Notes on 17 U.S.C. § 412 : US Code - Notes

Search Notes on 17 U.S.C. § 412 : US Code - Notes

(Pub. L. 94-553, title I, Sec. 101, Oct. 19, 1976, 90 Stat. 2583;
Pub. L. 101-650, title VI, Sec. 606(c)(2), Dec. 1, 1990, 104 Stat.
5131; Pub. L. 109-9, title I, Sec. 104(c), Apr. 27, 2005, 119 Stat.
222.)
HISTORICAL AND REVISION NOTES
HOUSE REPORT NO. 94-1476
The need for section 412 arises from two basic changes the bill
will make in the present law.
(1) Copyright registration for published works, which is useful
and important to users and the public at large, would no longer
be compulsory, and should therefore be induced in some practical
way.
(2) The great body of unpublished works now protected at common
law would automatically be brought under copyright and given
statutory protection. The remedies for infringement presently
available at common law should continue to apply to these works
under the statute, but they should not be given special statutory
remedies unless the owner has, by registration, made a public
record of his copyright claim.
Under the general scheme of the bill, a copyright owner whose
work has been infringed before registration would be entitled to
the remedies ordinarily available in infringement cases: an
injunction on terms the court considers fair, and his actual
damages plus any applicable profits not used as a measure of
damages. However, section 412 would deny any award of the special
or "extraordinary" remedies of statutory damages or attorney's fees
where infringement of copyright in an unpublished work began before
registration or where, in the case of a published work,
infringement commenced after publication and before registration
(unless registration has been made within a grace period of three
months after publication). These provisions would be applicable to
works of foreign and domestic origin alike.
In providing that statutory damages and attorney's fees are not
recoverable for infringement of unpublished, unregistered works,
clause (1) of section 412 in no way narrows the remedies available
under the present law. With respect to published works, clause (2)
would generally deny an award of those two special remedies where
infringement takes place before registration. As an exception,
however, the clause provides a grace period of three months after
publication during which registration can be made without loss of
remedies; full remedies could be recovered for any infringement
begun during the three months after publication if registration is
made before that period has ended. This exception is needed to take
care of newsworthy or suddenly popular works which may be infringed
almost as soon as they are published, before the copyright owner
has had a reasonable opportunity to register his claim.
AMENDMENTS
2005 - Pub. L. 109-9 inserted ", an action for infringement of
the copyright of a work that has been preregistered under section
408(f) before the commencement of the infringement and that has an
effective date of registration not later than the earlier of 3
months after the first publication of the work or 1 month after the
copyright owner has learned of the infringement," after "section
106A(a)" in introductory provisions.
1990 - Pub. L. 101-650 inserted "an action brought for a
violation of the rights of the author under section 106A(a) or"
after "other than" in introductory provisions.
EFFECTIVE DATE OF 1990 AMENDMENT
Amendment by Pub. L. 101-650 effective 6 months after Dec. 1,
1990, see section 610 of Pub. L. 101-650, set out as an Effective
Date note under section 106A of this title.