Tag Archives: #covid19

Copyright Office Procedures During COVID-19

By Elizabeth Altman

As COVID-19-related disruptions and social distancing measures continue across the country and throughout the summer, many public institutions are seeing continued curtailment to their operations. It can be overwhelming to parse through ever-changing, institution-specific pandemic protocols, which is why we have put together an overview of the Copyright Office’s current practices in response to the COVID-19 pandemic. This guide explores the safety and efficiency measures adopted by the Copyright Office to mitigate effects from the national emergency, and explains what that means for your registrations, recordations, research, and other copyright-related concerns.

General Background

First and foremost, the Copyright Office’s physical offices remain closed, as they—along with all Library of Congress buildings—have been since March 13 of this year. The Office is actively teleworking, however, with staff and registration specialists operating remotely to continue core Copyright Office activities, such as reviewing and processing of registrations. The Copyright Office’s emergency modifications, implemented on March 31, 2020, and discussed further below, have currently been extended through September 8, 2020.

Registrations

A central function of the Copyright Office is registering copyrighted works. During the pandemic, the Office has continued to provide this service via its online registration portal, eCO. Examiners continue to review online registrations remotely, processing electronic applications in the order in which they are received (except with respect to special handling, discussed further below). The Copyright Office strongly encourages online registration, especially considering that, given today’s copyright technology and the Copyright Office’s current procedures, most works are fully registerable online.

The main COVID-19-related disruption to registration involves physical deposits and applications, which some people prefer to use, and which are required for certain categories of works and applications as discussed below. Although the Copyright Office is still accepting physical submissions, it is currently storing them in an offsite facility, regardless of whether they were submitted by USPS, courier, or delivery service. The Copyright Office will only process these submissions when the Library of Congress reopens, for which there is presently no timeline. To date, the Library of Congress has stated that all events at its buildings are cancelled until September 1 and that all facilities remain closed “until further notice.” When the Copyright Office does resume reviewing physical materials, it will do so in the order in which they were received, as submissions have been date-stamped.

The Copyright Office therefore strongly encourages applicants to take advantage of electronic filing options. To this end, the Office has expanded its electronic submissions programs, to accommodate applications that would normally require a physical deposit copy. Below is a summary of the available submission options, depending upon the deposit requirements for the type of work:

a) Registration Where No Physical Deposit is Required:

For applicants not required to submit a physical deposit copy of the work, the Office strongly encourages uploading one electronic copy of the work after completing the electronic application and paying the required fee. No other declaration form or special procedure is required.

b) Registration Where Physical Deposit is Required:

Physical deposit copies are required for certain kinds of work, including vessel designs and mask works. They are also required when:

  • A work was first published in the U.S. before the applicant submitted an application claim to the Copyright Office, and the work was published in physical form, like a CD, DVD, or paperback book;
  • A work was first published in the U.S. before the applicant submitted an application claim, and the work was published both in a physical and an electronic form (like a song released on CD and as a download); or
  • A work was first published abroad before the applicant submitted an application claim to the Copyright Office, and the work was first published in a physical format like CD, DVD, or paperback book.

Applicants that must submit a physical deposit copy should mail it to the Copyright Office, including the shipping slip, which provides the mailing address. Although the physical deposit will not be processed until the Office returns to normal operations, applicants who also follow the Office’s special pandemic procedures—as outlined below—will receive remote examination of the electronic application: 

  1. Complete an electronic application and submit the filing fee through the online registration system.
  2. Upload an electronic copy of the work that is identical to the physical copy.
  3. Print the shipping slip generated by the eCO system and attach it to the physical deposit copy of the work that is mailed to the Copyright Office.
  4. Complete and upload a Deposit Ticket Declaration Form certifying that the physical deposit and electronic copy contain identical content.
  • Include the title of the work, which the registration specialist will use to confirm that the information in the declaration matches that in the application.
  • Sign the declaration; typed signatures suffice.
  • You need not notarize the form or have a witness.

The Copyright Office advises that where an applicant has filed an application electronically but has only submitted a physical deposit, the examiner assigned to the claim may send an email with the option of uploading an electronic copy of the work and the Deposit Form, where the option is available. Emails send from cop-ad@loc.gov. However, applicants taking note of the Copyright Office’s building closures and hold on inspections of physical material are advised to proceed with this process from the start.

