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Recent developments

Legal developments

Have there been any notable recent legal developments regarding copyright in your jurisdiction, including any regulatory changes and recent case law?

In Lenz v Universal Music Corp (801 F 3d 1126 (9th Cir 2015)) the Ninth Circuit ruled that copyright holders must first conduct an analysis of whether online material constitutes fair use, and therefore does not infringe, before issuing a Digital Millennium Copyright Act (DMCA) takedown notification.

In Mavrix Photographs, LLC v LiveJournal, Inc (14-56596 (9th Cir 2017)) the Ninth Circuit limited the availability of DMCA safe harbour protection for social media platforms and other sites that use moderators to review user-submitted posts in copyright cases, even where the website has processes in place for expeditiously removing materials identified in DMCA takedown notices.

In Equals-Three, LLC v Jukin Media, Inc (2:14-cv-09041 (CD Ca, October 13 2015)) a California court ruled that an online humour programme’s use of ‘viral’ videos with commentary and other embellishments was “highly transformative” and worthy of fair use protection.

Technological developments

Have there been any notable technological advances or developments to assist copyright owners in protecting and enforcing their rights?

The DMCA was enacted by Congress in October 1998 and made major changes to the Copyright Act. These changes were necessary in part to bring US copyright law into compliance with the World Intellectual Property Organisation (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty. The DMCA strengthened the legal protection of IP rights in the wake of emerging new information and communication technologies. Section 1201 of the act makes it illegal to circumvent a technological protection measure employed to restrict access to or distribution of copyrighted material. Section 1201 also contains anti-trafficking measures, which prohibit the making and selling of devices or services to circumvent either anti-access technology or anti-copying technology. Violators of the anti-circumvention and anti-trafficking provisions are subject to civil and criminal penalties.

DMCA Title II creates a safe harbour for online service providers (OSPs, which includes internet service providers) against copyright infringement liability, provided that they meet specific requirements. Among the requirements are that OSPs must promptly block access to alleged infringing material when they receive notification of an infringement claim from a copyright holder or its agent. This section also includes a counter-notification provision that offers OSPs a safe harbour from liability when users claim that the material is not infringing.

Legal framework

Domestic law

What is the primary legislation governing copyright in your jurisdiction?

The principle source of US copyright law comes from the Constitution, Article I, Section 8, Clause 8, which states: “The Congress shall have power... to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

Stemming from that authority, the primary legislation governing copyright in the United States is the Copyright Act 1976 (17 USC 101 and following), which was enacted on January 1 1978. Another copyright law of importance which relates to software protection and digital technology is the Digital Millennium Copyright Act 1998 (DMCA), which is codified in the Copyright Act at 17 USC 512, 1201-1205, 1301-1332. Court decisions have further interpreted these statutes.

International law

Is your jurisdiction a party to any international agreements relating to copyright?

The United States is a member of a number of important international copyright treaties, including:

  • the Buenos Aires Convention 1910;
  • the Berne Convention for the Protection of Literary and Artistic Works (1886 as revised);
  • the Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms;
  • the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite;
  • the Universal Copyright Convention (Geneva 1952 and Paris 1971);
  • the World Intellectual Property Organisation (WIPO) Copyright Treaty; and
  • the WIPO Performances and Phonograms Treaty.

Online and digital regulation

Are there any legal provisions specifically covering digital and online content?

The DMCA was enacted by Congress in October 1998 and made major changes to the Copyright Act. These changes were necessary in part to bring US copyright law into compliance with the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The DMCA strengthened the legal protection of IP rights in the wake of emerging new information and communication technologies. Section 1201 of the act makes it illegal to circumvent a technological protection measure employed to restrict access to or distribution of copyrighted material. Section 1201 also contains anti-trafficking measures, which prohibit the making and selling of devices or services to circumvent either anti-access technology or anti-copying technology. Violators of the anti-circumvention and anti-trafficking provisions are subject to civil and criminal penalties.

