Jan 29 | 2020

Copyright Office to Clarify How to Determine Whether an Online Work is Considered Published for Registration Purposes

The U.S. Copyright Office seeks public comments to help the Copyright Office clarify what constitutes a “published” online work.  Comments in response to the Notice of Inquiry Regarding Online Publication are due March 19, 2020.

All works registered with the Copyright Office must be identified as published or unpublished.  The U.S. Copyright Act defines the act of publication as “the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”  17 U.S.C. 101.  Publication includes the actual distribution of copies of a work or the offer to distribute copies to others for purposes of further distribution, public performance or public display.  Public performance or display, without distribution, is not publication. 

Why This Matters

Determining whether a work is published or unpublished matters for several reasons, including:

  • Published status can affect the validity of a copyright.  Registration of a work before publication or within five years of first publication constitutes prima facie evidence of the validity of the copyright and the facts on the registration certificate.  Applicants who determine their works are unpublished can register the copyright long after the five-year window associated with published works.
  • Published status affects the timing of when a copyright owner can recover statutory damages and attorneys’ fees.  An applicant must register a work within three months of first publication, or, if the work is unpublished, before the infringement occurs. 
  • Published status affects the term of copyright.  Works made for hire are registered for 95 years from the date of publication or one hundred twenty years from the date of creation, whichever is shorter.  Treating online works as unpublished could extend copyright protection for 25 years.
  • Published status affects how photographers can register collections.  Groups of up to 750 photographs can be registered together in a single application under certain circumstances, but those collections must either all be published photographs or unpublished photographs.  The Office does not allow a mix to be registered in one group.

Many Questions, Few Answers

The definition of “published” was easier to grasp in the analog era, but today’s digital world – and the ease by which content can be shared online – raises questions that the Copyright Office and courts are struggling to answer.  Under current Office guidelines, an online work is considered published if it is made available online and the copyright owner authorizes the end user to retain copies of that work by downloading, printing or some other means.  A “Download Now” button is an expression of intent that the work is published, but many websites lack such a clear expression of intent.    
Courts Weigh in But Provide Little Guidance

A lack of consensus among the courts further muddles the picture.  Some courts have held that just posting a work on a publicly accessible website constitutes publication because internet users are able to make an indistinguishable copy of that web page and can right-click and save a copy to gain a possessory interest in it.  But those decisions seem to place too much weight on the technical capabilities that technology affords us to copy someone else’s website content and overlooks the fact that publication without the copyright owner’s permission would be an infringement. 

Other courts, especially the Southern District of New York, where many copyright cases are decided, have held that merely posting a digital file on the internet does not constitute publication because the act of posting does not involve the statutorily required act of transfer of ownership, rental, lease, or lending.  The U.S. Court of Appeals for the Eleventh Circuit (the only federal appellate court to address this issue) has ruled that publication is a fact-specific inquiry requiring an analysis of how the work is provided online (e.g., via email, posting on a restricted website, using a peer-to-peer network, posting to a public website).  

Questions Posed by the Copyright Office

In view of this uncertain legal landscape, the Copyright Office’s Inquiry sets forth several questions for comment, including:

  • What guidance should the Copyright Office propose to help applicants determine whether their online works have been published? The Office currently accepts an applicant’s assertion that website content is published or unpublished unless the Copyright Office finds evidence to the contrary.  One question posed in the Inquiry is whether advertising works online or through social media constitutes publication.
  • Should the Copyright Office provide a regulatory amendment or provide additional guidance on how to demonstrate authorization for others to distribute a work? For example, while most social media sites offer some sort of “share” function to easily redistribute content, does that mean all users of those social media sites have authorized the distribution of works they post?   
  • Should the Copyright Office amend its regulations to allow applicants to register published and unpublished works in a single registration?
  • Should applicants no longer be required to identify whether a work has been published and/or the date and nation of publication?
  • Should Congress take additional steps to clarify the definition of publication in the digital environment?

This blog will follow future developments on this important issue. 

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