Module 7: Enforcement - Revision history

Ecrowley: /* 50px| Assignment and discussion questions */

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50px| Assignment and discussion questions

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	1. Please review the safe harbor policies available in the countries of your colleagues. Which ones offer the most favorable conditions for libraries and for what reasons?		1. Please review the safe harbor policies available in the countries of your colleagues. Which ones offer the most favorable conditions for libraries and for what reasons?

	2. Please comment on a few ~~notices~~ of your colleagues. These should be clear and inclusive, but not overbroad.		2. Please comment on a few responses of your colleagues. These should be clear and inclusive, but not overbroad.

	== Contributors ==		== Contributors ==

Ecrowley: /* Cross-border Infringement, Extraterritoriality, Conflict of Laws and Jurisdictional Limitations */

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Cross-border Infringement, Extraterritoriality, Conflict of Laws and Jurisdictional Limitations

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	====Cross-border Infringement, Extraterritoriality, Conflict of Laws and Jurisdictional Limitations====		====Cross-border Infringement, Extraterritoriality, Conflict of Laws and Jurisdictional Limitations====

	Despite attempts to create some uniformity in international copyright laws, domestic legal procedures, burdens of proof, and the availability and amount of damages vary considerably across countries. Because of these differences, the plaintiff’s choice of ~~which~~ country and court to bring her suit in becomes important. However, whether a particular forum is available is likely to be limited by the substantive law of copyright and the doctrines of extraterritoriality, choice of law, and conflict of laws.		Despite attempts to create some uniformity in international copyright laws, domestic legal procedures, burdens of proof, and the availability and amount of damages vary considerably across countries. Because of these differences, the plaintiff’s choice of the country and court in which bring her suit becomes important. However, whether a particular forum is available is likely to be limited by the substantive law of copyright and the doctrines of extraterritoriality, choice of law, and conflict of laws.

	For instance, a copyright holder cannot usually sue in one country for acts of copyright infringement that occurred in a different country. This is because, with a few exceptions, the doctrine of extraterritoriality means that a country's laws only apply within the geographic borders of that country. Applying this doctrine, courts in the United States have almost uniformly rejected attempts to apply U.S. copyright law to conduct outside of the United States. Most other countries have taken the same position.		For instance, a copyright holder cannot usually sue in one country for acts of copyright infringement that occurred in a different country. This is because, with a few exceptions, the doctrine of extraterritoriality means that a country's laws only apply within the geographic borders of that country. Applying this doctrine, courts in the United States have almost uniformly rejected attempts to apply U.S. copyright law to conduct outside of the United States. Most other countries have taken the same position.

Ecrowley: /* Legal Procedures and Remedies */

2012-01-18T21:21:47Z

Legal Procedures and Remedies

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	A copyright holder may decide to file a copyright infringement lawsuit if she believes that infringement of one of her exclusive rights has occurred. Typically, only the holder of the exclusive right that was infringed or a beneficial holder of that right may bring a copyright infringement claim.		A copyright holder may decide to file a copyright infringement lawsuit if she believes that infringement of one of her exclusive rights has occurred. Typically, only the holder of the exclusive right that was infringed or a beneficial holder of that right may bring a copyright infringement claim.

	The copyright holder may choose to sue the person or persons who committed direct infringement, and / or anyone else who may be found to be liable under the several theories of secondary or indirect infringement described above. In many countries, the copyright holder must bring the claim within a certain period of time after the act of copyright infringement occurs, or it will be barred by the statute of limitations. The length of the statute of limitations varies by country. For example, the statute of limitations for copyright infringement actions is 3 years in the United States, and six years in Australia. (17 U.S.C. section 507(b); Section 134(1) of the Australian Copyright Act.)		The copyright holder may choose to sue the person or persons who committed direct infringement, and / or anyone else who may be found to be liable under the several theories of secondary or indirect infringement described above. In many countries, the copyright holder must bring the claim within a certain period of time after the act of copyright infringement occurs, or it will be barred by the statute of limitations. The length of the statute of limitations varies by country. For example, the statute of limitations for copyright infringement actions is three years in the United States and six years in Australia. (17 U.S.C. section 507(b); Section 134(1) of the Australian Copyright Act.)

