In this ‘IP Tool Box Series,’ I’ll be discussing the most prevalent type of intellectual property protection, the copyright. I’ll explain what it is, why it is an important tool, and why it should be considered more than just a passive right.
What Copyright is:
Copyright is a legal right which protects a creator’s individual rights to their work of authorship for a specific period of time. A creator’s rights are governed, in the U.S., by Federal Statute under the Copyright Act of 1976. The U.S. Constitution includes a Copyright Clause assigning Congress power to govern Copyright Law.
To be eligible for protection under U.S. Copyright Law, a creator’s work of authorship must fulfill only two requirements; it must be original and it must be in a fixed medium. The requirement for originality is minimal, in that Congress does not insist that a work be unique, only that it must not be a copy of a preexisting work. The second requirement of being in a fixed medium is broad enough to include varying mediums, from saving a new computer program on a computer’s memory to saving a new song on a voice recorder.
Under current Copyright Law, if these two requirements are met, any work of authorship is automatically protected under the Copyright Act of 1976. This is to say that actual registration of a copyright with the U.S. Copyright Office is not required to take advantage of copyright protection. However, there are a number of advantages to adhering to the formality of obtaining a Copyright Registration Certificate.
Why Copyright is Important:
First, Copyright Law provides both rights and limitations to copyright protection. The automatic rights granted to an author include the ability to make copies, make adaptations, distribute copies, perform publicly, and publicly display their work. Several limitations are instituted under the Copyright Act for the user of the protected work. The “fair use” limitation allows for copying excerpts of a work for a number of specific purposes. The “First Sale Doctrine” provides that a person can resell a work after it is bought, e.g., that expensive college textbook. The rights and limitations are intended to protect both the author and the user.
Next, Copyright Law provides U.S. citizens protection in each country that is part of the Berne Convention and vice versa. International protection is automatic, just as copyright is automatic the moment an original work is fixed in a medium. Adherence to the mandates of the International Treaty of the Berne Convention resulted in the U.S. eliminating the requirement to place a copyright notice on a work of authorship. If you are interested in international copyright protection, it is important to know if protection is given to foreign works, to understand any protections, and to understand the requirements for attaining those protections in the country you are interested in seeking protection. Every country, especially those that are not a part of the Berne Convention, will have varying copyright rules and regulations. It’s important to have competent counsel to help you understand your rights and obligations before your work is published.
Most notably, the rights automatically granted to an author under the Copyright Act are invaluable to society. By protecting works of authorship, these rights are intended to “promote progress,” as indicated under the Copyright Clause of the U.S. Constitution. Copyright Laws give an author sole rights over their work and options for recourse in the event that someone attempts to capitalize on their work. Without automatic copyright protection and the benefits it provides, authors could simply lose the drive to create and publish new works. If these copyright protections didn’t exist, published works would be relegated to the public domain and intellectual progress could theoretically stagnate.
Why a Copyright Should be Considered More Than Just a Passive Right:
We have discussed that copyrights are automatic, but the broadest protection for an author’s work is gained by filing a formal copyright application with the U.S. Copyright Office. This is usually a simple process, depending on the type of work being protected. The formal requirements include submitting a completed application for registration, a deposit copy and the required fee to the Copyright Office. See www.loc.gov/copyright. A work is protected based on the date it is received by the Copyright Office. Even if the Copyright Registration is issued a year after filing, the date of registration will be the date the application was filed.
The expanded protections attained by registering a copyright with the U.S. Copyright Office allow for the broadest protection. As mentioned previously, registration is not required to take advantage of the basic copyright protections, but there are obvious advantages to registration. These advantages are most useful when infringement is suspected. A copyright must be registered before an infringement suit is filed. Registration is also a requirement for recovering fees associated with a lawsuit and potential damages. In addition, Registration authorizes the Federal District Court to intervene and assist in halting infringement. A valid Copyright Registration and circumstantial evidence is all that is needed to claim infringement.
Many authors choose not to formally register their work to receive a registration. Even if a work is not registered, an author can still include a copyright notice on their work. This is recommended because it informs the public that the work is protected, which could discourage potential infringers. Prominent display of a copyright notice also makes it difficult for an infringer to claim that they did not know the work was protected, i.e., “innocent infringement.” A notice of copyright also provides identification of the copyright owner, in the instance that someone should want to contact the author to to obtain a license.
One can find a lot of information regarding copyright applications online and on the U.S. Copyright Office website, but an experienced attorney could prove invaluable. The value of a Copyright Registration is in how the application is written. A very common copyright filing is for the protection of computer programs. An improperly drafted copyright application may be ineffective or fail to preserve the trade secrets in the program. An attorney can advise an author on ways to preserve trade secrets. If the copyright application is based on a previous registration, certain disclosures must also be made. An attorney ensures the provisions of your copyright application are correct and give you the results you’re expecting.
Don’t leave a matter as important as your intellectual property to personal research. Willing help in the form of an experienced legal team is here and is just a call away. Please contact us if you are interested in filing a copyright, licensing a copyright, or have been presented with a cease and desist letter.