Where applicants follow this procedure, the effective date of registration will be the date the Copyright Office receives the completed application, fee, and deposit in its proper form, regardless of whether the physical or electronic version first reaches the Office. Claims submitted in this manner should be examined within 30 days after the Office receives the electronic copy, although the Copyright Office generally advises that the average time to process a registration is presently 3.2 months.

The Copyright Office directs that applicants that have only submitted a paper application should not resubmit an online application; in such cases, the Copyright Office will examine the application when the building reopens and staff returns.

c) Where Applicants are Unable to Submit an Application, Fee, and/or Deposit During COVID-19

Under the Coronavirus Aid, Relief, and Economic Security (CARES) Act, passed on March 27, 2020, the Register of Copyrights has the temporary authority to extend certain filing deadlines and procedural requirements if she determines that a national emergency is disrupting Copyright Office practices. The Register quickly used this authority to establish a procedure to extend the window for registrations under Section 710 of the Copyright Act, which authorizes her, on a temporary basis and subject to certain exceptions, to “toll, waive, adjust, or modify any timing provision . . . or procedural provision” in the Copyright Act if she determines that a national emergency declared by the President “generally disrupts or suspends the ordinary functioning of the copyright system . . . or any component thereof.” Considering the difficulties of prompt registration, which is generally required in order to ensure the availability of statutory damages and attorney’s fees should an infringement dispute proceed to litigation (these legal remedies are only available for works registered before infringement or, if after infringement, within three months after first publication), the Office is now allowing applicants to toll the registration window based on fulfillment of certain conditions:

  • Applicants who are unable to submit an application, fee, and/or required physical deposit copy should fill in and upload a Section 710 Declaration online (the form applies to applicants who declare that due to the pandemic they either could not submit an application fee, and/or deposit copy or could not submit a required physical deposit copy though they did submit an online application and fee; it also contains a section for the applicant’s statement supporting the declaration, and an acknowledgement of the penalties associated with making a false representation in an application for copyright registration). When possible, applicants should proceed to complete an electronic application, submit a filing fee, print a shipping slip, and mail the required deposit with the shipping slip to the address on the slip. Applicants must mail these materials within 30 days after the date that the COVID-19 disruption has ended, as announced by the Register of Copyrights.
  • Applicants that are prevented from submitting a paper or electronic application, fee, and/or required deposit may do so after the end of the national emergency, provided that they include a Section 710 Declaration with their application materials.

Section 710 Declarations must be signed—either handwritten or typed signatures suffice—and include satisfactory evidence to support the claim that the pandemic prevented the applicant from submitting required materials. The following would be suitable justifications:

  • A statement that you are/were subject to a governmental stay-at-home order.
  • A statement that you are/were unable to access required physical materials due to a business closure at the site of the materials’ storage.
  • A statement that you were unable to access the internet.

Certificates of Registration

The Copyright Office has ceased printing certificates of registrations at present. If, however, your claim has been registered, it will appear in the Office’s online catalog. You may retrieve the registration number by searching using the title, author, or claimant name. For registrations processed through Special Handling, the Office will email an unofficial copy of the registration certification that includes the registration number. If the Copyright Office refuses your claim, it will email you a copy of the refusal letter.

Special Handling

The Copyright Office’s “special handling” procedure allows applicants to expedite the registration process for an additional fee. Presently, the Copyright Office will only receive and process requests for special handling that are submitted online.

The following steps ensure special handling:

  1. Submit an electronic application completing the special handling screen.
  2. Pay the filing fee and additional special handling fee.
  3. Upload an electronic copy of your work.

If the application would ordinarily require a physical deposit, you may use the Deposit Ticket Declaration Form option to qualify for special handling.

After you complete these steps, the Office will typically examine your claim, or contact you with questions within five business days. If, however, you submit physical copies or a paper application, the Copyright Office will neither examine your materials nor implement special handling until the Library of Congress reopens. As of May 2020, the Office now also permits applicants to submit requests for special handling of document recordation submissions, including notices of termination, by email.

Requests for Reconsideration of Registration Refusal

Requests for reconsideration are typically filed by mail, but as an alternative during the pandemic, the Copyright Office will allow you to submit your request to copreviewboard@copyright.gov. After receiving your request, the Copyright Office will contact you with instructions to pay the required filing fee electronically. The request and fee must be received by the Office within three months from your refusal date.

Requesting Cancellation of Registration

To seek a voluntary cancellation of a registration, as the author or claimant of record, you may submit your request to copreviewboard@copyright.gov. A staff member will contact you about submitting the required fee.

