Getting Copyright Right

Scribbled by Brett Trout

Although, as of the date of publication, the following information is believed to be timely and accurate, do not rely on it without independent verification. None of the following information constitutes legal advice. If you are seeking legal advice, please contact your local Intellectual Property attorney. For additional information on Intellectual Property or Information Technology laws, or to check out Brett's new book, please contact Brett.

What is a copyright? A copyright is the exclusive right to reproduce or distribute an original work of authorship. Original works of authorship include software programs, photos, text and sounds, as well as other intellectual works. A copyright does not protect ideas, procedures, processes, systems, forms, methods of operation, concepts or principles.

How do I get a copyright? Since 1989, copyright protection attaches to a work as soon as it is "fixed" in a tangible medium. Copying to a disk or hard drive, or ripping to a CD all constitute "fixation" for the purposes of copyright protection. How long does a copyright last? For an individual author, copyright protection extends for the life of the author, plus 70 years. For anonymous works and works for hire, the term is 95 years from publication, or 120 years from creation, whichever comes first. Do I need to register my copyright? Neither publication nor registration is a prerequisite to secure copyright protection. Copyright registration does, however, provide several advantages. Registration is a prerequisite to U.S. copyright owners bringing an infringement lawsuit in the U.S. Registration also provides statutory damages and attorney fees in certain cases.

What is the proper copyright notice? The Universal Copyright Convention (the UCC), of which the U.S. is a member, dictates that proper copyright notice consist of the symbol (c) (the word "Copyright" or the abbreviation allowed under U.S. law are not acceptable), the year of first publication, and the name of the copyright proprietor. Example: (c) 2002 Brett J. Trout. The copyright notice should be permanently placed on copies of the work in a manner that it gives reasonable notice of the claim of copyright under normal usage. Since March 1, 1989, affixation of proper copyright notice is not mandatory in the U.S. Proper copyright notice, however, prevents an infringer from limiting damages by claiming "innocent infringement."

Who owns the copyright in a work? Upon fixation, the copyright immediately becomes the property of its author. If an individual creates a work outside of any contractual or employment obligation, the individual is the author. If an individual creates a work as part of an employment obligation or as a "work for hire" the employer is the author. An author can assign the copyright in the work to a third party. In such a case, the third party would own the copyright, but the authorship would not change.

What is a "work made for hire?" Under 17 U.S.C. 101, a "work made for hire" is: (a) A work prepared by an employee within the scope employment; or (b) A work (if the parties expressly agree in a written instrument signed by them that the work should be considered a work made for hire) specially ordered or commissioned for use as: a contribution to a collective work; a part of a motion picture or other audiovisual work; a translation; a supplementary work (forewords, afterwards, editorial notes etc.); a compilation; an instructional text for use in systematic instructional activities; a test; an answer material for a test; or an atlas.

Note that software development and Web site design do not fall under any of the "work for hire" categories. Therefore, while a company owns software development and Web site design produced by its employees, it does not own such materials produced by an independent contractor. Even if the parties agree software development and/or Web site design are to be a work for hire, these works do not meet the statutory criteria. Therefore, it is very important for a company not to rely on a work for hire designation to transfer rights in such projects. Instead, the company must obtain a written assignment of the copyright in the commissioned work from the independent contractor.

How can I tell if something is in the public domain? Unfortunately, there is no sure way to confirm a work is in the public domain. While it is possible to check the Copyright Office to confirm a copyright is registered, the absence of registration does not mean the work is in the public domain. Unless a work was published prior to 1923, you simply cannot tell if something is copyrighted. Do not rely on the absence of a copyright notice, Internet urban legends, or the fact that you might have received the work via email as an indication that the work is in the public domain. Infringers rarely provide the copyright notice when posting infringing material online and testaments as to the "public domain" or "open source" status of a work are notoriously inaccurate.

A rather unscrupulous tactic is for an author to write a poem or software module and "somehow" place the work onto the Web. Once unrelated third parties begin to present the work as being in the "public domain" the work spreads like wildfire, making it impossible to trace back to the author. Meanwhile, the author registers the copyright in the work, does a simple online search and tracks down all the infringers. As U.S. copyright law provides statutory damages for violations, the author simply sends the infringer a copy of a generic lawsuit, along with a demand for several thousand, to tens of thousands of dollars. The author notifies the infringer that the use of the work is unauthorized, and that the author will file the lawsuit if the infringer does not pay the demand. Monetary demands are typically calculated to be slightly less than the cost of defending the lawsuit. It is nearly impossible to prove the author actually placed the material online, so the infringer has little choice but to pay the demand. As tempting as it might be to use that undocumented "open source" software module or online poem, DO NOT use, copy, or transfer any copyrightable material, unless you can prove its public domain pedigree in court.

Is copyright infringement a crime? It can be. While copyright infringement is typically a civil matter, in certain circumstances, U.S. copyright law makes it a misdemeanor or even a felony to willfully infringe on a copyright. What is the Digital Millennium Copyright Act (DMCA)? The DMCA is a law designed to address online copyright issues the original drafters of U.S. copyright law never anticipated. Although the DMCA has many provisions, it primarily limits liability of Internet Service Providers (ISPs), prohibits circumventing anti-piracy software, and requires broadcasters of copyrighted material to pay royalties. DMCA's reach is so strong; it has even been held to prohibit linking to a site containing DVD cracks. The DMCA is very controversial, as many in the online community feels it unfairly stifles free speech.

Extracted from:

Lockergnome's Weekly Windows Digest (from Chris Pirillo)

(c) 2002, Lockergnome LC <> ISSN: 1095-3965 <> 03.16.2002

Valid CSS! Valid XHTML 1.0!
Last edited 07 March, 2010
Links verified 21 July, 2004