	At the outset of litigation, the defendant -- who could be an individual user, a librarian, or a library -- should consider whether settlement is a better alternative than proceeding toward full trial. Because the finer points of copyright infringement litigation are often complex, defending against an allegation of copyright infringement can be very expensive. Further, because some countries allow a plaintiff who succeeds in his copyright infringement lawsuit to collect damages as set by statute, instead of having to prove actual damages, the final awards in copyright infringement actions can be large. Finally, statutes or courts may even award attorney’s fees and other costs to the plaintiff if he prevails in his litigation.		At the outset of litigation, the defendant -- who could be an individual user, a librarian, or a library -- should consider whether settlement is a better alternative than proceeding toward full trial. Because the finer points of copyright infringement litigation are often complex, defending against an allegation of copyright infringement can be very expensive. Further, because some countries allow a plaintiff who succeeds in his copyright infringement lawsuit to collect damages as set by statute, instead of having to prove actual damages, the final awards in copyright infringement actions can be large. Finally, statutes or courts may even award attorney’s fees and other costs to the plaintiff if he prevails in his litigation.
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	Each of these requirements is discussed in depth in earlier modules; we review them here briefly.		Each of these requirements is discussed in depth in earlier modules; we review them here briefly.

	Unauthorized copying and reproduction is the most common form of copyright infringement. Copying may be demonstrated by direct proof, but such evidence is often unavailable. Copying may also by demonstrated indirectly, by presenting evidence of a substantial similarity between the original work and the copied work, and by demonstrating that the defendant had access to the copyright holder’s work. Access may be proven by facts showing specifically how the defendant could have obtained the copyrighted work. Alternatively, it may be shown by the fact that the copyrighted work was generally available and widely distributed. The substantial-similarity requirement and the access requirement are interconnected in that the more similar the two works are, the less evidence the plaintiff needs to introduce regarding access to the work.		Unauthorized copying and reproduction is the most common form of copyright infringement. Copying may be demonstrated by direct proof, but such evidence is often unavailable. Copying may also be demonstrated indirectly, by presenting evidence of a substantial similarity between the original work and the copied work and by demonstrating that the defendant had access to the copyright holder’s work. Access may be proven by facts showing specifically how the defendant could have obtained the copyrighted work. Alternatively, it may be shown by the fact that the copyrighted work was generally available and widely distributed. The substantial similarity requirement and the access requirement are interconnected in that the more similar the two works are, the less evidence the plaintiff needs to introduce regarding access to the work.

	In defending against a claim of copyright infringement, the defendant may claim several defenses and exceptions, such as fair use, statute of limitations, uncopyrightability of the original work, public domain, first sale doctrine, safe-harbor provisions, independent creation, and other statutory exemptions. We examined those Exceptions and Limitations in detail in [[Module 4: Rights, Exceptions, and Limitations\|Module 4]].		In defending against a claim of copyright infringement, the defendant may claim several defenses and exceptions, such as fair use, statute of limitations, uncopyrightability of the original work, public domain, first sale doctrine, safe-harbor provisions, independent creation, and other statutory exemptions. We examined those Exceptions and Limitations in detail in [[Module 4: Rights, Exceptions, and Limitations\|Module 4]].

