Pillsbury Winthrop Shaw Pittman

What you should know about electronic subscriptions and copyright law: a best-practices guide

By Carolyn S Toto and Mark R Kendrick

Increasingly, printed matter is being made available via the internet in electronic form, and both publishers and readers alike are starting to prefer an online format over the printed hardcopy format. One example is electronic newsletters or reports offered through online subscriptions. These can be emailed to the subscriber on a daily, weekly or monthly basis just as the printed hardcopy formats would have been mailed. Unlike the hardcopy formats, however, the electronic counterparts can be easily printed out or forwarded to large groups of people. Since these newsletters and reports are generally protected by copyrights, an unauthorised mass distribution can raise a host of risks and liabilities, including copyright infringement. If the subscriber has obtained the subscription as part of his or her employment for use by the employer, these risks and liabilities can be imputed to the employer.

A large part of the risks and liabilities relates to the amount of damages that can be claimed for copyright infringement for these types of works. The Copyright Act provides that a copyright owner may elect to recover, instead of actual damages and profits, an award of statutory damages of not less than $750 (£480) but not more than $30,000 per copyright infringed. This amount may be enhanced up to $150,000 per copyright infringed based on a finding of wilful infringement. When each daily or weekly newsletter or report is deemed a separate copyrighted work, the statutory damages can add up quickly over the years…

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