Government authorities

Are any government authorities charged with regulating and enforcing copyright law?

The Copyright Office is the centralised agency charged with regulating copyright law. It has no jurisdiction in copyright litigation; however, it does provide:

  • advice to Congress on anticipated changes in US copyright law;
  • expert assistance to Congress on IP matters;
  • analyses and assistance in drafting copyright legislation and legislative reports;
  • studies on copyright issues; and
  • advice to Congress on compliance with multilateral agreements (eg, the Berne Convention).

The Copyright Office is also where private parties’ claims to copyright are registered, and where documents relating to copyright may be recorded when the requirements of copyright law are met. In addition, the Copyright Office administers the mandatory deposit provisions and the various compulsory licensing provisions of copyright law, which include collecting royalties. The Copyright Office and the Library of Congress administer the Copyright Arbitration Royalty Panels. These panels meet for limited times for the purpose of the adjustment of rates and the distribution of royalties within the radio, music and television industries.

Protection and ownership

Copyrightable works

What works are eligible for copyright protection in your jurisdiction?

US copyright law protects any qualifying ‘original works of authorship’ that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device.

Viewed broadly, copyrightable works include the following categories, which are illustrative and not exhaustive:

  • literary works;
  • 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 audio-visual works;
  • sound recordings; and
  • architectural works.

Are there any special provisions for the protection of non-artistic works (eg, software and databases)?

A ‘computer program’ is copyrightable under the Copyright Act (Apple Computer, Inc v Franklin Computer Corp, 714 F2d 1240 (3d Cir 1983), cert dismissed, 464 US 1033, 104 S Ct 690, 79 LEd2d 158 (1984)). Courts have analogised ‘computer programs’ to ‘literary works’, which is one of the categories of works of authorship specifically listed in the Copyright Act (id; see also 17 USC 102).

Databases are essentially a form of compilation and therefore are protected by copyright. Copyright protection for a database extends to the original ways in which the pre-existing data is selected, coordinated or arranged, and not the data itself.

Are any works explicitly excluded from copyright protection?

Ideas, procedures, principles, discoveries and devices are all specifically excluded from copyright protection. Facts are not copyrightable. Titles, names, short phrases and slogans are not protected by copyright law. Copyright protection is generally not available to articles which have a utilitarian function (so-called ‘useful articles’). Since fixation is one of the prerequisites for copyright protection, works that have not been fixed in a tangible form or medium are excluded from copyright protection. This may include choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded.

Related IP rights

Can copyrightable works be protected by other IP rights (eg, trademarks and designs)?

Where applicable, copyrightable works can be protected under trademark rights, patent rights and trade secrets. 

For example, software can be protected by both patents and copyrights. The copyright would protect the artistic expression of the idea (eg, the software code itself), while the patent would protect the functional expression of the idea (eg, using a single click to purchase something online). 

An additional example would be a logo for a brand. The logo serves as a trademark indicating that products affixed with the logo are from the same source. The creative and artistic aspects of the logo may also be protected by a copyright. 

Establishment of rights, registration and deposit

Establishment of rights

How is copyright established in your jurisdiction? Is registration, deposit or any other formality required?

Copyright protection exists from the moment that the work is fixed in a tangible medium of expression. There is no requirement that the work be registered to secure copyright protection. However, in some circuits US authors may not sue in federal court for copyright infringement of their work if the work has not been registered. In addition, attorneys’ fees and statutory damages may not be available if the author has not promptly registered a work. Finally, if registration occurs within five years of publication, it is considered prima facie evidence of copyright validity and ownership in court should a lawsuit regarding the copyright subsequently arise.

If the copyright owner chooses to register his or her work at the Copyright Office, the applicant must deposit one or more copies of the work along with the application. The actual deposit requirement varies depending on the category under which the work falls. Failing to deposit a work means that the underlying work will not be registered unless the required deposit copy or copies are submitted to the Copyright Office.