	Most countries’ copyright regimes provide a broad range of remedies for copyright infringement. This is required by several of international agreements discussed in [[Module_2:_The_International_Framework\|Module 2]]. The copyright holder can typically seek temporary or permanent injunctive relief, actual damages suffered as the result of the infringement, award of trial costs and attorney fees. Finally, in extremely rare circumstances involving blatant copyright infringement, the infringing party may be found to be criminally liable, and sanctioned with fines ~~and~~ imprisonment.		Most countries’ copyright regimes provide a broad range of remedies for copyright infringement. This is required by several of international agreements discussed in [[Module_2:_The_International_Framework\|Module 2]]. The copyright holder can typically seek temporary or permanent injunctive relief, actual damages suffered as the result of the infringement, award of trial costs and attorney fees. Finally, in extremely rare circumstances involving blatant copyright infringement, the infringing party may be found to be criminally liable and sanctioned with fines or imprisonment.

	It should be emphasized that successful copyright infringement suits are unusual. The large majority of copyright holders are content with settlements in which defendants agree to cease their behavior and perhaps pay modest damage awards. Libraries are especially unlikely to be targets of successful copyright infringement suits. There are very few reported judicial opinions in any country in which a public or academic library has been found liable for violating the copyright laws. Thus, it is important that librarians be aware of the potential sanctions for copyright infringement, particularly so that they can give reliable advice to their various constituencies. But the libraries themselves should not be unduly worried about the prospect of being sued.		It should be emphasized that successful copyright infringement suits are unusual. The large majority of copyright holders are content with settlements in which defendants agree to cease their behavior and perhaps pay modest damage awards. Libraries are especially unlikely to be targets of successful copyright infringement suits. There are very few reported judicial opinions in any country in which a public or academic library has been found liable for violating the copyright laws. Thus, it is important that librarians be aware of the potential sanctions for copyright infringement, particularly so that they can give reliable advice to their various constituencies. But the libraries themselves should not be unduly worried about the prospect of being sued.

Ecrowley: /* The Liability of Online Service Providers */

2012-01-18T21:18:03Z

The Liability of Online Service Providers

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	The European Union directive is broader than the US approach in that it does not provide a clearly articulated, multi-step approach for initiating and responding to take-down notices. Because of this lack of clarity, service providers have incentives to respond aggressively to take-down notices. Further, under the Directive, there does not appear to be a set procedure in place for a user to object to removal of the material, nor are providers required to notify a user when material is removed or made inaccessible.		The European Union directive is broader than the US approach in that it does not provide a clearly articulated, multi-step approach for initiating and responding to take-down notices. Because of this lack of clarity, service providers have incentives to respond aggressively to take-down notices. Further, under the Directive, there does not appear to be a set procedure in place for a user to object to removal of the material, nor are providers required to notify a user when material is removed or made inaccessible.

	The approaches taken by other countries to the exemption of online service providers from liability for infringement committed by their users may differ substantially. Australian law, for example, contains an exemption that is similar to that codified in the United States. However, it does not require service providers to notify the person who posted the material that has been removed. Israel likewise has a notice and take-down procedure as part of its safe harbor statute. Unlike the United States, though, it does not require the service provider to remove the material quickly upon the receipt of a complaint. Instead, it allows users three days to respond to the complaint before the material will be removed. Some countries - such as India - do not recognize safe harbor provisions for Internet service providers, and may hold them liable for copyright infringement committed by their users even if the provider has no active or direct involvement in that infringement.		The approaches taken by other countries to the exemption of online service providers from liability for infringement committed by their users may differ substantially. Australian law, for example, contains an exemption that is similar to that codified in the United States. However, it does not require service providers to notify the person who posted the material that has been removed. Israel likewise has a notice and take-down procedure as part of its safe harbor statute. Unlike the United States, though, it does not require the service provider to remove the material quickly upon the receipt of a complaint. Instead, it allows users three days to respond to the complaint before the material will be removed. Some countries - such as India - do not recognize safe harbor provisions for Internet service providers and may hold them liable for copyright infringement committed by their users even if the provider has no active or direct involvement in that infringement.

