In the midst of the Covid19 pandemic, individuals who own or wish to own intellectual property rights, as well as lawyers assisting them, were grappling with efforts to maintain safety protocols while meeting certain deadlines.
The Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 was introduced to address these challenges. The act, which was passed on March 27, 2020, and added to Section 710 to the U.S. Copyright Act, temporarily granted the Register of Copyrights the newfound authority to modify or extend these deadlines during the “”Emergency Period”” in an effort to relieve the difficulties brought on by the health crisis.
In this article, we examine the recent changes made by the Copyright Office under the CARES Act.
Generally, under the Copyright Act, a copyright owner is eligible to receive attorney’s fees and costs and statutory damages (“”Remedies””) for infringements if the work is registered prior to the infringement or within three months of the work’s first publication. The date of registration is the date when the Copyright Office receives the application, deposit, and fee.
To enable copyright owners affected by the pandemic to meet these deadlines, the U.S. Copyright Office announced, on January 7, 2021, that it is extending certain timing adjustments through March 9, 2021.
The modifications are as follows:
For copyright applications and deposit materials that can be filed electronically (i.e., those that do not require submission of a physical deposit), the timing provisions are unchanged.
For applicants who are able to submit an application electronically but are unable to submit a required physical deposit, a declaration or similar statement can be provided, which will state that the applicant is unable to submit the physical deposit and would have done so but for the national emergency and also present “”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, or opened after that date, the window will be extended such that the applicant will be eligible to recover statutory damages if the applicant submits the required deposit within thirty days after the date the disruption has ended, as stated by the Copyright Office.
Examples of satisfactory evidence include, but are not limited to:
A statement that the applicant is required to stay at home due to an order issued by a state or local government; or
A statement that the applicant is unable to acquire required physical materials due to the closure of the business where they are located.
For applicants unable to submit an application electronically or physically during the disruption, they may submit an application after the Copyright Office has announced the end of the disruption with a declaration or similar statement certifying that they were unable to submit an application electronically or physically and would have done so but for the national emergency, and providing “”satisfactory evidence”” in support. Upon satisfaction of this requirement, the three-month window will be suspended between March 13, 2020, and the date that the disruption has ended. Satisfactory evidence for purposes of this option includes, but is not limited to:
A statement that the applicant couldn’t access a computer or the internet; or
A statement that the applicant was prevented from acquiring or sending required physical materials for reasons such as those noted above.
The new timing adjustments also cover notices of termination under the Copyright Act. The Copyright Act requires an author to serve a notice of termination no later than two years and no sooner than ten years before the intended termination date. And the notice must be recorded with the Copyright Office.
The Copyright Office will extend the period required to issue the notice of termination and to record during the period of disruption caused by the pandemic if the author serves a notice of termination or records it within thirty days after the date the Copyright Office announces that the disruption has ended. Also, the notice/recordation of termination must be 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.
The Coronavirus Aid, Relief, and Economic Security (CARES) Act was introduced to provide copyright owners with relief, more flexibility, and protection over their works during COVID-19, among other things. The new modifications will enable an intellectual property owner to meet deadlines for the submission of applications, deposit materials, and notices of termination, provided the stipulated requirements are fulfilled.