60 Pages Posted: 24 Sep 2019
Date Written: September 15, 2019
In March, the U.S. Supreme Court handed down its highly-anticipated decision in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC which resolved a split among U.S. Court of Appeals concerning the point in time when a copyright owner is first able to file suit against an alleged infringer. While at first glance this case may merely appear to be a simple issue of statutory interpretation, namely whether it is upon application for registration or once a determination has been made on registration by the U.S. Copyright Office, I argue this decision is a clarion call for a much-needed amendment to the Copyright Act. Although the Court may have correctly construed the registration prerequisite in Section 411(a) of the Copyright Act, I argue that neither of the two approaches before the Court was a truly appropriate option. Alternatively, I proffer the requirement of infringement must be removed entirely in order to properly account for technological changes in the methods and speed by which copyrightable works are now created, reproduced, and distributed. This will ensure that all copyright owners are able to access the courthouse without delay in accord with virtually every other area of law.
Unfortunately, as it currently stands post-Fourth Estate, most U.S. copyright owners cannot seek relief immediately upon detecting infringement of their work. Instead, they must wait the months and in some cases years for the Copyright Office to complete its review, despite the existence of federal copyright protection that attaches automatically upon creation of the work. As such, the author of an unregistered work is essentially left with a right to prevent copyright infringement, but an inability to do so. Adding to the inequities of this situation is the fact that due to treaty obligations prohibiting formalities that stand in the way of enforcing one’s copyright rights, owners of foreign works do not have to comply with this registration prerequisite. Instead, these owners can proceed directly to federal court to protect their works.
Accordingly, I advocate for complete removal of the registration prerequisite. In doing so, this Article stands in stark contrast to the recent scholarly trend in the field of copyright law advocating for more, not less, formalities associated with one’s copyright rights. This includes calls by many legal scholars for the “re-incentivization” of federal registration by taking away certain rights and the availability of particular defenses as a consequence for failing to seek an earlier copyright registration. While many of these proposals are an understandable reaction to the significant increase in both the breadth and depth of copyright rights over the past several decades, emphasizing registration is not an appropriate way to achieve balance in light of the numerous barriers to registration in its current form, especially for individual artists or smaller entities. Consequently, after examining the various arguments in support of and in opposition to the repeal of the registration requirement, this article ultimately concludes the overwhelming advantages to eliminating the Section 411(a) prerequisite outweigh any perceived or actual drawbacks.
Keywords: Copyright, Intellectual Property, Infringement, Copyright Infringement, Litigation, Section 411(a); prerequisite, Fourth Estate
JEL Classification: K39
Suggested Citation: Suggested Citation