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United States

Legal background

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention? NO
Literary and artistic works are protected for 70 years from the author’s death, other works for 70 years from death of the last surviving author (joint works), works for hire, anonymous works and pseudonymous works have a fixed term of 95 years from date of first publication or 120 years from the creation of the work.		 17 U.S.C. § 302 (a), (b)
Must a work be fixed in some material form before copyright attaches? YES
U.S.Const. art. I, § 8, cl. 8
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power? YES
Under the judge-made doctrine of copyright misuse, a copyright holder cannot seek to extend monopoly power beyond the bounds of the copyright grant.		 Lasercomb
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? YES
The exercise of copyright is subject to the First Amendment, the limits of the Copyright Clause itself, and other constitutional principles.		 Eldred ; Martignon
Does the compilation of a database of non-original material fall outside the scope of copyright? LIMITED
Non-original material contained within a database does not qualify for copyright protection. However, if the selection and arrangement of non-original material includes elements of originality, some thin protection may exist for the database as a whole.		 17 U.S.C. §§ 102, 103, Feist ; American Dental Assoc.
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? LIMITED
Some courts have found enforceable contractual terms that abridge or waive limitations and exceptions, Bowers v. Baystate Tech., while others have disagreed, Vault v. Quaid. Accordingly, the issue remains in flux.		  

