One of the primary roles of the Copyright Office is to register copyright claims in works of authorship. Although registration is not a condition of copyright protection, it provides many benefits, and is therefore routine practice for many commercial copyright owners, including database producers.
In order to be registered, a work must comprise original authorship. When there is a genuine question about the copyrightability of a work, the Office notes its uncertainty by registering under its "rule of doubt." This means that although the work will be registered, “there is a reasonable doubt about the ultimate action which might be taken under the same circumstances by an appropriate court with respect to whether (1) the material deposited for registration constitutes copyrightable subject matter or (2) the other legal and formal requirements of the statute have been met.
Databases may be collections of works (for example, journal articles) or of data (facts). In examining a database for registrability, the Copyright Office must determine whether it is a protectible “compilation.” The Office has prepared guidelines to assist its examiners in determining the copyrightability of databases.
Where the contents of the database represent new copyrightable subject matter, there is no question that a claim in the database may be registered. Therefore, the Office focuses on whether the claim has been appropriately stated so as to identify that new subject matter. Often, however, the claim is limited to compilation authorship because the contents of the database consist of preexisting materials, whether facts, public domain materials or works that have been previously published. In such cases, the Office must determine whether the selection, coordination or arrangement is copyrightable, making the database registrable.
Where a compilation lacks a certain minimum amount of original authorship, registration will be refused. In general, the greater the amount of material from which to select, coordinate, or order, the more likely it is that the compilation will be found registrable. There is also a basic de minimis quantity test: “Any compilation consisting of less than four selections is considered to lack the requisite original authorship.
- 17 U.S.C. §§410 & 701(a).
- As a practical matter, registration serves as notice to the public that the registrant claims a copyright in the work. The Copyright Act also establishes several incentives for registration. In addition to the evidentiary benefits, better remedies are available for infringement if a work has previously been registered. 17 U.S.C. §412. See also 19 C.F.R. § 133.31(a) (defining works eligible for recordation with Customs in order to block unauthorized imports as those works which have been registered). Registration is required for a U.S. work in order to sue for infringement (id. §411(a)) and allows priority in the event of conflicting transfers. Id. §205.
- Compendium of Copyright Office Practices II, §108.07.
- General guidelines are set out in the Compendium of Copyright Office Practices II §§307.01, 307.02, 307.03. More specific guidelines for databases, including those fixed in automated form, are set out in a series of memoranda issued to the examining staff before and after Feist.
- Id. §307.01.