	Surprisingly enough, these rules may affect some libraries in developing countries. The reason is that some libraries may assist in running or managing the networks in universities with which the libraries are affiliated. In such circumstances, it is possible that some of the libraries' activities may qualify for protection under a safe-harbor provision. If so, librarians should pay close attention to the details of the notice-and-takedown systems (if any) contained in their countries' copyright laws.		Surprisingly enough, these rules may affect some libraries in developing countries. The reason is that some libraries may assist in running or managing the networks in universities with which the libraries are affiliated. In such circumstances, it is possible that some of the libraries' activities may qualify for protection under a safe-harbor provision. If so, librarians should pay close attention to the details of the notice-and-takedown systems (if any) contained in their countries' copyright laws.

Tfisher: /* 50px| Additional resources */

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50px| Additional resources

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	Another good treatment of the same subject is Jay Dratler, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=872903"A Theory of Secondary Liability for Copyright Infringement"((.link_green))] (2005).		Another good treatment of the same subject is Jay Dratler, [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=872903"A Theory of Secondary Liability for Copyright Infringement"((.link_green))] (2005).

	A shrewd, forward-looking study of secondary liability doctrines with specific reference to filesharing is Guy Pessach, [http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=924527 "An International-Comparative Perspective on Peer-to-Peer File-Sharing and Third Party Liability in Copyright Law: Framing the Past, Present, and Next Generations' Questions,"((.link_red))] 40 Vanderbilt Journal Transnational Law 87 (2007).		A shrewd, forward-looking study of secondary liability doctrines with specific reference to filesharing is Guy Pessach, [http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=924527 "An International-Comparative Perspective on Peer-to-Peer File-Sharing and Third Party Liability in Copyright Law: Framing the Past, Present, and Next Generations' Questions,"((.link_red))] 40 Vanderbilt Journal of Transnational Law 87 (2007).

	A thoughtful recent statement by the IFLA concerning the copyright system and its impact on libraries can be found [http://www.ifla.org/en/publications/statement-by-ifla-at-the-inter-sessional-intergovernmental-meeting-on-a-development-age Here((.link_green))].		A thoughtful recent statement by the IFLA concerning the copyright system and its impact on libraries can be found [http://www.ifla.org/en/publications/statement-by-ifla-at-the-inter-sessional-intergovernmental-meeting-on-a-development-age Here((.link_green))].

Tfisher: /* 50px| Additional resources */

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50px| Additional resources

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	A shrewd, forward-looking study of secondary liability doctrines with specific reference to filesharing is Guy Pessach, [http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=924527 "An International-Comparative Perspective on Peer-to-Peer File-Sharing and Third Party Liability in Copyright Law: Framing the Past, Present, and Next Generations' Questions,"((.link_red))] 40 Vanderbilt Journal Transnational Law 87 (2007).		A shrewd, forward-looking study of secondary liability doctrines with specific reference to filesharing is Guy Pessach, [http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=924527 "An International-Comparative Perspective on Peer-to-Peer File-Sharing and Third Party Liability in Copyright Law: Framing the Past, Present, and Next Generations' Questions,"((.link_red))] 40 Vanderbilt Journal Transnational Law 87 (2007).

	An authoritative discussion of the meaning of plagiarism is [http://www.historians.org/pubs/free/professionalstandards.cfm#Plagiarism American Historical Association, Statement on Standards of Professional Conduct, #4: Plagiarism] (2005).

	A thoughtful recent statement by the IFLA concerning the copyright system and its impact on libraries can be found [http://www.ifla.org/en/publications/statement-by-ifla-at-the-inter-sessional-intergovernmental-meeting-on-a-development-age Here((.link_green))].		A thoughtful recent statement by the IFLA concerning the copyright system and its impact on libraries can be found [http://www.ifla.org/en/publications/statement-by-ifla-at-the-inter-sessional-intergovernmental-meeting-on-a-development-age Here((.link_green))].

