The U.S. Copyright Office issued a proposed new regulation at the behest of the Authors Guild and other author groups that would permit writers to register groups of short literary pieces (such as blog posts or articles) published within any 90-day period. Such a group registration would be vastly cheaper and more efficient than registering each work individually, especially for freelance journalists and authors who write a great number of short pieces in a quarter. On February 19, 2019, the Authors Guild filed comments with the Copyright Office on the proposed regulation.
Although writers can currently register as a group “works … first published as contributions to periodicals, including newspapers, upon the filing of a single application and fee,” the Copyright Office does not allow most online works to be registered under that group as it does not consider them to be “contributions to periodicals.” This means that online works and other works that do not fit the Office’s narrow definition of “contributions to periodicals” must be registered individually, each with a separate fee of $35 or $55. The result is that most freelance writers do not register their works before their copyrights have been infringed and, as such, forgo judge-awarded statutory damages (and instead have to prove actual damages) and attorneys’ fees. The Authors Guild believes its members should have the right to easily and inexpensively register their works so that writers can effectively enforce their rights when they are infringed.
We met with the Copyright Office last year to describe why we needed this regulation and what it might look like. The Office took most of our suggestions, but not all. In our comments to the Copyright Office on the proposed regulation, we recommended several changes that would make it clearer and even more cost-effective for authors. For example, while the proposed regulation would permit an author to register 50 works published over a 90-day period in one group, we recommended increasing the maximum number of works to 100; because some authors post daily blog posts, this would permit them to register a group of 90 works in a 90-day period. (We concurred with the 90-day period because the law requires that works must be registered within 90 days of publication to receive the benefits of statutory damages and attorneys’ fees.) We also recommended increasing the maximum number of words in a “short” piece from 17,500 to 40,000, since freelance journalists can write pieces of more than 17,500 words in length and contributions to fiction anthologies might be as long as 40,000 words. Conversely, we suggested lowering the 100-word minimum to 50 words, which would allow group registration of short blog posts and poems.
Additionally, we raised some long-standing legal issues with the Copyright Office—specifically with respect to the regulation’s “publication” requirement. We pointed out that it can be legally unclear what works are deemed “published” on the internet, and that the “publication” requirement was unnecessary for the purposes of this group registration. We also asked that all requirements for this group registration be spelled out explicitly in the application, and that where there are discrepancies or errors in an application, rather than rejecting the application, the examiner should reach out to the applicant to see if the problem can be resolved. Authors should not have to be legal experts to register their copyrights.
Once the regulation is promulgated and becomes law, the Authors Guild will offer a service to file these registrations on behalf of authors.
A copy of our comments in full is set out below.