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United States 2011

Submitted by Gwen Hinze on Thu, 05/03/2009 - 07:36

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period 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)
Are works that are not fixed in some material form excluded from copyright? Yes
U.S.Const. art. I, § 8, cl. 8
Has a court or tribunal ever limited the exercise of copyright under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? 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. Remedy for copyright misuse is a bar on enforcement powers until misuse is cured.		 Lasercomb
Has a court or tribunal ever limited the exercise of copyright pursuant to 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 ; Golan
Are databases of non-original material excluded from copyright? In part
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.
Are rights holders prohibited from excluding user rights under copyright law? In part
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.		 Bowers, Vault
Is computer software excluded from the scope of patentable subject matter? No
State Street

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? Yes
Most questions of personal use are addressed through case-by-case analysis of the statutory fair use exception. Courts are instructed to consider four nonexclusive factors in making the determination: (1) nature of the use; (2) nature of the work; (3) amount used; and (4) effect of the use on the market for the original work. 		17 U.S.C. 107
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
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 noncommercial reproduction of music using certain categories of consumer devices and levy-paid media.		 17 U.S.C. §§ 107, 1008, Universal City ; Gonzalez
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? In part
US law contains specific statutory exceptions for backup copies of computer programs, as well as noncommercial reproduction of music on certain categories of consumer devices. U.S. law does not provide a general private copying exception. Accordingly, courts address questions outside of the areas described on a case-by-case basis under fair use.		 17 U.S.C. §§ 107, 117(a), 1008
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? In part
The exclusive right to perform a work is limited to public performances, and does not include performances to private gatherings of family and friends. Statutory exemption also applies to public performances of music without commercial advantage. These limitations, however, do not apply to the reproduction or distribution rights. 		17 U.S.C. §§ 101, 110(4), Cartoon Networks
For EducationMay students copy works for private research or study? In part
Courts address copies for personal use and research through a case-by-case application of the fair use exception. Libraries enjoy special statutory exceptions for making copies for patrons in certain circumstances. 		17 U.S.C. §§ 107, 108(d); Texaco
Does any such research and study provision cover distance and online education? In part
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 performance and display (but not reproduction) of certain copyrighted works in the course of mediated classroom instruction in limited circumstances.		 17 U.S.C. §§ 107, 110(2)
May translations of works be made for educational purposes? In part
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 educators copy works for use in the classroom? In part
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. The fair use exception, however, specifically recognizes multiple copies for the classroom as an example of a circumstance where fair use applies. Statutory exceptions applicable to libraries and remote classroom instruction, however, may permit copying and dissemination, and display and performance respectively, in limited circumstances. 		17 U.S.C. § 107, 108, 110(2)
OnlineAre 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
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? Yes
There are several safe harbor provisions that protect online service providers (including ISPs) from monetary damages based on the copyright infringements of users.		 17 U.S.C. § 512
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? Yes
ISPs are not required to perform any filtering or monitoring for copyright infringement, nor are the "safe harbors" for ISPs contingent on filtering or monitoring.		 17 U.S.C. § 512(m)
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? In part
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 copied for the purpose of reverse-engineering 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. Statutory exception permits circumvention of technological protection measures in order to create interoperable software. 		Sega; Connectix; 17 U.S.C. 1201(f)
Is the incidental inclusion of a work in other material permitted? In part
Courts address intermediate and incidental copies 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.		 17 U.S.C. §107; 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
By the pressIs there a copyright exception for the news of the day? In part
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. The fair use exception, however, specifically recognizes news reporting as an example of a circumstance where fair use may apply.		 17 U.S.C. § 107 , Harper & Row ; Nunez
May copyright material be reproduced for the purposes of review and criticism? In part
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. The fair use exception, however, specifically recognizes comment and criticism as examples of circumstances where fair use may apply.		 17 U.S.C. § 107, Harper & Row
May quotations be used for any purpose? In part
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 if they 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 librarians 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).
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
Are the results of publicly funded research required to be published under an open access license? In part
US law contains a limited but important public access mandate. Researchers funded by the National Institutes of Health are required to deposit electronic copies of their peer-reviewed manuscripts in the PubMedCentral database, the online archive of the National Library of Medicine. Full texts of the articles are made publicly available and searchable online in PMC no later than 12 months after publication in a journal. Pending legislation would expand this publicly funded research mandate to 11 Federal Agencies. 		2009 Consolidated Appropriations Act; Federal Research Public Access Bill (S.1323) (111th Cong., 2009)

