Haynes and Boone, LLP Partner Jason Bloom is helping advocate for a legal standard that lets copyright owners avoid delay when having to sue infringers.
Bloom, a member of the International Trademark Association’s recently formed Copyright Committee helped draft an INTA resolution supporting an approach that allows copyright owners to sue infringers immediately after applying for registration with the U.S. Copyright Office and submitting a deposit and fee (the “application approach”), as opposed to having to wait until the Copyright Office issues the registration (the “registration approach”).
This is an important issue to copyright owners because some U.S. Courts of Appeal and District Courts have expressly adopted the registration approach, even though it can take six to 15 months to review an application and issue the registration.
Bloom, incoming chair of the INTA Copyright Committee’s Enforcement Subcommittee, recently wrote about the issue in the INTA Bulletin, following his presentation of the resolution to INTA’s Board of Directors, which approved it unanimously. He said delaying a copyright owner’s right to pursue legal action against an infringer harms copyright claimants who need quick relief, such as to enjoin an infringing advertisement or prevent infringing materials from being shipped out of the country. Requiring a registration certificate in hand before suing also puts the United State out of sync with the Berne Convention, an international treaty designed to simplify enforcement of rights under the world’s myriad of copyright laws.
Bloom said, “While the language of the Copyright Act reasonably supports both the application approach and the registration approach, the application approach is much more sensible in light of the fact that the Copyright Office grants close to 98 percent of all applications, rendering the potential delay caused by the registration approach unreasonable and, in most cases, unnecessary. The existence of a circuit split on the proper approach makes this an issue that should be resolved by the Supreme Court or legislative action, with the former being likely in the short term should the court take up Fourth Estate Public Benefit Corp. v. Wall-Steet.com.”
Bloom heads Haynes and Boone’s Copyright Practice Group.