625.4 Minimum Requirements for Establishing an Effective Date of Registration Distinguished from the Requirements for Issuing a Certificate of Registration
The fact that an applicant satisfied the minimum requirements for establishing an effective date of registration does not necessarily mean that the work will be registered. The U.S. Copyright Office will not register a claim or issue a certificate of registration until the registration specialist has determined that the material deposited constitutes copyrightable subject matter and the other legal and formal requirements for registration have been met. 17 U.S.C. § 410(a).
625.5 Differences Between an Application and a Certificate of Registration
The date on which the U.S. Copyright Office receives an application for registration will constitute the effective date of registration only if (i) the Office subsequently determines that it has received (a) the proper filing fee; (b) an acceptable deposit (i.e., one that is legally sufficient and perceptible); (c) an application that meets the legal and formal requirements of Title 17; and (d) issues a certificate of registration; or (ii) the Office refuses the claim and a court of competent jurisdiction later determines that the work was registrable.
The mere submission of an application to the U.S. Copyright Office does not amount to a registration. This is corroborated by the statute and the legislative history. Sections 410(a) and (b) set forth the basic duties of the Register of Copyrights: to issue certificates of registration after an examination of the deposit and the application to determine whether the legal and formal requirements of Title 17 have been met, or to refuse the application and notify the applicant of the reason for the refusal. 17 U.S.C. § 410(a), (b).
Section 410(c) provides for a statutory evidentiary presumption of the validity of the facts “stated in the certificate [of registration]” if the registration “is made before or within five years after publication.” Id. § 410(c). Whether the registration has been “made before or within five years after first publication” depends on whether a certificate of registration has been issued by the Office and the date on which the Office received all of the requisite registration materials (i.e., a complete application, deposit, and filing fee). Id. Until the Office issues a certificate of registration, there can be no effective date of registration.
Section 410(d) directly addresses the effective date of a copyright registration. It states that “[t]he effective date of copyright registration is the day on which an application, deposit, and fee, which are later determined by the Register of Copyrights or by a court of competent jurisdiction to be acceptable for registration, have all been received in the Copyright Office.” Id. § 410(d). Deposit requirements and filing fees are established by regulation by the Register of Copyrights. Id. §§ 408(b), 702, 708. While a court may later determine the copyrightability of a work that has been refused by the Office, a court cannot waive the Office’s requisite registration fees, determine whether the deposit was received by the Office, or whether that deposit was sufficient for registration purposes by the Office. A court’s determination of an effective date of registration, as opposed to the Register’s determination, is premised on the Office’s refusal of a claim of copyright. The legislative history on section 410(d) confirms this interpretation:
