Sep 22 | 2014

The Compendium of U.S. Copyright Office Practices III – Bridging the Gap Between Copyright Law and Our Rapidly Evolving Digital Environment

Is a monkey selfie protectable under U.S. copyright law? What about murals painted by elephants? Thanks to the U.S. Copyright Office’s August 19, 2014 release of the public draft of the Compendium of U.S. Copyright Office Practices, Third Edition (“Compendium III”), these questions can be answered instantly. The Compendium III, the first extensive revision to copyright policies and practices in twenty-five years, outlines more than 1,200 pages of U.S. Copyright Office regulations, legal interpretations and requirements, including guidance on the types of works that are copyrightable. Register of Copyrights Maria Pallante, who has been diligently working to set in motion the “next big Copyright Act,” spearheaded this long-awaited update to the U.S. Copyright Office administrative manual. The latest revision encompasses drastic changes to Copyright Office procedures for registration, recordation, and records management, including the shift from processing paper copyright applications to online applications. Importantly, it is the first U.S. Copyright Office administrative manual geared towards both internal and external use, offering invaluable insight to practitioners and the general public. The latest revision is a step in the right direction in reconciling outdated policies and procedures with the rapidly advancing digital world.

What does this mean for the copyright applicant, or one just curious about whether a monkey selfie is copyrightable? Guidance on these matters is a short press of “control” “F” away.   According to the Compendium III, the U.S. Copyright Office does not register works created by animals or by divine or supernatural beings; rather, it will only register “’fruits of intellectual labor’ that are ‘founded in the creative powers of the mind.’” The human mind, that is.

Since the enactment of the Digital Millennium Copyright Act of 1998 (“DMCA”), which reflects the latest update to statutory copyright law, copyright law has struggled to keep pace with our rapidly advancing digital world. The release of the Compendium III presents a refreshing update to outdated procedures of the U.S. Copyright Office, offering guidance to staff, practitioners, authors, and the general public in navigating the new digital environment. The latest edition reflects all statutory and regulatory updates over the past twenty-five years, including guidance on the registrability of masks and costume designs, the procedures for maintaining deposit accounts, and the procedures for appealing refusals to register works. Importantly, the Compendium III further addresses forms of expression that were not in existence at the time of the release of the Second edition, such as mp3 files, podcasts, DVDs, websites, and eBooks.

Although the Compendium III does not revise currently binding statutory law and practices, it constitutes a persuasive authority that sheds light on the legal rationale of the U.S. Copyright Office. The Supreme Court, in cases lacking statutory or judicial precedent, has looked to the interpretations of the Second edition for guidance in a number of major copyright cases. In Inhale, Inc. v. Sarbuzz Tobacco, Inc., the Supreme Court deferred to the U.S. Copyright Office’s reasoning in the Compendium II when it held that a hookah water container was not copyrightable because its sculptural features existed separately from its utilitarian aspects.

The final draft of the Compendium III will be a flexible, ever-evolving document that will allow for periodic updates to policies and procedures of the U.S. Copyright Office. The final version will take effect on December 15, 2014.

By Connie Boutsikaris, Esq.

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