at a later date. You just might miss some damages and awards for wrongful uses prior to that registration, but how likely is it that something like this might occur with your songs? Much like buying insurance, you should weigh the cost of security with the likelihood of an unpleasant event occurring. But now, at least you should be making a more intelligent choice based on your better understanding of the complex copyright law, and the risks and benefits associated with registering your copyrights or not.

Are there other advantages to copyright registrations? There are, related to what is called “compulsory licensed uses” and collecting certain royalties, which we’ll address in Part 3 next week.

John Barker
ClearBox Rights, LLC

“If you steal from one author, it’s plagiarism; if you steal from many, it’s research.” – Wilson Mizner, US playwright, author (1876-1933)

© 2012 John Barker. All rights reserved. Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

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Is Copyright Registration Necessary? (Part 1)

I hear this question all the time. A songwriter asks, “Do I need to register my song to get copyright protection?”, and then another writer will give their misinformed opinion. Here is my answer, in simple, black and white:

Registering a copyright with the U.S. Copyright Office does not provide federal copyright protection to the song.

That is not my opinion. That is a fact. Unfortunately, it is a fact that most songwriters, and many publishers, don’t get. There is a difference between “securing copyright protection” and “registering the copyright” of a song. These are two distinct events.

Before the Copyright Act of 1976, a song obtained federal statutory copyright protection only after the song was both published and had a notice of copyright affixed to it. (If no notice was affixed to the song which was “published” prior to January 1, 1978, then there was no copyright protection, and the song was considered public domain). However, the Copyright Act of 1976 changed that by stating that federal statutory copyright protection is obtained as soon as a song is fixed in any “tangible medium of expression”. [Section 102(a)]. No publishing of the work is necessary; no accompanying copyright notice is necessary; and no registration of the copyright is necessary. This means that your song is fully protected by federal copyright law the moment you write it on a napkin, record it on your smart phone, or any other means in which you put it into a tangible form. Period. That’s all it takes.

With this copyright protection, the owner now has the full and exclusive rights to reproduce the song, prepare derivative works, distribute, display, or publicly perform the song, and to give (or deny) permission to others to do any of those activities. (This includes the ability to prevent anyone from using the song under a compulsory license, which we’ll get to later).

So what does the act of registering a copyright in the U.S. Copyright Office provide? For one, it creates a public record that you claim you wrote this song as of a certain date. But the $35.00 to $65.00 filing fee per registration (depending on whether you file electronically or by paper), can be expensive, especially for developing writers who may write multiple songs per week with less likelihood of earning royalties. Remember, the song already has full copyright protection. The goal is to generate proof that this is your original work as of the date it was created without having to pay the prohibitive registration fees.

If you affix the song in some tangible medium and then put it away on a shelf somewhere for fear that someone might steal all or parts of it, then you may have a tougher time in proving that the song was created by you and actually existed as of the date that you wrote it. You want to do certain things to stack the odds in your favor that you can successfully prove it is yours. Rather than hide the song, you should make it known. The more people you play it for, the more people you create as “witnesses” to the fact that this is your song. Some people suggest mailing the song to yourself and receiving a postmark showing the date on the unopened package. That’s fine. Some will perform it and record it with a date stamp. Also good. Some may store it on a computer or in an on-line storage locker with a date. Any way you can show that the song existed, written by you, with a date attached, will provide a certain level of proof that you are the copyright owner.

As we’ve gone over, the act of registering has nothing to do with copyright protection. In fact, in Section 408(a), the law clearly states, “Such registration is not a condition of copyright protection.” So to answer the first question, “Is copyright registration necessary for copyright protection”? The answer is a simple “no”.

The act of registering the song also does not prevent the unlawful activity of copying or infringing on the song. So why would anyone need to register the copyright with the copyright office? Well, the registration does provide the copyright owner with certain abilities and advantages in defending the copyright, and also in receiving certain royalties, which are both important. We’ll cover those advantages in Part 2 next week.

John Barker
Clearbox Rights

“Get your facts first, then you can distort them as you please.” – Samuel Clemens

© 2012 John Barker. All rights reserved. Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

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