The United States Copyright Office has adopted a new regulation effective December 1, 2016 and will replace the existing regulation at 37 CFR 201.38. The new regulation concerns the designation of an agent to receive notification of claimed infringement under the DMCA. Under the previous method, a service provider would designate an agent through a paper application sent to the Copyright Office. The main change to the system is that, beginning December 1, 2016, the Copyright Office will no longer accept paper registrations and will have an electronic registration system in order to designate an agent. All service providers who had designated an agent through the previous system must resubmit an application through the new system by December 31, 2017 or risk losing their protection under the safe harbor provision of the DMCA. All previous designations will remain valid until the earlier of the date of reapplication or December 31, 2017. Additionally, all designations now must be renewed within three years of the application or its most recent amendment. The copyright office will send automated reminders to the service provider to renew the designations in advance of the lapse of the three year period. In order to renew, the service provider must either (1) amend the application in order to provide the correct information regarding the service provider and agent, or (2) resubmit the designation without amendment.
In order to access the new system, the service provider must create an online account with the copyright office at dmca.copyright.gov/login.html. In order to create the account, the service provider must provide both a primary contact and a secondary contact to manage the account. These contacts will be the primary source of communication between the service provider and the copyright office. Once the account is registered, the contact must input information about the service provider including the “full legal name, physical street address (not a post office box), telephone number, email address, and any alternate names used by the service provider.” The service provider no longer needs to provide a facsimile number. For the alternative names, the service provider must provide “all alternate names that the public would be likely to use to search for the service provider’s designated agent in the directory, including all names under which the service provider is doing business, Web site names and addresses, software application names, and other commonly used names.” Separate legal entities, such as parent and subsidiary companies, must register separately. To designate the agent, the service provider must provide ‘‘the name, address, phone number, and electronic mail address of the agent.’’ Unlike under the previous regulation, the agent may be either (1) a natural person, (2) a position (such as general counsel), (3) a specific department with an entity, or (4) a third-party entity generally.
The fee to register, renew or amend the designation of agent is currently $6, which is down from the $105 that the previous regulation had started with. A more complete explanation of the changes can be found in the Federal Register at https://www.gpo.gov/fdsys/pkg/FR-2016-11-01/pdf/2016-26257.pdf. Additionally, the Copyright Office has provided helpful tutorial videos and a Frequently Asked Questions (FAQ) page on how to use the new system which can be found at http://www.copyright.gov/rulemaking/onlinesp/NPR/.
Prepared by: Thomas L. Sica, Associate at Heslin Rothenberg Farley & Mesiti