(a) IN GENERAL.--Except as otherwise provided by this title, an
infringer of copyright is liable for either--
(1) the copyright owner's actual damages and any additional profits of
the infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
(b) ACTUAL DAMAGES AND PROFITS.--The copyright owner is entitled to
recover the actual damages suffered by him or her as a result of the
infringement, and any profits of the infringer that are attributable to
the infringement and are not taken into account in computing the actual
damages. In establishing the infringer's profits, the copyright owner
is required to present proof only of the infringer's gross revenue, and
the infringer is required to prove his or her deductible expenses and
the elements of profit attributable to factors other than the
copyrighted work.
(c) STATUTORY DAMAGES.--
(1) Except as provided by clause (2) of this subsection, the copyright
owner may elect, at any time before final judgment is rendered, to
recover, instead of actual damages and profits, an award of statutory
damages for all infringements involved in the action, with respect to
any one work, for which any one infringer is liable individually, or for
which any two or more infringers are liable jointly and severally, in a
sum of not less than $500 or more than $20,000 as the court considers
just. For the purposes of this subsection, all the parts of a
compilation or derivative work constitute one work.
(2) In a case where the copyright owner sustains the burden of proving,
and the court finds, that infringement was committed willfully, the
court in its discretion may increase the award of statutory damages to a
sum of not more than $100,000. In a case where the infringer sustains
the burden of proving, and the court finds, that such infringer was not
aware and had no reason to believe that his or her acts constituted an
infringement of copyright, the court in its discretion may reduce the
award of statutory damages to a sum of not less than $200. The court
shall remit statutory damages in any case where an infringer believed
and had reasonable grounds for believing that his or her use of the
copyrighted work was a fair use under section 107, if the infringer was:
(i) an employee or agent of a nonprofit educational institution,
library, or archives acting within the scope of his or her employment
who, or such institution, library, or archives itself, which infringed
by reproducing the work in copies or phonorecords; or (ii) a public
broadcasting entity which or a person who, as a regular part of the
non-profit activities of a public broadcasting entity (as defined in
subsection (g) of section 118) infringed by performing a published
nondramatic literary work or by reproducing a transmission program
embodying a performance of such a work.
2. Excerpts From House Report on Section 504
=====================================================================
The following excerpts are reprinted from the House Report on the new
copyright law (H.R. Rep. No. 94-1476, pages 161-163). Material not of
immediate interest to librarians and educators has been omitted. Much
of the corresponding discussion in the Senate Report (S. Rep. No.
94-473, pages 143-145) is substantially the same; the House Report's
discussion of statutory damages applicable to librarians and
educators is new.
=====================================================================
IN GENERAL
A cornerstone of the remedies sections and of the bill as a whole is
section 504, the provision dealing with recovery of actual damages,
profits, and statutory damages. The two basic aims of this section are
reciprocal and correlative: (1) to give the courts specific unambiguous
directions concerning monetary awards, thus avoiding the confusion and
uncertainty that have marked the present law on the subject, and, at the
same time, (2) to provide the courts with reasonable latitude to adjust
recovery to the circumstances of the case, thus avoiding some of the
artificial or overly technical awards resulting from the language of the
existing statute.
Subsection (a) lays the groundwork for the more detailed provisions of
the section by establishing the liability of a copyright infringer for
either "the copyright owner's actual damages and any additional profits
of the infringer," or statutory damages. Recovery of actual damages and
profits under section 504 (b) or of statutory damages under section 504
(c) is alternative and for the copyright owner to elect; as under the
present law, the plaintiff in an infringement suit is not obliged to
submit proof of damages and profits and may choose to rely on the
provision for minimum statutory damages. However, there is nothing in
section 504 to prevent a court from taking account of evidence
concerning actual damages and profits in making an award of statutory
damages within the range set out in subsection (c).
*Actual damages and profits*
In allowing the plaintiff to recover "the actual damages suffered by him
or her as a result of the infringement," plus any of the infringer's
profits "that are attributable to the infringement and are not taken
into account in computing the actual damages," section 504 (b)
recognizes the different purposes served by awards of damages and
profits. Damages are awarded to compensate the copyright owner for
losses from the infringement, and profits are awarded to prevent the
infringer from unfairly benefiting from a wrongful act.***
*Statutory damages*
Subsection (c) of section 504 makes clear that the plaintiff's election
to recover statutory damages may take place at any time during the trial
before the court has rendered its final judgment. The remainder of
clause (1) of the subsection represents a statement of the general rates
applicable to awards of statutory damages.
Clause (2) of section 504 (c) provides for exceptional cases in which
the maximum award of statutory damages could be raised from $10,000 to
$50,000, and in which the minimum recovery could be reduced from $250 to
$100. The basic principle underlying this provision is that the courts
should be given discretion to increase statutory damages in cases of
willful infringement and to lower the minimum where the infringer is
innocent. The language of the clause makes clear that in these
situations the burden of proving willfulness rests on the copyright
owner and that of proving innocence rests on the infringer, and that
the court must make a finding of either willfulness or innocence in
order to award the exceptional amounts.
The "innocent infringer" provision of section 504(c)(2) has been the
subject of extensive discussion. The exception, which would allow
reduction of minimum statutory damages to $100 where the infringer "was
not aware and had no reason to believe that his or her acts constituted
an infringement of copyright," is sufficient to protect against
unwarranted liability in cases of occasional or isolated innocent
infringement, and it offers adequate insulation to users, such as
broadcasters and newspaper publishers, who are particularly vulnerable
to this type of infringement suit. On the other hand, by establishing a
realistic floor for liability, the provision preserves its intended
deterrent effect; and it would not allow an infringer to escape simply
because the plaintiff failed to disprove the defendant's claim of
innocence.
