Big News for News Publishers: A New Efficient Framework for Registering News Websites
Last month, the U.S. Copyright Office (the “Copyright Office”) proposed new rules that would make it easier to obtain copyright registration for frequently updated news websites. The Copyright Office invites comments on the proposal which must be in writing and received by the Copyright Office by February 20, 2024.[1]
Background
Current copyright regulations make it burdensome for publishers of frequently updated websites, such as news websites, to register their content with the Copyright Office because they must register each individual update to a website separately. This is very time consuming and costly for an already strapped industry.
The objective of the proposed new Copyright Office rules is to provide a simpler and less expensive way for publishers to register copyrights in their news websites, as the content of such websites is so frequently added, updated or otherwise changed. The proposed new framework promotes consolidation of material and allows for “online news publishers to register a group of updates to a news website as a collective work with a deposit composed of identifying material representing sufficient portions of the works, rather than the complete contents of the website.”[2]
Objective
The Copyright Office has proposed this new framework with the objective that it will lead publishers to “broader participation in the registration system.”[3] However, despite the proposed simplified process, registration will still require news publishers to commit time and resources to the application process, both of which are often in short supply in this financially-squeezed industry.
News publishers may consider the investment worthwhile, given the significant benefits of registering copyright in news websites with the Copyright Office, such as the right to sue for copyright infringement in court, and under certain circumstances the possibility of being awarded statutory damages[4] and attorney’s fees[5] if the litigation is successful.
On the other hand, copyright exists from the moment a work is created, regardless of whether the copyright is registered with the Copyright Office. Even without registration and its attendant benefits, a copyright owner has the exclusive right to: reproduce the work in copies; prepare derivative works; distribute copies of the work to the public; perform or display the work publicly; and authorize others to exercise these exclusive rights, subject to certain statutory limitations. It remains to be seen if the new framework for registering copyright in news websites will indeed lead to broader participation of news publishers in the registration system.
The Current Rule
The general rule for copyright registration under the Copyright Act is the submission of two complete copies of the work[6] (although there are some exceptions to this rule, e.g., for a collection of photographs[7] and other collective works[8]). For a website, this means that a complete copy of the entire website at the time of the application date must be submitted to the Copyright Office.
The Copyright Office recognizes that this is an arduous task for many copyright registration applicants, and it is problematic for the Copyright Office as well, particularly given that copies of a dynamic news website submitted to the Copyright Office are typically submitted by applicants in a form that fails to show the organization of the website and the manner in which the individual web pages are coordinated and arranged relative to one another, as occurs when the deposit material consists of individual visually organized PDF pages that display a news website in a linear fashion or individual folders containing hundreds or thousands of disaggregated files that do not show the organization of the news website.[9]
The Proposed New Framework in a Nutshell
The New Rule is Limited to News Websites
The new Copyright Office rule, which is limited to news publishers, allows for registration of a website as a collective work by which only select material on the website is deposited with the Copyright Office.[10] For these purposes, a news website is defined as a “website that is designed to be a primary source of written information on current events, either local, national, or international in scope.”[11]
Collective Work
For this group registration, each of the updates to the news website must be a so-called “collective work” and the claims must be limited to the collective work.[12] For the reader who is not familiar with the term “collective work,” a collective work is a compilation of contributions that are separate and independent works in and of themselves, gathered into a collective whole.
The Collective Work Must be Created as a “Work Made for Hire”
The individual works that collectively comprise the collective work must each be a “work made for hire” (as that term is defined under the Copyright Act) owned by the copyright registration applicant. The applicant must be the sole copyright claimant and author of each of these individual works as well as the collective work. Registration under this group option will extend to each individual contribution within the collective work, provided that the copyright in each such individual contribution is fully owned by the copyright claimant and not previously published elsewhere. However, the updated content may be simultaneously published in a physical newspaper and on the website without being regarded as previously published elsewhere.[13] These requirements are typically met by news websites because the claimant and author of each of the collective works will generally be the publisher who has paid writers, photographers and other professionals to create the content as works made for hire.
The Updates Must be Published on the Same News Website within One Calendar Month
The collective work must be published on the same news website, and the registration application can include updates to a website but only those updates made within the same calendar month and must state the earliest and latest date that updates were published within that month.[14]
Sufficient Selection
As mentioned above, because this is a collective work registration, the selection chosen for registration must be a compilation of the different types of works (to demonstrate “sufficient selection”) on the website such as a compilation of articles, photographs and illustrations and the way they are arranged. The application can consist of a compilation which entails both material that has never been published before as well as previously-published material on the website; however, the selection and arrangement of the material must be new in order to be considered an “original publication” eligible for registration.[15]
New Application Form to be Created by the Copyright Office
The Copyright Office intends to create a new application form for the proposed news website registration in its “next-generation registration system.”[16] Until then, applicants will have to submit their claims and applications through the Copyright Office’s electronic registration system and specifically use the application designated for group newspaper registrations.[17]
As mentioned, the Copyright Office invites comments on the proposal which must be in writing and received by the Copyright Office by February 20, 2024.[18] Time will tell if the new framework for registering copyright in news websites leads news publishers to broader participation in the registration system with its attendant copyright benefits, in a sea of rising costs.
[1] Federal Register / Vol. 89, No. 2 / Wednesday, January 3, 2024 / Proposed Rules, page 311.
[2] Id., p. 311. (emphasis added)
[3] U.S. Copyright Office news email of January 3, 2023 “U.S. Copyright Office Proposes New Group Registration Procedure for Frequently Updated News Websites”.
[4] See 17 USCA § 504(b) and (c).
[5] See 17 USCA § 505.
[6] 17 U.S.C. 408(b)(2). (emphasis added)
[7] See 37 CFR 202.4(h) and (i).
[8] See 37 CFR 202.4(j).
[9] Federal Register / Vol. 89, No. 2 / Wednesday, January 3, 2024 / Proposed Rules, page 313.
[10] Id.
[11] See proposed 37 CFR 202.4(m).
[12] See proposed 37 CFR 202.4(m).
[13] Federal Register / Vol. 89, No. 2 / Wednesday, January 3, 2024 / Proposed Rules, p. 315. (“This option will also be available where the work was simultaneously published both on the internet and in a physical form.”)
[14] 37 CFR 202.4(m)(4).
[15] Id., p. 315, see also 37 CFR 202.4(m)(6)(ii).
[16] Id., pp. 315-316.
[17] Id., p. 316.
[18] Federal Register / Vol. 89, No. 2 / Wednesday, January 3, 2024 / Proposed Rules, page 311.
This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Associate Nafsika Karavida who counsels clients on employment, intellectual property, corporate and transactional, and cross-border commercial law. Ms. Karavida is admitted to practice law in Connecticut, New York, Sweden, the European Union, and before the United States Patent and Trademark Office (limited recognition, passed Patent Bar Exam March 2023, admission pending).