Research & Updates

a) Library of Congress

As noted, all Library of Congress buildings and facilities have been closed to the public, including researchers and those with reader identification cards, which are required to access the Library’s research areas, including Computer Catalog centers and Copyright Office public service areas. Access to the Library of Congress is currently limited to a small number of necessary persons, although the Library notes that, as of June 22, 2020 it will implement “Phase One, Part One” of its plan to gradually restore on-site operations. This plan involves recalling around 200 staff members—approximately 5% of all staff—to onsite operations. Neither the Library of Congress nor the Copyright Office have provided a timeline for how long Phase One will last, when “Phase One, Part Two” is likely to commence, nor a prospective implementation date for Phase Two. The duration of each phase will be determined based on local conditions and the Library’s operations at each stage. All public events at the Library of Congress have been cancelled through September 1, 2020.

The public may still access Library of Congress resources at:

Copyright Office

Copyright.gov remains, of course, the main starting point for keeping up to date on copyright matters. To stay current with Copyright Office COVID-19 news, in particular, visit https://www.copyright.gov/coronavirus/. The Office’s Coronavirus FAQ, which outlines specific questions regarding registration and deposit copies, may also be of use. Subscribe to updates regarding COVID-19, as well as other copyright matters, at the Office’s NewsNet service: https://www.copyright.gov/subscribe/. Finally, the Copyright Office’s up-to-date filing options are available in chart form at https://www.copyright.gov/coronavirus/filing-options/.

We will update this post from time to time with further developments.

COVID-19 Relief

By Tyler Horowitz

While certain states have started to ease lockdowns and shelter-in-place limitations, the COVID-19 pandemic’s effects have taken a toll on many lives, communities, and small businesses. One of the many challenges this unprecedented situation has spawned is how small business will weather the economic downturn it has caused. This situation has been particularly dire for the entertainment industry and businesses that are in early start-up stages as well as early stages of financing.

On March 27, 2020, the President signed the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) to provide emergency financial and health care assistance for individuals, families, and businesses affected by the coronavirus pandemic. On the financial side, the Small Business Administration (SBA) received funding and authority through the CARES Act to modify existing loan programs and establish a new loan program to assist small businesses nationwide that have been adversely impacted by the COVID-19 emergency.

For those small and medium-sized businesses who are unfamiliar with, or haven’t applied to, the Paycheck Protection Program (PPP) or other similar state and federal relief programs, this post will provide a high-level overview of what such businesses need to know to pursue monetary relief.

Paycheck Protection Program

What is the PPP?

The CARES Act, in Section 1102, authorizes the SBA to temporarily guarantee loans in accordance with the terms and conditions of Section 7(a) of the Small Business Act. This relief program provides loans designed to incentivize small businesses to keep their workers on the payroll. Small businesses receive funds to pay for up to eight weeks of payroll costs including benefits, and the SBA will forgive the loan if all employees are kept on the payroll for that time and the money is only used for payroll, rent, mortgage interest, or utilities. Applicants are required to submit a good faith certification stating the following:

  • The loan is needed to support ongoing operations;
  • The loan will be used to retain workers, maintain payroll, and pay for mortgage, lease, and utility payments;
  • The borrower does not have a pending application for a similar loan; and
  • The borrower did not get a similar loan between February 15, 2020 and December 31, 2020.

 Who can apply?

A business is eligible for a PPP loan if the business has not more than 500 employees and if its principal place of residence is in the United States. A business’ principal place of residence is determined in accordance with the guidelines set out in the Code of Federal Regulations (“C.F.R.”) §1.121-1(b)(2). Similarly, PPP loans are also available to 501(c)(3) non-profit organizations with fewer than 500 employees and the self-employed, sole proprietors, and freelance and gig economy workers.

In order to qualify under the PPP, a business must have been in operation during the “Covered Period” of February 15, 2020 – June 30, 2020. The loan may be used to ensure that a business meets its payroll obligations as well as any costs related to family leave, sick or medical leave, insurance premiums, commissions, or rent that is incurred during the Covered Period.

How is the loan size determined?

