Pending Copyright Act Amendments
Two bills which would amend the Copyright Act, including an enhancement to the available civil penalties for copyright infringement, and creation of new enforcement offices with significant funding, have recently been introduced
Although both bills have bipartisan support and seek to strengthen and harmonize the protection of intellectual property, including copyrights and trademarks, it is likely that they will be significantly modified as they make their way through the legislation process.
The Senate Bill S.2317 can be found in its entirety at: http://www.govtrack.us/congress/billtext.xpd?bill=s110-2317
The House Bill H.R. 4279 can be found in its entirety at: http://www.govtrack.us/congress/billtext.xpd?bill=h110-4279
Both proposed bills would provide that a Certificate of Copyright Registration will satisfy the requirements needed for copyright infringement litigation, "regardless of any inaccurate information contained in the certificate," unless it was willfully known to be inaccurate and the Register of Copyrights would have refused registration if the inaccurate information was known. If inaccuracies are alleged during a lawsuit, the court would be required to obtain the advice of the Register on whether the Register would have denied registration if the inaccuracies were known.
This would eliminate the technical defense in copyright infringement litigation that the Certificate of Registration was inaccurate, unless the inaccuracy was material.
A copyright owner would be entitled to receive statutory damages for each copyrighted work that is found to be infringed, and to obtain either one or multiple awards with respect to infringement of works that are lawfully included in a compilation or a derivative work and any pre-existing works upon which it is based. The court would be able to consider any relevant facts including whether the infringed works are distinct works having independent economic value.
As a result, the maximum amount of statutory damages for infringement of a compilation would increase from a single amount of $30,000 (or $150,000, if willful) to the possibility of multiple awards of that amount. This, if enacted, would be a major change, since existing law limits recovery of statutory damages to one award for a compilation (such as a magazine spread) even if there are multiple images in the compilation.
Both bills would add a prohibition for the exportation of infringing items to the current prohibition on the importation of copyright infringing items.
The proposed bills differ in this area, but generally would increase the criminal penalties for copyright infringement, would make conviction of a repeat copyright infringer easier, and would also enlarge the forfeiture sections by permitting the Justice Department to seize and auction off computer and network hardware which are used in "facilitating" a copyright infringement.
Each proposed Bill would create a new bureaucracy. The House bill provides for an intellectual property
The Senate bill would permit the attorney general to commence civil as well as criminal actions for copyright infringement. This provision would have its greatest impact against wholesale pirating of movies and music. Its impact presumably would not be as important in photography matters.
Hearings on both bills will be held, which will undoubtedly result in changes as to language and content, as interested parties make their positions known. In the end, if either or both bills are passed, they must be aligned into one piece of legislation. I am sure we will hear more as time passes.
Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.
 Tommy Thompson |
 Kerry Kolb |
 Jon Saban |
 Jake Nelson |