Legislation and enforcement

Relevant legislation

What is the relevant legislation?

The main copyright statute in the United States is the Copyright Act, which is codified in Title 17 of the United States Code (17 USC section 101 et seq), and is referred to as the Copyright Act of 1976. It originally took effect on 1 January 1978, and has been amended numerous times since. In addition, 18 USC section 2319 provides for criminal penalties for certain copyright infringement actions.

Enforcement authorities

Who enforces it?

The copyright laws of the US are generally enforced through civil lawsuits initiated by copyright owners. In certain circumstances, as described in question 43, the US federal government may initiate a criminal copyright enforcement action against an alleged infringer at the request of the copyright owner. Copyrights are also sometimes enforced against imported goods through actions at the US International Trade Commission. A copyright owner can record its rights with US Customs and Border Protection, which will then seek to stop the infringing products at the border and prevent them from entering the US.

Online and digital regulation

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

Various specific provisions of the Copyright Act address digital exploitations, including the following.

Section 106(6) provides a sound recording performance right limited to performances by means of a digital audio transmission, and sections 114 and 112(e) provide statutory licences for certain kinds of digital performances of sound recordings, including noninteractive internet webcast performances, along with ephemeral copies made to facilitate such performances.

Section 115 provides a statutory licence for ‘mechanical’ reproduction and distribution of musical works with special provisions for ‘digital phonorecord deliveries’. In 2018, the Music Modernization Act (MMA) substantially revised section 115 to provide for blanket licensing of musical works to digital music services (see ‘Update and trends’).

Section 512 of the Act, which was added by the DMCA, creates a conditional safe harbour for online service providers by shielding them from money damages and limiting injunctive relief for certain acts of direct and secondary liability when they meet certain requirements. In particular, safe harbours are provided for transitory digital network communications, system caching, storage of information at the direction of a user, and the provision of information location tools, subject to detailed requirements for each safe harbour and certain generally applicable requirements.

Chapter 12 of the Act, which was also added by the Digital Millennium Copyright Act (DMCA), provides civil and criminal remedies for certain circumventions of technological protection measures that control access to works or protect works from copying or other infringement (digital rights management (DRM)), as well as for certain violations involving the integrity of copyright management information.

Extraterritorial application

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

US copyright law generally does not have extraterritorial effects. However, US law would not view as extraterritorial the enforcement of the Act against infringing transmissions from a foreign-operated website into the US. Accordingly, there has been successful enforcement of the US Copyright Act against foreign-based sites. The US also has applied civil forfeiture provisions to seize US-registered internet domain names associated with foreign-owned and foreign-operated websites that infringe US copyright by targeting distribution of infringing copies into the US.

Agency

Is there a centralised copyright agency? What does this agency do?

The Copyright Office is the centralised copyright agency in the US. It administers various provisions of the Copyright Act and serves as an office of record where private parties’ claims to copyright are registered and where documents relating to copyright may be recorded to give notice thereof.

The Copyright Office also:

  • furnishes information to the general public about copyright law;
  • provides expert assistance to Congress and the executive branch on copyright matters;
  • analyses and assists in drafting copyright legislation and undertakes studies for Congress;
  • assists the Department of State, the US Trade Representative’s Office and the Department of Commerce in negotiating international intellectual property agreements;
  • provides advice to Congress on compliance with international agreements; and
  • provides technical assistance to other countries in developing their own copyright laws.

Additionally, a separate unit of the Library of Congress, the Copyright Royalty Board, determines royalty rates and terms, and distributes royalties, under statutory licences in the music, cable and satellite television industries.

Subject matter and scope of copyright

Protectable works

What types of works may be protected by copyright?

US copyright law protects any qualifying ‘original works of authorship’ that are fixed in a tangible medium of expression so as to be perceptible for more than a transitory duration. The fixation need not be directly perceptible, so long as it may be perceived with the aid of a machine or device. Protected works include the following categories:

  • literary works, including characters;
  • musical works, including any accompanying words;
  • dramatic works, including any accompanying music;
  • pantomimes and choreographic works;
  • pictorial, graphic and sculptural works;
  • motion pictures and other audiovisual works;
  • sound recordings created on or after 15 February 1972, as well as certain earlier foreign sound recordings entitled to US protection under international treaties (earlier recordings are generally protected under state law); and
  • architectural works created on or after 1 December 1990 (or created but not published or constructed prior to that date, and constructed by 31 December 2002).