Tfisher: /* 50px| Back to the case study */

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50px| Back to the case study

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	==[[Image:casestudy.png\|50px\|]] Back to the case study ==		==[[Image:casestudy.png\|50px\|]] Back to the case study ==
	Nadia and Angela should first ascertain whether there is any merit to the publisher's complaint. For example, they should check to determine whether the copyright on the work has expired or whether the inclusion of a copy of the work in the packet of course materials is protected by any of the exceptions and limitations in their nation's copyright laws. If they have any doubts on this score, they should consult a lawyer. The lawyer will provide them advice not just concerning the permissibility of their behavior, but also concerning the ~~potential penalties~~ they face if the publisher ~~brings suit~~. With the lawyer's aid, they should then decide whether to remove the material at issue from the course materials.		Nadia and Angela should first ascertain whether there is any merit to the publisher's complaint. For example, they should check to determine whether the copyright on the work has expired or whether the inclusion of a copy of the work in the packet of course materials is protected by any of the exceptions and limitations in their nation's copyright laws. If they have any doubts on this score, they should consult a lawyer. The lawyer will provide them advice not just concerning the permissibility of their behavior, but also concerning the sanctions they might face if they are unable to resolve the dispute with the publisher amicably. With the lawyer's aid, they should then decide whether to remove the material at issue from the course materials.

	</div>		</div>

Tfisher: /* Cross-border Infringement, Extraterritoriality, Conflict of Laws and Jurisdictional Limitations */

2010-03-01T04:46:21Z

Cross-border Infringement, Extraterritoriality, Conflict of Laws and Jurisdictional Limitations

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	For instance, a copyright holder cannot usually sue in one country for acts of copyright infringement that occurred in a different country. This is because, with a few exceptions, the doctrine of extraterritoriality means that a country's laws only apply within the geographic borders of that country. Applying this doctrine, courts in the United States have almost uniformly rejected attempts to apply U.S. copyright law to conduct outside of the United States. Most other countries have taken the same position.		For instance, a copyright holder cannot usually sue in one country for acts of copyright infringement that occurred in a different country. This is because, with a few exceptions, the doctrine of extraterritoriality means that a country's laws only apply within the geographic borders of that country. Applying this doctrine, courts in the United States have almost uniformly rejected attempts to apply U.S. copyright law to conduct outside of the United States. Most other countries have taken the same position.

	The doctrine of extraterritoriality has been complicated, however, by digital technologies and the rise of the Internet. With physical goods, it is usually easy to identify "where" an act of copyright infringement occurred. However, digital ~~infringement~~ may involve several steps that occur in different countries governed by different copyright regimes. This muddles the question of where an actual infringement took place.		The doctrine of extraterritoriality has been complicated, however, by digital technologies and the rise of the Internet. With physical goods, it is usually easy to identify "where" an act of copyright infringement occurred. However, infringement in the digital environment may involve several steps that occur in different countries governed by different copyright regimes. This muddles the question of where an actual infringement took place.

	~~Courts~~ have ~~not been consistent~~ in ~~analyzing this issue. For example,~~ some ~~early decisions suggested that an American authorizing an infringement that occurs~~ on ~~foreign~~ soil ~~does not violate US copyright law~~. ~~Subsequent courts~~ have ~~been reluctant~~ to ~~follow~~ this ~~reasoning~~. ~~Instead, they have held that US law applies to any infringement where a single "predicate act" -- an act which led to~~ the ~~infringement -- occurred~~ in ~~the United States~~.		In the United States, courts confronted with such problems have generally held that US laws apply only when the defendant has engaged in some concrete act on U.S. soil. But most countries have yet to be confronted with cases of this sort. How the courts in those countries will respond remains uncertain.

