The Coronavirus Aid, Relief, and Economic Security (CARES) Act, passed on March 27, 2020, added Section 710 to the U.S. Copyright Act, which provides temporary authority to the Register of Copyrights to "toll, waive, adjust, or modify any timing provision . . . or procedural provision" in the Copyright Act if a national emergency declared under the National Emergencies Act "generally disrupts or suspends the ordinary functioning of the copyright system." This temporary authority provides copyright owners with more flexibility and protection over their works during COVID-19 and will remain in place through July 10, 2020. In this article we discuss the key changes made by the Copyright Office under the CARES Act.
Filing of Applications and Deposit Materials Under Section 412
Generally, under Section 412 of the Copyright Act, a copyright owner can receive statutory damages for infringement only if the work is registered prior to the infringement or within three months of the work's first publication. Pursuant to Section 710, the Copyright Office has temporarily extended certain deadlines under Section 412 for copyright applicants who cannot access physical deposit materials or mail services as a result of COVID-19. The modifications are as follows:
- For applications and deposit materials that can be filed electronically: There are no changes to the timing requirements of Section 412.
- For applicants who are able to submit electronic applications, but are unable to send required physical deposit materials: Applicants have 30 days after the date the COVID-19 disruption ends to submit the physical deposit. Applicants should submit an electronic application with a declaration, under penalty of perjury, that he/she was unable to submit the physical deposit and would have done so but for the COVID-19 emergency. The application must also include supporting factual evidence, such as a sworn statement that the applicant is subject to a stay-at-home order or was unable to access the required physical materials.
- For applicants who are unable to submit applications electronically or physically: Applicants can submit the application at the end of the COVID-19 disruption and must include a declaration, under penalty of perjury, that he/she was unable to submit an application electronically or physically and would have done so but for the COVID-19 emergency, along with supporting factual evidence. If the declaration is deemed sufficient, the three-month filing window under Section 412 will be tolled between March 13, 2020, and the date of the COVID-19 disruption. The Copyright Office will then annotate the registration record to reflect that the applicant was affected by the national emergency.
Notices of Reclamation and Termination under Sections 203 and 304(c)
Generally, under Sections 203 and 304(c), authors may reclaim or terminate rights previously transferred to another party within a five-year window. Before terminating another party's rights, authors are required to serve the other party with a notice of termination no later than two years and no sooner than 10 years before the intended termination date. The notice of termination must be recorded with the Copyright Office.
Pursuant to Section 710, where the five-year termination window is closing or the deadline to record the notice of termination is drawing near, authors have 30 days after the COVID-19 disruption ends to serve and/or record notices of termination. The notice of termination must include a declaration under penalty of perjury that such notice would have been timely but for the COVID-19 emergency. The notice must also include supporting factual evidence, similar to that required for copyright applications and physical deposits described above.
If you have questions or need assistance protecting and maintaining your copyrights during this time, please contact one of Venable's Intellectual Property Division attorneys.