In 2018, the MMA added section 1401 to the Copyright Act, which provides specialised protection to sound recordings created before 15 February 1972. (See ‘Update and trends’.)

Rights covered

What types of rights are covered by copyright?

The Copyright Act generally gives the owner of a copyright the exclusive right to:

  • reproduce the work in copies or phonographic records;
  • prepare derivative works based upon the work;
  • distribute copies or phonographic records of the work to the public by sale or other transfer of ownership, or by rental, lease or lending;
  • perform the work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes and motion pictures, and other audiovisual works;
  • display the copyrighted work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic or sculptural works, including the individual images of a motion picture or other audiovisual work; and
  • perform the work publicly by means of a digital audio transmission, in the case of sound recordings.
Excluded works

What may not be protected by copyright?

The following may not be protected by copyright:

  • works that have not been fixed in a tangible form of expression;
  • words and short phrases such as names, titles and slogans;
  • familiar symbols or designs;
  • mere variations of typographic ornamentation, lettering or colouring;
  • mere listings of ingredients or contents;
  • facts, ideas, procedures, processes, systems, methods, concepts, principles, discoveries, as distinguished from descriptions, explanations or illustrations;
  • blank forms that are designed for recording information and do not themselves convey information; and
  • works containing no original authorship.
Fair use and fair dealing

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

US law recognises the doctrine of fair use, which is codified in section 107 of the Copyright Act. Under section 107, courts are to consider four non-exclusive factors in determining whether a particular use is fair usage. These are:

  • the purpose and character of the use (especially whether the use is ‘transformative’ in nature and, to some extent, whether it is for commercial or for non-profit educational purposes; a use is considered ‘transformative’ if it does not merely supersede the original work, but instead adds new expression, meaning or message with a further purpose or different character);
  • the nature of the copyrighted work;
  • the amount and substantiality of the portion taken; and
  • the effect of the use upon the potential market for or value of the copyrighted work.

Courts have suggested additional non-statutory factors that may bear on a fair use analysis, such as whether an alleged infringer acted in good faith. Courts apply these factors to particular situations on a case-by-case basis, weighing the factors in light of the purposes of copyright. The outcome of any given question of fair use can therefore be difficult to predict.

Architectural works

Are architectural works protected by copyright? How?

Architectural works are protected by copyright. For this purpose, an architectural work is defined as ‘the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings’. Protection extends to ‘the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features’. Protection is generally provided on the same basis as for other types of works, except that pictorial representations of constructed buildings are permitted, and building owners are permitted to alter or destroy their buildings without the consent of the author or copyright owner.

As noted in question 6, protection is available for any architectural work created on or after 1 December 1990. In addition, any architectural works that on 1 December 1990 were not constructed, but were embodied in unpublished plans or drawings, and were constructed by 31 December 2002, are eligible for protection. Architectural works embodied in plans published or buildings constructed prior to 1 December 1990 are not protected by copyright.

Performance rights

Are performance rights covered by copyright? How?

The US Copyright Act provides a general right of public performance for literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works. The Act also provides public performance rights for sound recordings, but these are limited to performances by means of a digital audio transmission.

To be a ‘public’ performance, the work must be performed in a place open to the public or to a ‘substantial number’ of people outside of a family and its social acquaintances, or be transmitted in such a way that members of the public are capable of receiving it. Thus, a public performance may be accomplished by rendering a work to an audience present in a public or semi-public place or by transmitting a work by radio, television, internet or other means.

Exemptions are provided for various kinds of performances in specialised circumstances. For example, performances of non-dramatic literary or musical works to an audience present where the performance occurs (not performances by means of transmission) are exempted if the performances are not for commercial advantage, no compensation is paid to the performers or organisers, and admission is free (or where the copyright owner has not objected, any proceeds are used for charitable purposes).

Neighbouring rights

Are other ‘neighbouring rights’ recognised? How?

