I do not disagree with your interpretation of Section 412 - and also
you correctly state the text of § 104A(d)(4) however you leave out
the mentioning that this section defines the shelter offered to Reliance
Parties only. NO one else. Read that way § 104A(d)(4) specifically
forms an exception to the general rule that for the purpose of §412
registration is deemed valid from the date of restoration.
§ 104A(d)(1) provides that in certain cases the owner may resort to all the remedies of chapter 5, including statutory damage, with respect to an act of infringement of the restored work that is commenced on or after the date of restoration
For support of this holding see:
William J. Hughes on H.R. 5110 - Page: E2264
Uruguay Round Agreement Act Section 5 (Link: http://thomas.loc.gov/cgi-bin/query/D?c103:1:./temp/~c103V3vcMb:e7977:)
Statement of Senator Patrick Leahy on section 514 of the Uruguay Round Agreement Act (Senate December 01, 1994)
To your remarks on the legislative history, I think you will find that we are dealing with a first impression here - and generally very few cases has dealt with matters related to "restoration" at all.
If you still think I have got it wrong I would be grateful for your supported arguments.
Calle Østergaard
>>> info[_at_]troll-company.dk 09/05/01 05:12AM >>>
Ochoa - you missed out that the are a category of foreign works that need
not register to be entitled to statutory damage and attorneys fee -
"restored works". §104A(d)(1) - are entitled to "the remedies as provided
in chapter 5 of 17 U.S.C. §§ 501 et esq. - on or after the date of
restoration".
<<<<<
I disagree. Section 412 says "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 any infringement" committed before registration, unless registration is made within three months of first publication.
An action for infringement of a restored work is an "action under this title." There are two express exceptions; under basic principles of statutory construction, the inclusion of two exceptions implies the exclusion of any other exceptions. Moreover, section 104A(d)(2) also refers to "the remedies provided by chapter 5 of this title," and yet subsection (d)(4) expressly refers to Section 412. Subsection (d)(4) would be unnecessary if the reference to Chapter 5 did not include the limitations placed on Chapter 5 by Section 412 of Chapter 4. Finally, it is my recollection that the legislative history makes this point even more clearly, although I don't have a citation handy.
Tyler T. Ochoa
Associate Professor
Whittier Law School
>>> mch[_at_]cix.compulink.co.uk 09/03/01 05:06AM >>>
Does anyone on the list know of any US case-law over non-US authors' need to
register copyrights? Recall that registration is not required in any other
jurisdiction (that I am aware of), either for theoretical protection or for
effective relief.
<<<<<
I don't have any case cites; but I don't need them because the statute is crystal clear on this point. Registration is NOT required to bring an infringement suit for foreign authors; it is required only for "United States works." Section 411(a). However, registration IS required to recover statutory damages and attorneys fees for both U.S. works and works of foreign origin. Section 412. Does this violate the Berne Convention? Probably; but the Berne Convention is not self-enforcing in the U.S., so a court can't overturn the statute on its own. The only recourse is if some foreign government takes the dispute to the WTO under TRIPS.
In the meantime, if you are a foreign author, the message is clear: keep registering your works in the U.S. if you want to be able to recover statutory damages and attorneys fees in court here.
Tyler T. Ochoa
Associate Professor
Whittier Law School
Received on Fri Sep 07 2001 - 12:06:56 GMT
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