The Future of the Copyright Office

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When the U.S. Copyright Office’s Electronic Copyright Office (ECO) system went online in July of 2008, it was supposed to revolutionize and modernize the way the USCO did business.

However, as a recent article in the Washington Post has pointed out, the results have been less than stellar.

Since the launch of the ECO system, which reportedly cost $52 million to create and took several years to develop and test, the time it takes to get a copyright registration certificate from the USCO has tripled, up from 6 months to a whopping 18. This means that, if you filed a registration today, you would not get your certificate until at least November 2010.

Even worse, the USCO is only falling farther behind. It has the capacity to complete only 7,000 registrations per week but receives over 10,000. That means every seven days it works, the USCO falls behind another three and there is no end in sight. The number of registrations keep increasing the the USCO’s capacity keeps falling farther behind the curve.

But how did this happen and what does this mean for the future of the USCO? The answers aren’t very clear but they are definitely very painful.

Redefining “Epic Fail”

The new ECO system was supposed to make the process of filing registrations and receiving confirmation significantly easier and faster. It was supposed to save copyright holders time and money (by reducing the fees on electronic registrations from $45 to $35) and increase the capacity of the USCO to meet rising needs. So what went wrong?

The new system has been plagued with two separate issues. The first was a tactical error. The USCO assumed that the vast majority of copyright holders would use the electronic system and scuttled the old paper system, which allowed processing of paper registrations within 6 months. Instead, the current paper system requires physical copyright registrations to be entered by hand, a time-consuming process. (Note: The USCO does have a form CO that uses a barcode system, however, it is the older forms, such as TX, that are still the most popular due to their familiarity.)

This is the reason for the extreme delays on paper registrations and those delays have spilled over to electronic ones, which currently take at least six months (though it was supposed to only take one).

The second problem is, to be quite frank, that the ECO system sucks. Not only is it difficult to use, time consuming to register with and outright ugly, but the system has a nasty tendency to crash (both on filers and on those trying to process registrations) and registrations seem to disappear within it.

The system is a complete failure. At best, the system was obsolete, overpriced and poorly-designed. Considering that private non-repudiation systems such as Numly, MyFreeCopyright and Copyright Registry all have more features, easier interfaces and better compatibility with existing Web technologies, the ECO system is a multi-million dollar waste.

However, the ECO system has not just made copyright holders wait longer and and become a multi-year inconvinience, it is having a direct impact in the courtrooms. At least one case, Specific Software Solutions, LLC v. Institute of Workcomp Advisors, LLC, has been thrown out on jurisdictional grounds because the copyright registration had not been processed, even though, by most estimations, it had long since been filed.

This is having an extreme negative impact on copyright holder’s ability to protect their works in court and even the Library of Congress’ inspector general says that the backlog “threatens the integrity of the U.S. copyright system.”

In short, when the USCO flipped on the ECO system, the entire copyright registration system came crashing down. It’s been an open secret in copyright circles and, now, almost a year later, it has reached a point where no one can ignore it.

The USCO’s Fixes

From the current crisis, only two things are clear:

  1. The status quo can not stand.
  2. The USCO can not provide the solution.

The USCO, in its defense, is trying to fix the problem. First, they have brought in 17 more copyright registrars, bringing the number up to 115, in a bid to increase the amount they can handle. They are raising the price of paper registrations $20 to $65, while keeping electronic ones at $35, in a bid to steer more to the electronic system. Finally, they claim to be working on an overhaul of the electronic system that they hope will fix the problems that have plagued it.

Unfortunately, none of it will work.

The 17 new registrars only equal a 17% increase in capacity at a time when they are a full 40% behind. It would take at least another 20 registrars, in terms of manpower, to keep up with the current demand, saying nothing about future. Second, raising the price on the paper registrations will have no effect so long as the electronic system is difficult to use. Where I can file a paper registration in a few minutes via paper (especially via a Short Form TX), it can take hours to do one online. Paper filing is still a better deal.

Finally, the overhaul of the system is unlikely to address the major problems with it. Though it may fix the bugs and kinks, it seems unlikely that the new system will be easier to use or less confusing.

There is a good reason why most copyright registration services still use paper forms, in particular the old ones, they are a better deal, more familiar and more reliable. Tweaks to the ECO system and a $20 price increase will not change that.

The copyright registration, barely working before the ECO system, is now almost hopelessly broken.

The Future of the USCO

So this raises the question of where does the USCO go from here? Their failures put the brakes on the whole of the copyright system and their measures to fix the problem are, on their face, inadequate.

There are only two solutions that are available and both would require radical reforms to the way copyright is handled in the U.S.

The first solution is an ICANN-like copyright registration system

, first proposed by Dan Heller. This system would end the USCO monopoly on copyright registrations and would allow private companies, under strict regulation, to process copyright regulations.

This would eliminate many, if not all, of the problems with the current system. The processing potential would be increased many fold, registrations could be integrated with new Web technologies (like RSS), costs would drop and turnaround would speed up. But while it would fix the mess created by the ECO system, it would not fix other issues the presence of the USCO alone creates in the digital age.

Instead, the more long term solution would be to eliminate the requirement for registration before filing a suit.

Currently, there is no such requirement for works created outside the U.S., meaning that the vast majority of all copyrighted works do not have this requirement, and it is only the U.S. that has this requirement all. The Berne convention was supposed to eliminate the use of copyright formalities and no other nation (that I am aware of) has a system like the USCO where you have to register a work before filing suit. This ensures that all copyright holders, whether they have registered or not, have the same access to the courts.

While I agree that the USCO registration requirement is not a large burden, especially when stacked up against the burden of filing a suit, but it appears that it is also a burden on the government and, with the recent failures at the USCO, it threatens to cripple the whole copyright system in the U.S. (save for those who can afford the expedited filing fee of $685).

If the USCO wanted to serve copyright holders and “promote the progress of science and useful arts”, it would petition to remove itself from the requirements for jurisdiction.

Simply put, the USCO is costing our government money, it has not operated in the black since 1948 and currently only recoups 57% percent of its budget. Even the registration system does not pay for itself, recouping only 95% of its costs.

But these financial shortfalls are only a small part of the USCO’s burden. Where once the USCO was merely an expensive annoyance, it is now outright dangerous. Copyright holders are being hurt and it is damaging even the most diligent copyright holder’s ability to protect themselves in court.

It’s time for it go.

Bottom Line

The USCO has, in every meaning of the word, failed. With a miracle effort it might make itself the same antiquated system it was a few years ago, but it would be even more out of place and irrelevant. At the very least, it is time to restructure the way copyrights are registered and it is likely time for it to be done away with altogether.

There is a need for rational, sensible copyright reform in the face of changing technology. One of the first steps is going to be getting rid of dated and archaic systems, such as the current USCO one, and then look at making reforms to the law that can both protect author’s rights while bringing them into balance with the new era.

The system we have right now is broken. Two years ago it was mere annoyance, now it is a serious problem.

The only good news is that the effective date of registration is when it arrived at the USCO and copyright in a work is created when it is fixed into a tangible medium of expression. That means the extreme delay only delays a copyright holder’s date in court. However, the longer one waits, the more evidence gets destroyed, the more damage that is done by the infringement.

These delays are bad news for rights holders, there is no way around it.

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