Author(s): Pamela Samuelson
Year: 2013
Abstract:
American
copyright professionals may be so accustomed to the current domestic
regime of statutory damages that it may come as a surprise to learn that
very few countries in the world have anything comparable. Our survey of
177 World Intellectual Property Organization member states reveals that
the United States is one of only 24 nations that has a statutory damage
regime. Of these 24 countries, the vast majority have developing or
emerging economies and are not known for having strong copyright
industries.
The United States was the first country to adopt
range-based statutory damage rules for copyright infringement, and it
was the only country in the world that had them for many years. Several
countries that have adopted statutory damage regimes in recent years
have done so under the pressure or influence of the United States. The
United States both encourages and mandates the adoption of statutory
damage rules through bilateral and regional trade agreements and through
the Special 301 review process. Even after countries adopt statutory
damage rules, they sometimes face continued criticism from the United
States and domestic interests for placing sensible limitations on
statutory damages not present in U.S. law.
This Article
demonstrates the rarity of statutory damages and contrasts the U.S.
statutory damages rules with those of other countries, where they exist.
It argues that the current method of proliferating statutory damages is
troubling because it inhibits the freedom of other countries to decide
for themselves whether and how to impose statutory damages in a way that
meshes with their respective civil legal regimes. Such limitations also
deprive countries, including the United States, of the benefit of
statutory experimentations that eventually may lead to a more precise
calibration of the balance between effective and just outcomes. Part I
explains the methodology and findings of our global survey of statutory
damages provisions. Part II examines various U.S. efforts to spread
statutory damages around the world through bilateral and regional trade
agreements. It also explains how increasingly specific requirements in
those trade agreements restrict the ways that other countries can tailor
the remedy to suit their interests. Part III highlights the ways in
which some countries have succeeded in providing some constraints in
their statutory damage provisions that are not present in the United
States. Part IV examines the emergence of statutory damages requirements
in recent multilateral trade agreements.
Keywords: statutory damages, copyright law, international law
Link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2240569