In addition to the general "innocent infringer" provision clause (2)
deals with the special situation of teachers, librarians, archivists,
and public broadcasters, and the non-profit institutions of which they
are a part. Section 504 (c)(2) provides that, where such a person or
institution infringes copyrighted material in the honest belief that
what they were doing constituted fair use, the court is precluded from
awarding any statutory damages. It is intended that, in cases involving
this provision, the burden of proof with respect to the defendant's good
faith should rest on the plaintiff.
3. Excerpts From Conference Report on Section 504
====================================================================
The following excerpts are reprinted from the Report of the
Conference Committee on the new copyright law (H.R. Rep. No. 94-1733,
pages 79-80).
====================================================================
REMEDIES FOR COPYRIGHT INFRINGEMENT
Senate bill
Chapter 5 of the Senate bill dealt with civil and criminal infringement
of copyright and the remedies for both. Subsection (c) of section 504
allowed statutory damages within a stated dollar range, and clause (2)
of that subsection provided for situations in which the maximum could
be exceeded and the minimum lowered; the court was given discretion to
reduce or remit statutory damages entirely where a teacher, librarian,
or archivist believed that the infringing activity constituted fair
use.***
House bill
Section 504(c)(2) of the House bill required the court to remit
statutory damages entirely in cases where a teacher, librarian,
archivist, or public broadcaster, or the institution to which they
belong, infringed in the honest belief that what they were doing
constituted fair use.***
Conference substitute
The conference substitute adopts the House amendments with respect to
statutory damages in section 504(c)(2)***
----------------------------------------------------------------
F. GUIDELINES FOR OFF-AIR RECORDING OF BROADCAST PROGRAMMING FOR
EDUCATIONAL PURPOSES
----------------------------------------------------------------
====================================================================
The following excerpts are reprinted from the House Report on piracy
and counterfeiting amendments (H.R. 97-495, pages 8-9).
====================================================================
In March 1979, Congressman Robert Kastenmeier, Chairman of the House
Subcommittee on Courts, Civil Liberties and Administration of Justice,
appointed a Negotiating Committee consisting of representatives of
educational organizations, copyright proprietors, and creative guilds
and unions. The following guidelines reflect the Negotiating Committee's
consensus as to the application of "fair use" to the recording,
retention, and use of television broadcast programs for educational
purposes. They specify periods of retention and use of such off-air
recordings in classrooms and similar places devoted to instruction and
for homebound instruction. The purpose of establishing these guidelines
is to provide standards for both owners and users of copyrighted
television programs.
(1) The guidelines were developed to apply only to off-air recording by
non-profit educational institutions.
(2) A broadcast program may be recorded off-air simultaneously with
broadcast transmission (including simultaneous cable transmission) and
retained by a non-profit educational institution for a period not to
exceed the first forty-five (45) consecutive calendar days after date of
recording. Upon conclusion of such retention period, all off-air
recordings must be erased or destroyed immediately. "Broadcast programs"
are television programs transmitted by television stations for reception
by the general public without charge.
(3) Off-air recordings may be used once by individual teachers in the
course of relevant teaching activities, and repeated once only when
instructional reinforcement is necessary, in classrooms and similar
places devoted to instruction within a single building, cluster, or
campus, as well as in the homes of students receiving formalized home
instruction, during the first ten (10) consecutive school days in the
forty-five (45) day calendar day retention period. "School days" are
school session days--not counting weekends, holidays, vacations,
examination periods, or other scheduled interruptions--within the
forty-five (45) calendar day retention period.
(4) Off-air recordings may be made only at the request of, and used by,
individual teachers, and may not be regularly recorded in anticipation
of requests. No broadcast program may be recorded off-air more than once
at the request of the same teacher, regardless of the number of times
the program may be broadcast.
(5) A limited number of copies may be reproduced from each off-air
recording to meet the legitimate needs of teachers under these
guidelines. Each such additional copy shall be subject to all provisions
governing the original recording.
(6) After the first ten (10) consecutive school days, off-air recording
may be used up to the end of the forty-five (45) calendar day retention
period only for teacher evaluation purposes, i.e., to determine whether
or not to include the broadcast program in the teaching curriculum, and
may not be used in the recording institution for student exhibition or
any other non-evaluation purpose without authorization.
(7) Off-air recordings need not be used in their entirety, but the
recorded programs may not be altered from their original content.
Off-air recordings may not be physically or electronically combined or
merged to constitute teaching anthologies or compilations.
(8) All copies of off-air recordings must include the copyright notice
on the broadcast program as recorded.
(9) Educational institutions are expected to establish appropriate
control procedures to maintain the integrity of these guidelines.
--------
ENDNOTES:
[1] Corrected from Congressional Record.
[2] Editor's Note: As reprinted in the House Report, subsection A.2 of the
Music Guidelines had consisted of two separate paragraphs, one dealing
with multiple copies and a second dealing with single copies. In his
introductory remarks during the House debates on S.22, the Chairman of
the House Judiciary Subcommittee, Mr. Kastenmeier, announced that "the
report, as printed, does not reflect a subsequent change in the joint
guidelines which was described in a subsequent letter to me from a
representative of [the signatory organizations]," and provided the
revised text of subsection A.2. (122 CONG. REC. H 10875, Sept. 22,
1976). The text reprinted here is the revised text.
[3] NOTE: Section 504 was amended in subsection (c) by the Act of October
31, 1988, Pub. L. 100-568, 102 Stat. 2853, 2860.
------------------------------------------------------------------------
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September 1995 - 20,000
WEB REV: June 1998