Freedoms to share and transfer

Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? Yes
Can public domain works be used without the need for any payment or registration of the use? Yes
Does the law make special provision for the legal use of orphaned works? No
Legislation was introduced in 2008 (since lapsed), which would have limited the remedies available to a copyright owner if the defendant had undertaken a reasonable search but was nevertheless unable to locate the owner.		 Orphan Works Act of 2008 (S. 2913; H.R. 5889); see also Google Book Search settlement agreement for relevant works with a U.S. copyright interest.
Is parallel importation of copyright works permitted? In part
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 goods 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 national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? In part
There are limited preferences for open source software set out in federal appropriations measures.		 Open Source
Are there national programmes or policies that specify or promote the use of open document formats? 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 innocent infringement of copyright treated differently by the law? No
17 U.S.C. §§ 502-509.
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? In part
Statutory provisions prohibit the manufacture and distribution of devices that were primarily designed for, have no commercially significant use other than, or are marketed for, circumvention. Although a statutory exemption process permits three-year exceptions to the prohibition on acts of circumvention of technological protection measures, it does not extend to the manufacture or distribution of circumvention devices. However, in cases interpreting the device ban, courts have insisted on some nexus between the act of circumvention and an act that infringes copyright. 		17 U.S.C. §§ 1201(a)(2), 1201(b); 1201(d)-(j), Chamberlain ; Storage Tech ; Real Networks
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? In part
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)(2), 1201(b); 1201(d)-(j), Chamberlain ; Storage Tech ; Real Networks
Does national copyright or consumer protection law require that the use of TPMs on copyright works be disclosed to consumers? No
Are there cases in which the availability of injunctive relief for copyright infringement is limited by the law on public policy grounds? Yes
Injunctions are not available for copyright infringements committed by or with the authority of the US government.		 28 U.S.C. §1498
Have major ISPs resisted requests from copyright owners to pass on allegations that their users have engaged in copyright infringement? Yes
ISPs who provide simple Internet access are not required to notify users accused of copyright infringement. In order to qualify for safe harbor protections against infringement claims, however, an ISP must reasonably implement a policy of terminating repeat infringers in appropriate circumstances. 		17 U.S.C. §512(a), 512(i)
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
In addition to applying to commercially motivated infringements, criminal liability may also apply to distribution of certain pre-release works, or infringements that involve harm above a certain monetary threshold, even in the absence of commercial motive.		 17 U.S.C. §506
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? No
U.S. copyright law provides for statutory damages for registered holders of works in successful litigation, or damages calculated on actual damage from the infringement and lost profits. Statutory damages are also available for circumvention of technological protection measures and the manufacture and distribution of circumvention devices. 		17 U.S.C. §504; 17 U.S.C. §1203
Is there provision to penalise the wrongful allegation of copyright infringement? In part
For alleged infringement online, many online service providers follow “safe harbor” procedures set out in 17 U.S.C. § 512. 17 U.S.C. 512(f) provides for damages and attorney's fees for making knowing material misrepresentations that material or activity is infringing in a copyright takedown notice issued to an online service provider. Courts have held that a copyright holder must consider whether the use of a copyrighted work is fair use before issuing a statutory takedown notice.		 17 U.S.C. §512(f); Lenz
Is there provision to penalise the obstruction of consumers' exercise of user rights? No

Conclusions

The United States is the outlier in all the countries surveyed in this Watch List. While 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  content from US copyright holders.

However, despite its stance on IP in foreign policy,  the United States copyright regime is far from perfect. For one matter, its heavy reliance on the discretionary doctrine of fair use may cause confusion and uncertainty as to exactly what is permitted and what is not. Some content owners have taken full and unfair advantage of this uncertainty (coupled with the expense of civil litigation in the United States) to restrict possible uses of content.

For another matter, the U.S. term of copyright protection has been ratchetted up time and again, now peaking at 120 years from the date of creation for works of corporate authorship.  Also, the U.S. copyright regime betrays much partiality to copyright owners in matters of enforcement, particularly in relation to the 1998 Digital Millennium Copyright Act amendments which prohibit the circumvention of Technological Protection Measures (TPMs) and the manufacture and distribution of circumvention devices, even for fair-use purposes, and streamlined the ability of IP owners to remove content from the Internet without seeking a 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. In particular, the United States is seeking to have other countries adopt laws modeled on the US principles of secondary copyright liability, and laws mirroring the US DMCA to implement the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, via the plurilateral Anti Counterfeiting Trade Agreement (ACTA).  Other countries can at least be thankful that the relatively balanced and equitable treatment shown to consumers in US law underlines the one-sidedness of its foreign policy on IP.

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