While US law does not use the term ‘neighbouring rights’, it recognises various rights similar to ones covered by that term in other countries. Rights of performers and producers of audiovisual works and of sound recordings created on and after 15 February 1972, as well as broadcasters and creators of photographs and many databases, are protected in the US as a matter of federal copyright law. In addition, other provisions of US federal or state law provide protection that might be considered neighbouring rights in some other countries include:

  • Until 11 October 2018, sound recordings created before 15 February 1972 were generally protected under a combination of state common law copyright, unfair competition and specialised statutory provisions. Since that date, section 1401 of Title 17 provides specialised protection to sound recordings created before 15 February 1972 (see ‘Update and trends’).
  • Integrated circuit layouts (called ‘mask works’) are protected under specialised provisions in Chapter 9 of Title 17.
  • Unauthorised fixation and trafficking in live musical performances are prohibited by Chapter 11 of Title 17.
  • Designs of boat hulls and decks are protected under specialised provisions in Chapter 13 of Title 17.
  • Hot news misappropriation is a recognised common law tort in some states, and covers the use of time-sensitive information by a competitor regardless of whether the information is protected by copyright law (although the scope of protection for hot news is likely fairly narrow due to federal copyright law pre-emption).
  • A majority of states recognise the right of publicity, which protects the use of a recognisable aspect of an individual’s persona (such as his or her image or voice) in advertising or trade.
Moral rights

Are moral rights recognised?

Moral rights are protected to some extent, but they are more narrowly defined and of less practical effect in the US than in many other jurisdictions.

The Copyright Act provides only limited moral rights of attribution and integrity to authors of a narrowly defined class of works of visual art, under the Visual Artist Rights Act (VARA). VARA provides authors of limited edition works of the fine arts and exhibition photographs the right to claim or disclaim authorship in a work; limited rights to prevent distortion, mutilation or modification of a work; and the right, under some circumstances, to prevent destruction of a work that is incorporated into a building. The legislation provides for waiver of these moral rights, but only by a signed, written agreement specifically identifying the work and the uses of the work to which the waiver applies. The Copyright Act’s exclusive right to prepare derivative works protects all types of works against modification, but is freely assignable and also subject to limitations such as fair use. The Copyright Act also prohibits providing false copyright management information (CMI), including the name and identifying information of the author, and removing or altering CMI in certain circumstances.

State laws relating to privacy, publicity, contracts, fraud, misrepresentation, unfair competition and defamation, and the federal Lanham Act also provide certain protections consistent with the concept of ‘moral rights’.

Copyright formalities

Notice

Is there a requirement of copyright notice?

Although US law once required use of a copyright notice as a condition of copyright protection, notice has been optional on copies of works published since 1 March 1989. A copyright notice generally consists of the symbol ‘©’, the word ‘copyright’ or the abbreviation ‘copr’, the year of first publication and the name of the copyright owner (for example, ‘© 2018 John Smith’). For sound recordings, a copyright notice consists of the symbol ‘Ⓟ’, the year of first publication and the name of the copyright owner.

What are the consequences for failure to use a copyright notice?

The only current legal consequence of a failure to use a copyright notice is that it makes it easier for an infringer of the work to claim that he or she is an ‘innocent infringer’. However, if a work was published without notice before 1 March 1989, the omission may have caused copyright to be lost.

Deposit

Is there a requirement of copyright deposit?

The owner of copyright or of the exclusive right of publication in a work published in the US generally is required to deposit two copies of the best edition of the work in the Library of Congress within three months after the date of publication. Such a deposit is not a condition of copyright protection.

Such a deposit is generally accomplished in connection with copyright registration (see questions 18 to 21). However, copyright registration is optional. If the copyright owner chooses to register his or her work with the Copyright Office, the applicant must submit specified copies of the work along with the application. Upon their deposit in the Copyright Office, all copies and identifying material, including those deposited in connection with applications that have been refused registration, become the property of the US government. The details of the deposit requirement vary depending on the type of work involved.

What are the consequences for failure to make a copyright deposit?

If a mandatory deposit is not made on demand, a fine may be levied, and the relevant person may be required to pay the Library of Congress’ cost of buying the copies demanded. In addition, when registration is sought, the underlying work will not be registered unless the required deposit copy or copies are submitted to the Copyright Office.

Registration

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

The US has a copyright registration system. To apply for a copyright registration, the author must submit a completed application form, a non-refundable filing fee, and a non-returnable deposit copy or copies of the work to be registered. The primary means of registration is to use the Copyright Office online system called Electronic Copyright Office (eCO). When using the online system, the filing fee is paid online, and deposit copies of certain categories of works can be uploaded directly. Otherwise, hard copy deposits are submitted with a shipping slip that allows the Office to associate the deposit with the online registration record. Paper forms can also be used for copyright registration, but require payment of a higher filing fee and involve a longer processing time. Forms can be downloaded from the Copyright Office’s website (www.copyright.gov), picked up in person or requested by post.