Freedoms to access and use

By Home UsersIs time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? LIMITED
Most questions of personal use copying are addressed through case-by-case analysis of the fair use exception. For example, courts have recognized time-shifting of free, over-the-air television as a fair use. Other courts have rejected unauthorized reproduction over Internet file sharing networks as a fair use. Statutory exception does permit reproductions of sound recordings using certain categories of consumer devices.		 17 U.S.C. § 1008, Universal City ; Gonzalez
 Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? LIMITED
Specific statutory exceptions for backup copies, as well as noncommercial reproduction of sound reproduction of sound recordings on certain categories of consumer devices, are provided, but otherwise this is addressed by courts through a case-by-case application of the fair use exception.		 17 U.S.C. §§ 107, 117(a), 1008
 Can works be communicated to a limited public (for example, family and friends) without infringing copyright? YES
The exclusive right to perform a work is limited to public performances, and does not include performances to private gatherings of family and friends		 17 U.S.C. § 101, Cartoon Networks
 In any other cases may reproductions be made on a private, noncommercial basis, for example through peer-to-peer file sharing? NO
U.S. law does not provide a general private copying exception. Accordingly, courts address these questions as described above.		  
 Are blank media and computer hardware sold free of compulsory levies collected for copyright owners? YES
The U.S. has no general system of copyright levies on blank media or computer hardware. While the law does provide levies for a limited number of digital audio recording devices and digital audio recording media, these levies do not apply to popular digital devices such as the iPod.		 17 U.S.C. §§ 1001-1008
For EducationIs reproduction permitted for the purposes of research or study? LIMITED
Courts address copies for personal use and research through a case-by-case application of the fair use exception. Libraries enjoy special exceptions for making copies for patrons in certain circumstances.		 17 U.S.C. §§ 107, 108(d); Texaco
 Is it permissible to copy an entire work and to make any number of copies? LIMITED
Courts address copies for personal use and research through a case-by-case application of the fair use exception. As a result, it is difficult to generalize. Libraries, however, are statutorily entitled to reproduce an entire work, but only for a limited number of copies in limited circumstances.		 17 U.S.C. §§ 107, 108
 Does any such research and study provision cover distance and online education? LIMITED
Courts address copies for personal use and research through a case-by-case application of the fair use exception. As a result, it is difficult to generalize. A statutory exception, however, permits transmissions of certain copyrighted works in the course of classroom instruction in limited circumstances.		 17 U.S.C. §§ 107, 110(2)
 May translations of works be made for educational purposes? LIMITED
Courts address unauthorized educational uses through a case-by-case application of the fair use exception. As a result, it is difficult to generalize. There is no statutory exception that expressly permits translation.		 17 U.S.C. § 107
 May works be reproduced and published by educational institutions in connection with systematic instructional activities? LIMITED
Courts address reproduction and distribution for educational purposes through a case-by-case application of the fair use exception. As a result, it is difficult to generalize. Statutory exceptions applicable to libraries and remote classroom instruction, however, may permit copying and dissemination in limited circumstances.		 17 U.S.C. §§ 107, 108, 110(2)
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? YES
Linking to a website does not constitute direct infringement. If the link leads to infringing material, however, contributory infringement liability can arise if the link creator has sufficient knowledge regarding the underlying infringement.		 Ticketmaster; Perfect 10
 Are temporary or transient copies, incidental to a lawful use, excepted from copyright? YES
Temporary or transient copies of brief duration are not reproductions under U.S. law. In addition, temporary copies incidental to repair and maintenance are permitted by statutory exception.		 17 U.S.C. § 117(c), Cartoon Networks
 Is caching of Web content permitted? LIMITED
Courts have found that cache copies created automatically on user computers fall within the fair use exception. Online service providers are also provided a safe harbor from money damages for caching so long as certain requirements are met.		 17 U.S.C. § 512 (b), Perfect 10
 Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances? YES
There are several safe harbor provisions that exclude online service providers (including ISPs) from third party liability for copyright infringement.		 17 U.S.C. § 512
 Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? YES
17 U.S.C. § 512(m)
 Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? LIMITED
The First Amendment provides limited protections for anonymous speech, including potentially infringing activities, although those protections may be overcome upon a sufficiently strong evidence indicating infringement.		 Does; 17 U.S.C. § 512(h)
By content creatorsCan a recording or performance of a musical work be made under compulsory license from the composer? YES
17 U.S.C. § 112,114, 115
 Can copyright works be non-commercially remixed or mashed up into new works? LIMITED
Courts address “remixes” and other transformative uses through a case-by-case application of the fair use exception. As a result, it is difficult to generalize.		 17 U.S.C. §107
 May computer software be reverse engineered for the purpose of creating interoperable software? YES
Courts have recognized that when reverse-engineering is necessary to access functional elements and ideas, it may constitute a permissible fair use.		 Sega; Connectix
 Is the incidental inclusion of a work in other material permitted? LIMITED
Courts address copies for personal use and research through a case-by-case application of the fair use and de minimus exceptions. As a result, it is difficult to generalize. Courts have found that, where the incidental use of the work is de minimus or insignificant, such use will not support a finding of infringement.		 Ringgold ; Sandoval
 Is there are copyright exception for parody or satire? YES
Courts address parody and satire through a case-by-case application of the fair use exception. Courts have recognized, however, that parody frequently falls within the fair use exception.		 Campbell ; Mattel
 Is there a copyright exception for professional advice? NO
 
