Backlog Issues No Longer Limited to USPTO; Copyright Office Also Experiencing Long Delays

The Washington Post reported last week that the backlog issues, which once were limited to the Patent Office have now spilled over into the Copyright Office as well.

According to the Washington Post, the delays mean that it now takes eighteen months instead of six months to receive a copyright registration, and the expectation is that the problem will get worse. The irony, however, is that the slowdowns are due to the Copyright Office's adoption of a new electronic system, which was supposed to make the process faster.

Since I file copyright registrations for clients as well as for the firm, I can attest to the fact that the process seems to have really slowed down in the past year. I've not yet reached eighteen month delays, but certainly the process does not seem to be moving forward as it has in the past. I am a little concerned that what was promised to be a four month process when I called the Copyright Office and spoke with them months ago about the new system is going to turn into a twelve to eighteen month process for me and my clients as well.

What's going on? Why is the electronic system which was supposed to speed copyright registrations up instead slowing the registration process down? Well, according to the Washington Post, it is the technology itself that is causing the problem. The Washington Post reported:

The trouble is twofold. Workers say the electronic system is slow and prone to crashing. Managers say the challenge has been retraining the staff to use the system. Both sides agree the more significant problem is the fact that much of the public is still using paper applications, which must be painstakingly entered by hand into the new electronic database.

About 45 percent of applications are still in paper form. The staff is spending so much time handling the paper claims, it doesn't have enough time to process electronic applications, which has created delays for online claims now, too. It now takes six months to process electronic claims when it should take one month.

Of the 10,000 applications that pour into the Copyright Office each week, the staff can process about 7,000, adding 3,000 untouched applications to a growing pile that currently totals about 523,000. Workers are now handling paper applications received in late 2007

So, is this just a temporary problem? One can hope that once the technology is a little more comfortable for the office that it will in fact speed up processing times. Having said this, I cannot help but wonder if copyright attorneys will not soon be joining patent attorneys in their calls for reform of the system. The backlog in the USPTO has been a constant concern of the patent attorneys I know, so it is not inconceivable to think that copyright attorneys would soon be just as frustrated with the backlogs as their patent attorney peers have long been.

Assuming you are one of the many who are waiting on copyright registrations: what does this really mean for you or your business? Well, this is where the article was a little confusing. If you are waiting on your registration, the main consequence is that you cannot file suit against infringers. A registration is required for the filing of an infringement suit. In addition, there will not be notice of your registration on file with the copyright office, so a public record of ownership will not be available to potential infringers, who may or may not do research before infringing.

Having said this, to clear up a few points from the article: copyright ownership exists from the moment it is fixed in a tangible form of expression. So, completing registration does not have an impact on who owns the copyright in the work, nor does it have any bearing on the use of a copyright notice on your work. You absolutely should use a copyright notice on your work to advise potential infringers that you own the work, even if you have not yet received the registration certificate. In addition, once you have filed for the registration, you lock in the effective date of the registration as of the date that you sent in the registration, so there is no requirement that you have to hold off on publishing the work until you receive the certificate (assuming you have not already started publishing the work). Similarly, there is no requirement that you would have to hold off performing the work until you receive the registration (assuming you have not already started performing the work). The only real impediment that you will likely face as you wait for your certificate will have to do with infringement: you may not be as effective in enforcing your copyright against an infringer until you receive the certificate. So, enforcement may need to wait until you receive your registration certificate in hand. Having said this, except for this one issue, the fact that you are having to wait for your registration should not be a serious concern.