Major Copyright Changes Affect Online Businesses

The Copyright Office has made a sweeping change that affects a large number of businesses with an online presence. Through its issued Final Rule, the Copyright Office has mandated that all businesses with current copyright agents must reapply.

The Copyright Office justifies its actions by stating its intent is to maintain a “current directory” of agents to receive notifications of claimed copyright infringement.  The Final Rule governs how agents are designated and maintained in the Copyright Office’s electronic system, and establishes new fees.

What is a Copyright Agent and How Are They Established?

In 1998, Congress enacted Section 512 as part of the Digital Millennium Copyright Act (“DCMA”). Section 512 provides safe harbors from copyright infringement liability to website providers who store materials for their users, conduct system caching, or provide location tools.  To benefit from the safe harbors, the website must designate a Copyright Agent to receive notifications of claimed copyright infringement, and provide this information both publicly on its website and to the Copyright Office. Failure to comply with these requirements and keep the agent designation contact information current can result in losing the Section 512 Safe Harbors.

Website Providers Required to Electronically Designate Agents

As of December 1, 2016, the Copyright Office will not accept paper designations of agents. Rather, a website provider who seeks to gain the benefits of the Section 512 Safe Harbors must electronically submit information for its designated agent(s) to the Copyright Office. Paper designations filed prior to December 1, 2016, will continue satisfying the safe harbor requirements until the website provider electronically registers its designated agent(s) or until December 1, 2017, whichever occurs first. Thereafter, website providers must amend or resubmit information regarding their designated agent(s) every three years.  Failure to amend or resubmit the information will result in losing the safe harbor, which potentially subjects companies to significant liability.

How to Gain or Retain the Safe Harbor

After December 1, 2016 and before December 1, 2017, website providers must create a registration account on the Copyright Office’s website and register their designated agent(s). Website providers must also update the contact information on their websites for their designated agent(s).  The Copyright Office will charge $6 per designation.  Website providers will need to pay this fee whether registering a new designation, or resubmitting or amending a previously registered designation.

Bottom Line

Although the final rule imposes new burdens on website providers, the Copyright Office has provided website providers currently benefiting from the safe harbor provision a year to resubmit or amend their information electronically. However, website providers must ensure that information for their designated agents is current both on their websites and in their registration with the Copyright Office now to avoid losing the safe harbors.

Jon Farnsworth is a shareholder at Felhaber Larson in Minneapolis, Minnesota.  He advises clients on complex technology and legal issues, including copyright and website intellectual property matters. Jon gratefully acknowledges Serena O’Neil, law clerk at Felhaber Larson, for her contributions to this post.