Is copyright registration mandatory?

There is no requirement that a work be registered. Copyright protection exists from the moment the work is created. However, for ‘US works’ (generally works first published in the US or unpublished works where all the authors are US nationals), registration is a prerequisite to suing for infringement.

What are the fees to apply for a copyright registration?

The standard registration fee for a simple application submitted through the eCO online system is US$35. When there are multiple authors, a claimant who is not the author, multiple works, or a work made for hire, the fee for an online application is US$55. When paper forms are used, the standard fee is US$85. The fee for expedited service is US$800.

What are the consequences for failure to register a copyrighted work?

As noted in question 19, a US work must be registered to bring a suit for infringement. In addition, attorneys’ fees and statutory damages will be unavailable if the author has not registered the work within certain time requirements.

Registration is also recommended because it gives the public notice that the copyright owner claims copyright protection in the work. Finally, if registration occurs within five years after first publication, the registration certificate is considered prima facie evidence of copyright validity and of the facts concerning authorship and ownership stated in the certificate. This presumption is important, because it can greatly simplify proving copyright ownership in a court, particularly when multiple works are at issue or it is necessary to prove authorship or ownership many years after the creation of a work.

Ownership and transfer

Eligible owners

Who is the owner of a copyrighted work?

The general rule is that the author of the work initially owns the copyright. As discussed in question 23, a corporate entity can be considered the author in the case of a work made for hire. The initial owner of copyright may assign its rights (see question 26).

Employee and contractor work

May an employer own a copyrighted work made by an employee?

An employer will be considered the author of a work, and will initially own the copyright, when the work is a ‘work made for hire’. A work will be considered a work made for hire if it is prepared by an employee within the scope of his or her employment. Traditional common law agency principles are applied to determine who constitutes an employee. As an alternative to the ‘work made for hire’ doctrine, an employer may own a copyrighted work as the result of an assignment from his or her employee.

May a hiring party own a copyrighted work made by an independent contractor?

A hiring party may own a copyrighted work made by an independent contractor either by assignment, or in some circumstances, as a work made for hire. If a work prepared by an independent contractor is considered a work made for hire, the hiring party will be considered the author of the work. For a work created by an independent contractor to be considered a work made for hire the parties must expressly agree in a written document signed by them that the work will be considered a work made for hire, and the work must be specially ordered or commissioned for use as:

  • a contribution to a collective work;
  • a part of a motion picture or other audiovisual work;
  • a translation;
  • a supplementary work;
  • a compilation;
  • an instructional text;
  • a test;
  • answer material for a test; or
  • an atlas.
Joint and collective ownership

May a copyrighted work be co-owned?

Copyrights can be co-owned either in the case of a joint work (described further below) or by assignment or other transfer of ownership (such as inheritance). In either case, unless the co-owners have agreed otherwise, a co-owner can exploit or license the work without seeking permission from the other co-owners, but owes the other co-owners a duty to account for the profits of such exploitation or licensing. A co-owner cannot grant a licence that is exclusive as to the interests of another co-owner without the agreement of the other co-owner.

When one or more people create a single work together, the result is a joint work in which the copyright is initially co-owned by the joint authors. A joint work is defined by the Copyright Act as ‘a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.’ Under this definition, all the involved authors must intend that their contributions be combined, and this intention must exist at the time the contribution is created. It is not necessary that the contributions be equal in effort or value. Nor is it necessary that the joint authors work in the same physical area or at the same time. If a joint work exists, then both authors are co-owners of equal, undivided interests in the entire work.

However, not everyone who makes any contribution to a work will be considered an ‘author’ of the work. Whether a contribution rises to the level of authorship generally requires that a person contribute copyrightable expression and play a sufficiently important role in the creation of the work to be considered an author (based on factors such as an intention shared with other authors of the work to be co-authors, control over the work, receiving credit commensurate with other authors, and contribution to the audience appeal of the work).

Transfer of rights

May rights be transferred?

Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred. However, a transfer of exclusive rights (other than by operation of law) is not valid unless that transfer is memorialised in a writing signed by the owner of the rights conveyed or such owner’s duly authorised agent. The writing need not be made at the time of assignment. A letter or other writing confirming the agreement is sufficient. Transfer of a right on a non-exclusive basis does not require a written agreement. A copyright may also be conveyed by operation of law and may be bequeathed by will, or pass as personal property by the applicable laws of intestate succession.