Although use of a copyright notice was once required as a condition of copyright protection, now it is optional. A copyright notice will generally consist of the symbol or word ‘copyright’ (or ‘copr’ or ‘©’), the name of the copyright owner and the year of first publication (eg, ‘©2003 John Smith’). The only significant consequence of failure to display the copyright notice is that it will be easier for an infringer of the underlying work to claim that it is an ‘innocent infringer’.

However, displaying a copyright notice was important for those works published or distributed under the Copyright Act 1909 (which governs all works published until December 31 1977) and the Copyright Act 1976 before the United States’ accession to the Berne Convention in 1989. For these works, copyright could have been lost if the notice was omitted and that omission was not cured within five years of publication by registration and affixation of the notice on the remaining copies.

Registration and deposit – procedure and effects

What is the procedure for copyright registration and deposit (whether mandatory or voluntary)?

If the copyright owner chooses to register his or her work at the Copyright Office, the applicant must deposit one or more copies of the work along with the application. The actual deposit requirement varies depending on the category under which the work falls. Failing to deposit a work means that the underlying work will not be registered unless the required deposit copy or copies are submitted to the Copyright Office.  

If voluntary, what are the benefits of registration/deposit?

In many jurisdictions, US authors may not sue in federal court for infringement of their work unless the work has been registered. In addition, attorneys’ fees and statutory damages may not be available if the author has not promptly registered the work. Finally, if registration occurs within five years of publication, it is considered prima facie evidence of copyright validity and ownership in court should an infringement suit subsequently arise.

Ownership

Eligibility

Who may own copyright in a work?

The author of a work generally owns the copyright in the work. Joint authors of a work are co-owners of the copyright unless there is an agreement to the contrary. In the case of works made for hire, the employer – not the employee – is considered to be the author. Minors under the age of 18 may claim copyright, but state laws may regulate the business dealings involving copyrights owned by minors. Once the owner of a copyright dies, ownership may be passed on to his or her heirs.

Joint and collective ownership

What rules and restrictions govern the joint or collective ownership of a copyright work?

When two or more authors prepare a work with the intent to combine their contributions into inseparable or interdependent parts, the work is considered a joint work and the authors are considered joint copyright owners. A common example of a joint work is when a book has two or more authors. However, if one author primarily writes the book, but the other author contributes only a specific chapter and is given credit for his or her chapter, the work would probably not be a joint work because the contributions are not inseparable or interdependent.

If, at the time of creation, the authors did not intend their works to be part of an inseparable whole, the fact that their works are later put together does not create a joint work. Rather, the result is considered a collective work. In the case of a collective work, each author owns a copyright in only the material that he or she contributed to the final product.

The Copyright office considers joint copyright owners to have an equal right to register and enforce the copyright. Unless the joint owners make a written agreement to the contrary, each copyright owner has the right to commercially exploit the copyright, provided that the other copyright owners get an equal share of the proceeds.

Employee and commissioned work

What rules and restrictions govern the ownership of copyright in a work created in the course of employment (including works by employees and commissioned works by independent contractors)?

If a work is created by an employee in the course of his or her employment, the employer owns the copyright.

If the work is created by an independent contractor and the independent contractor signs a written agreement stating that the work shall be “made for hire”, the commissioning person or organisation owns the copyright only if the work is:

  • part of a larger literary work (eg, an article in a magazine or a poem or story in an anthology);
  • part of a motion picture or other audio-visual work (eg, a screenplay);
  • a translation;
  • a supplementary work (eg, an afterword, introduction, chart, editorial note, bibliography, appendix or index);
  • a compilation;
  • an instructional text;
  • a test or answer material for a test; or
  • an atlas.

Works that do not fall within one of these eight categories constitute works made for hire only if they are created by an employee within the scope of his or her employment.

If the creator has sold the entire copyright, the purchasing business or person becomes the copyright owner.

