COPYRIGHT



Copyright is a kind of protection offered by the laws of the United States to the authors of "original works of authorship," including literary, musical, dramatic, artistic, and other intellectual works. Copyright law thus protects a wide variety of creative compositions, including books, magazine articles, songs (both lyrics and music), plays (and any accompanying music), choreography, photographs, drawings, sculptures, and films and other audiovisual works. This protection is extended to both published and unpublished works. Copyright experts note that the definition of "intellectual works" should be interpreted quite broadly in this regard. For example, computer software programs can be registered as "literary works," and maps and architectural blueprints can be registered as "pictorial, graphic, and sculptural works."

Once the author or creator of an intellectual work secures a copyright for that work, he or she has exclusive rights to do whatever he or she wishes with it. The owner can reproduce and/or distribute copies of it for sale; transfer ownership via sale, lease, rental, or lending; prepare derivative works based on the copyrighted work; or provide public displays or performances of the work.

Several categories of material are generally not eligible for copyright protection. These include ideas, methods, concepts, principles, titles, names, slogans, familiar symbols or designs, listings of ingredients or contents, coloring, and variations of typographic ornamentation. Other material not eligible for copyright include works consisting entirely of information that is common property and contains no original authorship (standard calendars, height and weight charts, tables taken from public documents) and works that, in the words of the Copyright Office, "have not been fixed in a tangible form of expression." Examples of the latter include improvisational performances or choreographic works that have not been written or recorded.

CORNERSTONES OF COPYRIGHT LAW

The basic philosophy underlying American copyright law can be found in Article 1, Section 8 of the Constitution, which stipulates that "Congress shall have Power …To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The sentiments embodied in this proclamation were given added legal heft in 1909 and 1976, years that saw major copyright legislation become law.

A major change in American copyright law came in the late 1970s, as Congress passed new laws addressing the length and character of copyright protection. As a result of that legislation, which took effect on January 1, 1978, all works created on or after that date automatically receives legal protection from the moment of its creation (before then a work did not receive copyright protection until it had been published or registered with the Copyright Office). The new legislation expanded the duration of copyright protection as well. It provided authors with legal protection that ordinarily lasts for the entire life of the author, plus an additional 50 years after the author's death. In the case of "joint works" (works created by two or more authors under circumstances that were not "for hire"), the copyright protection lasts for 50 years after the last surviving author's death. For works made for hire, anonymous works, and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the copyright on the work in question last for 75 years from publication or 100 years from creation, whichever is shorter. Creative works that came into being prior to January 1, 1978, but had not yet been published or registered by that date are given similar protection under the terms of the statute.

Copyright protection is somewhat different for works originally created and published or registered prior to January 1, 1978. For works created during this period, authors could secure copyright protection for 28 years, with an option to renew that protection for another 28 years as the initial term expired. The new copyright law extended the length of that second term from 28 years to 47 years, thus making pre-1978 works eligible for a total of 75 years of copyright protection. In addition, a 1992 amendment to the Copyright Act of 1976 automatically extended the term of copyrights obtained from January 1, 1964, through December 31, 1977, to the full renewal limit of 47 years.

American copyright law underwent another change in 1989, when copyright notices on copyrighted material become optional. Prior to March 1, 1989, copyright notices had been mandatory on all published works; any works not carrying a copyright notice risked loss of copyright protection. After March 1, 1989, however, that notice was no longer required—though it was still highly recommended—because works created after that date were automatically copyrighted the moment they were presented in a fixed form (generally print, audio, or video).

The most recent significant legislation impacting copyright protection was signed into law by President Clinton in October 1998. This legislation, called the Digital Millennium Copyright Act, included a number of significant provisions, including the following:

Despite the changes that have taken place in American copyright rules over the past 200 years, in many respects copyright protection has always been—and continues to be—fairly simple. "Basically, copyright law says that if you create something and express it in a fixed and tangible form, you own it," wrote William Rodarmor in Newmedia. "Ownership means you can pretty much control what other people do with it. The two major exceptions are material in the public domain and so-called "fair use."

PUBLIC DOMAIN Once the term of a copyright (or a patent) expires, it is said to become a part of the "public domain." In essence, this means that it becomes community property that anyone can use. Photographs, magazine articles, and books are among the most common "public domain" materials used today.

Another potentially valuable source of public domain material is works produced by the United States government. While state and local governments often copyright their documents, reports, and other publications, the federal government does not do so.

"FAIR USE" Perhaps no other aspect of copyright law concerns writers, publishers, multimedia developers, graphic artists, and others as much as the issue of "fair use." As Rodarmor stated in Newmedia, "fair use is a tricky doctrine and a trap for the unwary." Fair use concerns the use of copyrighted material without securing the explicit permission of the copyright holder. Even copyright experts admit that the rules regarding fair use are kind of hazy, but they basically boil down to the following questions:

What effect could use of the copyrighted material have on the potential market for or value of the copyrighted work?

