Non-Berne Rights

The Berne Convention requires jurisdictions that are parties to it to automatically convey on all creators of a copyrightable work various minimum legal rights, including the right to seek damages for infringement, without requiring copyright formalities such as national copyright registration. However, it does not preclude parties to the Berne Convention from offering additional rights, but it does require “each member state to accord to nationals of other member states the same level of copyright protection provided to its own citizens.” In the United States this means that additional rights are available to copyright holders who register their copyrights with the US Copyright Office. There are two major non-Berne Rights, the possibility of an aware of statutory damages and attorney’s fees.  In particular the Copyright Act, at 17 U.S.C. § 412 states that, in order to have the right to seek statutory damages and attorneys’ fees in an action for infringement, the copyright for the creative work must be registered within three months of the date of publication, or, for unpublished work, prior to the alleged infringement.

Both are important rights.  Attorney’s fees for pursuing a copyright case can be considerable, from tens of thousands of dollars to millions depending on what is at stake. The a court can award damages statutory damages from $750 to $30,000 per work infringed, and can increase the award to $150,000 in cases of willful infringement – Statutory Damages are a floor, not a ceiling.


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