Copyright Law

Unlike patent law, copyright law does not protect the underlying invention or idea, rather it protects only the method or manner of expressing the idea. A copyright arises when ideas or thoughts are put into the form of sentences, words, paragraphs, computer programs, sketches, pictures, graphs, or any other method of conveying thoughts or ideas, commonly referred to as "writings" or "works of authorship."

What can be copyrighted

Some examples of what can be copyrighted are:

1. Literary works
2. Musical works
3. Dramatic works
4. Choreography or pantomime
5. Pictures, sculptures, or paintings
6. Motion pictures, videos, or other audiovisual works
7. Sound recordings
8. Computer programs
9. Architectural designs

In addition to the above numbered laundry list, there are two other additional types of works that can be protected by copyright. These include derivative works and collective works.

• Derivative work: a work based on one or more preexisting works. However, the copyright protection is only for the new, original elements that the derivative work creates. i.e., translations.
• Collective work: a work created by separate contributions from more than one authors to create a whole work. i.e., compilations.

Rights Granted by Copyrights

A holder of a copyright has the exclusive right to do (and to authorize others to do) the following:

1. reproduce the copyrighted work
2. create derivative works based on the copyrighted works (e.g., new computer program versions or sequels to stories)
3. distribute any copies produced
4. perform or disseminate the copyrighted material in public
5. display the copyrighted material publicly

It is illegal for anyone to violate these rights. But there are exceptions to these general rights (e.g., "fair use"), so remember that this only gives you a basic idea about what a copyright does and what it does not do.

Creation of Copyrights

Copyright protection exists as soon as the author or creator of copyrightable material creates the work (“renders it in fixed form"). If an employee creates a copyrightable work as part of his employment, the employer, not the employee, is presumed to be the author and the all copyright rights flow to the employer. Note that it is not necessary to give notice or register the work to create copyright protection, although it is recommended because it gives the creator additional rights and protections.

Copyright protection is available for unpublished as well as published works. Moreover, protection is given to works created by non-United States authors if certain conditions are satisfied.

Who is entitled to the copyright

Remember, a copyright is an intangible right in the expression of an idea embodied in a work. This right is distinct from the right of ownership in the material itself. This has a distinct effect upon who is actually entitled to the copyright. The most obvious person entitled to the copyright is the author. This is also true for collective works, where each author has a separate copyright interest in the whole work.

In the situation of a letter, the author not the recipient, owns the copyright interest. The recipient owns the physical letter itself, not the literary content. Therefore, the recipient has no publication rights to the letter. The exception to this rule is a letter written for publication. i.e., letters to the editor, commentaries.

However, there are certain situations where the original author does not own the copyright in the work. This is true in original works made ``for hire." A work for hire is a work created by an employee in their scope of employment. Additionally, the work can be on a special order or commissioned basis. In this commissioned situation there must be an express written agreement, which explicitly delineates the work as one work for hire with copyright interests going to the commissioner.

Copyright Notice

For works created after March 1, 1989, the use of a copyright notice is optional. However, using the word copyright or the familiar symbol ``©" along with the author's name and the year of publication in a place where it can be found upon reasonable inspection is highly recommended. (Example: © John Ulrich 1997) This will reduce the likelihood of "innocent infringement." (Note: for computer programs you would want to put the copyright notice on the first screen of the program and in the manuals. Also, for recordings a different symbol is used.) Notice of copyright might also help people find you should they want to contact the author concerning the work.

Copyright registration

Copyright registration is important because such registration is a prerequisite for a party to file suit under the Berne Convention. If there is even a remote chance that your copyrightable material could end up in foreign commerce, please register it. Registration of copyrights also affects licensing, establishment or priority in an infringement action, perfection of security interests, and other important legal issues involving any subsequent litigation.

The procedures for registration are fairly simple. First, send these three items in one envelope to Register of Copyrights, Copyrights Office, Library of Congress, Washington DC, 20559:

1. A completed application form;
2. Filing fee for each application;
3. A copy or sample of the work being copyrighted.

Note that if the work is currently unpublished, one complete copy or recording needs to be sent. If the work was first published after January 1, 1978, send two complete copies or recordings of the best edition of the work. If the work was first published before January 1, 1978, then send two copies of the work as it was originally published. Please note that for computer programs and CD-ROMS, there are special requirements for the work sample.

Registration

Why register? As we discussed it is not required. Additionally, registration does not grant any rights. The moment of fixation (pen to paper, finger to the key board) grants your copyrights. However, in order to collect statutory damages in a copyright infringement action registration is required. Additionally, registration is a prerequisite for commencing litigation (only for United States works).

These previously mentioned statutory damages include costs and attorney fees. Monetary statutory damages for infringement generally range from $750.00 to $30,000.00. For willful infringements damages can be up to $150,000. In order to collect willful statutory damages the alleged infringer must have been given notice of the copyright. (i.e.,registration, notice - Your name © Year) For inadvertent infringements damages can be as low as $500.00. Here's another quick legal tip: within five (5) years of 1st publication, registration is prima facie evidence of a valid copyright.

How much does it cost to register? You can pay $30.00 for a regular registration. This will get you registered in approximately nine (9) months. Governmental efficiency at its finest! However, for the ``bargain" price of $530.00 you can get an expedited registration accomplished in seven (7) days. For all your forms and circulars for registration go to www.loc.gov/copyright.

Enforcement

As we saw in patent suits and Trademark and Tradename, courts can offer copyright holders relief from infringement. A court may order an infringer to stop using the trademark or tradename, destruction of the infringing materials or reproductions, impounding and prohibition of imported infringing materials, or even award monetary damages after a trial on the merits. But don't expect to make any money off of a suit like this.

