Effective December 1, 2016, nearly five years after issuing an initial notice of proposed rules, the U.S. Copyright Office will be implementing new rules intended to govern the designation and maintenance of Digital Millennium Copyright Act (DMCA) agent information under a new electronic system. This is a significant action by the Copyright Office, for at least two reasons. First, in order for the safe harbor under the DMCA to be effective, all designations, including those previously submitted, must be made on the new electronic system. All new registrations as of December 1, 2016, must be completed online, while previously filed paper designations continue to be effective until the service provider has registered using the new online system or through December 31, 2017, whichever is earlier. Second, there is a new three-year renewal period for designations, which will be reset after a service provider either amends or resubmits its designation through the online system.
Because of the outdated structure of the old registration and directory system, the Copyright Office changed to the new electronic system in order to substantially increase the efficiency of the office. In line with this expected efficiency, the Copyright Office has reduced fees, which were a minimum of $105 per designation with the old directory, to $6 per designation with the new electronic system. This major shift in practice by the Copyright Office will cause service providers to rethink and update their practices and procedures in order to efficiently work with the Copyright Office and make sure that they are compliant with the safe harbor requirements. Service providers should review the new rules in view of their current and anticipated business practices. The following bullets highlight additional information about the new rules:
- Contact Information for the Service Provider. A service provider is required to supply its full legal name, physical street address (not a post office box), telephone number, email address, any alternate names used by the service provider. Separate legal entities (e.g., corporate parents and subsidiaries) are considered separate service providers, and each must have its own separate designation.
- Service Provider's Identity and Alternate Names. Service providers must list all alternate names that the public would likely use to search for the designated agent in the directory, including software application names. Therefore a service provider should consider registering names associated with mobile applications or the like. Separate legal entities are not considered alternate names.
- Contact Information for the Designated Agent. The name of the designated agent and, if applicable, the name of the agent's organization must be provided. The designated agent may be an individual (e.g., ''Jane Doe''), a specific position or title held by an individual (e.g., ''Copyright Manager''), a specific department within the service provider's organization or within a third-party entity (e.g., ''Copyright Compliance Department'') or a third- party entity generally (e.g., ''ACME Takedown Service''). The contact information must be a physical mail address (street address or post office box), telephone number and email address of the agent designated to receive notifications of claimed infringement.
- Periodic renewal. There is a three-year renewal period that will be reset after a service provider either amends or resubmits its designation through the online system.
- It is important to emphasize that, as of January 1, 2018, all paper designations will become invalid and will not meet the safe harbor requirements of the DMCA. Although we encourage service providers to renew their designations as soon as possible, we also encourage service providers to rethink the use and structure of their designated agents in view of the new rules. Questions regarding compliance with these rules should be directed to Alan L. Friel, afriel@bakerlaw.com, 310.442.8860, Oren J. Warshavsky, owarshavsky@bakerlaw.com, 212.589.4624 or Craig Cupid, ccupid@bakerlaw.com, 404.256.8230.
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