	If a particular infringement is alleged to have occurred at least in part in more than one country, a court will engage in a “conflict of laws” analysis to determine which country’s law will govern the infringement action. Because the same act of infringement may occur in several different countries, it is possible that courts in different countries might apply different countries' laws to the same action. Sometimes, a court will rule that the applicable law is the law of the country in which the infringement occurred. As such, that law will govern all elements of the action without regard to the nationality of the author, the country of origin of the copyrighted work, or the place of first publication of the copyrighted work. However, this view has been criticized by some commentators because its application would result in the application of different laws every time the work crosses a national border.		If a particular infringement is alleged to have occurred at least in part in more than one country, a court will engage in a “conflict of laws” analysis to determine which country’s law will govern the infringement action. Because the same act of infringement may occur in several different countries, it is possible that courts in different countries might apply different countries' laws to the same action. Sometimes, a court will rule that the applicable law is the law of the country in which the infringement occurred. As such, that law will govern all elements of the action without regard to the nationality of the author, the country of origin of the copyrighted work, or the place of first publication of the copyrighted work. However, this view has been criticized by some commentators because its application would result in the application of different laws every time the work crosses a national border.

	An alternative approach is to apply different laws to originality, ownership, and infringement -- the different elements of the infringement action. Under this view, a U.S. court would have to apply U.S. law to resolve issues of originality if the work is first published in the U.S. The law applicable to ownership is likely to be the law of the country that has the most significant relationship to the copyrighted work and to the parties involved. Finally, under the general principle of '' '''lex loci delicti''' '' (the place of wrong), the law applicable to the actual infringement is likely to be that of the country in which the actual infringement occurred.		An alternative approach is to apply different laws to the issues of originality, ownership, and infringement -- the different elements of the infringement action. Under this view, a U.S. court would have to apply U.S. law to resolve issues of originality if the work is first published in the U.S. The law applicable to ownership is likely to be the law of the country that has the most significant relationship to the copyrighted work and to the parties involved. Finally, under the general principle of '' '''lex loci delicti''' '' (the place of wrong), the law applicable to the actual infringement is likely to be that of the country in which the actual infringement occurred.

	The dominant view seems to be that courts should apply the law of the place where the infringement actually occurred. This view is consistent with the territorial limitations of copyright law, as well as the general consensus that the protections granted by copyright are largely domestic. It is also consistent with Article 5(2) of the Berne Convention, which provides that copyright protection is to be “governed exclusively by the laws of the country where protection is claimed.” At the same time, application of this view to digital acts of infringement may create significant enforcement difficulties and greatly increase the complexity of the case, as digital distribution and reproduction make it easy to disseminate copyrighted works to persons in different countries with different copyright regimes.		The dominant view seems to be that courts should apply the law of the place where the infringement actually occurred. This view is consistent with the territorial limitations of copyright law, as well as the general consensus that the protections granted by copyright are largely domestic. It is also consistent with Article 5(2) of the Berne Convention, which provides that copyright protection is to be “governed exclusively by the laws of the country where protection is claimed.” At the same time, application of this view to digital acts of infringement may create significant enforcement difficulties and greatly increase the complexity of the case, as digital distribution and reproduction make it easy to disseminate copyrighted works to persons in different countries with different copyright regimes.

			In short, it is currently uncertain which laws govern which aspects of copyright disputes that involve more than one country. Such disputes are becoming increasingly common. Greater attention to this matter is inevitable. One hopes that such attention will lead to greater clarity.

	== The Complex Responsibilities of Librarians ==		== The Complex Responsibilities of Librarians ==

Tfisher: /* Legal Procedures and Remedies */

2010-03-01T04:31:42Z

Legal Procedures and Remedies

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	Each of these requirements is discussed in depth in earlier modules; we review them here briefly.		Each of these requirements is discussed in depth in earlier modules; we review them here briefly.