Copyright is a personal property right, and is subject to state laws that govern the ownership, inheritance or transfer of personal property as well as the terms of contracts. Although the recording of a transfer in the US Copyright Office is not required to make the transfer valid between the parties, it does provide certain legal advantages against third parties, as described in question 31.

Licensing

May rights be licensed?

Copyright rights can be licensed on an exclusive or non-exclusive basis. The holder of an exclusive licence is the owner of the licensed right and as such is entitled to sue any party that infringes the right while the exclusive licensee owns it. A non-exclusive licence gives the licensee the right to exercise one or more of the copyright owner’s rights, but does not prevent the copyright owner from giving others permission to exercise the same right or confer standing to sue.

Are there compulsory licences? What are they?

The Copyright Act provides various compulsory licences (sometimes referred to in the US as ‘statutory licences’):

  • section 111 - secondary transmissions by cable systems;
  • section 112 - ephemeral reproductions of sound recordings;
  • section 114 - public performance of sound recordings by means of digital audio transmissions;
  • section 115 - ‘mechanical’ reproduction and distribution of musical works;
  • section 118 - use of certain works in non-commercial broadcasting;
  • section 119 - secondary transmissions by satellite carriers; and
  • section 122 - local retransmissions by satellite carriers.

These licences are all very different from each other, and the details of most of them are fairly complicated. The section 122 licence is generally royalty-free. Otherwise, royalty rates under these licences are determined, or subject to adjustment in certain circumstances, by the Copyright Royalty Board. Royalties under sections 111 and 119 are paid into the Copyright Office and distributed to copyright owners under the supervision of the Copyright Royalty Board. Royalties under the other licences are paid directly to copyright owners or to collecting societies representing copyright owners and creators.

In addition to these compulsory licences, section 116 provides special authority for collective negotiations between copyright owners of musical works and operators of coin-operated phonorecord players (jukeboxes), with the possibility of a rate determination by the Copyright Royalty Board if necessary.

Are licences administered by performing rights societies? How?

In the case of musical works, there is no requirement that licences be administered by performing rights organisations, but songwriters and music publishers generally have chosen to have a performing rights organisation grant and administer voluntary collective licences on their behalf. The American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music (BMI), SESAC and Global Music Rights are the principal US performing rights organisations for musical works.

In the case of sound recordings, SoundExchange collects and distributes royalties under the sound recording statutory licences on behalf of the featured artists and copyright owners of such works, and also under some direct licence agreements.

Termination

Is there any provision for the termination of transfers of rights?

The Copyright Act has several provisions for termination of transfers. For transfers or licences executed by an author on or after 1 January 1978, the Act permits termination under certain conditions, generally between 35 and 40 years after first publication, by serving written notice on the transferee within specified time limits. For grants made before 1978 of ‘renewal’ rights to works under statutory copyright protection before 1978, the statute provides similar rights of termination, generally between 56 and 61 years after the date copyright was originally secured.

Recordal

Can documents evidencing transfers and other transactions be recorded with a government agency?

A document that transfers copyright ownership, and other documents pertaining to a copyright, may be recorded in the Copyright Office. To be recorded, the document filed for recording must bear the actual signature of the person who executed it or be accompanied by a sworn or official certification that it is a true copy of the original signed document. A recordation fee must be paid.

Recording of a document in the US Copyright Office gives all persons constructive notice of the facts stated therein (if the work has been registered), and recording a transfer also provides priority over certain conflicting transfers.

Duration of copyright

Protection start date

When does copyright protection begin?

Copyright protection exists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work.

Duration

How long does copyright protection last?

The length of copyright protection varies according to when the particular work was created and published, and according to whether the author is an identified natural person, as explained in more detail in question 34.

Does copyright duration depend on when a particular work was created or published?

The duration of copyright protection depends on when a particular work was created and published and on the nature of the author. A work created on or after 1 January 1978 is automatically protected from the moment of its creation and is ordinarily given a term continuing for the author’s life plus an additional 70 years after the author’s death. In the case of a ‘joint work prepared by two or more authors who did not work for hire’, the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter.

