The U.S. Copyright Office is seeking public comment on its proposed regulations for the pre-registration of unpublished works that are being prepared for commercial distribution.

The new law is aimed at remedying a growing problem for copyright owners, particularly in the entertainment industry, who are experiencing “pre-release infringement,” that is, the infringement of copyrighted works prior to their authorized commercial distribution, and in some cases, prior to even being finished.

This is a significant issue for record companies and motion picture studios, who have seen a proliferation of pre-release (and often unfinished) movies and sound recordings rapidly disseminated over the Internet by peer-to-peer networks and other digital means.

The problem arises because, traditionally, copyright owners may not be able to bring a lawsuit and cannot obtain certain remedies without a copyright registration. But, in the Internet age, pre-release infringement occurs before a Work can be registered. Therefore, it is difficult for copyright owners to file suit quickly and obtain full relief.

A new law enacted in April, 2005 seeks to address these concerns. The Artists’ Rights and Theft Prevention Act of 2005 (“ART Act”), part of the Family Entertainment and Copyright Act, amends Section 408 of the Copyright Act to allow certain classes of works that have experienced a history of pre-release infringement to be pre-registered prior to publication.

A copyright owner who has pre-registered a work must follow through with a registration within three months after the work has been published. In the meantime, however, pre-registration will conditionally satisfy the registration requirements of the Copyright Act, allowing owners to file suit.

Under the ART Act, a work submitted for pre-registration must meet three elements: (1) the work must be unpublished; (2) the work must be in the process of being prepared for commercial distribution; and (3) the work must fall within a class of works (to be determined by the Register of Copyrights) that have had a history of infringement prior to authorized commercial distribution. The ART Act directs the Copyright Office to conduct a rulemaking proceeding to establish a pre-registration procedure.

Elements number (2) and (3) provide the most room for comment. For example, one open issue is how far along a work must be to qualify as being “in the process of being prepared for commercial distribution.” The Copyright Office proposes that this element will be met when some portion of the work is fixed in a tangible medium and a contract has been entered into for distribution of the work.

Another open issue is exactly what classes of works “have had a history of infringement prior to authorized commercial distribution.” The Copyright Office proposes that these classes be limited to motion picture works, sound recording works, and nondramatic musical works. The Copyright Office proposes narrowing these three classes even further by requiring that such works also be subject to distribution contracts with established distributors.

Copyright owners, particularly those in the motion picture and sound recording industry, are encouraged to submit comments to the Copyright Office. For more information and details on submissions, see http://www.copyright.gov/fedreg/2005/70fr42286.html. The deadline for the submission of comments is August 22, 2005.

For more information, contact:

Elizabeth H. Cohen
202-857-6166
cohen.elizabeth@arentfox.com

Jason J. Mazur
202-715-8409
mazur.jason@arentfox.com