Must a creator have a physical Certificate of Registration to bring a lawsuit in federal court?
Under the 1976 Copyright Act, an action for infringement may be instituted if the U.S. Copyright Office has issued a certificate of registration or issued a refusal of a registration. In order to proceed with a lawsuit, it may be necessary to submit an actual copy of the certificate of registration. Upon request, the Copyright Office will provide a certified copy of a certificate of registration or a refusal letter to any member of the public who pays the appropriate fee for this service. For information concerning this service, see
Compendium (Third), Chapter 2400, § 2408.
As a prerequisite to instituting an infringement action on the basis of a refusal of registration by the Office, notice must be served on the Register of Copyrights together with a copy of the complaint. See, 17 U.S.C. § 411(a). The Copyright Act provides the Register of Copyrights with the opportunity to intervene as a party in such actions as a statutory right with respect to the issue of copyrightability.
Some courts have allowed applicants to initiate copyright infringement actions in federal district court upon the submission of an application to the Office under the so-called “Application Rule.” This rule is not only inconsistent with § 411(a), but also clearly at odds with Congress’s 2008 amendment of § 411 that added a new § 411(b), requiring courts to request the Register of Copyright’s advice as to whether inaccurate information on a certificate of registration would have caused the Register of Copyrights to refuse registration. See, The Prioritizing Resources and Organization for Intellectual Property Act of 2008 (“PRO IP Act”), Pub. L. No. 110-403, 122 Stat. 4256, 4257. An application for registration is not the equivalent of either a certificate of registration or a refusal of registration. Moreover, an application for registration received by the Office is frequently incomplete or otherwise fails to meet the statutory requirement that deposit, application, and fee have been delivered in proper form. Unless such a defect is cured by the applicant, the claim will either be closed or refused, depending on the defect. Thus, not only is the Application Rule inconsistent with the law and the legislative history, but can ensure that both the parties and the court in an infringement action are unaware of critical facts relevant to the claim. This rule ignores the role that Congress intended the Office to play in infringement actions by eliminating the evidentiary presumption of a certificate of registration as well as the Register of Copyrights’ statutory right to notice and the opportunity to intervene in infringement actions brought based on a refusal.
For further information, please see COMPENDIUM (THIRD) Compendium (Third) §§ 623 and 625.
I found an article in an online newspaper that I want to share with my colleagues. Can I copy and paste the article into my company’s internal newsletter or upload it onto the company’s intranet?
No, not unless you have permission from the copyright owner of the article. Copying an article and pasting it into a newsletter (whether that newsletter is distributed internally or externally) or onto the company intranet or network will likely be an infringement. Most copyright owners will allow re-use of their articles and other materials with permission, though sometimes you must pay a small license fee. Licensing the content is often very easy, as many publishers have licensing departments who can easily and quickly give you permission to use the content as you wish.
Can I post or upload news articles from an online publication that I subscribe to onto my company’s intranet or network?
If the articles are offered only on a subscription basis, and is meant only for one person, then placing the content on a network has the same effect as sharing passwords because it gives access to more people than are licensed. Placing an item on a network for others to access is a form of distribution that may violate the copyright owner’s rights. Consequently, sharing the content without a license – even with your own co-workers – is still a violation of copyright. Indeed, most of the content infringement that goes on in the workplace is unauthorized intra-office sharing.
What are remedies can I get once I prove that another person infringed my copyright?
In an infringement action, a copyright owner may recover monetary damages in the form of either:
actual damages plus any additional profits of the infringer attributable to the infringement, or
statutory damages, of up to $150,000 for each copyrighted work infringed.
The copyright owner also can enjoin an infringer from engaging in further infringing activities and, if the owner has timely registered her work, may also be awarded costs and attorneys’ fees. The law also permits destruction or other reasonable disposition of all infringing copies and devices by which infringing copies have been made or used in the course of the infringement.
If I didn’t know that what I was doing violated the copyright law, isn’t that a good defense or could I still be found guilty of infringement?
