Online Service Providers (OSPs) must register under a new electronic system by December 31, 2017 but can, and should, as soon as possible.
The U.S. Copyright Office has ditched the scanned paper system for registration of DMCA Agents. OSPs seeking safe harbor protections may now register using the new electronic system, which launched December 1, 2016. Only OSPs (e.g. providers of online services or network access including sites that allow posting of user-generated content) that have registered by December 31, 2017 will continue to have Section 512 protection.
Since 2011 the Copyright Office has been considering revision of the DMCA Agent system, part of the Digital Millennium Copyright Act, enacted by Congress back in 1998, which enables online services providers to limit their liability for copyright infringement committed by their users. A condition of this “safe harbor” is that the OSP must designate an agent for receiving infringement claims both on the OSP’s own website and through the Copyright Office’s public directory of designated agents. Adapting to today’s realities, the system will now be fully electronic.
The new system completely replaces the former paper-based system – a reform that will be implemented by amending 37 CFR part 201.38 (full text here). The change enables service providers to submit designated agent information more efficiently, the Copyright Office to load the information loaded more quickly, and the public to search it more easily, Filing fees have been reduced from the minimum $105 to a flat fee of $6 per designation (for each filing or amendment). Automated reminders will simplify keeping contact information up-to-date. The designation will now automatically expire after three years unless it is either renewed or confirmed to be still accurate.
What do I need to do?
Online Service providers must submit new designations through the electronic system by December 31, 2017. The Office will no longer accept paper designations. Paper designations filed before December 1, 2016 will continue to satisfy the legal obligations of section 512 until the December 31, 2017 transition deadline.
- Creation of a registrant account with the Copyright Office
In order to access the new online registration system, you must establish an account to log in and register yourself and your designated agent.
- DMCA Designated Agent Directory
The new registration system is directly tied to the Office’s public, searchable directory. Information submitted through the system will automatically populate in the directory, providing fast and efficient public access to designated agent information.
- Related companies
The new system will allow the account user to register and manage designations of all its subsidiaries through one central account. However, each separate legal entity (e.g. parent and subsidiary companies) has to file separate designations, even if the designation agent is the same.
- Alternate names
Service Providers are required to list all alternate names that the public would be likely enter to search, including all names under which the service provider is doing business, website names and addresses, software application names, and other commonly used names. Separate legal entities, however, are not considered alternate names.
- Possible Designated Agents
The new rule allows you to designate as agent not only individuals or a specific position or title held by an individual (e.g. “Copyright Manager”), but also a specific department within your organization or within a third party entity (e.g. “Copyright Compliance Department”) or a third party generally (e.g. a law firm or copyright management agency). However, only a single agent may be designated for each service provider.
- Contact Information for the Service Provider
The contact information for the service provider itself includes a physical mail address (street address, not a post office box), a telephone number and e-mail address, however only the physical mail address will be made public through the online directory and must be displayed on your website.
- Contact Information for the Designated Agent
In addition to the agent’s identity, a physical mail address is required (unlike above, the agent may also use a post office box), as well as a telephone number, and email address. All of this information must be supplied to the Copyright Office and also displayed on your own website. If the designated agent is not within your own organization, the Office now also requires naming the designated agent’s organization.
Why the change?
Although currently the DMCA requires OSPs to update the provided agent information regularly, the Office noticed that in fact many failed to do so and that much of the current directory information has become inaccurate and out of date. Keeping your information up-to-date is crucial because courts may find that inaccurate or outdated information constitutes a failure to comply with section 512 – the same way as designating no agent at all – given that in both cases notifications of claimed infringement cannot be effectively submitted. To avoid this situation, it’s advisable to sign up sooner rather than later.