Readers may be wondering why we haven’t seen a solution to the mass NOI loophole in the controversial Music Modernization Act or otherwise. (For background, read my article on the subject from the ABA Entertainment & Sports Lawyer last year.)
There is one solution to the NOI loophole problem that is entirely within the power of the Congress to solve immediately–instruct the Librarian of Congress to require the Copyright Office to get the lead out on processing copyright registrations. The current turn around time is over six to eight months for electronic filing and eight to 10 months for paper registrations! These bureaucratic delays have a disastrous effect on new registrations (usually new releases) that get caught up in the mass NOI loophole because the registration does not appear in the public records of the Copyright Office until the Copyright Office processes a registration.
Ordering the Copyright Office to bust a move is not an ideal long term solution to closing the mass NOI loophole. It is a solution that commends itself by the speed with which the operational change could be accomplished. Because it is the Congress requiring a change to the operational efficiency of the Library of Congress, I personally don’t believe this instruction would require anything like an Act of Congress to accomplish, or even regulations. Surely not even the federal government requires passing a law to order a government agency to accomplish that which they already have the statutory authority to do, just do it more efficiently. The issue could probably be solved with a phone call, strong letter to follow.
It’s fair to say that songwriters should accept as a given that the Congress does not intend to fix the mass NOI problem. To my knowledge, there has been no official discussion of the issue by any Member of Congress, much less the Copyright Office itself, and the Music Modernization Act doesn’t solve the problem, either, at least not retroactively. But this shouldn’t surprise anyone because the Congress and the Copyright Office also forgot to raise the mechanical royalty rate from 1909 to 1978–sixty nine years. And has frozen the mechanical rate for physical and downloads at 9.1 cents for thirteen years.
Failure to address the loophole will hand DiMA companies like Google, Spotify, Amazon and Pandora a sobering royalty free windfall for the period April 2016 to the effective date of the MMA. The least Congress could do is to require the Copyright Office to start processing copyright registrations in 10 business days. And start that schedule immediately.
If the Copyright Office fails to process registrations in that time, there should arise after 10 business days a rebuttable legal presumption that the registration was properly filed until such time as the copyright owner filing the registration receives a conformed registration or a rejection from the Copyright Office. The contact information for the copyright owner of the pending registration could easily be placed in a searchable database so that those wishing to file NOIs under the current regime–all 60 million or so–could be found and removed from the loophole. So praesumptio iuris tantum to you, too.
A music user and putative compulsory licensee could challenge the presumption of a valid registration if they were sued before the registration were approved (which of course they would and do anyway as a matter of drill). But they would still send their notice, accountings and payment to the copyright owner at the address in the new “public records” of the Copyright Office.
It’s important to note that the loophole is based entirely on whether the copyright owner is identifiable in the public records of the Copyright Office–not whether the copyright owner actually owns the copyright or has filed a registration. It is merely coincidental that the registration is the easiest way to get into the public records of the Copyright Office. Therefore, it is entirely appropriate that the Copyright Office include contact information from “work in progress” registrations in a more searchable format–the filing itself is arguably in the public records already as it could no doubt be obtained with a Freedom of Information Act request.
The current situation where the Copyright Office simply sits on a registration for an unlimited period of time–thus preventing the registration from appearing in the “public records” of the Copyright Office and inserting new song registrations into the loophole pool for mass NOIs–is likely unlawful and unconstitutional. It certainly is for other types of government work like SEC filings in the securities context and parade permits in another free expression context.
Conversely, the Copyright Office promptly processes the mass NOIs while expressly and unilaterally disclaiming responsiblity for verifying whether the NOIs were filed properly. The Copyright Office tells songwriters that their sole remedy is to sue (37 CFR Sec. 201.18(g)):
If any issue (other than an issue related to fees) arises as to whether a Notice filed in the Copyright Office is sufficient as a matter of law under this section, that issue shall be determined not by the Copyright Office, but shall be subject to a determination of legal sufficiency by a court of competent jurisdiction.
This seems to be a violation of due process on its face.
If this new solution for the government’s responsibility to copyright owners would cost money, never fear. The Copyright Office is enjoying a financial windfall in the form of millions of dollars in filing fees for mass NOIs that should cover these costs. Or the Congress could simply increase the Office’s budget to bring it into compliance with common sense if not its Constitutional responsibilities. What the Office should be barred from doing is increasing the filing fees for basic copyright registrations simply because they have to pick up the very sleepy pace.
And by the way, I recall that the Constitution says something about due process and the government’s effective annexation of property rights by an unmovable government agency. The Copyright Office has had two years to fix this problem which is entirely within their operational control. Failing to do so, Congress could act–without an Act of Congress.
Somebody needs to pick up the phone, strong letter to follow.