On May 18, 2017, the U.S. Copyright Office proposed some regulatory changes in its requirement for a handwritten, wet signature in order to a record a document with the Copyright Office. The Copyright Office has proposed permitting electronic signatures in certain circumstances.

Background

In the U.S., the Copyright Office receives three types of documents for official recordation:

  1. Transfers of copyright ownership (including assignments and mortgages);
  2. Documents pertaining to a copyright (including “past, present, future or potential” direct or indirect relationships to the “existence, scope, duration or identification of copyright, or to the ownership, division, allocation, licensing, transfer or exercise of rights under a copyright”; and
  3. Notices of termination (terminating a grant to a third party of copyright in a work, or any rights under a copyright).

The issue relating to electronic signatures arises because federal law, 17 U.S.C. § 205(a), sets forth the conditions under which the Copyright Office can record transfers and other documents:

(a) Conditions for Recordation. – Any transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. A sworn or official certification may be submitted to the Copyright Office electronically, pursuant to regulations established by the Register of Copyrights.

Although the certification may be submitted electronically, note that the law requires the document to be recorded must have the “actual signature of the person who executed it.”

With respect to electronic signatures, the Copyright Office found that “an argument can be made” that even if a document existed only in electronic form originally, by submitting it to the Copyright Office via the Internet, the user would be submitting a “copy” to the Copyright Office. Although federal courts have ruled that copyright transfers had occurred electronically, whether by clicking “yes” to electronic terms of use or by an exchange of emails, the Copyright Office will not currently accept these electronic documents for recordation because the electronic document would contain a “copy” of the actual signature, rather than the actual signature.

Proposed Regulatory Changes

The Copyright Office has proposed some regulatory changes to help modernize its system for recording works under copyright, and the documents pertaining thereto. One issue addressed is the use of electronic signatures.

The Copyright Office stated that the passage of the federal electronic signature law known as ESIGN was “persuasive guidance as to how Congress would want the signature requirement to be interpreted in this context.” ESIGN begins with a broad statement of validity of electronic signatures and electronic contracts:

(a) In general. Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce—

(1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and

(2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.

15 U.S.C. § 7001(a). ESIGN defines an electronic signature very broadly: “The term ‘electronic signature’ means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.” 15 U.S.C. § 7006(5).

Does this conclusion meant that the Copyright Office is proposing to record documents with electronic signatures, such as clicking “I agree”? Not quite.

The Copyright Office proposes to accept an electronic signature on a document to be recorded, but only if the submitter also submits “evidence demonstrating the existence of the signature.” Examples of this additional evidence include “a database entry or confirmation email showing that a particular user agreed to the terms of use by clicking ‘yes’ on a particular date.” The Copyright Office has proposed assessing the additional evidence on a case-by-case basis.

The proposed regulation is open for public comments, which are due on or before Monday, July 17, 2017.