Rulemaking on works entitled to copyright preregistration
The Copyright Office has issued a Notice of Proposed Rulemaking relating to "Preregistration of Certain Unpublished Copyright Claims", Download file.
The Artists' Rights and Theft Protection Act of 2005,Download file, amended Section 408 of the Copyright Act to permit pre-registration of certain classes of works that the Register of Copyrights determines "has had a history of infringement prior to authorized commercial distribution." The effect of this is to permit infringement claims, and related benefits of statutory damages and attorney's fees, to be pursued based on unauthorized pre-release distributions.
The Register of Copyrights issued a Notice of Proposed Rulemaking published on July 22nd, in which it has identified motion pictures, sound recordings, and musical works embodied therein, as having a history of pre-release infringement and therefore being eligible for these pre-registration benefits.
The proposed classes are:
1. Motion pictures subject to theatrical distribution contracts with established distributors of motion pictures;
2. Sound recordings subject to contracts for distribution of physical phonorecords with established distributors of phonorecords; and
3. Nondramatic musical compositions performed in sound recordings subject to contracts with established distributors of phonorecords.
Comments are sought “as to whether the proposed classes are underinclusive or overinclusive, keeping in mind that the only works that are to be included are works being prepared for commercial distribution and that the Register is to designate only classes of works that have a history of pre-release infringement.” This could mean that it ends up being legislation that specifically benefits entrenched media interests.
The NPR also seeks public comment as to whether other classes of works should receive this designation, so proponents for any other types of works should make themselves known. According to the NPR, "Of primary importance, then, is the Register's determination of the boundaries between classes of works that are eligible for preregistration and those that are not. Preregistration is limited to unpublished works being prepared for commercial distribution in a class of works that have already experienced more than a few instances of pre-release infringement."
According to the NPR, "the Office seeks comments on whether there are additional classes of works that have a history of pre-release infringement. Proponents of a class of works should be prepared to document more than 'a few instances' of pre-release infringement. . . . Proponents of any class should be prepared to demonstrate that there is a substantial history of pre-release infringement which is likely to continue, causing harm to copyright owners that can be ameliorated by permitted preregistration of such works."
According to the Copyright Office's interpretation of relevant legislative history, the particular class of copyrighted work should be a narrow and focused subset of the broad categories of works of authorship that are identified in the Copyright Act.
The comment period extends until August 22, 2005. This appears to be a one-time shot to secure this protection (the statute requires that the regulations be in place by October 24, 2005), or at least we did not see any statement contemplating subsequent rulemaking to consider new classes of works.
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