The copyright law does not require the person committing the violation, or responsible for the violation, to be aware that their actions violate the law. Although people who knowingly and willfully violate copyright are penalized more severely than those who do so unknowingly, the law does not excuse copyright infringements that were undertaken inadvertently or unknowingly – those individuals just receive a lesser penalty.
I found something on the internet I want to use. Do I need permission?
Much of the material on the internet that is the subject matter of copyright is protected by copyright. The copyright owner who owns the material may be fine with you making a copy or they may not be. There is no way to know unless you find out directly from the copyright owner. If you want to download the material for use in your own work, you should be cautious and track down the copyright owner of the material (which is often the original creator of the material) and ask for permission. If you only plan on using a small portion of the material instead of the whole thing it is possible that the fair use exception may apply.
Is it legal to upload and download copyrighted works to or from a peer-to-peer network?
Uploading or downloading a copyrighted work without the copyright owner’s permission is a copyright violation. An exception or limitation in the copyright law could allow it but it is extremely unlikely. Since many of the files available for download on peer-to-peer networks are protected by copyright and have been uploaded without the copyright owner’s permission, you should not download material from these networks unless you are confident that you know the source and either have the copyright owner’s permission or are confident that the material is not protected by copyright. In addition to the risk of infringement, when you download from a peer-to-peer network you also run the risk of exposing your computer to viruses, malware or spyware. To avoid these risks, consumers are advised to go to authorized online services or platforms to download or stream copyrighted works.
If a photographer registers 500 unpublished images with individual titles, does each image receive individual statutory protection, or is the collection only eligible for one single statutory damage award?
Only derivative works and compilations (including “collective works”) are statutorily limited to one award of statutory damages. See 17 U.S.C. § 504(c)(1) (“For purposes of this subsection, all the parts of a compilation or derivative work constitute one work.”) An unpublished collection is a registration accommodation intended to register a number of individual works in a single application for a single fee. The U.S. Copyright Office’s stated position is that an unpublished collection should not be considered a derivative work, a compilation, or a collective work. Specifically, the Office takes the position that a registration for an unpublished collection covers each work in the collection that is copyrightable. It also takes the position that a copyright owner should be entitled to seek a separate award of statutory damages for each copyrightable work in an unpublished collection, unless the applicant expressly asserted a claim in the selection, coordination, and/or arrangement of those works in the application for the unpublished collection. While the assessment of statutory damages is the domain of the courts, this registration accommodation is intended to register individual works that are assembled together solely for the purpose of registration and not for purposes of creating a collective work. For further information, please see Compendium (Third) Chapter 1100, § 1102.
The same scenario as above, but where they are 500 published images, taken within a one-year period, registered with the photography group registration option?
The Copyright Office has created group registration options for serial issues, newspapers issues, newsletters issues, contributions to periodicals, published photographs, and for automated databases. All of these group options are intended to register the specific works or the specific issues within each group, with the exception of a group registration for the periodic updates to databases which must satisfy the requirements of a compilation and/or derivative work.
A group registration of published photographs is a means of registering a large number of works individually with a single application and fee. The U.S. Copyright Office’s stated position is that a group registration for published photographs should not be considered a derivative work, a compilation, or a collective work under section 504(c)(1) of the Copyright Act. Specifically, the Office takes the position that a group registration covers each photograph in the group that is copyrightable, and a copyright owner should be entitled to seek a separate award of statutory damages for each copyrightable photo. For further information, please see Compendium (Third), Chapter 1100, §§ 1104.4, 1116.
I received a notice saying that my internet connection was used to download infringing material but I didn’t know I was uploading copyrighted files?
You or others who uses your computer may have installed Peer-to-Peer (P2P) software on your computer. When files are placed in the shared folder of the P2P software, they are available for other users to download from your computer. Unless the copyright owner has authorized you to distribute those files, each time someone downloads a copyrighted file from your shared folder, your internet account is being used to illegally distribute those files. To prevent future file uploads from your computer from happening you should either remove the P2P software from your computer and/or delete any files from the shared folder that you are not allowed to share with others.