Current through P.L. 105-153, approved 12-17-97
s 101. Definitions
Except as otherwise provided in this title, as used in this title, the following
terms and their variant forms mean the following:
An "anonymous work" is a work on the copies or phonorecords of
which no natural person is identified as author.
An "architectural work" is the design of a building as embodied
in any tangible medium of expression, including a building, architectural
plans, or drawings. The work includes the overall form as well as the arrangement
and composition of spaces and elements in the design, but does not include
individual standard features.
"Audiovisual works" are works that consist of a series of related
images which are intrinsically intended to be shown by the use of machines
or devices such as projectors, viewers, or electronic equipment, together
with accompanying sounds, if any, regardless of the nature of the material
objects, such as films or tapes, in which the works are embodied.
The "Berne Convention" is the Convention for the Protection of
Literary and Artistic Works, signed at Berne, Switzerland, on September
9, 1886, and all acts, protocols, and revisions thereto.
A work is a "Berne Convention work" if--
(1) in the case of an unpublished work, one or more of the authors is a
national of a nation adhering to the Berne Convention, or in the case of
a published work, one or more of the authors is a national of a nation adhering
to the Berne Convention on the date of first publication;
(2) the work was first published in a nation adhering to the Berne Convention,
or was simultaneously first published in a nation adhering to the Berne
Convention and in a foreign nation that does not adhere to the Berne Convention;
(3) in the case of an audiovisual work--
(A) if one or more of the authors is a legal entity, that author has its
headquarters in a nation adhering to the Berne Convention; or
(B) if one or more of the authors is an individual, that author is domiciled,
or has his or her habitual residence in, a nation adhering to the Berne
Convention;
(4) in the case of a pictorial, graphic, or sculptural work that is incorporated
in a building or other structure, the building or structure is located in
a nation adhering to the Berne Convention; or
(5) in the case of an architectural work embodied in a building, such building
is erected in a country adhering to the Berne Convention.
For purposes of paragraph (1), an author who is domiciled in or has his
or her habitual residence in, a nation adhering to the Berne Convention
is considered to be a national of that nation. For purposes of paragraph
(2), a work is considered to have been simultaneously published in two or
more nations if its dates of publication are within 30 days of one another.
The "best edition" of a work is the edition, published in the
United States at any time before the date of deposit, that the Library of
Congress determines to be most suitable for its purposes.
A person's "children" are that person's immediate offspring, whether
legitimate or not, and any children legally adopted by that person.
A "collective work" is a work, such
as a periodical issue, anthology, or encyclopedia, in which a number of
contributions, constituting separate and independent works in themselves,
are assembled into a collective whole.
A "compilation" is a work formed by the collection and assembling
of preexisting materials or of data that are selected, coordinated, or arranged
in such a way that the resulting work as a whole constitutes an original
work of authorship. The term "compilation" includes collective
works. back to
doctrinal memo on joint works
"Copies" are material objects, other than phonorecords, in which
a work is fixed by any method now known or later developed, and from which
the work can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device. The term "copies"
includes the material object, other than a phonorecord, in which the work
is first fixed.
"Copyright owner", with respect to any one of the exclusive rights
comprised in a copyright, refers to the owner of that particular right.
The "country of origin" of a Berne Convention work, for purposes
of section 411, is the United States if--
(1) in the case of a published work, the work is first published--
(A) in the United States;
(B) simultaneously in the United States and another nation or nations adhering
to the Berne Convention, whose law grants a term of copyright protection
that is the same as or longer than the term provided in the United States;
(C) simultaneously in the United States and a foreign nation that does not
adhere to the Berne Convention; or
(D) in a foreign nation that does not adhere to the Berne Convention, and
all of the authors of the work are nationals, domiciliaries, or habitual
residents of, or in the case of an audiovisual work legal entities with
headquarters in, the United States;
(2) in the case of an unpublished work, all the authors of the work are
nationals, domiciliaries, or habitual residents of the United States, or,
in the case of an unpublished audiovisual work, all the authors are legal
entities with headquarters in the United States; or
(3) in the case of a pictorial, graphic, or sculptural work incorporated
in a building or structure, the building or structure is located in the
United States.