Exercise of rights

Owners’ rights

What rights are afforded to copyright owners (including rights to use and limit the use of the copyrighted work)?

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

  • reproduce, and authorise others 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 audio-visual 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 audio-visual work; and
  • perform the work publicly by means of a digital audio transmission, in the case of sound recordings.

Under the Visual Artists Rights Act 1991, rights of integrity and attribution are expressly recognised in the Copyright Act with respect to original works of fine art made after 1991, and limited-edition copies of the same.

Are there any limits or restrictions on the rights holder’s exercise of its rights, including any fair use allowances and parody exceptions?

The doctrines of fair use and fair dealing limit the rights of a copyright holder. Fair use is codified in Section 107 of the Copyright Act. Under the fair-use doctrine of the Copyright Act, it is permissible to use limited portions of a work (eg, quotations) for purposes such as commentary, criticism, news reporting and scholarly reports. Courts weigh four non-exclusive factors in determining whether a use is fair use:

  • the purpose and character of the use (ie, whether the use is ‘transformative’ in nature);
  • 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 the copyrighted work.

Courts may adapt the factors to particular situations on a case-by-case basis and judges have a great deal of discretion when making a fair-use determination. The outcome of any given question of fair use is therefore difficult to predict.

US copyright law gives copyright owners the exclusive right to distribute copies. However, under a principle known as the ‘first sale doctrine’, the owner of a lawfully made copy of a copyrighted work may sell or otherwise dispose of possession of that particular copy, without the permission or authority of the copyright owner (17 USC § 109).

Additional defences available to the alleged infringer are:

  • abandonment of copyright;
  • estoppel; and
  • copyright misuse (antitrust).

Ancillary rights

What ancillary or neighbouring rights arise in relation to copyright (if any)? Are there any rules or restrictions on their exercise?

The United States is not a signatory to the Rome Convention. As such, US citizen musicians receive no neighbouring rights royalties.

Duration

When does copyright protection begin and what is the duration of protection?

The length of copyright protection depends on when a particular work was authored or published. A work that is created on or after January 1 1978 is automatically protected from the moment of its creation and is ordinarily given a term enduring 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 will be 95 years from publication or 120 years from creation, whichever is shorter.

Works created before January 1 1978, but not published or registered by that date, are given federal copyright protection. The duration of copyright in these works will generally be computed in the same way as for works created on or after January 1 1978: the plus 70 or 95 or 120-year terms will apply to them as well. For works published on or before December 31 2002, the term of copyright will not expire before December 31 2047. For works created and published or registered before January 1 1978, under the law in effect before 1978, copyright was secured either on the date that a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal. The Copyright Act 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1 1978, making these works eligible for a total term of protection of 75 years. Additional changes to the law in 1998 further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years.

A related topic is that of reversion of rights through termination. The Copyright Act allows an author who has transferred a copyright or granted a copyright licence on or after January 1 1978 to terminate the transfer or grant. There is a five-year period to effect the termination that begins on the earlier of 35 years from the publication of the work or 40 years from the execution of the grant (17 USC 203).

Transfer, assignment and licensing

Transfer and assignment

What rules, restrictions and procedures govern the transfer and assignment of copyright? Are any formalities required to secure the legal effect of the transfer or assignment?

Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by either the owner of the rights conveyed or such owner’s duly authorised agent. However, the written transfer does not need to be made at the time of assignment, and a later written document confirming the agreement is sufficient to prove the assignment. 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. Additionally, it 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 the various state laws and regulations that govern the ownership, inheritance or transfer of personal property as well as terms of contracts or conduct of business. The recording of a transfer with the Copyright Office is not required to make the transfer valid between the parties; however, it provides certain legal advantages and may be required to validate the transfer as against third parties. To bring an infringement suit in court, a copyright owner needs proof of an unbroken chain of title going back to the author of the work.

Licensing

What rules, restrictions and procedures govern copyright licensing?