The loan size is calculated on a case-by-case basis as follows and in accordance with the terms of 13 C.F.R. § 120:

  1. Add all payroll costs for all employees whose principal place of residence is in the United States.
  1. Subtract any compensation paid to an employee in excess of a salary of $100,000.00 annually and/or any amounts paid to an independent contractor or sole proprietor in excess of $100,000.00 annually.
  1. Calculate the average monthly payroll costs (divide the number from Step 2 by 12).
  1. Multiply the average monthly payroll costs, calculated in Step 3 above, by 2.5.
  1. Add the resulting number to any outstanding amount of an Economic Injury Disaster Loan (“EIDL”; discussed below) made between January 1, 2020 – April 3, 2020 and subtract the amount of any EIDL advance.

On April 24, 2020, the SBA issued further guidance on how to calculate maximum loan amounts for each type of applicant (available here).  

How to apply?

You can apply through any existing SBA 7(a) lender or through any federally insured depository institution, federally insured credit union, and Farm Credit System institution that is participating. Other regulated lenders will be available to make these loans once they are approved and enrolled in the program. A list of participating lenders as well as additional information and full terms can be found here. These loans are first-come, first-served and the Government will continue to make disbursements so long as Congress provides funding.

Economic Injury Disaster Program

The EIDL Program is another option for small businesses administered by the SBA under Section 7(b) of the Small Business Act.  EIDLs are lower interest loans of up to $2 million, with principal and interest deferment available for up to 4 years, that are available to pay for expenses had the pandemic not occurred (e.g., payroll and operating expenses).

To qualify for an EIDL, your business must have suffered “substantial economic injury” from COVID-19. EIDLs are based on a company’s actual economic injury determined by the SBA (less any recoveries such as insurance proceeds) but the amount of the loan may not exceed $2,000,000.00.

Loan parameters

  • The eligibility period commences January 31, 2020 and ends December 31, 2020;
  • Any small business (including sole proprietorships, with or without employees) with 500 or fewer employees;
  • The interest rate on EIDLs is 3.75% fixed for small businesses and 2.75% for nonprofits. The EIDLs have up to a 30-year term and amortization (determined on a case-by-case basis);
  • The money can be used for payroll, rents or mortgages, or other operational costs;
  • Up to $200,000 can be approved without a personal guarantee; and
  • No collateral is required for loans of $25,000 or less. For loans of more than $25,000, a general security interest in business assets will be used for collateral instead of real estate.

Emergency advance

The EIDL Program provides an emergency advance of up to $10,000 to small businesses harmed by COVID-19 within three days of applying for an EIDL. To access the advance, you must first apply for an EIDL and then subsequently request the advance. The advance does not need to be repaid under any circumstance, and may be used to keep employees on the payroll or pay business obligations, including debts, rent and mortgage payments.

Applications and more detailed information can be found here.

Snapshot differences between PPP and EIDL

TermsEIDLPPP
Maximum Loan Amount$2,000,000$10,000,000
Interest Rates3.75%, up to 30 years (2.75% for non-profits)   Any portion of the loan not forgiven will be treated as a two-year loan with a 1% fixed interest rate  
Forgivable AmountOnly $10,000 of the emergency advance is forgiven100% forgivable provided employees are kept on the payroll for eight weeks and the money is only used for payroll, rent, mortgage interest, or utilities
Approved UsesRent, payroll, accounts payable, and any other expenses that could have been met had the pandemic not occurredPayroll expenses, rent, mortgage interest and utilities  
Collateral and Credit Check RequirementsYesNo

Can I Apply to Both?

Yes! However, it is important to note that you cannot use funds from both loans for the same purpose.

For example, you can’t use both EIDL and PPP funds towards payroll.

Additional Resources and News

In addition to PPP and EIDL, private companies have lent support for members of the entertainment industry. For example, Sony Music announced a $100 million Global Relief Fund to support not only medical workers, but also creators, artists, and other partners in the entertainment community who have been impacted by COVID-19.  Similarly, Live Nation Entertainment’s Crew Nation Fund is currently providing financial support to music crews who have been directly impacted by suspended or cancelled shows.

Further, U.S. Senators Amy Klobuchar, Chris Coons, Tim Kaine, and Angus King introduced the New Business Preservation Act . This legislation would create a new $2 billion program at the Treasury Department that would partner with states to invest in promising start-up businesses in areas of the country that do not currently attract significant equity investment and who are particularly vulnerable to the current economic crisis as a result of COVID-19.

Cowan, DeBaets, Abrahams & Sheppard LLP will continue to provide updates on legal developments related to the present crisis and we are available should you need further guidance.