Before the Supreme
Court’s decision in Reed Elsevier, Inc. v. Muchnick, 176 L.
Ed. 2d 18 (U.S. 2010), 17
USCS § 411(a)’s registration requirement had been widely regarded as
"jurisdictional." In Muchnick,
the Supreme Court clarified that this registration requirement is not "jurisdictional"
but is, rather, a "claim processing" requirement. In this Analysis,
Catriona M. Collins discusses Muchnick
and the long term implications of this ruling. She writes:
[T]he Supreme Court concluded that §
411 did not clearly state that the registration requirement was jurisdictional.
Moreover the Court reasoned that the fact that the last sentence of § 411 includes
a reference to “jurisdiction” did not undermine this conclusion. The sentence
provides that the Registrar of Copyrights may become a party to the copyright
infringement action with respect to “the issue of registrability of the
copyright claim” but that “the Registrar's failure to become a party shall not
deprive the court of jurisdiction to determine that issue.” The Court noted
that the reference to “jurisdiction” in this last sentence refers to the power
of the court to adjudicate the issue of registrability and says nothing about whether
a court has subject matter jurisdiction over claims of infringement of
unregistered works. As further support for its conclusion that the registration
requirement of § 411(a) is not jurisdictional the Court noted that § 411(a)'s
registration requirement, like Title VII's numerosity requirement, is located
in a provision which is separate from those granting subject matter
jurisdiction over the copyright claims, 28 U.S.C. §§ 1331
The Court also found support for its conclusion in the fact that §
411(a) expressly allows courts to adjudicate infringement claims involving
unregistered works in three circumstances, namely, where the work is not a
United States work, where the infringement claim concerns rights of attribution
and integrity under 17
U.S.C.S. § 106A, or where the holder attempted to register the work
and registration was refused. In addition, § 411(c) permits courts to
adjudicate infringement actions over certain kinds of unregistered works where
the author declares an intention to secure copyright in the work and makes
registration for the work, if required by § 411(a), within three months after
the work's first transmission. 17 U.S.C.S. § 411(c)(1)-(2). The Court noted
that it would be “at least unusual” to ascribe jurisdictional significance to a
condition subject to these kinds of exceptions.
. . . .
The Supreme Court's decision serves to facilitate class action
settlements that include unregistered works, which obviously benefits both
publishers and authors. As a practical matter, many authors do not register their
works with the Copyright Office because of the cost and administrative burdens.
But the Supreme Court's decision is likely to have repercussions beyond the
arena of class actions and calls into question whether it is always necessary
for a copyright owner to register his work before filing a copyright
infringement suit. The Court expressly declined to address whether § 411(a)'s
registration requirement is a mandatory precondition to suit that district
courts may or should enforce sua sponte by dismissing copyright infringement
claims involving unregistered works, leaving this an open issue. There are also
important legal consequences flowing from the fact the registration requirement
can no longer be viewed as jurisdictional.
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