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more defendants are not jointly liable, have been joined in the same action, separate awards of statutory damages could be made.
A much-debated issue derived from the Report's recommendation that in any case where the defendant proves he was an "innocent infringer" that is, that he did not know and had no reason to suspect that he was infringing the court should have discretion to award less than $250 or to withhold statutory damages altogether. In opposition to this proposal, copyright owner groups expressed the fear that any such provision would encourage copyright infringement and defeat the purposes of statutory damages. They pointed out that suits against genuinely innocent infringers are quite rare, and they argued very strenuously that, even if the burden of proving innocence is placed on the infringer, it would often be easy for the defendant to present a claim of his "innocence" and difficult for the copyright owner to disprove it. They maintain that $250, which (with certain exceptions) has been the minimum award against all infringers, innocent or otherwise, for over 50 years, does not represent an onerous amount, especially in view of the provisions in section 411 denying statutory damages where infringement of a work is commenced before registration has been made.
On the other hand, strong arguments were made by representatives of broadcasters and educational groups, among others, for a provision permitting the court to remit the $250 minimum in cases of genuinely innocent infringement except to the extent that actual damage to the copyright owner can be shown. In addition, representatives of newspaper publishers urged retention of the present provision limiting liability for statutory damages "in case of a newspaper reproduction of a copyrighted photograph" to a range of $50 to $200.
In the light of these arguments we have concluded that, in order for the copyright law to operate as an effective deterrent against numerous small, erosive violations of a copyright owner's rights, a minimum award of statutory damages should be available in all cases where infringement has occurred. However, where the defendant succeeds in proving his innocence, the court should be given discretion to reduce the ordinary minimum award of $250, and in those cases the bill would set the minimum at $100. Clause (2) of section 504 (c) therefore provides:,
In a case where the infringer sustains the burden of proving that he was not aware and had no reason to believe that his 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 $100.
As a counterpart to this change, the bill would depart from another ecommendation of the 1961 Report by providing that, where the infringement is proved to have been committed willfully after receipt
of a notice to desist, the court may increase the ordinary maximum award of $10,000 to $20,000:
In a case where the copyright owner sustains the burden of proving that infringement was committed willfully after service upon the infringer of a written notice to desist, the court in its discretion may increase the award of statutory damages to a sum of not more than $20,000.
As mentioned in the Report, an infringement may be committed after the infringer has received a notice to desist and still not be "willful." An example might be a case where notice is sent to a large retail store but fails to reach the individual employees responsible for the infringement for some time. Thus, to be entitled to an award of statutory damages over the ordinary maximum, the plaintiff would have to prove not only that written notice to desist had been served, but also that the infringement was committed "willfully" thereafter.
4. COSTS AND ATTORNEY'S FEES
Section 505 of the bill follows the 1961 Report's recommendation for a provision permitting the discretionary award of costs and attorney's fees:
In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.
As noted in the Report, the language of the present law could be construed as making the allowance of "full costs" mandatory, and there was some sentiment for specifically adopting this construction in the bill. The prevailing view, however, favored leaving the award of costs and attorney's fees entirely to the court's discretion. The bill also makes clear that neither costs nor attorney's fees can be awarded to or against "the United States or an officer thereof."
C. CRIMINAL OFFENSES
Section 506 of the bill specifies four types of activities which, as under the present law, would constitute criminal offenses:
(1) Criminal infringement.—Infringement of "a copyright willfully and for purposes of commercial advantage or private financial gain."
(2) Fraudulent use of copyright notice.—With fraudulent intent, either: (a) placing on an article a notice or "words of the same purport" that the defendant "knows to be false," or (b) publicly distributing or importing for public distribution "any article bearing such notice or words."
(3) Fraudulent removal of copyright notice.-With fraudulent intent, removing or altering "any notice of copyright appearing on a copy of a copyrighted work."
(4) False representation. Knowingly making "a false representation of a material fact in the application for copyright registration *** or in any written statement filed in connection with the appli
The extensive and spirited discussions of the criminal infringement provision reflect the importance many copyright owners attach to the criminal provisions as an effective sanction against infringement. Among the main points stressed were that the present penalties—a fine of $100 to $1,000 and imprisonment of up to one year-are not adequate to deter infringement, and that difficulties are sometimes encountered in inducing Federal prosecutors to bring criminal action because the relative weakness of the penalties makes them feel the offense is not very serious. Subsection (a) therefore provides that a person convicted of criminal infringement "shall be fined not more than $2,500 or imprisoned not more than one year, or both, for the first such offense." It also provides that, where the offense is repeated, the defendant may be fined up to $10,000 and imprisoned up to three years. In each of the other three subsections the maximum fines have been increased to $2,500 and, in conformity with the provisions of the United States Criminal Code (title 18 of the United States Code), no minimum fines have been provided. Although, as pointed out in the 1961 Report, the Criminal Code contains a general provision penalizing the filing of false statements or documents in any Government agency, we believe that there are positive advantages in having the copyright statute itself call attention to the penalty for filing false information in connection with copyright claims.
D. LIMITATION ON ACTIONS
With some very minor improvements in language, section 507 of the bill is identical with section 115 of the present law. In general, it sets forth a 3-year statute of limitations for both criminal proceedings and civil actions:
(a) CRIMINAL PROCEEDINGS.-No criminal proceedings shall be maintained under the provisions of this title unless it is commenced within three years after the cause of action arose.
(b) CIVIL ACTIONS.-No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.
Up to 1958 the copyright statute contained no provision establishing a statutory limitation on the period for bringing civil actions, and to fill this gap the language of section 115 was amended by the Act of
September 7, 1957 (71 Stat. 633). At that time there was considerable debate on the precise wording of the provision, particularly the difference between the "arising of a cause of action" in a criminal case and the "accrual of a claim" in a civil case, and the question of tolling the statute in civil cases. The language finally adopted represents a reconciliation of views. (See H.R. Rep. No. 150, S. Rep. No. 1014, 85th Cong., 1st sess.) Thus, although the language of section 507 could undoubtedly be condensed and its structure improved, we decided it would be preferable not to reopen recently settled issues.
E. NOTIFICATION OF ACTIONS
Section 508 of the bill, which is patterned to some extent after a similar provision in the patent law, 35 U.S.C. § 290, provides generally for a procedure under which the clerks of the Federal courts are to notify the Copyright Office of the filing of actions under the bill and of their final disposition, and the Copyright Office would make these notifications a part of its public records. We believe that these provisions would have a number of substantial advantages, and judging from the generally enthusiastic response to the section, the copyright bar agrees.