Copyright rights can be licensed on an exclusive and non-exclusive basis. An exclusive licence generally occurs when a copyright owner transfers one or more, but not all, of its exclusive rights but retains others. The holder of an exclusive licence becomes the owner of the transferred right and as such is entitled to sue any party that infringes the right while the 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.

Are there any special provisions governing sub-licensing?

Exclusive licensees may sub-license only with the consent of the licensor.

What collective licensing bodies operate in your jurisdiction and how are their activities regulated?

Private organisations such as the American Society of Composers, Authors and Publishers, Broadcast Music, Inc and SESAC Inc grant and administer licences for the public performance of musical works on behalf of the copyright owners of such works.

Enforcement

Jurisdiction

Which courts are empowered to hear copyright disputes?

Generally, US copyright laws are enforced by the courts through civil lawsuits initiated by the owner of the copyright of their exclusive licensee. The federal government may also initiate a criminal copyright enforcement action against counterfeiting at the request of the copyright owner. There are no specialised copyright courts in the United States. Federal courts have jurisdiction under the Copyright Act; however, if a claim also involves state law issues such as breach of contract, state courts may have jurisdiction over the case. The federal courts have more experience and expertise with copyright law than state courts. This is particularly true in the jurisdictions that cover locales where copyright disputes are frequently brought, such as the District Court for the Southern District of New York, the District Court for the Central District of California and the District Court for the Northern District of California.

Infringement

What acts constitute copyright infringement in your jurisdiction (including with regard to online and digital content)?

Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed or made into a derivative work without the permission of the copyright owner.

Is contributory infringement recognised in your jurisdiction (including liability for internet services providers and other online/digital actors)?

A person or organisation can be sued for inducing or contributing to copyright infringement through the doctrine of secondary liability. Secondary liability for copyright infringement is not statutorily defined in the Copyright Act, but is embodied in case law. Various actions can incur secondary liability, which is divided by courts into two categories:

  • vicarious liability, when the secondary party has the ability to supervise the infringing conduct and directly benefits financially from the infringement; and
  • contributory infringement, when the secondary party has knowledge or reason to know of the infringement and contributes to, authorises or induces the infringement.

Actions

What actions can be taken against copyright infringement (eg, civil, criminal or administrative), and what are the key features and requirements of each?

The owner of a copyright may initiate civil lawsuits in the US courts. The federal government may, at its discretion, also initiate a criminal copyright enforcement action against counterfeiting at the request of the copyright owner.

Under the Digital Millennium Copyright Act a content owner has the right to process a takedown notice against a website owner and/or online service provider (eg, an internet service provider) if the content owner’s property is found online without its permission. The content will generally be removed; however, the poster of the content will also be given an opportunity to have the content put back.

Who can file a copyright infringement action?

Any owner or exclusive licensee of a right reserved exclusively to the copyright owner under Section 106 of the Copyright Act can sue for copyright infringement. Because a work has many exclusive rights, it is possible that several people could have the right to sue for copyright infringement based on certain rights.

What is the statute of limitations for filing infringement actions?

The statute of limitations in the Copyright Act is three years after the claim accrued for civil actions, and five years after the claim accrued for criminal actions. However, courts have applied different standards to determine whether continued infringement actions fall under the statute of limitations and whether a cause accrues at the time of discovery or at the time of injury.

What is the usual timeframe for infringement actions?

The timeframe for an infringement action depends on the relief that the copyright owner is seeking. For example, preliminary injunctive relief may be obtained in a matter of weeks or months and actions for permanent injunctive relief or damages may take one or more years, depending on factors such as discovery issues, the court’s workload and whether the case goes to trial.

What are the typical costs incurred in infringement actions?

The cost can vary greatly, but generally a copyright proceeding can cost more than $500,000 through trial, depending on discovery costs.

How are attorneys’ fees handled? Can they be claimed in infringement actions?

Both costs and attorneys’ fees are available for copyright infringement. Reasonable attorneys’ fees may be awarded at the court’s discretion if the work was timely registered with the Copyright Office.

