Copyright protection is crucial to many American businesses. Copyright shields original creations of literature, music, art, drama and even computer software. When you create an original work, copyright automatically applies to it. However, you cannot file a copyright infringement lawsuit unless you have registered the copyright with the U.S. Copyright Office.

News site refuses to remove articles from provider

A case being reviewed by the Supreme Court is debating when a copyright is registered. According to the Copyright Alliance, Fourth Estate Public Benefit Corporation, an online news provider, licensed some articles to Under the licensing agreement, Fourth Estate stated that must remove these articles from their news site, once the license expired. refused to remove the articles, and Fourth Estate filed a copyright infringement lawsuit.

The site argues registration is not valid until application approved

Fourth Estate had filed copyright registration paperwork for the articles, but the U.S. Copyright Office had not ruled on its application. moved to dismiss the infringement lawsuit because it claimed the news provider could not file a suit until its application was approved.

Courts dismiss infringement lawsuit

The U.S. District Court for the Southern District of Florida agreed with and granted its motion to dismiss. The U.S. Court of Appeals for the Eleventh Circuit affirmed the lower court’s decision.

Application vs. registration approach

Lower courts have been split on what qualifies as copyright registration. According to IP Watchdog, some courts use the “application approach” which means they believe a copyright is registered when a copyright owner submits an application for registration. Other courts have declared the “registration approach” the correct interpretation of the law. This approach finds a copyright is only registered after the Copyright Office approves an application

Fourth Estate did not accept the court of appeals’ decision and filed a petition with the Supreme Court. On Jan. 8, 2019, the Supreme Court heard arguments brought by both and Fourth Estate.

Justices find merit to both arguments

Justice Kagan seemed to agree with Fourth Estate that registration could perhaps encompass both meanings-the application approach and the registration approach. However, Chief Justice Roberts stated when there is a registrar, in this case the Copyright Office, “the most likely understanding of ‘registration’ is what the person does.” Yet, Roberts also pointed out there were multiple instances in the Copyright Act when the copyright owner is the party referred to as registering a copyright.

The Supreme Court has not reached a decision yet, but IP Watchdog states the registration approach is currently the anticipated winner of this case. If this interpretation prevails, it will have serious implications for many U.S. businesses. On average, it takes the Copyright Office six months to process applications. This may leave many companies vulnerable to infringement while their applications await approval.

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