If you maintain a website or service where you make content available to others, you probably have (and should have) an agent registered with the US Copyright Office to receive notices alleging copyright infringement. Last week, the Copyright Office adopted a new set of rules governing the registration and maintenance of designated agent information that will require changes starting December 1, 2016.
Section 512 of the Digital Millennium Copyright Act (DMCA) makes service providers eligible for safe harbors from copyright infringement claims arising from the storage of material at the direction of a user and referring and linking users to a site containing infringing material, provided that the service provider registers the designated agent with the Copyright Office, lists a link to contact information for that agent on the home page of its website, adopts a policy relating to terminating accounts of users who are repeat infringers, and responds expeditiously to notices of claimed infringement.
Currently, the Copyright Office requires a service provider, via a paper registration system, to designate an agent to receive notifications of claimed copyright infringement and periodically update its designation to maintain current and accurate information. Fees are currently $105 per registration, plus $35 for each set of additional alternate names for the service provider. Since the agent designation requirement was enacted in 1998, the designations have been made in different forms and, though the DMCA requires online service providers to keep the information in their designations up to date, the reality is that the directory of agents is difficult to search and in many cases contains inaccurate information.
After a lengthy process that started in 2011, last week, on November 1, 2016, the Copyright Office announced its new electronic system for designating agents. The new electronic system was adopted with the goal of significantly reducing maintenance costs for the Copyright Office and increasing the accuracy of information about designated agents.
Beginning December 1, 2016, a service provider must electronically submit new designated agent information to the Copyright Office via the online registration system. As of December 1, 2016, no new paper designations will be accepted. Current designations will remain in effect until an online service provider submits a designation through the electronic system or December 31, 2017, whichever occurs first. New registrations must be electronically submitted by December 31, 2017, at which time all previous paper designations will terminate. A service provider who has not submitted a new registration via the electronic system risks ineligibility for the safe harbor protection of Section 512 of the DMCA. Further, each designation will have a maximum term of three years. A service provider will be required to maintain the accuracy of its designation information by amending or resubmitting its designation in the electronic system every three years or less. Registration fees for the new electronic system will be reduced to a flat fee of $6 per designation. The flat fee will apply to all service providers and to each registration, whether registering a new designation, or renewing a previously registered designation.
While this change in the rule does not require immediate action, it does require companies who are service providers under the DMCA (which probably includes most social media, technology and e-commerce companies that maintain community forums or discussion boards or that provide search engines or directories that link users to potentially infringing websites) to file a new registration if they want to maintain eligibility for section 512 protection.
Some steps that we recommend service providers take:
- Consider updating your designation some time between December 1, 2016 and December 31, 2017.
- Establish an account to the new online registration system.
- Remember to maintain the currency and accuracy of registration information by timely updating such information when it has changed.
- Calendar the renewal of your copyright registrations, because registrations will expire every three years and must be renewed whether or not any information has changed.