By Elena Kravtsoff, Esq.*
For the first time since August 1, 2009, the U.S. Copyright Office instituted a number of fee changes that took effect on May 1, 2014. Prior to instituting the changes, the Copyright Office issued a Notice of Inquiry on January 24, 2012, a Notice of Proposed Rulemaking on December 6, 2012, and reported receiving a total of 138 public comments from a “wide range of stakeholders,” including individual artists and major associations.
In its Final Rule published to the Federal Register, the Copyright Office reported that the majority of the public comments expressed concern about the fee increases that the Copyright Office proposed in the Notice of Proposed Rulemaking. In the Final Rule, the Copyright Office repeatedly emphasized that in adopting the new fee schedule, it was attempting to balance offsetting the costs that it incurs with the public interest of having a robust system containing information about existing copyright.
David Christopher, Chief of Operations at the Copyright Office, indicated in an interview with the author that the Copyright Office saw a decrease of about 3% in the number of applications received in April, May, and June of 2014 versus the same time period in 2013. Christopher said that this decrease is not surprising given that a drop in applications occurs whenever the Copyright Office changes its fee scheme, and that the number of applications will likely normalize in the next three to six months. Christopher stated that the 3% dip is less of a decrease than was anticipated by the Copyright Office and is significantly less than the 16% decrease that accompanied the 2009 fee changes. Christopher attributed this to the current two tiered registration fee schedule: While the standard electronic registration fee, which largely affects less price sensitive applicants, increased to $55, the fee an application submitted by a single author for a single work not made for hire, which typically affects more price sensitive applicants, remained unchanged at $35.
Some notable fee changes are as follows:
For a standard registration, the Copyright Office increased the online application fee from $35 to $55 and the paper application fee from $65 to $85. The Copyright Office stated that these increases will allow it to recover a larger percentage of its costs. In explaining the higher paper-filing fee, the Copyright Office indicated that applications filed online—which constitute 91% of new copyright claims—are less costly than paper applications and pointed that online applications take from two to five months to process, while paper applications take from five to eleven months.
With regard to the $20 increase to the online application fee, the Copyright Office explained that a $45 filing fee was reduced to $35 following the launch of the eCO system in order to encourage electronic filing, therefore $55 is only a $10 increase over the non-discounted filing fee of $45. While the Copyright Office had initially proposed an increase to $65 in the Notice of Proposed Rulemaking, it reported receiving public comments expressing concern about an increase, and thus decided to set the new fee at $55.
In fact, at least some commentators advocated reducing the $35 fee. Gabriel Michael, who indicated that he is a university instructor, argued that even the $35 fee is too costly and deters many qualified applicants from applying for and receiving copyright protection. A comment submitted by the Graphic Artists Guild echoes Michael’s sentiment by stating that according to a 2012 survey of graphic artists, 74% indicated that the $35 fee was too high and prevented them from registering works they would have liked to register. Many individuals who work in creative industries also submitted comments and pointed out that raising the fee during tough economic times will make it either difficult or impossible for them to register their works.
With regard to the increased paper-filing fee, the Copyright Office noted that the increase to $85 is significantly lower than the $100 fee that was proposed in the Notice of Proposed Rulemaking. The Copyright Office indicated that even though cost increases were necessary in light of budget and cost considerations, given the “significant public interest in registration, including through a paper based process,” the increases should be “more modest” than originally proposed.
For a single registration application filed online by a single author for a single work not made for hire, the Copyright Office left the fee at $35. The Copyright Office noted that while the Notice of Proposed Rulemaking proposed increasing this fee back to $45—the fee was reduced to $35 in 2009 in order to encourage electronic filings—it decided to keep the fee at $35, partly due to a “large number of public comments advocating for a lower fee,” including from individuals from performing and visual arts. The Copyright Office emphasized its commitment to “maintaining an affordable copyright registration system” and pointed out that if individual authors do not register and become a part of the public database, they may be more difficult to find than any other group of copyright owners.
The Copyright Office increased the electronic filing fee for group registration of published photographs or registration of automated databases that predominately consist of photographs and updates from $35 to $55, while leaving the paper filing fee at $65. The Copyright Office explained the increase of the electronic filing fee simply by stating that it was increased to be consistent with the fees for other online applications. While the Copyright Office initially proposed increasing the paper application, it decided against it after receiving comments indicating that “photographers face particular challenges with the registration process due to the large quantities of works they often create in brief periods of time.”
Finally, the Copyright Office decreased the fee for renewal application from $115 to $100 and the fee for renewal addendum from $220 to $100. The Copyright Office explained that these reductions are due to the “unique nature of renewals in the history of copyright law and recent experiences in reviewing renewal documents.” Specifically, while prior law required some copyright claims to be renewed on their 28 year anniversary in order to maintain validity for the rest of their term, the current Copyright Act no longer requires a renewal in order to maintain protection for the duration of the full copyright term. The Copyright Office indicated that apparently as a result of the new law and increased fees, over the past seven years it has been a “dramatic” drop in renewal applications. The Copyright Office recognized that “dwindling… renewal registrations diminish the public record,” which harms its mission to “serve as a robust repository of copyright information,” and lowered the fee in order to encourage renewal claim filing. The Copyright Office lowered the fee for renewal addendums—which document a work’s copyright status—in another attempt to encourage applications and benefit its public record keeping.
Copyright Office Fees: Registration, Recordation and Related Services; Special Services; Licensing Division Services; FOIA Services, 79 Fed. Reg. 56, 15910 (March 24, 2014) (amending 37 C.F.R. pts. 201 and 203), available at http://www.copyright.gov/fedreg/2014/79fr15910.pdf.
Gabriel Michael, Comment to Notice of Proposed Rulemaking, Copyright Office Fees, 77 Fed. Reg. 60, 18742 (2012), available at http://www.copyright.gov/docs/newfees/comments/02232012/gabriel-michael.pdf.
Graphic Artists Guild, Comment to Notice of Proposed Rulemaking, Copyright Office Fees, 77 Fed. Reg. 60, 18742 (2012), available at http://www.copyright.gov/docs/newfees/comments/05142012/Graphic_Artists_Guild.pdf.
Comments to Notice of Proposed Rulemaking, Copyright Office Fees, 77 Fed. Reg. 60, 18742 (2012), available at http://www.copyright.gov/docs/newfees/comments/05142012/.
About the Author: Elena Kravtsoff is an attorney based in Washington, DC. She may be reached at firstname.lastname@example.org.
Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.