Copyright
6. Registration of Copyright
Copyright is created automatically at law upon the creation of an original work. There are, however, certain important advantages in taking the additional step of obtaining a copyright registration. Foremost amongst these advantages is a presumption of validity. A certificate of registration is evidence that copyright subsists in the work and that the person registered is the owner of the copyright, and, in the absence of evidence to the contrary, is prima facie proof thereof. Although the presumption created as to ownership of copyright may be rebutted, the person challenging the existence of copyright, or ownership thereof, must lead convincing rebuttal evidence. Accordingly, the copyright owner who has registered his copyright will enjoy significant procedural advantages before the courts, if forced to take legal action against an infringer. These advantages will undoubtedly shorten the length of any ensuing copyright infringement trial, and will, in a close case, almost certainly tip the scale in favour of the registered copyright holder.
At Canadian law, another benefit which arises from registration is the presumption of intentional infringement. Pursuant to the Canadian Copyright Act, if a copyright is unintentionally infringed, no damages are payable to the author, and the only remedy which is available to the author is an injunction, forcing the infringer to stop its infringing activities. The registration of a copyright provides to the author an irrebuttable presumption of knowledge on the part of the infringing party, such that all damages which accrued at law to the author as a result of the infringement are recoverable. This may be important, for example, in a situation where a copyright notice marked on a work is inadequate, or has been obliterated or removed prior to unauthorized reproduction.
Where a work which is the subject of Canadian copyright is intended to be marketed in the United States, registration is also advisable, as the benefits of registration in this jurisdiction are of even greater importance than in the Canadian context.
In the United States, a certificate of registration made before, or within five years, after first publication of a work constitutes prima facie evidence of the validity of the copyright, and of the facts stated in the certificate. As well, at United States law, owners of copyright are entitled, as an alternative measure of damages, to elect to obtain statutory damages, as opposed to proven economic damages. In circumstances of wilful infringement, statutory damages as high as US$100,000 may be awarded. This feature of United States law represents a significant benefit to American litigants, particularly in situations where actual economic damages will be difficult, or costly, to establish, as is often the case. However, statutory damages are not recoverable for any infringement which occurs before registration of copyright, unless copyright is registered within 3 months from the first publication. Additionally, no award of attorneys fees are recoverable prior to registration of copyright, which can also be a significant disadvantage, particularly when the high costs of American litigation is taken into consideration.
Also of note is that works of American origin must be registered in order to bring an infringement suit in the United States, while works protected in the USA by means of the Berne Convention, and whose origin is not the United States, need not be registered prior to commencing a suit. This is one of the rare instances where US law treats foreigners more favourably than its own nationals.
It should be noted that, as of October 1, 1999, statutory damages also became available under Canadian copyright law; however, the applicable legislation differs significantly from the U.S., as awards in the Canadian context may not exceed $ 20,000, nor is registration a prerequisite to their availability.