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New Online System Under the Digital Millennium Copyright Act Requires Website Operators to Re-Register Agent Designations by 2018

Copyright Law Alert Heather L. Buchta

As the holidays approach, don’t forget your designated copyright agent in your holiday plans! After almost 20 years of the Digital Millennium Copyright Act (DMCA), and five years of interim regulations, the Copyright Office this year overhauled the system for registration of designated agents with the introduction of permanent final rule. The changes are intended to make the system simpler and less expensive, and to encourage online service providers to keep the agent designations up-to-date.

The changes affect service providers who already have designated agents (by requiring re-registration through the new all-online system) and those who have not (by making it easier and less expensive to register and maintain an agent designation).

“Safe harbor” protection under the DMCA is only available to service providers that designate an agent. The DMCA provides safe harbors from copyright infringement liability for online service providers (that is, search engines, directories, or websites that allow users to post or store material on their systems). However, these service providers can only qualify for the safe harbor protections if they designate an agent to receive notifications of claimed copyright infringement. This agent’s contact information must be (1) displayed on the service provider’s website, and (2) registered and maintained in the Copyright Office’s public, online directory.

All previous agent designations must be re-registered. The most important change in the final rule: service providers must re-register their existing agent designations through the new all-online registration system by December 31, 2017—or risk losing safe harbor protections. The paper filing system, started with the enactment of the DMCA in 1998, had grown costly and cumbersome, to the point that around 70 percent of the designations were ineffective, either because of out-of-date information or because the service provider was simply defunct. While the Copyright Office will maintain the paper-based directory as an archive for research or litigation needs, these old files will not be transferred to the new all-online system, and service providers wishing to receive safe harbor protection in 2018 and beyond must re-register.

Every filing with the DMCA agent directory must be submitted through the all-online system. Indeed, service providers who have not yet registered designated an agent will now find additional incentive to do so, because the all-online system is simpler and less costly than the previous paper-only system.

Renewal requirements. Going forward, registrations of agent designations must be renewed every three years, although service providers are encouraged to amend a designation as necessary to keep it up to date. Timely renewal and updates are very important, because the Copyright Office will treat entities with non-renewed or out-of-date designations the same as it would a service provider that does not designate an agent at all.

Filing fees overhauled with flat fees. These increased requirements for filings are balanced with a simplified fee schedule: The Copyright Office will now charge just a flat $6 fee per filing, whether it is a registration, renewal, amendment, or re-submittal of a designation.

For more information about designating agents under the Digital Millennium Copyright Act, please contact Heather Buchta at (602) 229-5228 / [email protected] or your Quarles & Brady attorney.