On March 31, the Copyright Office Register announced the waiver of important copyright deadlines in light of the disruptive effect COVID-19 is having on the ordinary functioning of the copyright system. These emergency modifications will be in effect for 60 days, unless the Register issues an announcement stating that the period of disruption has ended before that time or, alternatively, that a further extension is necessary. The most significant changes involve (1) the timing requirement for filing an application in order to qualify for certain statutory remedies and (2) the timing requirement for serving and recording notices of termination. These changes are described in greater detail below.

If you are unsure whether or how these extensions might impact your copyright matters, please do not hesitate to contact us. Pepper Hamilton remains here to help preserve your valued intellectual property assets and provide counsel through these difficult times.

Registration Timing Requirements for Certain Statutory Remedies

Under section 412 of the Copyright Act, a copyright owner generally is eligible to be awarded statutory damages in an infringement action only if the work is registered prior to the infringement or within three months of the work’s first publication. The effective date of registration is the date when the Copyright Office receives the application, deposit and fee. The timing requirement under section 412 has been modified under a tiered approach:

1. For copyright applications that can be submitted entirely in electronic form (i.e., those that do not require submission of a physical deposit), the timing provisions are unchanged.

2. If an applicant can submit an application electronically but is unable to submit a required physical deposit, the applicant should upload, together with the application, a declaration or similar statement certifying, under penalty of perjury, that the applicant is unable to submit the physical deposit and would have done so but for the national emergency, and setting forth satisfactory evidence in support. If this requirement is met, and the three-month window for registration after the date of first publication was open as of March 13, 2020, the window will be extended such that the applicant will be eligible for the remedies under section 412, provided that the applicant submits the required deposit within 30 days after the date the disruption has ended, as stated in a public announcement by the Acting Register.

3. If an applicant is unable to submit an application electronically or physically during the disruption, the applicant may submit an application after the Register has announced the end of the disruption and include a declaration or similar statement certifying, under penalty of perjury, that the applicant was unable to submit an application electronically or physically and would have done so but for the national emergency, and providing satisfactory evidence in support. If this requirement is met, the three-month window under section 412 will be tolled between March 13, 2020 and the date that the disruption has ended.

Timing Requirements for Serving and Recording Notices of Termination

Under sections 203 and 304(c) of the Copyright Act, individual authors may reclaim copyright interests previously transferred to another party in specified circumstances. In general, an author may terminate a transfer within a five-year window, provided the author serves notice on the transferee between two and 10 years before the chosen termination date. After service, the notice must be recorded with the Copyright Office.

While in many instances an author may be able to choose a termination date that falls more than two years after the COVID-19 disruption has ended, or may have already anticipated and served a notice of termination, for some grants, the end of the five-year termination window may fall in the spring of 2022, necessitating service of notice by the spring of 2020. While many authors will be able to proceed in the normal course, in some instances, authors may be unable to access the underlying agreement or otherwise comply with the requirements due to the national emergency. Other authors may be limited in their ability to record notices with the Copyright Office in a timely manner.

To ensure that these authors are not deprived of their ability to effect termination, the Acting Register will temporarily adjust the section 203 and 304(c) timing requirements to the extent they apply to persons affected by the national emergency. These adjustments will apply as follows:

• Where the termination window is expiring: The five-year window for service of a notice of termination will be extended during the period of disruption if (1) the author’s five-year termination window expires on or after March 13, 2022, and less than two years after the date the disruption ends; (2) the author serves a notice of termination within 30 days after the date the Acting Register announces as the date the disruption has ended; and (3) the notice of termination is accompanied by a declaration or similar statement certifying, under penalty of perjury, that but for the national emergency, the author would have been able to serve the notice within the five-year window, and setting forth an explanatory statement in support of that certification. This statement must also be included in the material sent to the Copyright Office when the notice is later recorded. The Copyright Office will annotate the public record to reflect this certification.
  
  When an author meets these requirements, the notice will be considered timely served under section 203(a)(4)(A) or 304(c)(4)(A). The author still would have to choose a termination date at least two years after the date of service.
• Where the window to record is expiring: The requirement that a notice be recorded before the date of termination will be waived if (1) the author has already served the notice on the transferee; (2) the termination date listed on the notice is on or after March 14, 2020 and on or before the date the Acting Register announces as the date the disruption has ended; (3) the author records the notice within 30 days after the date the disruption has ended; and (4) the recordation submission includes a declaration or similar statement certifying, under penalty of perjury, that the author would have submitted the notice in a timely manner but for the national emergency, and setting forth satisfactory evidence in support of that statement.

When an author meets these requirements, the notice will be treated as timely recorded for purposes of section 203(a)(4)(A) or 304(c)(4)(A). The Copyright Office will annotate the public record to reflect that determination.

Satisfactory Evidence Requirement

In order to qualify for the extensions described above, satisfactory evidence of delay must be submitted by the applicant (in the case of applications) or the author (in the case of terminations). The notice sets forth examples of what will be considered satisfactory evidence, such as being subject to a stay-at-home order, but does not provide an exhaustive list. We anticipate the Copyright Office giving broad application to what constitutes satisfactory evidence, but it would be prudent for applicants and authors to retain appropriate records, documentation and any other evidence in support of a claim of delay due to the national emergency.