Injunctions

What rules and procedures govern the issuance of injunctions to prevent imminent or further infringement?

Preliminary relief is available through preliminary injunctions and temporary restraining orders (TROs). When deciding whether to issue a preliminary injunction, there are several tests that courts may use. All available tests take into account such factors as:

  • whether the plaintiff will succeed on the merits;
  • whether the plaintiff will suffer irreparable harm without an injunction;
  • whether the balance of hardships in issuing or not issuing the injunction is in favour of the plaintiff or defendant; and
  • whether the injunction would disserve the public interest.

Courts issue TROs only for the short periods during which they are deliberating the merits of a preliminary injunction. The factors are the same as for preliminary injunctions; however, because they are issued without the hearing and deliberation typical for a preliminary injunction, the burden is greater on the plaintiff to show an irreparable injury if the TRO is not issued.

Remedies

What remedies are available to owners of infringed copyrights?

Final remedies can include:

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

Customs enforcement

What customs enforcement measures are available to halt the import or export of pirated works?

If the copyright owner has registered the work with the Copyright Office, a registered copyright owner can record its works with US Customs and Border Protection (CBP). CBP will then stop pirated products at the border and prevent them from entering the United States (although CBP will not stop grey-market goods).

Defence

What defences are available to infringers?

The doctrines of fair use and fair dealing limit the rights of a copyright holder. Fair use is codified in Section 107 of the Copyright Act. Under the fair-use doctrine of the Copyright Act, it is permissible to use limited portions of a work (eg, quotations) for purposes such as commentary, criticism, news reporting and scholarly reports. Courts weigh four non-exclusive factors in determining whether a use is fair use:

  • the purpose and character of the use (ie, whether the use is ‘transformative’ in nature);
  • 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 the copyrighted work.

Courts may adapt the factors to particular situations on a case-by-case basis and judges have a great deal of discretion when making a fair-use determination. The outcome of any given question of fair use is therefore difficult to predict.

US copyright law gives copyright owners the exclusive right to distribute copies. However, under a principle known as the ‘first sale doctrine’, the owner of a lawfully made copy of a copyrighted work may sell or otherwise dispose of possession of that particular copy, without the permission or authority of the copyright owner (17 USC § 109).

Alleged infringers may also argue that the work in question is not eligible for protection because it lacked sufficient creativity for copyright protection or that it lacked copyright protection because, for example, it was uncopyrightable under the merger doctrine, in the public domain or was a scène à faire.

Appeal

What is the appeal procedure for infringement decisions?

A defeated party, in either the main proceedings or preliminary injunction proceedings, can appeal as a matter of right to the court of appeals for the circuit in which the district court resides, provided that the defeated party files a proper notice of appeal, described in Rule 3 of the Rules of Appellate Procedure. However, appellate courts may overturn a trial court’s finding of fact only when the finding was “clearly erroneous”. Findings of law are reviewed de novo. After the court of appeals hears a case and makes a ruling, either party may appeal to the Supreme Court by filing a petition for a writ of certiorari. These petitions are granted rarely (only in 1% to 2% of cases).

Online/digital considerations

Protection and enforcement measures

What special measures and safeguards should rights holders consider in protecting their online/digital content?

Copyright protection is as broad for online content as it is for non-digital content. An important step in protecting online content is letting others know that the particular work is protected by copyright and who owns the copyright. Affixing a notice to a work, although not necessary for protection, will put others on notice of the work’s protection. Subsequently, third parties can learn who they must seek permission from if they wish to use the work.

Content creators can also control how their works are used through the use of a Creative Commons licence. Creative Commons licences allow others to use your work under certain conditions (eg, commercial, non-commercial, derivative works allowed, without additional permission).

Content owners should also monitor the use of their work online. In addition to tools such as Google, there are specialised online tools that can assist content owners in monitoring use of their work online.