Court Opinions
State Laws
|
Copyrights - 17 USC Section 412
Legal Research Home >
US Lawyer > Copyrights > Copyrights - 17 USC Section 412
01/19/04
Sec. 412. Registration as prerequisite to certain remedies for
infringement
In any action under this title, other than an action brought for
a violation of the rights of the author under section 106A(a) or an
action instituted under section 411(b), no award of statutory
damages or of attorney's fees, as provided by sections 504 and 505,
shall be made for -
(1) any infringement of copyright in an unpublished work
commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first
publication of the work and before the effective date of its
registration, unless such registration is made within three
months after the first publication of the work.
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476
The need for section 412 arises from two basic changes the bill
will make in the present law.
(1) Copyright registration for published works, which is useful
and important to users and the public at large, would no longer
be compulsory, and should therefore be induced in some practical
way.
(2) The great body of unpublished works now protected at common
law would automatically be brought under copyright and given
statutory protection. The remedies for infringement presently
available at common law should continue to apply to these works
under the statute, but they should not be given special statutory
remedies unless the owner has, by registration, made a public
record of his copyright claim.
Under the general scheme of the bill, a copyright owner whose
work has been infringed before registration would be entitled to
the remedies ordinarily available in infringement cases: an
injunction on terms the court considers fair, and his actual
damages plus any applicable profits not used as a measure of
damages. However, section 412 would deny any award of the special
or "extraordinary" remedies of statutory damages or attorney's fees
where infringement of copyright in an unpublished work began before
registration or where, in the case of a published work,
infringement commenced after publication and before registration
(unless registration has been made within a grace period of three
months after publication). These provisions would be applicable to
works of foreign and domestic origin alike.
In providing that statutory damages and attorney's fees are not
recoverable for infringement of unpublished, unregistered works,
clause (1) of section 412 in no way narrows the remedies available
under the present law. With respect to published works, clause (2)
would generally deny an award of those two special remedies where
infringement takes place before registration. As an exception,
however, the clause provides a grace period of three months after
publication during which registration can be made without loss of
remedies; full remedies could be recovered for any infringement
begun during the three months after publication if registration is
made before that period has ended. This exception is needed to take
care of newsworthy or suddenly popular works which may be infringed
almost as soon as they are published, before the copyright owner
has had a reasonable opportunity to register his claim.
AMENDMENTS
1990 - Pub. L. 101-650 inserted "an action brought for a
violation of the rights of the author under section 106A(a) or"
after "other than" in introductory provisions.
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101-650 effective 6 months after Dec. 1,
1990, see section 610 of Pub. L. 101-650, set out as an Effective
Date note under section 106A of this title.
Last modified: April 20, 2006
|
|
