State of Innovation

Patents and Innovation Economics

Copyrights: Another Example that Government is not doing its Job

Cosmetic Ideas v. IAC is a recent case related to copyrights for necklaces.  This case raises the issue of whether a copyright owner has to have a registered copyright in order to file a lawsuit.  There is a split between the Ninth, Fifth & Seventh Circuits on one side saying that a plaintiff only needs to have filed for a copyright registration to file a federal lawsuit, while the Tenth and Eleventh Circuits require the copyright owner obtain registration before filing a lawsuit.  The relevant statute is 17 USC 411

Except for an action brought for a violation of the rights of the author under section 106A(a), and subject to the provisions of subsection (b),no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement if notice thereof, with a copy of the complaint, is served on the Register of Copyrights. The Register may, at his or her option, become a party to the action with respect to the issue of registrability of the copyright claim by entering an appearance within sixty days after such service, but the Register’s failure to become a party shall not deprive the court of jurisdiction to determine that issue.

The statute seems to clearly require registration of the copyright, not that the owner of the copyright has just applied for registration.  Note that “preregistration” is a separate process from registration and does not mean having filed for copyright registration.  So the Tenth and Eleventh Circuits seem to have the better argument.  However, from a practical point of view it now takes 6-9 months to obtain a copyright registration.  If a copyright owner has to wait 6-9 months to file a lawsuit, this seriously prejudices their rights.  The Ninth, Fifth & Seventh Circuits appear to have the better practical argument.

The real problem here is that the government is so busy managing everyone else’s business it is too busy to fulfill its constitutional duties.[1] According to futurist, Tom Frey, the US has over 90,000 government entities.  (Please read this excellent article at A Country of 90,000 Governments  http://www.futuristspeaker.com/2010/06/a-country-of-90000-governments/).  The process of registering a copyright is relatively simple.  There is no reason it should take 6-9 months to obtain a copyright registration.  It takes this long because our Government is not adequately funding the Copyright Office.  Similarly Congress has stolen almost $1B in user fee from the Patent Office in the last two decades resulting in delays of 3-10 years to obtain a patent.  This dereliction of duty by our government officials is unacceptable and in this case is resulting in bad law.  If the Copyright Office was adequately funded, there would be no reason for the split in the Circuits on whether a copyright owner has to have a certificate of registration to file a lawsuit.


[1] US Constitution, Article 1, Section 1, clause 8.

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June 22, 2010 - Posted by | Innovation

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