	Unauthorized copying and reproduction is the most common form of copyright infringement. Copying may be demonstrated by direct proof, but such evidence is often unavailable. Copying may also by demonstrated indirectly, by presenting evidence of a substantial similarity between the original work and the copied work, and by demonstrating that the defendant had access to the copyright holder’s work. Access may be proven by facts showing specifically how the defendant could have obtained the copyrighted work. Alternatively, it may be shown by the fact that the copyrighted work was generally available and widely distributed. The substantial similarity requirement and the access requirement are interconnected in that the more similar the two works are, the less evidence the plaintiff needs to introduce regarding access to the work.		Unauthorized copying and reproduction is the most common form of copyright infringement. Copying may be demonstrated by direct proof, but such evidence is often unavailable. Copying may also by demonstrated indirectly, by presenting evidence of a substantial similarity between the original work and the copied work, and by demonstrating that the defendant had access to the copyright holder’s work. Access may be proven by facts showing specifically how the defendant could have obtained the copyrighted work. Alternatively, it may be shown by the fact that the copyrighted work was generally available and widely distributed. The substantial-similarity requirement and the access requirement are interconnected in that the more similar the two works are, the less evidence the plaintiff needs to introduce regarding access to the work.

	In defending against a claim of copyright infringement, the defendant may claim several defenses and exceptions, such as fair use, statute of limitations, uncopyrightability of the original work, public domain, first sale doctrine, safe-harbor provisions, independent creation, and other statutory exemptions. We examined those Exceptions and Limitations in detail ~~in [[Module 4: Rights, Exceptions, and Limitations\|Module 4]]. Librarians accused of copyright infringement should of course review carefully the Exceptions and Limitations for Libraries, discussed~~ in [[Module 4: Rights, Exceptions, and Limitations\|Module 4]].		In defending against a claim of copyright infringement, the defendant may claim several defenses and exceptions, such as fair use, statute of limitations, uncopyrightability of the original work, public domain, first sale doctrine, safe-harbor provisions, independent creation, and other statutory exemptions. We examined those Exceptions and Limitations in detail in [[Module 4: Rights, Exceptions, and Limitations\|Module 4]].

	Most countries’ copyright regimes provide a broad range of remedies for copyright infringement. This is required by several of international agreements discussed in [[Module_2:_The_International_Framework\|Module 2]], including various European Union Directives as well as the TRIPS Agreement, which require members to establish enforcement procedures and remedies sufficient to prevent infringement and to serve as a deterrent to future infringements. ~~(TRIPS Art. 41(1).)~~ The copyright holder can typically seek temporary or permanent injunctive relief, actual damages suffered as the result of the infringement~~, statutory damages~~, award of trial costs and attorney fees. Finally, ~~and under fairly limited~~ circumstances, the infringing party may be found to be criminally liable, and sanctioned with fines and imprisonment.		Most countries’ copyright regimes provide a broad range of remedies for copyright infringement. This is required by several of international agreements discussed in [[Module_2:_The_International_Framework\|Module 2]]. The copyright holder can typically seek temporary or permanent injunctive relief, actual damages suffered as the result of the infringement, award of trial costs and attorney fees. Finally, in extremely rare circumstances involving blatant copyright infringement, the infringing party may be found to be criminally liable, and sanctioned with fines and imprisonment.

	~~To obtain a preliminary injunction against the~~ infringement~~, the copyright holder typically has to establish a likelihood of success on the merits of the lawsuit and the possibility of irreparable injury if injunctive relief is not granted~~. ~~If infringement is found, the~~ copyright ~~holder may be entitled~~ to ~~a permanent injunction, which results in seizure, impoundment,~~ and ~~destruction of the infringing works~~. ~~U.S. courts routinely grant preliminary injunctions if the plaintiff is able~~ to ~~establish a '''prima facie''' case of infringement. In addition, seizure and impoundment procedures are part~~ of ~~international treaty obligations under Article 46 of the TRIPS Agreement.~~		It should be emphasized that successful copyright infringement suits are unusual. The large majority of copyright holders are content with settlements in which defendants agree to cease their behavior and perhaps pay modest damage awards. Libraries are especially unlikely to be targets of successful copyright infringement suits. There are very few reported judicial opinions in any country in which a public or academic library has been found liable for violating the copyright laws. Thus, it is important that librarians be aware of the potential sanctions for copyright infringement, particularly so that they can give reliable advice to their various constituencies. But the libraries themselves should not be unduly worried about the prospect of being sued.