For works created before 1 January 1978, the duration of copyright depends on whether the work was published, or the copyright in the work was registered, before 1 January 1978. If so, the copyright term is 95 years from the date federal copyright was originally secured (usually the date of publication). Otherwise, the copyright term is generally computed in the same way as for works created on or after 1 January 1978. That is, the term is life plus 70 years, or 95 or 120 years, depending on the circumstances of authorship and publication. However, for works that were unpublished and unregistered on 1 January 1978 but were published on or before 31 December 2002, the term of copyright will not expire before 31 December 2047.

Both the requirements for copyright protection and the US copyright term have changed over time. In the past, the copyright term was shorter, and many pre-1978 works fell into the public domain earlier than the expiry of their full term. Determining whether any particular work created before 1 January 1978 is still under copyright is thus fairly complicated, and depends on factors such as the source country of the work, when the work was created and published, whether the work was published with notice, and whether the copyright was renewed during the 28th year after publication or registration (see question 35).

Similarly, the duration of the specialised protection for sound recordings created before 15 February 1972 depends on when a particular work was published. Such recordings published before 1923 will enter the public domain at the end of 2021. Unpublished pre-1972 recordings, and pre-1972 recordings published in 1923 or later, have varying periods of protection, with the last of them entering the public domain on 15 February 2067.

Renewal

Do terms of copyright have to be renewed? How?

Renewal does not apply to works created on or after 1 January 1978, or to earlier works that were not published or registered before 1 January 1978. Works first published or registered up until 1963 had to be formally renewed, through a renewal registration in the US Copyright Office, to maintain protection. Failure to renew placed the work in the public domain. However, copyright protection was later restored to certain works of foreign origin that had fallen into the public domain due to failure to renew. For works first published or registered between 1964 and 1977, renewal was automatic, but obtaining a renewal registration provides certain advantages.

Government extension of protection term

Has your jurisdiction extended the term of copyright protection?

The US term of copyright protection has been extended many times. Most recently, the Sonny Bono Copyright Term Extension Act of 1998 extended copyright terms by 20 years to yield the terms described in question 34. While the extension was not applied to copyright that had already expired, it did extend the terms of existing copyright.

Copyright infringement and remedies

Infringing acts

What constitutes copyright infringement?

Copyright infringement occurs when a party violates any of the copyright owner’s exclusive rights described in question 7. Assuming ownership of a valid copyright and no applicable authorisation, infringement requires both of the following:

  • the alleged infringer, as a factual matter, copied from the copyright owner’s work in the alleged infringer’s activities of a type that implicates the copyright owner’s exclusive rights described in question 7 (eg, reproduction, public performance); and
  • the alleged infringer appropriated enough of the copyright owner’s original expression to give rise to liability.

Application of these requirements in any particular case can vary widely depending on the nature of the defendant’s activity. In a traditional case focused on a single work, where the defendant did not copy the plaintiff’s work literally or in its entirety, there may be a substantial factual question as to whether the defendant even knew of the plaintiff’s work, and even assuming the fact of copying, as to whether the defendant copied a sufficient amount of the plaintiff’s work to consider the works ‘substantially similar’. In a case involving the legality of an unlicensed online service, it is typically not disputed that the plaintiff’s works were used in their entirety; the questions typically are, instead, whether the service is of a type that implicates the copyright owner’s exclusive rights and whether the service provider is legally responsible for the activity.

Vicarious and contributory liability

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

Secondary liability for indirect copyright infringement has been established by case law, although it is not specifically prescribed by statute. Secondary liability can be found under several theories:

  • vicarious liability, when the defendant has the ability to supervise the infringing conduct, and benefits financially from the infringement;
  • contributory infringement, when the defendant has knowledge or reason to know of the infringement, and contributes to, authorises or induces the infringement; and
  • inducement as discussed in the Supreme Court’s Grokster decision, when the defendant acts with the object of promoting infringement, as shown by clear expression or other affirmative steps taken to foster infringement.
Available remedies

What remedies are available against a copyright infringer?

Remedies for copyright infringement can include:

  • payment to the copyright owner of any profits the infringer received and of any losses suffered by the copyright owner, or ‘statutory damages’ as an alternative to actual profits and losses;
  • a court order restraining the infringer from continuing the infringing activity;
  • confiscation and destruction of the infringing items; and
  • attorneys’ fees.
Limitation period

Is there a time limit for seeking remedies?

