553. Typically, the Office also notifies the public through its NewsNet service. In most cases, the public is invited to provide comments on proposed regulations for the Office’s consideration.
102.3 Administrative Procedure Act
Congress expressly made the Register’s actions under the Copyright Act subject to the provisions of the Administrative Procedure Act of June 11, 1946, as amended. 17 U.S.C. § 701(e). Congress legislated only one express exception to this rule: Section 706(b) of the Copyright Act which provides for the U.S. Copyright Office to issue regulations specifying the conditions under which the Office may authorize or furnish copies or reproductions of deposited articles retained by the Office.
102.4 Federal Court Decisions
Federal courts have interpreted the 1976 Act on numerous occasions, resulting in a well-developed body of case law. Sometimes courts decide issues that are not squarely addressed by the 1976 Act and, in doing so, develop standards that are consistent with the Act and provide additional guidance. Thus, certain copyright law doctrines are derived largely from court decisions.
For example, the Copyright Act does not explain what level of creativity is necessary for a work to qualify as a “work of authorship” under the Act. Section 102(a) of the Act states—without further elaboration—that “[c]opyright protection subsists… in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Numerous courts have analyzed what an original work of authorship is under the Act. For more information on the originality requirement, see Chapter 300, Section 308 of this Compendium.
The standards for comparing works and determining when a work protected by copyright is infringed by another work also come from judicial doctrine. For instance, courts have held that, to prevail in a copyright infringement case, a copyright owner must show (i) direct evidence that the defendant copied the copyright owner’s work, or (ii) that the defendant had access to the copyrighted work, and (iii) that the copyright owner’s and defendant’s works are substantially similar.
Certain U.S. copyright law doctrines are entirely judicially-created and have never been directly codified in the Act, such as theories of contributory and vicarious liability for infringement. Others, such as principles of fair use (Section 107 of the Act), are codified at a high level in the 1976 Act, but are interpreted on a case-by-case basis by the courts.
For these reasons, it is important to consult court opinions on copyright-related issues. When doing so, note that copyright law doctrines may differ among jurisdictions, as different circuits have followed different standards. For example, the infringement standard in the Ninth Circuit is somewhat different from that of the First and the Second Circuits. Additionally, some circuits allow a claim for copyright infringement to be brought upon submission of an application for registration to the U.S. Copyright Office under Section 411 of the Copyright Act, while others require a certificate of registration