License/Transfer

Recently, the doctrine of indivisibility has been rescinded. What does that mean in plain English? Now any exclusive right of can be transferred separately. A copyright owner can transfer or license away a part of their copyright.

Generally, copyright transfers terminate 35 to 40 years after signing them. If the copyright owner grants publication rights, the grant is good for the earlier of 35 years post publication or 40 years after signing.

A document transferring a copyright or relating in any way to a copyright can be recorded with the Copyright Office. These documents must be signed and authorized. Also, they must specifically identify the work it pertains to. Also, the original work itself must be registered. It is important to note that the Copyright Office does not assess the legal sufficiency of the document, nor does it interpret the content. It only records the document. However, recordation provides constructive notice of the facts contained in it. This is true provided the document would be revealed in a reasonable search under the title or registration number.

How Long is this Thing Good for?

You are going to take another quick history lesson. Under the Copy Right Act of 1976, a copyrighted work created after January 1, 1978, was protected for the life of the author, plus 50 years. The protection was automatic from the moment of the work's conception. If the work existed before 1978, but was not registered or published, you still got the life of author, plus 50-protection period.

The brain pain starts when you try to calculate protection for works created, registered, published or renewed prior to 1978. It gets even worse when trying to figure out the time period for works made for hire before 1978. Then add the variable that the duration of protection can be completely different depending on which of the Copyright Act's numerous versions were in effect at the time of creation, and it's migraines for everyone.

However, here is the bottom line for all works made for hire, or works published, created, registered, or renewed prior to 1978: The utmost length of protection time was 75 years from the date the copyright was initially obtained. After 75 years, into the great wide public domain it went.

To save all of these works from a public feeding frenzy, it was Sonny Bono to the rescue. On October 27, 1998, Bill Clinton signed the Sonny Bono Copyright Term Extension Act. Basically, Sonny gave all copyrighted works an additional 20 years.

Here are the current copyright periods under the Copy Right Act with all amendments and extensions considered:

• Works created on or after 1/1/78, its life of the author 70 years
• Works created, but not published or copyrighted before 1/1/78, your die date is 12/31/47
• Works made for hire created on or after 1/1/78, you get the shorter of 95 years from the date of first publication or 120 years from the date of creation

Enforcement

If you are in the unfortunate situation of being accused of copyright infringement there may be some help for you. Certain insurance policies provide coverage for copyright infringement. Some commercial general liability (CGL) policies and business polices (BP) extend coverage under the advertising section of their coverages for copyright infringement. Have your attorney check your policy for you.

Defenses to Copyright Infringement

Fair use

Fair use is a valid affirmative defense to copyright infringement. (and to trademark infringement) There are limited situations when using another's copyrighted work is allowed. It is fair use to use a copyrighted work for:

1. Criticism and comment – quoting from the work in a review.
2. News reporting – summarizing an article or using quotes in a newspaper or news program.
3. Teaching, scholarship, research – for nonprofit use, teachers providing photocopies of materials for classroom use.
4. Parody – comic ridicule, usually of well-known material. This does not include satire. In a satirical work the target of ridicule is not the original work. In a satire you are copying the original expression not mocking the original work.
   Additionally, there are certain factors and circumstances the Court will examine when deciding whether the alleged infringement is fair use. They are:
   • The purpose and character of the use. Is the person using the material to make cash (commercial) or to teach others (education)? A commercial use does not always disqualify someone from using the fair use defense. If public policy dictates that there is a significant benefit to the public, a commercial use does not necessarily defeat the fair use doctrine.
   • The nature of the copyrighted work. The more important the content is to the original work, the less likely it is fair use. If it is the heart of the original work or the most pivotal aspects of the work, the less likely you will be able to assert fair use.
   • The amount of content used. The more material you take, the less likely it is fair use.
   • Effect on the potential market for the original work or the value of the copyrighted work as a whole. Generally, you cannot use someone's copyrighted work in a way that either actually or potentially competes against it.
   • Is the new material ``transformative"? Are you copying someone else's work or are you transforming someone else's work into a new creation? The more transformative, the more probable it is fair use.

For you software folks "reverse engineering" has been ruled fair use. You can take a program apart if that is the only way to extract ideas/code from the copyrighted program that are necessary in the creation of an original work. In this situation the new work does not infringe. Moreover, in these cases it is the use of the functional aspects (not creative aspects) of the original copyrighted work that covered by fair use.

This same type of fair use defense is also applicable in the development of compatible programs. If you are designing a program to integrate and be compatible with existing software, you can use reverse engineering to abstract the necessary functional content form the original program to create new compatible software.

Copyright Misuse by the Alleging Party

If the copyright owner does not use his copyright powers for good, this renders the copyright unenforceable. Yes, this stuff is primarily for you software folks too. Copyright misuse can be defined as use of a copyright against public policy to secure an exclusive right or limited monopoly not granted by the US Copyright office. Examples of contract requirements that have been ruled to be equivalent to copyright misuse include:

1. The licensee agrees not to create competing products.
2. The licensee agrees not to use competing products.
3. The copyright holder endeavors to enforce license terms setting limits on use of copyrighted software that prevent the development of new non-infringing works.

The copyright misuse defense can be asserted as a complete defense to an infringement by a third party. It can even be asserted by a party who has nothing to do with the misuse.

However, copyright misuse does not invalidate the copyright. It does, as we stated previously, cause the copyright to be unenforceable for the period of misuse. The copyright can become enforceable once the misuse is eradicated.

For additional copyright information contact the United States Copyright office at www.loc.gov/copyright.