Comments on: Foreign Copyright Holders and the USCO

By: Jonathan Bailey

Jonathan Bailey — Tue, 16 Mar 2010 20:05:42 +0000

I followed that case pretty closely. Unfortunately, it's not going to change much for U.S. citizens. The reason is simple. Even though it is not a jurisdictional issue, is still a claim-processing rule. As such, from what I understand, the court can hear a case but not process any claims without it. It was useful in this case because it was heading to a settlement, but no judgement can be rendered without it.http://www.iplawalert.com/2010/03/articles/copy.....It also doesn't address some of the thornier issues about registration, namely whether having it on file is adequate or if you have to have certificate in hand.It's an interesting case, but it's impact for most copyright holders, it seems, is about nil. Sadly. Thanks for the heads up!

By: David Greene

David Greene — Tue, 16 Mar 2010 15:38:25 +0000

Hey Jon. I don't know if You have read the recent Supreme Court case, Elsevier, Inc. v. Muchnick, which seems to be related to the Elsevier case that you blogged about. In Muchnick, the Supreme Court determined that section 411(a) of the Copyright Act is not a jurisdictional requirement, as the Second Circuit had held. About the Second Circuit's ruling, the court said, "We disagree. Section 411(a)'s registration requirement is a precondition to filing a claim that does not restrict a federal court's subject-matter jurisdiction."The case arose when several members of a certified class sought to sue for infringement. Some of the members of the class had registrations, and some did not. The Second Circuit believed that the claims should be dismissed on jurisdictional grounds because some of the plaintiffs in the class did not have registrations. The syllabus for the opinion can be found at: http://www.law.cornell.edu/supct/html/08-103.ZS.....

By: Jonathan Bailey

Jonathan Bailey — Fri, 12 Mar 2010 15:11:28 +0000

To be clear, the Berne Convention does have a great deal of importance still. The long and short of it is that the signatories of the convention have all agreed to respect one another's copyright the same as if it were their own. In short, if I, a U.S.-based author, discovered my work was being infringed upon in France. I could sue in France under the same terms as any French citizen.The convention was also supposed to do some harmonization of copyright laws, including the removal of formalities, but that particular element has not been adopted in the U.S.This only deals with the ability of foreign authors to claim statutory damages in a U.S. court without a copyright registration. It does not change the fact that the works are protected, just the damages that are collected.Hope that clears things up some, even though I fear I may have made things worse…

By: Constanza

Constanza — Fri, 12 Mar 2010 15:07:50 +0000

Jon, I'm confused about this. What is the purpose to ascribe tho the Berne Convention? What would be a case in which people are protected by it being from another country?

By: Jonathan Bailey

Jonathan Bailey — Thu, 11 Mar 2010 21:50:28 +0000

Terry, thank you very much for the info. I've updated the article and it should reflect your comments. I greatly appreciate the corrrections.

By: Terry Hart

Terry Hart — Thu, 11 Mar 2010 20:16:56 +0000

This is not a novel question, and contrary to what this article says, it is not too murky of a question either. As the same court said almost a year ago, statutory damages are not available to foreign copyright owners unless they timely register their work in the United States. Football Ass'n Premier League v. YouTube (633 F.Supp.2d 159, 162 S.D.N.Y.2009) held this and cited to a number of previous cases holding the same, stretching back to the 1988 Berne Convention Implementation Act.It should also be pointed out that, contrary to this article's assertion, the Elsevier case doesn't talk about foreign author's needing to register in the US as a prerequisite to suing for copyright infringement at all – it's only concerned with the availability of statutory damages to foreign unregistered works. It is my understanding, as this case and the Football Ass'n case mentioned above indicate, that it is generally accepted that foreign authors can sue for copyright infringement in the US without first registering their work with the Copyright Office.