Adherence to fair use guidelines and other aspects of copyright law is particularly important for entrepreneurs/small business owners engaged in activities that lead them to deal with copyrighted works. Both freelancers and those who employ freelancers need to understand what is and is not acceptable in this realm. For instance, lawsuits that charge small business owners with copyright infringement can be quite costly. Indeed, even if the owner is found not guilty, the legal costs of mounting a defense are often considerable. Of course, securing adequate permissions rights through licensing, etc., puts more of a burden on small businesses and entrepreneurs as well, since their financial resources are not as great as those of bigger companies. Rodarmor, for example, noted that small multimedia developers hoping to enter into commercial markets face sometimes daunting realities in this regard: "Companies like Time Warner and Sony can afford platoons of savvy lawyers to acquire content for their own multimedia projects and to protect the content they own, but the legal costs of acquiring rights to video, audio, photographs, and text may swamp the small developers."

WORK FOR HIRE AND COPYRIGHT

In situations where a work—a software program, an essay, a mural, an advertising design, or another intellectual work—has been produced for someone who is working for someone else, the copyright for the work may belong to the person or business that arranged to have the work done, rather than the creator of the work itself. Such arrangements are known as work for hire. Copyright law defines "work for hire" as either: 1) a work prepared by an employee within the scope of his or her employment, or 2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, provided that the parties involved expressly agree in a written contract signed by both of them that the work shall be considered a work made for hire. Indeed, contracts that specifically define copyright ownership for work performed are essential, especially for small business owners who contract work out to freelancers. "Put your employment contracts in writing—even with your friends (maybe especially with your friends)," counseled Rodarmor. "When using freelancers, the contract must state that the project is work for hire or that the freelancer grants you all the rights you need and it belongs to you. If not, you may discover that your former buddies (and some forgotten freelancer in Wisconsin) are all joint owners of your new CD-ROM." In addition, he notes, distributors are typically very wary of products that do not have exclusive licenses.

COPYRIGHT NOTICE

Although attaching a formal notice of copyright to a work is no longer required by law (it was required prior to March 1, 1989), it is still a good idea. "Use of the notice is recommended because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication," stated the Copyright Office. "Further-more, in the event that a work is infringed, if the work carries a proper notice, the court will not allow a defendant to claim 'innocent infringement'—that is, that he or she did not realize that the work is protected. (A successful innocent infringement claim may result in a reduction in damages that the copyright owner would otherwise receive.)"

According to the Copyright Office, forms of notice vary for different kinds of intellectual works. For books, articles, sheet music, architectural plans, designs, and other kinds of "visually perceptible" works, copyright notice should contain all of the following three elements:

  1. The copyright symbol (the letter "C" in a circle) or the word "Copyright," or the abbreviation "Copr."
  2. The year of first publication of the work (in cases where the work is a compilation or derivation that incorporates previously published material, the year date of first publication of the compilation or derivation is acceptable). The year date may be omitted in instances where a pictorial, graphic, or sculptural work, with accompany text (if any) is reproduced in or on greeting cards, postcards, stationery, jewelry, dolls, toys, or any useful article.
  3. The name of the owner of copyright in the work, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner.

For works that are fixed through audio means—cassette tapes, CDS, "books-on-tape," etc.—the requirements for copyright notice are somewhat different. Copyright notice for these types of works should contain all of the following:

  1. The sound recording copyright symbol (the letter "P" in a circle).
  2. The year of first publication of the sound recording.
  3. The name of the owner of copyright in the sound recording, or an abbreviation by which the name can be recognized, or a generally known alternative designation of the owner. In addition, if the producer of the recording is named on the label or containers of the work, and if no other name appears in conjunction with the notice, the producer's name shall be considered a part of the notice.

Notice of copyright can also be extended to unpublished works. Finally, when affixing notice of copyright to intellectual works of any kind, it is important to make sure that the notice is plainly visible.

COPYRIGHT REGISTRATION

Registration of copyrighted material may be made at any time during the life of the copyright. It is no longer required under American copyright law, but there are advantages associated with taking such a step.

To register a copyright, the Copyright Office must receive a properly completed application form, a nonrefundable filing fee for each work that is being registered, and a nonreturnable copy of the work that is being registered. There are variations to the above rules depending on the kind of work that is being registered, so registration seekers should contact the Office beforehand to get a full rundown on what is required for their particular work. The Copyright Office uses a variety of forms for the various intellectual works that people register; copyright owners need to make sure that they use the correct one. Form TX, for example, covers published and unpublished non-dramatic literary works such as board game instructions, computer programs, and books, while Form VA is intended for use in registering published and unpublished visual works such as photographs, sculptures, and architectural designs.

All applications and materials related to copyright registration should be sent to the Register of Copyrights, Copyright Office, Library of Congress, in Washington, DC. The Copyright Office also maintains an Internet site.

