Re: Harpsichordist (Was: web-publishing & copyright...)

Edward Barrow <edward[_at_]plato32.demon.co.uk> writes:
>
> This (with earlier posts) highlights a problem with the US registration
> provisions. As a citizen of a Berne country which (like almost all
> Berne countries with the exception of the US) has no provision for
> registration, I am entitled to protection in the US according to the
> principle of national treatment. As the posts to this list have made
> clear, were I a US citizen I would be well advised to register my
> copyright so that I could obtain attorney's fees and aggravated damages
> in any litigation.
>
> Does this apply to non-US citizens? That is to say, if my UK copyright
> material were infringed in the US, which would require litigation in the
> US courts, would I be able to claim costs and aggravated damages despite
> not having registered (in either jurisdiction)?
>
> The damages in copyright litigation are almost always small compared
> with the costs. It is a requirement of Berne that protection should not
> be conditional on any formality. Protection in respect of which
> attorney's costs cannot be recovered is no protection at all.
>

17 USC sec. 412 by its terms suggests that if you don't register, you don't get the enhanced remedies. Thus, while you don't *have to* register under 411(a), it may still be a good idea. [Is there caselaw rejecting this reading of 412?]

I can't see that this violates national treatment -- US citizens are subject to the same (in fact, a harsher) rule.

I don't think that an award of attorney's fees is necessary for effective protection -- many countries don't grant attorney's fees to prevailing parties, and in the US any grant of fees at all is quite rare. If you *are* right, the problem is much worse than just the registration requirement. Most US copyright cases do not result in an award of fees to the prevailing party, so one would have to conclude US doesn't have effective protection for copyright at all on this theory.

Whether it is the imposition of a formality is a tougher question. It is true that your entitlement to certain benefits depends on registration.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

Come to the Berkeley conference on UCC Article 2B, April 23-25 1998. Find out how at http://sims.berkeley.edu/BCLT/events/ucc2b/

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/acadaff/intelprop/

For an updated list of my publications, and how to find them, see http://www.law.utexas.edu/lemley/pubs.htm Received on Thu Mar 19 1998 - 16:16:19 GMT