As readers of this site likely know, there many advantages to registering your work with the USCO including the ability to obtain additional damages, the ability to sue in a Federal court and the creation of prima facie evidence of ownership.
Still, some Webmasters may benefit from registering their works with the USCO and should consider doing so. However, registering every work is impractical and most Webmasters will gain nothing at all from a registration, no matter how frequently they do ti.
So when should a Webmaster register their work with the USCO? It’s a difficult question with no easy answers.
The Limitations to Understand
Though the advantages of a USCO registration are great, there are two limitations to such registrations that limit their usefulness to webmasters.
- Registration has no impact on the most common copyright infringement resolution techniques (DMCA Notices, Cease and Desists, etc.)
- It only applies to works included in the registration, not ones that came later.
These elements combine to virtually guarantee that any registration you file for your site will be useless.
You will not require a formal registration in well over 99.9% of all of your copyright disputes and, in the rare times where it might be useful, it likely will not apply. Since newer works, for most sites, are the ones more commonly infringed, the odds of the works involved being covered by your registration are slim.
The only way to keep your copyright registration relevant on a site that is active is to constantly re-register your site. However, that comes both at a high cost to one’s time and to one’s bottom line. If you register your site every three months, as some recommend, it would cost $140, even using the cheaper online service.
However, even with that system, since copyright law does not consider merely posting a work to the Web publication, but rather public display, most works posted to the Web are not eligible for the three-month grace period of registration.
Update: See this comment for more information about the issue of public display vs. publication as it pertains to the copyright registration process. Many thanks to Matt Saunders for the clarification.
This, in turn, means that at any given time, would have a three-month gap in your registration, where the newer works would not be eligible for protection until the next cycle begins. During that time, infringement of new works is ongoing.
In short, even if you took every reasonable precaution possible and spent the time and money to keep your registration up to date, you would still leave gaping holes where you would not be eligible for full protection of your work, likely until it is too late.
Exceptions to the Rule
This isn’t to say that there are no cases where a site might benefit from a copyright registration, just that most sites will not. There are at least a few situations where a webmaster can and should seriously consider making use of the USCO’s service.
However, those cases would typically be limited to sites that meet the following criteria:
- Static Sites: Sites where the content remains largely constant or, at the very least, see a large amount of misuse of older works may benefit from registration as there is a good probability that any infringement will be of a protected work.
- Ability and Will to Sue: Suing for copyright infringement takes a great deal of time and money. Even if you are able to recoup the costs of the suit, the energy expended may not be worth the results. You need to make sure that you are willing to go through a long, protracted legal fight that could end up going nowhere, especially if the party is in another country or can’t pay any penalties. Most people and many businesses are in no position to do that.
- Financial Reasons to Sue: Though there are many reasons to sue for copyright infringement, courts put the most weight on the monetary damages as it is what they can most easily assess. It is important to note that damages awarded for infringement are statutory, not punitive, and thus will be related to the value of the work itself.
If you have a dynamic site and/or lack the ability or reason to actively sue infringers, most likely, a copyright registration is a waste of time and money.
The question then becomes a matter of which sites meet the criteria and become good targets for registration? The answer is surprisingly few.
Sites that Should Consider Registering
If you and your site meet the above criteria, then registering your site is probably a wise move. However, if you are looking for examples of the types of sites and content that should be registered, consider the ones below:
- Art/Literature Sites: Content on art and literature sites tend to have longer shelf lives than those on blogs or news sites. Works on those are much more likely to be infringed after a registration is filed than on other dynamic sites.
- Business Sites: Though a competitor copying your marketing or promotional material raises other legal issues, including unfair competition, it may be worthwhile to register the site since a great deal of time and money goes into it. Furthermore, the content, typically, does not change much making it likely that a protected work will be infringed.
- Stand-alone Works: Any work that takes a decent amount of time and/or money to create should, if possible, be registered before it is posted to the Web. Novels, movies, music compilations, etc. should, if possible, be registered regardless of the type of site they are to be posted to.
But while these works, and others that warrant registration, may seem to cover most of the Web, the truth is that very little of the content on the Web is registered and only a small percentage of that content benefits from their more official status.
Your average blogger or Webmaster has little, if any, reason to consider registering their site with the USCO.
To take a quick aside, it is worth noting that authors in countries outside of the U.S. stand to gain very little from registering their works.
While there is some debate whether or not a foreign-born author can sue without first registering a work (Note: I am seeking clarification on this issue and will update when I get a reply), the issue is moot since, in most cases, the cost and expense of suing in a United States court would far exceed any potential gains.
Foreign authors, both legally and practically, have the least to gain from copyright registration.
If the question is whether or not one should register their Web page or blog with the United States Copyright Office, the answer will usually be “No”.
Though there are exceptions to the rule, there are very few sites that would significantly benefit from registering their work. The nature of the Web and the limitations of the registration system make it so that, for most webmasters, a USCO registration is a waste of both time and money.
Fortunately, most of the protections we rely upon as webmasters are ours from the moment our work is fixed into a tangible medium of expression and do not require a copyright registration. DMCA notices and desist letters are all available to us with no formalities at all.
Even if a major copyright dispute were to arise, one could likely leverage copyright management information (CMI) to sue for a previously unregistered work. Though that avenue is limited and controversial, it may provide an avenue for when registration was impossible or impractical.
However, the bottom line is U.S. copyright law does not effectively protect bloggers and others who post content to the Web. Our copyright protection is second rate to the rest of the world and, until the law changes, many of us will have our best legal avenues closed off.
The flaw is not with bloggers unwilling to protect their works, but with a system that is out of touch with realities of the Web.