For the purposes of section 411, the "country of origin" of any
other Berne Convention work is not the United States.
A work is "created" when it is fixed in a copy or phonorecord
for the first time; where a work is prepared over a period of time, the
portion of it that has been fixed at any particular time constitutes the
work as of that time, and where the work has been prepared in different
versions, each version constitutes a separate work.
A "derivative work" is a work based
upon one or more preexisting works, such as a translation, musical arrangement,
dramatization, fictionalization, motion picture version, sound recording,
art reproduction, abridgment, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of editorial
revisions, annotations, elaborations, or other modifications which, as a
whole, represent an original work of authorship, is a "derivative work".
back to doctrinal
memo on joint authorship
A "device", "machine", or "process" is one
now known or later developed.
A "digital transmission" is a transmission in whole or in part
in a digital or other non-analog format.
To "display" a work means to show a copy of it, either directly
or by means of a film, slide, television image, or any other device or process
or, in the case of a motion picture or other audiovisual work, to show individual
images nonsequentially.
The term "financial gain" includes receipt, or expectation of
receipt, of anything of value, including the receipt of other copyrighted
works.
A work is "fixed" in a tangible medium of expression when its
embodiment in a copy or phonorecord, by or under the authority of the author,
is sufficiently permanent or stable to permit it to be perceived, reproduced,
or otherwise communicated for a period of more than transitory duration.
A work consisting of sounds, images, or both, that are being transmitted,
is "fixed" for purposes of this title if a fixation of the work
is being made simultaneously with its transmission.
The terms "including" and "such as" are illustrative
and not limitative.
A "joint work" is a work prepared
by two or more authors with the intention that their contributions be merged
into inseparable or interdependent parts of a unitary whole. back
to doctrinal memo on joint works
"Literary works" are works, other than audiovisual works, expressed
in words, numbers, or other verbal or numerical symbols or indicia, regardless
of the nature of the material objects, such as books, periodicals, manuscripts,
phonorecords, film, tapes, disks, or cards, in which they are embodied.
"Motion pictures" are audiovisual works consisting of a series
of related images which, when shown in succession, impart an impression
of motion, together with accompanying sounds, if any.
To "perform" a work means to recite, render, play, dance, or act
it, either directly or by means of any device or process or, in the case
of a motion picture or other audiovisual work, to show its images in any
sequence or to make the sounds accompanying it audible.
"Phonorecords" are material objects in which sounds, other than
those accompanying a motion picture or other audiovisual work, are fixed
by any method now known or later developed, and from which the sounds can
be perceived, reproduced, or otherwise communicated, either directly or
with the aid of a machine or device. The term "phonorecords" includes
the material object in which the sounds are first fixed.
"Pictorial, graphic, and sculptural works" include two-dimensional
and three- dimensional works of fine, graphic, and applied art, photographs,
prints and art reproductions, maps, globes, charts, diagrams, models, and
technical drawings, including architectural plans. Such works shall include
works of artistic craftsmanship insofar as their form but not their mechanical
or utilitarian aspects are concerned; the design of a useful article, as
defined in this section, shall be considered a pictorial, graphic, or sculptural
work only if, and only to the extent that, such design incorporates pictorial,
graphic, or sculptural features that can be identified separately from,
and are capable of existing independently of, the utilitarian aspects of
the article.
A "pseudonymous work" is a work on the copies or phonorecords
of which the author is identified under a fictitious name.
"Publication" is the distribution of copies or phonorecords of
a work to the public by sale or other transfer of ownership, or by rental,
lease, or lending. The offering to distribute copies or phonorecords to
a group of persons for purposes of further distribution, public performance,
or public display, constitutes publication. A public performance or display
of a work does not of itself constitute publication.