The statute of limitations for bringing a civil copyright infringement claim is three years (and five years for criminal actions). It is measured from the time the claim accrued. In most courts, a claim is considered to accrue at the time the plaintiff knew or had sufficient reason to know that the infringement occurred. However, some courts may view a claim as accruing at the time the infringement occurred. If, at the time of suit, the infringement has been ongoing for more than three years since the claim accrued, the copyright owner is able to pursue remedies for the infringements occurring within the past three years. However, where the essence of a copyright claim is a dispute concerning ownership of the copyright, courts have rejected the assertion of an ongoing wrong and have dismissed the claim if it was brought more than three years after it accrued.

Monetary damages

Are monetary damages available for copyright infringement?

Monetary damages are available for copyright infringement. A party found liable for copyright infringement may be found liable for either the copyright owner’s actual damages and any additional profits of the infringer, or statutory damages, as provided by the Copyright Act. However, statutory damages are only available if registration for the infringed work was obtained within certain time requirements.

Attorneys’ fees and costs

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

Both costs and attorneys’ fees can be claimed in a copyright infringement action. They may be awarded to a prevailing party at the court’s discretion if the work was registered with the US Copyright Office within certain time requirements.

Criminal enforcement

Are there criminal copyright provisions? What are they?

The Copyright Act has criminal provisions. It is a criminal offence to wilfully infringe a copyright if the infringement was committed:

  • for either commercial advantage or private financial gain;
  • by the reproduction or distribution, including by electronic means, during a 180-day period, of one or more copies or phonographic records of one or more copyrighted works, which have a total retail value of more than US$1,000; or
  • by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

The Copyright Act specifies various additional criminal offences:

  • placing a fraudulent copyright notice on any article, or publicly distributing or importing for public distribution any article bearing such fraudulent notice;
  • removing or altering any notice of copyright appearing on a copy of a copyrighted work with fraudulent intent;
  • knowingly making a false representation of a material fact in an application for copyright registration, or in any written statement filed in connection with the application; and
  • wilfully and for purposes of commercial advantage or private financial gain violating the provisions of the Act concerning circumvention of technological protection measures or those concerning protecting the integrity of copyright management information (see question 3).
Online infringement

Are there any specific liabilities, remedies or defences for online copyright infringement?

See question 3.

Prevention measures

How may copyright infringement be prevented?

Copyright owners in the US employ a mix of strategies to control copyright infringement, including:

  • discouraging infringement by applying to their works a statutory copyright notice and sometimes other warnings against infringement, and by registering their works with the Copyright Office;
  • employing technological protection measures to frustrate infringement;
  • recording their works with US Customs and Border Protection, as described in question 2, to try to keep infringing copies out of the US market;
  • policing the market to identify infringements, including sometimes by hiring specialised contractors to identify online infringements;
  • invoking statutory or informal notice and takedown procedures to remove infringing material from online services;
  • sending ‘cease-and-desist’ letters demanding that infringers stop infringing activity;
  • bringing civil actions to pursue the remedies described in question 39; and
  • in appropriate circumstances (see question 43), working with law enforcement authorities concerning possible criminal enforcement.

Trade associations and collecting societies representing copyright owners also take various measures on a collective basis to control infringement, including:

  • supporting programmes to educate and inform the public concerning copyright compliance and legitimate sources of copyrighted material;
  • operating telephone ‘tip lines’ and investigating infringements;
  • facilitating collective enforcement action; and
  • working with US government trade officials to resolve significant infringement issues abroad.

Relationship to foreign rights

International conventions

Which international copyright conventions does your country belong to?

The US is a party to:

  • the Berne Convention for the Protection of Literary and Artistic Works (1886, as revised);
  • the Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974);
  • the Buenos Aires Convention (1910);
  • the Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms (1971);
  • the Universal Copyright Convention (Geneva 1952 and Paris 1971);
  • the World Intellectual Property Organization (WIPO) Copyright Treaty (1996);
  • the WIPO Performances and Phonograms Treaty (1996); and
  • the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (2013).

The US has signed the Beijing Treaty on Audiovisual Performances (2012). However, at the time of writing, that treaty has not yet been ratified by the US or entered into force.

The US is also a member of the World Trade Organization and a party to various free trade agreements containing copyright-related provisions.

What obligations are imposed by your country’s membership of international copyright conventions?

Each of the treaties identified in question 46 has its own unique requirements. They generally require a certain minimum level of protection in terms of the rights recognised and the duration of protection, and also create an obligation to honour the copyright of citizens of other treaty parties by affording them copyright protection in the US on the same basis as US citizens.