0.6 Enforcement  (Page 5/7)

At other times, however, the defendant may decide that settlement is not appropriate, and thus will proceed with the litigation. In order to prevail in a copyright infringement lawsuit, the copyright holder must prove:

• that the work is copyrightable
• that she is the holder of the copyright
• that the defendant used the plaintiff's work
• that unauthorized exercise of one or more of the exclusive rights occurred.
• Each of these requirements is discussed in depth in earlier modules; we review them here briefly.

Unauthorized copying and reproduction is the most common form of copyright infringement. Copying may be demonstrated by direct proof, but such evidence is often unavailable. Copying may also by demonstrated indirectly, by presenting evidence of a substantial similarity between the original work and the copied work, and by demonstrating that the defendant had access to the copyright holder’s work. Access may be proven by facts showing specifically how the defendant could have obtained the copyrighted work. Alternatively, it may be shown by the fact that the copyrighted work was generally available and widely distributed. The substantial-similarity requirement and the access requirement are interconnected in that the more similar the two works are, the less evidence the plaintiff needs to introduce regarding access to the work.

In defending against a claim of copyright infringement, the defendant may claim several defenses and exceptions, such as fair use, statute of limitations, uncopyrightability of the original work, public domain, first sale doctrine, safe-harbor provisions, independent creation, and other statutory exemptions. We examined those Exceptions and Limitations in detail in  Module 4 .

Most countries’ copyright regimes provide a broad range of remedies for copyright infringement. This is required by several of international agreements discussed in  Module 2 . The copyright holder can typically seek temporary or permanent injunctive relief, actual damages suffered as the result of the infringement, award of trial costs and attorney fees. Finally, in extremely rare circumstances involving blatant copyright infringement, the infringing party may be found to be criminally liable, and sanctioned with fines and imprisonment.

It should be emphasized that successful copyright infringement suits are unusual. The large majority of copyright holders are content with settlements in which defendants agree to cease their behavior and perhaps pay modest damage awards. Libraries are especially unlikely to be targets of successful copyright infringement suits. There are very few reported judicial opinions in any country in which a public or academic library has been found liable for violating the copyright laws. Thus, it is important that librarians be aware of the potential sanctions for copyright infringement, particularly so that they can give reliable advice to their various constituencies. But the libraries themselves should not be unduly worried about the prospect of being sued.