"Registration", for purposes of sections 205(c)(2), 405, 406,
410(d), 411, 412, and 506(e), means a registration of a claim in the original
or the renewed and extended term of copyright.
To perform or display a work "publicly" means--
(1) to perform or display it at a place open to the public or at any place
where a substantial number of persons outside of a normal circle of a family
and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the
work to a place specified by clause (1) or to the public, by means of any
device or process, whether the members of the public capable of receiving
the performance or display receive it in the same place or in separate places
and at the same time or at different times.
"Sound recordings" are works that result from the fixation of
a series of musical, spoken, or other sounds, but not including the sounds
accompanying a motion picture or other audiovisual work, regardless of the
nature of the material objects, such as disks, tapes, or other phonorecords,
in which they are embodied.
"State" includes the District of Columbia and the Commonwealth
of Puerto Rico, and any territories to which this title is made applicable
by an Act of Congress.
A "transfer of copyright ownership" is an assignment, mortgage,
exclusive license, or any other conveyance, alienation, or hypothecation
of a copyright or of any of the exclusive rights comprised in a copyright,
whether or not it is limited in time or place of effect, but not including
a nonexclusive license.
A "transmission program" is a body of material that, as an aggregate,
has been produced for the sole purpose of transmission to the public in
sequence and as a unit.
To "transmit" a performance or display is to communicate it by
any device or process whereby images or sounds are received beyond the place
from which they are sent.
The "United States", when used in a geographical sense, comprises
the several States, the District of Columbia and the Commonwealth of Puerto
Rico, and the organized territories under the jurisdiction of the United
States Government.
A "useful article" is an article having an intrinsic utilitarian
function that is not merely to portray the appearance of the article or
to convey information. An article that is normally a part of a useful article
is considered a "useful article".
The author's "widow" or "widower" is the author's surviving
spouse under the law of the author's domicile at the time of his or her
death, whether or not the spouse has later remarried.
A "work of visual art" is--
(1) a painting, drawing, print, or sculpture, existing in a single copy,
in a limited edition of 200 copies or fewer that are signed and consecutively
numbered by the author, or, in the case of a sculpture, in multiple cast,
carved, or fabricated sculptures of 200 or fewer that are consecutively
numbered by the author and bear the signature or other identifying mark
of the author; or
(2) a still photographic image produced for exhibition purposes only, existing
in a single copy that is signed by the author, or in a limited edition of
200 copies or fewer that are signed and consecutively numbered by the author.
A work of visual art does not include--
(A)(i) any poster, map, globe, chart, technical drawing, diagram, model,
applied art, motion picture or other audiovisual work, book, magazine, newspaper,
periodical, data base, electronic information service, electronic publication,
or similar publication;
(ii) any merchandising item or advertising, promotional, descriptive, covering,
or packaging material or container;
(iii) any portion or part of any item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.
A "work of the United States Government" is a work prepared by
an officer or employee of the United States Government as part of that person's
official duties.
A "work made for hire" is--
(1) a work prepared by an employee within the scope of his or her employment;
or
(2) a work specially ordered or commissioned for use as a contribution to
a collective work, as a part of a motion picture or other audiovisual work,
as a translation, as a supplementary work, as a compilation, as an instructional
text, as a test, as answer material for a test, or as an atlas, if the parties
expressly agree in a written instrument signed by them that the work shall
be considered a work made for hire. For the purpose of the foregoing sentence,
a "supplementary work" is a work prepared for publication as a
secondary adjunct to a work by another author for the purpose of introducing,
concluding, illustrating, explaining, revising, commenting upon, or assisting
in the use of the other work, such as forewords, afterwords, pictorial illustrations,
maps, charts, tables, editorial notes, musical arrangements, answer material
for tests, bibliographies, appendixes, and indexes, and an "instructional
text" is a literary, pictorial, or graphic work prepared for publication
and with the purpose of use in systematic instructional activities. back
to doctrinal memo on joint authors
A "computer program" is a set of statements or instructions to
be used directly or indirectly in a computer in order to bring about a certain
result.
