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The United States Copyright Office performs a variety of functions crucial to the copyright system. Through its core registration and recordation functions, it provides critical information about the authorship, ownership, and copyright status of millions of works of authorship created over the last century; it also advises Congress, other federal agencies, and the courts on copyright law; conducts studies on various aspects of copyright law; participates in international meetings; produces educational programs and publications; and engages in many other activities relating to the administration of copyright law. However, the Copyright Office is seriously underfunded, compromising all of its functions. The essentially flat, front-end fees that the Office charges for registration and recordation fail to generate nearly enough revenue for the Office to survive, let alone thrive. Because the Office depends on Congress to appropriate taxpayer dollars to fund over a third of a tight budget, and depends on its parent agency, the Library of Congress, to request those appropriations, it is chronically short of funds.

In this article, I argue that the Copyright Office should follow the example of the Patent and Trademark Office, and charge significantly differentiated fees for registration and recordation. Just as patent and trademark fees are, those fees should be differentiated across time – over the life of a copyright – by splitting payment up into “front-end” fees imposed at the time of application, and “back-end” fees charged for renewal. They should also be differentiated across different works and applicants at the same time. In addition, I argue that the Copyright Office should be able to set fees based, not just on current costs of services rendered, but also on anticipated capital improvement costs, and on the cost of non-service activities that support the copyright system, such as the preparation of reports on copyright issues and the provision of public information about copyright law.

Whether differentiated copyright fees can provide ample funds for an entirely self-supporting Copyright Office is an open question, and it will need to remain open for some time. “Back-end” renewal fees would and should probably only be imposed on new registrations, with the result that back-end revenue would not start flowing until those fees came due on new registrations. Although it would thus take years to fully implement differentiated fees, such fees would eventually produce a wide variety of benefits. They would enable the Copyright Office to better fulfill all of its missions; they would make registration and recordation more affordable for modest applicants and works, thus enlarging the stock of copyright information provided by the Copyright Office; and they would decrease or eliminate reliance on taxpayer support of the Office.

GW Paper Series

GWU Law School Public Law Research Paper No. 2017-58; GWU Legal Studies Research Paper No. 2017-58

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