INTERNATIONAL COPYRIGHT PROTECTION

As the Copyright Office itself admits, "there is no such thing as an 'international copyright' that will automatically protect an author's writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions."

The two major copyright treaties to which the United States belongs are the Universal Copyright Convention (UCC) and the Berne Convention for the Protection of Literary and Artistic Works. The United States was actually a founding member of the UCC, which came into being in September 1955. Under the rules of the UCC, a work by a citizen or resident of a member nation or a work first published in a member nation may claim protection.

The Berne Convention, meanwhile, was first established more than a century ago, in 1886. The central feature of the Berne Convention is the automatic copyright protection that it extends to all citizens of member nations. If a country is a signatory to the Berne Convention, it must extend to nationals of other member nations the same copyright protection and copyright restrictions afforded to its own citizens. The United States joined the Berne Convention—which is regarded as the wellspring of most other national and international copyright regulations—in 1989, becoming its 77th member. In recent years, the United States has also entered into international copyright agreements enacted by the World Intellectual Property Organization (WIPO).

COPYRIGHT LAW AND THE INTERNET

The emergence of electronic commerce and digital technology triggered a fundamental reevaluation of U.S. copyright law in the 1990s. The Copyright Office has firmly supported the rights of companies to limit access to their Internet content, and the government has passed laws that make it illegal for Internet users to negate copyright protection mechanisms meant to protect Internet content. However, libraries, universities, research institutions, and other critics have charged that the Copyright Office position will unduly impede fair-use access to content in its zeal to protect owners of copyrighted material on the Internet.

In the meantime, companies are gearing up to protect electronic copyrighted material from illegal distribution. They are doing so through a variety of schemes collectively known as Digital Rights Management (DRM). These content control measures include: locking access to content through encryption schemes, plug-ins, and new markup languages. Other options include the traditional "honor system," in which permissions and payments are provided by the Copyright Clearance Center or other similar entities. Prosecution of copyright violators is another option, but Robin Peek notes in Information Today that "policing the Internet is a very expensive proposition" that is ineffective in pursuing "thousands of smallscale offenders …. The problem is finding a way tofight a good fight where the costs of enforcing the copyright don't exceed the cost of lost revenues in question. This difficulty is so pronounced that some experts believe that copyright, as we know it, is ultimately doomed." She goes on to note that the general counsel for the New York Times has commented that "the biggest threat to the copyright industry is the growth of a worldwide generation that really doesn't understand or respect copyright."

The Copyright Office's response to growing Internet use is not limited to policymaking. In recognition of the growing reliance on and use of the Internet, the Copyright Office is also in the process of installing an electronic registration, recordation and deposit system, dubbed CORDS. This program will ultimately provide users with the ability to register copyrights and deposit dissertations online. According to the Library of Congress, "creators will register their works electronically, transmitting both the application and the works in digital form, with registration information then incorporated into the centralized online database of copyright registration records." In addition, the program will enable copyright owners and agents to record transfers of copyright ownership (including assignments, licenses, and security interests) on an online database.

COPYRIGHT OFFICE

In July 1999 the Copyright Office increased its fees for a variety of services it provides, including basic registration, document recordation, supplementary and/or renewal registration, search services (including reference and bibliographic reports), and certificates. But these increases do not provide full cost recovery for its various services. Since the Copyright Office is not self-supporting, it relies on assistance from the Library of Congress general budget to fulfill its many obligations.

FURTHER READING:

Albiniak, Paige. "Do Not Bypass Go." Broadcasting and Cable. November 6, 2000.

Ardito, Stephanie C. "Copyright Web Sites." Online. January 1999.

Copyright Basics From the U.S. Copyright Office. Copyright Office, n.d.

Field, Thomas. Avoiding Patent, Trademark and Copyright Problems. Small Business Administration, 1992.

Fishman, Stephen. The Software Developer's Legal Guide. Nolo Press, 1994.

Harmon, Amy. "Copyright and Copying Wrongs: A Web Rebalancing Act." New York Times. September 10, 2000.

Kaye, Laurie. "Owning and Licensing Content—Key Legal Issues in the Electronic Environment." Journal of Information Science. January 1999.

Levy, Richard C. The Inventor's Desktop Companion. Visible Ink, 1995.

Matthews, Anna Wilde. "Copyrights on Web Content are Backed." Wall Street Journal. October 27, 2000.

Peek, Robin. "The Digital Rights Management Dilemma." Information Today. November 2000.

Retsky, Maxine Lans. "Do Your Copy Right by Copyrighting It." Marketing News. December 6, 1999.

Rodarmor, William. "Copyright Rules to Live By." Newmedia. September 1993.

Wolter, Robert L. "The Basics on Patents, Copyrights, and Trademarks." Orlando Business Journal. January 17, 1997.

SEE ALSO: Trademarks



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