Current through P.L. 105-153, approved 12-17-97
s 102. Subject matter of copyright: In general
(a) Copyright protection subsists, in accordance with this title, in original
works of authorship fixed in any tangible medium of expression, now known
or later developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device. Works
of authorship include the following categories:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
(b) In no case does copyright protection for
an original work of authorship extend to any idea, procedure, process, system,
method of operation, concept, principle, or discovery, regardless of the
form in which it is described, explained, illustrated, or embodied in such
work.
Current through P.L. 105-153, approved 12-17-97
s 103. Subject matter of copyright: Compilations and derivative works
(a) The subject matter of copyright as specified by section 102 includes
compilations and derivative works, but protection for a work employing preexisting
material in which copyright subsists does not extend to any part of the
work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from the
preexisting material employed in the work, and does not imply any exclusive
right in the preexisting material. The copyright in such work is independent
of, and does not affect or enlarge the scope, duration, ownership, or subsistence
of, any copyright protection in the preexisting material.
Current through P.L. 105-153, approved 12-17-97
s 104. Subject matter of copyright: National origin
(a) Unpublished Works.--The works specified by sections 102 and 103, while
unpublished, are subject to protection under this title without regard to
the nationality or domicile of the author.
(b) Published Works.--The works specified by sections 102 and 103, when
published, are subject to protection under this title if--
(1) on the date of first publication, one or more of the authors is a national
or domiciliary of the United States, or is a national, domiciliary, or sovereign
authority of a foreign nation that is a party to a copyright treaty to which
the United States is also a party, or is a stateless person, wherever that
person may be domiciled; or
(2) the work is first published in the United States or in a foreign nation
that, on the date of first publication, is a party to the Universal Copyright
Convention; or
(3) the work is first published by the United Nations or any of its specialized
agencies, or by the Organization of American States; or
(4) the work is a Berne Convention work; or
(5) the work comes within the scope of a Presidential proclamation. Whenever
the President finds that a particular foreign nation extends, to works by
authors who are nationals or domiciliaries of the United States or to works
that are first published in the United States, copyright protection on substantially
the same basis as that on which the foreign nation extends protection to
works of its own nationals and domiciliaries and works first published in
that nation, the President may by proclamation extend protection under this
title to works of which one or more of the authors is, on the date of first
publication, a national, domiciliary, or sovereign authority of that nation,
or which was first published in that nation. The President may revise, suspend,
or revoke any such proclamation or impose any conditions or limitations
on protection under a proclamation.
(c) Effect of Berne Convention.-- No right or interest in a work eligible
for protection under this title may be claimed by virtue of, or in reliance
upon, the provisions of the Berne Convention, or the adherence of the United
States thereto. Any rights in a work eligible for protection under this
title that derive from this title, other Federal or State statutes, or the
common law, shall not be expanded or reduced by virtue of, or in reliance
upon, the provisions of the Berne Convention, or the adherence of the United
States thereto.
Current through P.L. 105-153, approved 12-17-97
s 106. Exclusive rights in copyrighted works
Subject to sections 107 through 120, the owner of copyright under this title
has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works, to perform
the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the individual
images of a motion picture or other audiovisual work, to display the copyrighted
work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly
by means of a digital audio transmission.
Current through P.L. 105-153, approved 12-17-97
s 106A. Rights of certain authors to attribution and integrity
(a) Rights of attribution and integrity.--Subject to section 107 and independent
of the exclusive rights provided in section 106, the author of a work of
visual art--
(1) shall have the right--
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual
art which he or she did not create;
(2) shall have the right to prevent the use of his or her name as the author
of the work of visual art in the event of a distortion, mutilation, or other
modification of the work which would be prejudicial to his or her honor
or reputation; and
(3) subject to the limitations set forth in section 113(d), shall have the
right--
(A) to prevent any intentional distortion, mutilation, or other modification
of that work which would be prejudicial to his or her honor or reputation,
and any intentional distortion, mutilation, or modification of that work
is a violation of that right, and
(B) to prevent any destruction of a work of recognized stature, and any
intentional or grossly negligent destruction of that work is a violation
of that right.
