Page:Copyright Law Revision (Senate Report No. 94-473).djvu/145

 to $50,000, and in which the minimum recovery could be reduced from $250 to $100. The basis principle underlying this provision in that the courts should be given discretion to increase statutory damages in cases of willful infringement and to lower the minimum where the infringer is innocent. The language of the clause makes clear not only that the burden of proving willfulness rests on the copyright owner and that of proving innocence rests on the infringer, but also that the court must make a finding of either willfulness or innocence in order to award the exceptional amounts.

The “innocent infringer” provision of section 504(c)(2) has been the subject of extensive discussion. The exception, which would allow reduction of minimum statutory damages to $100 where the infringer “was not aware and had no reason to believe that his acts constituted an infringement of copyright,” is sufficient to protect against unwarranted liability in cases of occasional or isolated innocent infringement, and it offers adequate insulation to users, such as broadcasters and newspaper publishers, who are particularly vulnerable to this type of infringement suit. On the other hand, by establishing a realistic floor for liability, the provision preserves its intended deterrent effect; and it would not allow a defendant to escape simply because the plaintiff failed to disprove his claim of innocence.

In addition to the general “innocent infringer” provision clause (2) deals with the special situation of teachers, libraries, and archivists in nonprofit institutions who reproduce copyrighted material in the honest belief that what they are doing constitutes fair use. In cases of this sort it would be possible for the court to find that there had been infringement and still reduce the statutory minimum or waive it altogether. This exception applies only where the defendant proves “that he believed and had reasonable grounds for believing that the reproduction was a fair use under section 107.” It reflects the special problems of educational and scholarly uses of copyrighted material discussed in connection with that section.

The remaining sections of chapter 5 of the bill, dealing with costs and attorney’s fees, criminal offense, the statute of limitations, notification of copyright actions, and forfeitures do not require extended comment.

Under section 505 the awarding of costs and attorney’s fees are left to the court’s discretion, and the section also makes clear that neither costs nor attorney’s fees can be awarded to or against “the United States or an officer thereof.” Four types of criminal offenses actionable under the bill are listed in section 506: willful infringement for profit, fraudulent use of a copyright notice, fraudulent removal of notice, and false representation in connection with a copyright application. The maximum fine on conviction has been increased to $2,500 and in conformity with the general pattern of the Criminal Code (18 U.S.C.), no minimum fines have been provided. In addition to or instead of a fine, conviction for criminal infringement under section 506(a) can carry with it a sentence of imprisonment of up to 1 year;