The Copyright Office released its Draft Copyright Compendium in late summer 2014 — its first revision since 1984, and it is scheduled to be final in mid-December 2014. The Compendium is the administrative manual of the Register of Copyrights relating to the mandate and statutory duties of the Copyright Office. It does not have the full force of law, but past editions have been cited in numerous copyright cases, so it is expected to have persuasive value. Some of the expressed goals of this revision include improving accessibility, navigability and clarity, and improving transparency for practitioners, scholars, the courts and the general public.
The Compendium is available online (in searchable PDF form) at http://copyright.gov/comp3/docs/compendium-full.pdf. It describes copyright procedure and sets forth fundamental principles of copyright law. It also expressly addresses topics of current public discussion, including specifying that the “Office will not register works produced by nature, animals, or plants,” and listing in this regard “a photograph taken by a monkey” — a response to the recent media frenzy behind the “monkey selfie.” It also features a section dedicated to online works, including a detailed discussion of the difficulties identifying authorship, recognizing the prevalence of multiple contributors and the corresponding importance of adhering to copyright formalities. Further, it clarifies which elements of websites are not protectable under copyright law, including functional design elements and domain names.
When it comes to the question of whether an online-only work is published or not, the Compendium also provides some clarity specifying that the temporary digital copying of a work solely to display it is insufficient authorization for the work to be deemed published, and that the copyright owner must clearly authorize the reproduction or distribution of that work to render it published (i.e., express authorization to download content necessarily renders the work published).
Software as a Service (SaaS) does not get clear treatment in the Compendium. Because SaaS is hosted on a remote service, and not directly available to users for download, it is not considered “published.” Nor does the Compendium describe how SaaS might result in an implied license, stating only that the SaaS provider’s facilitation of access “may or may not” result in an implied license which “may or may not” render the work published. As a result, providers of online-only content should consider carefully which content might be considered published or unpublished. This is particularly important in considering whether to register such online content in order to preserve the statutory benefits that come with copyright registration — including the availability of statutory damages and attorneys’ fees for copyright infringement suits.
Overall, however, the Compendium will serve as a helpful reference guide for copyright practitioners.