Where the three necessary elements are received at different times the date of receipt of the last of them is controlling, regardless of when the Copyright Office acts on the claim. The provision not only takes account of the inevitable timelag between receipt of the application and other material and the issuance of the certificate, but it also recognizes the possibility that a court might later find the Register wrong in refusing registration. H.R. Rep. No. 94-1476 at 157 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5773.
The Senate Joint Explanatory Statement on the Berne Convention Implementation Act of 1988 stated unequivocally: “The principal change made by the amendment deals with existing section 411 of the Copyright Act, 17 U.S.C. § 411. This provision establishes the general rule that a claim of copyright in a work must be registered with the Copyright Office before any lawsuit claiming infringement of the work may be initiated. Section 411(a) contains an exception in the case of a work as to which the Copyright Office has refused to issue a certificate of registration, but the fact remains that a review by the Copyright Office of the validity of a copyright claim is a necessary precondition for enforcement of copyright protection under current law.” 134 Cong. Rec. S14554 (daily ed. Oct. 5, 1988) (Joint Explanatory Statement on Amendment to S. 1301). In addition, the House Report on the Berne Convention Implementation Act of 1988 explained: “For all of these reasons, the Committee concluded that section 411(a)—and registration as a prerequisite to the filing of a lawsuit—should be retained.” H.R. Rep. No. 100-609, at 42 (1988).
The statute and the legislative history, when read together, clearly evince Congress’s intention that the Register of Copyrights must either issue a certificate of registration or refuse an application for registration prior to filing a suit for copyright infringement. Not only would the filing of a lawsuit solely on the basis of submission of an application eliminate the mediating role that Congress intended the Office to fulfill, it also would nullify the Register of Copyrights’ statutory right to intervene in an infringement action in cases where the application for registration has been refused. 17 U.S.C. § 411(a).
It also should be noted that the Office provides a service for applicants to expedite the processing of claims within five business days in situations involving prospective or pending litigation. (For information concerning this procedure, see Section 623.) This service is available when a claim is submitted or after a claim has been submitted and is currently in-process. This service eliminates delay in the copyright owner’s ability to file copyright infringement actions.