	~~The copyright holder is also likely to seek either actual or statutory damages arising from the~~ copyright infringement. In establishing the amount of money to be recovered, the copyright holder may receive actual damages by demonstrating either the actual loss caused by the infringement, or the defendant’s profits attributable to the infringement. The goal is typically to place the copyright holder in ~~a position he would have been~~ in if the infringement had not occurred. The copyright holder may also claim injury suffered from not being credited with authorship or injury to business goodwill in computing damages. Further, some countries allow the recovery of immaterial or moral damages in instances where the violation of rights was particularly egregious, or where the infringement was intentional. For example, Art. 13(1)(a) of the EU Directive 2004/48/EC on the Enforcement of Intellectual Property Rights indicates that in calculating damages, the court may take into account non-economic factors such as the moral prejudice caused to the copyright holder by the infringement.

	~~Because precise calculation of damages and lost profits may be difficult~~ or ~~even impossible in copyright infringement cases, most countries allow~~ the copyright holder to choose to recover statutorily-set damages instead of having to compute and prove actual damages. For example, under U.S. law, if the copyright holder chooses this option, the court may award damages of between $750 and $30,000 for each copyrighted work infringed. If, ~~however, the copyright holder proves that the defendant acted willfully, the statutory damages award may be as high as $150,000 per work. Conversely, if the defendant~~ is ~~able to demonstrate~~ that he or she was unaware that his or her acts constituted copyright infringement, the court may reduce the damage award to $200 per work infringed. The statutory damages set by other countries vary, but the upper limits of the awards tend to be ~~substantial. Israel, for example, permits an award~~ of ~~statutory damages for infringement of a copyright or a moral right of up to $26,000 at~~ the ~~court’s discretion, while Canada allows~~ for ~~statutory damages of between $500 and $20,000 per work infringed.~~

	~~As noted above, plaintiffs in~~ copyright infringement ~~suits may attempt~~ to ~~recover some or all of~~ their ~~costs, as well as reasonable attorney’s fees~~. ~~The courts typically have discretion to decide whether to award costs and fees, and if so, in what amount. Some countries allow courts to award costs (but~~ not ~~attorney’s fees) to losing parties.~~

	In rare cases, copyright infringement may result in criminal sanctions. Typically, to succeed in a criminal copyright infringement suit, the government must demonstrate that the defendant infringed a copyright, did so willfully, and did so for commercial advantage or private financial gain. Persons who knowingly and willfully aid and abet a person to commit copyright infringement may be subject to the same criminal penalties as the infringer. A good-faith belief by the defendant that the infringing conduct was legal will typically suffice to defeat the “willfulness” requirement in a criminal prosecution. If, however, the ~~government is able to demonstrate all required elements~~ of criminal copyright infringement, the sanctions may be severe. Under US law, for example, a commercial infringer may be fined up to $250,000 and imprisoned for up to five years. However, criminal prosecutions of individual infringers are infrequent, and seem largely limited to instances such as willful copying of copyrighted material with the intent to sell or otherwise distribute the copies.

	====Cross-border Infringement, Extraterritoriality, Conflict of Laws and Jurisdictional Limitations====		====Cross-border Infringement, Extraterritoriality, Conflict of Laws and Jurisdictional Limitations====

Tfisher: /* Legal Procedures and Remedies */

2010-03-01T04:21:28Z

Legal Procedures and Remedies

← Older revision		Revision as of 04:21, 1 March 2010
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	* that the work is copyrightable		* that the work is copyrightable
	* that she is the holder of the copyright		* that she is the holder of the copyright
			* that the defendant used the plaintiff's work
	* that unauthorized exercise of one or more of the exclusive rights occurred.		* that unauthorized exercise of one or more of the exclusive rights occurred.