(b) Scope and exercise of rights.--Only the author of a work of visual art
has the rights conferred by subsection (a) in that work, whether or not
the author is the copyright owner. The authors of a joint work of visual
art are coowners of the rights conferred by subsection (a) in that work.
(c) Exceptions.--(1) The modification of a work of visual art which is a
result of the passage of time or the inherent nature of the materials is
not a distortion, mutilation, or other modification described in subsection
(a)(3)(A).
(2) The modification of a work of visual art which is the result of conservation,
or of the public presentation, including lighting and placement, of the
work is not a destruction, distortion, mutilation, or other modification
described in subsection (a)(3) unless the modification is caused by gross
negligence.
(3) The rights described in paragraphs (1) and (2) of subsection (a) shall
not apply to any reproduction, depiction, portrayal, or other use of a work
in, upon, or in any connection with any item described in subparagraph (A)
or (B) of the definition of "work of visual art" in section 101,
and any such reproduction, depiction, portrayal, or other use of a work
is not a destruction, distortion, mutilation, or other modification described
in paragraph (3) of subsection (a).
(d) Duration of rights.--(1) With respect to works of visual art created
on or after the effective date set forth in section 610(a) of the Visual
Artists Rights Act of 1990, the rights conferred by subsection (a) shall
endure for a term consisting of the life of the author.
(2) With respect to works of visual art created before the effective date
set forth in section 610(a) of the Visual Artists Rights Act of 1990, but
title to which has not, as of such effective date, been transferred from
the author, the rights conferred by subsection (a) shall be coextensive
with, and shall expire at the same time as, the rights conferred by section
106.
(3) In the case of a joint work prepared by two or more authors, the rights
conferred by subsection (a) shall endure for a term consisting of the life
of the last surviving author.
(4) All terms of the rights conferred by subsection (a) run to the end of
the calendar year in which they would otherwise expire.
(e) Transfer and waiver.--(1) The rights conferred by subsection (a) may
not be transferred, but those rights may be waived if the author expressly
agrees to such waiver in a written instrument signed by the author. Such
instrument shall specifically identify the work, and uses of that work,
to which the waiver applies, and the waiver shall apply only to the work
and uses so identified. In the case of a joint work prepared by two or more
authors, a waiver of rights under this paragraph made by one such author
waives such rights for all such authors.
(2) Ownership of the rights conferred by subsection (a) with respect to
a work of visual art is distinct from ownership of any copy of that work,
or of a copyright or any exclusive right under a copyright in that work.
Transfer of ownership of any copy of a work of visual art, or of a copyright
or any exclusive right under a copyright, shall not constitute a waiver
of the rights conferred by subsection (a). Except as may otherwise be agreed
by the author in a written instrument signed by the author, a waiver of
the rights conferred by subsection (a) with respect to a work of visual
art shall not constitute a transfer of ownership of any copy of that work,
or of ownership of a copyright or of any exclusive right under a copyright
in that work.
Current through P.L. 105-153, approved 12-17-97
s 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of
a copyrighted work, including such use by reproduction in copies or phonorecords
or by any other means specified by that section, for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom
use), scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular case is a fair
use the factors to be considered shall include--
(1) the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair
use if such finding is made upon consideration of all the above factors.
Current through P.L. 105-153, approved 12-17-97
s 201. Ownership of copyright
(a) Initial Ownership.--Copyright in a work protected under this title vests
initially in the author or authors of the work. The authors of a joint work
are coowners of copyright in the work.
(b) Works Made for Hire.--In the case of a work made for hire, the employer
or other person for whom the work was prepared is considered the author
for purposes of this title, and, unless the parties have expressly agreed
otherwise in a written instrument signed by them, owns all of the rights
comprised in the copyright.