 Do creators who license their work retain the moral right of attribution? LIMITED
Generally authors do not retain the right of attribution when a work is licensed. However, the Visual Artists Rights Act of 1990 provides the right of attribution for the display of a works fine art.		 17 U.S.C. § 106A(a)(1)(A)
 Does copyright law contain provisions regarding traditional knowledge/folklore? NO
Traditional knowledge and folklore generally belong to the public domain.		  
By the pressIs there a copyright exception for the news of the day? LIMITED
Courts address the unauthorized use of copyrighted materials in news reporting through a case-by-case application of the fair use exception. As a result, it is difficult to generalize.		 17 U.S.C. § 107 , Harper & Row ; Nunez
 May copyright material be reproduced for the purposes of review and criticism? LIMITED
Courts address unauthorized reproductions for the purpose of review or criticism through a case-by-case application of the fair use exception. As a result, it is difficult to generalize.		 17 U.S.C. § 107, Harper & Row
 May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? LIMITED
Generally copyright does not apply to court proceedings. Speeches prepared by federal government employees are also not copyrightable. However, political speeches made by those who are not government officials may be protected by copyright, subject to the fair use exception.		 17 U.S.C. §§ 105, 107, Estate of Martin Luther King
 May quotations be used for any purpose? LIMITED
Courts address unauthorized reproductions for the purpose of review or criticism through a case-by-case application of the fair use exception. As a result, it is difficult to generalize.		 17 U.S.C. § 107; Harper & Row
By LibrariesMay libraries copy works that cannot reasonably be obtained commercially? YES
A limited number of copies may be made for the purposes of inter-library loan or distribution to library patrons. The fair use exception may also be applicable, depending on the particulars of the case.		 17 U.S.C. §§ 107, 108
 May libraries copy works for users for the purpose of research or study? YES
A statutory exception permits limited copying for library patrons. The fair use exception may also be applicable, depending on the particulars of the case.		 17 U.S.C. §§ 107, 108(d)-(e).
 Is the reproduction of unpublished works by libraries permitted? YES
Copies of unpublished works may be made for the purpose of preservation and security in limited quantities. The fair use exception may also be applicable, depending on the particulars of the case.		 17 U.S.C. §§ 107, 108(b)
 Are libraries allowed to make preservation or archive copies of materials in their collections? YES
Copies may be made on a limited basis provided that the library lawfully obtained the work. The fair use exception may also be applicable, depending on the particulars of the case.		 17 U.S.C. §§ 107, 108(c)
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? YES
Subject to limitations set forth by statute, literary works may be copied and adapted to meet the needs of the blind and those with other disabilities. The fair use exception may also be applicable, depending on the particulars of the case.		 17 U.S.C. §§ 107, 121
In public affairsAre laws excluded from copyright? YES
Laws and judicial rulings are in the public domain.		 Banks ; Matthew Bender
 Are other governmental works excluded from copyright? YES
Works created by employees of the federal government are not copyrightable. Works created by private contractors on behalf of the federal government, or those created by state or local governments, however, may be copyrightable.		 17 U.S.C. § 105
 Is there a copyright exception for use of material in judicial proceedings? LIMITED
Courts have in some cases applied the fair use exception to permit the use of copyrighted materials in judicial proceedings. However, there is no general exception, and the issue will often depend on the facts of the case presented.		 Perini Building; Bond

Freedoms to share and transfer

May copyright works be freely offered for commercial rental? LIMITED
With the except of computer programs and sound recordings, the statute recognizes an exhaustion principle that permits renting and lending by owners of copies.		 17 U.S.C. § 109
May a person in lawfully possession of a copyright work distribute, communicate or make it available without reference to the copyright owner? LIMITED
The distribution right is exhausted upon initial vending, although this would not permit the transmission of the work to the public. Additional restrictions may apply to certain works of fine art.		 17 U.S.C. §§ 106(a), 109
May works be dedicated to the public domain without legal formality besides an overt act of relinquishment? YES
 
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain? NO
Legislation is currently pending that may limit the remedies available to a copyright owner if the defendant has undertaken a reasonable search but was nevertheless unable to locate the owner.		  
Is parallel importation permitted? YES
The importation right is limited by the statutory first sale (i.e., exhaustion) doctrine, at least where copies were made in the US (i.e., “round-trip” goods). The legal status of good manufactured abroad with the authorization of the copyright owner remains somewhat more uncertain.		 17 U.S.C. §§ 106(3), 109(a), 602(a), Quality King ; Omega
Are there incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy? NO
 
