New Copyright Law Touches on Publication and Recordkeeping Issues

By Steven Abreu. A member of our Copyright Practice Group

January 2011 IP Update

President Obama signed the Copyright Cleanup, Clarifications and Corrections Act into law on December 9, 2010.  The new law makes two “clarifications and corrections” and directs the Copyright Office to “clean up” its antiquated recordkeeping system by allowing electronic recordkeeping.  A third anticipated clarification did not make the final bill.

First, the new law clarifies a discrepancy as to whether a dramatic or literary work was “published” if it was distributed via phonorecord prior to January 1, 1978. Section 303 of the Copyright Act is amended such that, as with musical works, the mere distribution of a phonorecord prior to January 1978 shall not constitute a publication of the dramatic or literary work contained on the record.

Second, the act makes the regulations issued by the Copyright Royalty Board–which sets rates and terms by which qualified parties may use copyrighted works without obtaining separate licenses from each copyright owner–subject to approval by the Librarian of Congress and reviewable in federal court.

Furthermore, the new law eliminates a provision of the Digital Millennium Copyright Act that required the Copyright Office to keep in both electronic and hard copy formats a directory of agents for purposes of notice and takedown procedures.  The law also allows for transfers of copyright to be recorded electronically.

Finally, and of some note, a provision allowing an exclusive licensee to further license a copyrighted work in the absence of an agreement to the contrary, passed the Senate but was not included in the final bill.  Federal circuit courts of appeal are currently split on whether an exclusive licensee can sublicense the work without the explicit consent of the licensor.  Until a law is enacted, it would be wise to include in any copyright license a provision regarding sublicensing.