(c) Contributions to Collective Works.--Copyright in each separate contribution
to a collective work is distinct from copyright in the collective work as
a whole, and vests initially in the author of the contribution. In the absence
of an express transfer of the copyright or of any rights under it, the owner
of copyright in the collective work is presumed to have acquired only the
privilege of reproducing and distributing the contribution as part of that
particular collective work, any revision of that collective work, and any
later collective work in the same series.
(d) Transfer of Ownership.--
(1) The ownership of a copyright may be transferred in whole or in part
by any means of conveyance or by operation of law, and may be bequeathed
by will or pass as personal property by the applicable laws of intestate
succession.
(2) Any of the exclusive rights comprised in a copyright, including any
subdivision of any of the rights specified by section 106, may be transferred
as provided by clause (1) and owned separately. The owner of any particular
exclusive right is entitled, to the extent of that right, to all of the
protection and remedies accorded to the copyright owner by this title.
(e) Involuntary Transfer.--When an individual author's ownership of a copyright,
or of any of the exclusive rights under a copyright, has not previously
been transferred voluntarily by that individual author, no action by any
governmental body or other official or organization purporting to seize,
expropriate, transfer, or exercise rights of ownership with respect to the
copyright, or any of the exclusive rights under a copyright, shall be given
effect under this title, except as provided under title 11.
Current through P.L. 105-298
Sec. 302. - Duration of copyright: Works created on or after January
1, 1978
(a) In General. -
Copyright in a work created on or after January 1, 1978, subsists from
its creation and, except as provided by the following subsections,
endures for a term consisting of the life of the author and 70 years
after the author's death.
(b) Joint Works. -
In the case of a joint work prepared by two or more authors who did
not work for hire, the copyright endures for a term consisting of the
life of the last surviving author and 70 years after such last
surviving author's death.
(c) Anonymous Works, Pseudonymous Works, and Works Made for Hire. -
In the case of an anonymous work, a pseudonymous work, or a work made
for hire, the copyright endures for a term of 95 years from the year
of its first publication, or a term of 120 years from the year of its
creation, whichever expires first. If, before the end of such term,
the identity of one or more of the authors of an anonymous or
pseudonymous work is revealed in the records of a registration made
for that work under subsections (a) or (d) of section 408, or in the
records provided by this subsection, the copyright in the work endures
for the term specified by subsection (a) or (b), based on the life of
the author or authors whose identity has been revealed. Any person
having an interest in the copyright in an anonymous or pseudonymous
work may at any time record, in records to be maintained by the
Copyright Office for that purpose, a statement identifying one or more
authors of the work; the statement shall also identify the person
filing it, the nature of that person's interest, the source of the
information recorded, and the particular work affected, and shall
comply in form and content with requirements that the Register of
Copyrights shall prescribe by regulation.
(d) Records Relating to Death of Authors. -
Any person having an interest in a copyright may at any time record in
the Copyright Office a statement of the date of death of the author of
the copyrighted work, or a statement that the author is still living
on a particular date. The statement shall identify the person filing
it, the nature of that person's interest, and the source of the
information recorded, and shall comply in form and content with
requirements that the Register of Copyrights shall prescribe by
regulation. The Register shall maintain current records of information
relating to the death of authors of copyrighted works, based on such
recorded statements and, to the extent the Register considers
practicable, on data contained in any of the records of the Copyright
Office or in other reference sources.
(e) Presumption as to Author's Death. -
After a period of 95 years from the year of first publication of a
work, or a period of 120 years from the year of its creation,
whichever expires first, any person who obtains from the Copyright
Office a certified report that the records provided by subsection (d)
disclose nothing to indicate that the author of the work is living, or
died less than 70 years before, is entitled to the benefits of a
presumption that the author has been dead for at least 70
years. Reliance in good faith upon this presumption shall be a
complete defense to any action for infringement under this title.