Are there incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy? NO
 

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? The Copyright Act provides a wide array of penalties, including injunctions, seizure of infringing articles, compensatory damages, statutory damages ($750-$30,000 per work infringed, to be set by the court, with up to $150,000 per work for willful infringements or as little as $200 per work for innocent infringements). Criminal penalties including incarceration, fines, and restitution are also available for certain kinds of infringements. Prevailing parties may also be awarded their attorneys fees and costs. Statutory damages, attorneys fees, and costs are only available for works that were registered with the Copyright Office prior to the infringing conduct. 17 U.S.C. §§ 502-509.
What is the maximum penalty for copyright infringement for a corporation? U.S. copyright law does not distinguish between individuals and corporations.  
Is registration of copyright required before it may be enforced in court? YES
Registration is required for the holder to be eligible for the award of statutory damages and attorney's fees in successful litigation.		  
Is there a distinction between personal versus (large-scale) commercial use? YES
Damages are calculated based on lost profits and actual damage from the infringement. Criminal liability is reserved for infringements involving commercial motives, certain pre-release works, or infringements that involve harm above a certain monetary threshold.		 17 U.S.C. § 504(a)
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for purposes that would not infringe copyright? NO
Statutes prohibit the distribution of circumvention devices.		 17 U.S.C. §§ 1201(a)(2), 1201(b)
Is the use of such devices by consumers permitted for any purpose that would not infringe copyright? LIMITED
A statutory provision prohibits the circumvention of technological protection measures used to control access to a copyrighted work. This prohibition, however, is subject to both statutory and regulatory exceptions. In addition, courts have also insisted on some nexus between the act of circumvention and an act that infringes copyright.		 17 U.S.C. §§ 1201(a)(1); 1201(d)-(j), Chamberlain ; Storage Tech
Does national copyright or consumer protection law require disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material? NO
 
Are the operations of copyright collectives subject to public oversight? NO
The U.S. does not maintain national collectives in the traditional sense. However, private entities, such as the performing rights societies (e.g., ASCAP, BMI, SESAC), administer rights on a non-exclusive basis and are sometimes subject to judicial oversight through antitrust consent decrees.		  
Is any portion of the revenues of copyright collectives set aside for benevolent purposes? NO
 
Are copyright collectives precluded from using their revenues for political lobbying? NO
 
Is copyright enforced only through mechanisms provided by law, rather than through private intermediaries? YES
Generally copyright is enforced through traditional means provided by law through arbitration or general litigation. For alleged infringement online, many online service providers follow “safe harbor” procedures set out by 17 U.S.C. § 512.		  
Is the enforcement of copyright restricted to civil or private law, rather than attracting criminal sanctions? NO
Criminal sanctions are available for infringements involving commercial motives, certain pre-release works, or infringements that involve harm above a certain monetary threshold.		 17 U.S.C. § 506
Are damages for copyright infringement based on the loss sustained, rather than by a preestablished or statutory damages award? NO
The copyright owner may elect recovery of actual damages, lost profits, or statutory damages.		 17 U.S.C. § 504
Is there provision to penalise the wrongful allegation of copyright infringement? LIMITED
Knowing and material misrepresentations of online copyright infringement may result in damages, costs and attorney’s fees.		 17 U.S.C. § 512 (f)

Conclusions

Amongst all the countries surveyed in this Watch List, the United States is the most obvious anomaly, in that whilst its own copyright regime remains amongst the most liberal in the world - almost entirely due to its broad "fair use" exception - it is the most unremitting in its demands for higher levels of copyright protection from other countries, all of which are net importers of copyright content from the USA.

Having said that, the United States copyright regime is far from a paragon. For one matter, its heavy reliance on the discretionary doctrine of fair use to provide flexibilities to content users may cause confusion and uncertainty as to exactly what is permitted and what is not; a state of affairs of which some content owners have taken full and unfair advantage.

For another matter, its terms of copyright protection have been ratchetted up time and again, now peaking at 120 years from the date of creation for works of corporate authorship.  Also, the US copyright regime betrays much partiality to copyright owners in matters of enforcement, particularly in the DMCA amendments which prohibited the circumvention of Technological Protection Measures (TPMs) even for fair-use purposes, and streamlined the removal of content from the Internet by IP owners without court order.

For better or worse, the United States effectively sets the global benchmark for intellectual property protection worldwide, through the norm-setting activities of its trade representatives and private sector lobbyists. Thus other countries can at least be thankful that the relatively balanced and equitable treatment shown to consumers in US law throws its one-sided foreign policy on IP into stark relief.

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