works. But copyright owners of non-U.S. works still must comply with registration requirements if they wish to seek statutory damages in court.[1] The removal of registration as a precondition to filing an infringement claim for non-U.S. works was one of the results of the Berne Convention Implementation Act of 1988[2] and the WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998.[3] Furthermore, the U.S. Supreme Court has recently clarified in Reed Elsevier, Inc. v. Muchnick that section 411(a) merely contains "claim-processing rules" rather than "jurisdictional conditions". Thus, the Court ruled that "[s]ection 411(a)'s registration requirement is a precondition to filing a claim that does not restrict a federal court's subject-matter jurisdiction."[4]
For the purposes of section 411, a full definition of "United States work" is set out in section 101. This definition provides:
For purposes of section 411, a work is a "United States work" only if—
(1) in the case of a published work, the work is 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of, or in the case of an audiovisual work legal entities with headquarters in, the United States; (2) in the case of an unpublished work, all the authors of the work are nationals, domiciliaries, or habitual residents of the United States, or, in the case of an unpublished audiovisual work, all the authors are legal entities with headquarters in the United States; or (3) in the case of a pictorial, graphic, or sculptural work incorporated in a building or structure, the building or structure is located in the United States.
The legislative history of section 411 suggests a fairly strong correlation between the definition of "United States work" in the Copyright Act and the definition of "country of origin" in the Berne Convention.[5] The apparent intention of the U.S. Congress was to parallel the relevant definitions in section 101 with those terms contained in Article 5(4) of the Berne Convention.[6]
- ↑ § 412 sets forth registration as prerequisite to certain remedies for infringement. Unlike § 411, the application of § 412 is not limited to "U.S. works". However, in a suit under § 411(c), the copyright owner of a foreign work consisting of sounds, images, or both, the first fixation of which is made simultaneously with its transmission may obtain statutory damages without registering the work under certain conditions. See Football Ass’n Premier League v. YouTube, 633 F. Supp. 2d 159 (2009).
- ↑ Pub. L. No. 100-568, 102 Stat. 2853, 2854.
- ↑ Pub. L. No. 105-304, 112 Stat. 2860, 2861.
- ↑ Reed Elsevier, Inc., et al., Petitioners, v. Irvin Muchnick, et al., 130 S. Ct. 1237 (2010).
- ↑ In The Senate Statement on the Berne Convention Implementation Act of 1988 that appears on page S14544, Congressional Record (Daily Ed.), October 5, 1988 (Senate Legislative Day of Monday, September 26, 1988), it was stated:
… With regard to the specifics of the amendment on registration, the two-tier system is established by making three amendments to the committee-reported bill. First, the repeal of existing section 411(a) is
- ↑
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