Monday, July 18, 2011

Foreign Authors: Beware of U.S. Copyright Registration Obligations

The Internet’s ability to distribute content, including new print, music and film/video works, to every corner of the world is amazing. But the universal reach of the Internet suggests caution when print, music and film/video creators seek to expand distribution of their content through the inexpensive and universal distribution tool of the Internet.

Prior to the Internet, a book publisher could publish and distribute a title in a designated geographic area where copyright protection was secured. If a print book was published in the United States only, the publisher could apply for copyright registration in the U.S. and not worry about copyright registration in other countries.

The advent of Internet distribution compels publishers and rights owners to consider copyright protection throughout the reaches of the Internet. Since the posting on line of a new work allows downloading throughout the world, the publisher and rights owner of a posted work are faced with a burdensome rights protection problem.

A recent federal district court case highlights the copyright problem regarding a new work published directly to the Internet. The case of Kernal Records Oy v. Mosley (2011 WL 2223422, S.D. Fla., June 7, 2011), deals with the registration requirement of the U.S. Copyright Law for works created outside of the U.S. but first published on the Internet. In the Mosley case, a sound recording was created in Australia and first published by posting on the Internet for downloading. The rights owner did not register the copyright in the U.S. Ordinarily, this would not be a problem for enforcement in the U.S. since Section 411 of the Copyright Act requires registration of a “United States work” in order to bring an infringement claim. The copyright in a work that is not a United States work need not register in the U.S., ordinarily, in order to commence litigation in the U.S. for infringement.

But the definition of a United States work is broad enough to encompass a work created outside of the U.S. by authors who do not reside in the U.S. The Copyright Act defines a United States work as a work first published:

             (A) in the United States;

             (B) simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States;

             (C) simultaneously in the United States and a foreign nation that is not a treaty party; or

             (D) in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States

The Mosley court held that the first publication on the Internet of the Australian sound recording constituted a simultaneous first publication in Australia and the U.S. and, as such, caused the sound recording to be deemed a United States work for purposes of the registration requirement of Section 411. The Florida federal court dismissed the infringement claim brought by the plaintiff rights owner because of failure to obtain registration prior to commencement of the litigation.

The publication on the Internet constitutes a simultaneous global publication leading to the prospect of global infringement. Accordingly, publishers who seek to benefit from the low cost and ease of world-wide distribution afforded by the Internet must not lose sight of the enhanced protection burdens that result. To be sure, the Mosley decision represents the first trial court decision in the U.S. on the need to obtain U.S. registration of a foreign created work first published on the Internet. Mosley places foreign authors and publishers on notice and represents a sobering application of U.S. copyright law to foreign authors of work created outside of the U.S.

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