Copyrights
Walker & Jocke is a technology law firm that provides legal services related to patents, trademarks, copyrights, computer software, e-commerce and commercial agreements.
What Can be Protected by Copyright Rights?
Copyright rights may protect any “original work of authorship.” This includes just about anything created by humans and placed on some type of tangible media. The media can be paper (e.g., advertising, instructions, training manuals or drawings) or may be something that requires a machine to be seen or used (e.g., DVDs or computer chips).
To qualify for copyright protection, the work must be “original.” This means that a person used his or her creative skills to create the work. However, the amount of originality required for protection by copyright is relatively small. For example, textual descriptions of factual information usually qualify for copyright protection even though the “information” is not protectable and no unusual writing skill is involved.
Obtaining Copyright Protection
Copyright protection exists automatically from the moment the work is fixed on some type of tangible media. However, in the U.S., the work usually must be registered with the Copyright Office before a lawsuit may be brought against an infringer. Registration is also a prerequisite to the collection of some types of damages for infringement.
The Copyright Notice
Until a few years ago, if a work was published without a copyright notice, all copyright protection was waived. This is no longer true for newly published works. It is still desirable to display a copyright notice because it will make it easier to pursue infringers.
When a work is published, it should have:
A copyright notice that includes the word “Copyright” or the copyright symbol “©”
The name of the copyright owner
The year of the first publication
Therefore, the copyright notice would look as follows:
Copyright © Copyright Owner, Year of First Publication.
All Rights Reserved.
Transfers of Copyright Rights
Copyright rights owned by others are not readily transferred unless certain legal formalities are met. Copyrighted works created by an employee in the course of his or her job are automatically owned by the employer.
When outside vendors or consultants are used to create copyrighted works, care must be exercised to be sure the commissioning party owns the copyright rights. To achieve ownership, the party who is to own the copyright rights must include in a written contract certain specific, detailed contractual provisions in a form required by law. Failure to meet these strict requirements before the work is created may result in the rights remaining with the vendor or consultant.
Copyright Protection in Other Countries
Most countries provide copyright protection. In most cases no additional steps need be taken to protect written materials. However, the law varies by country, particularly for some types of works such as computer software. It is important to consult a copyright attorney to determine copyright rights in a particular country.
Copyright Infringement
A copyright owner has certain exclusive rights. These include the rights to reproduce, distribute, display and perform the copyrighted work. The copyright owner also has the exclusive right to prepare “derivative works”, which are works that are based on the original work; but, the work also includes some different or additional material.
A violation of any of the copyright owner’s rights constitutes copyright infringement. Copyright infringement most commonly occurs whenever a copyrighted mark is “copied” in whole or in part. Copyright infringement may occur even when the infringing copy is not identical, but only “substantially similar” to the original work. When a substantial portion of a copyrighted work is used in another work, it also usually infringes as an unauthorized “derivative work”.
Limitations of Copyright Protection
Copyright protection is limited to protecting “expression” and does not protect the “ideas” embodied in the work. However, distinguishing protected “expression” from public domain “ideas” can be difficult, particularly with works such as computer programs. Courts often struggle with these issues and the legal rules are complex.
To establish liability for copyright infringement, the infringing work must not only be substantially similar in some significant portion to the original work, but the accused infringer must have had access to the original work. Without access to the original work, there is no infringement, even if the two works happen to have portions that are identical.
Fair Use
The broadest exception to a copyright owner’s exclusive right is the “doctrine of fair use.” A “fair use” is something that is permitted by law that would otherwise constitute an infringement. Unfortunately, deciding whether a use is a “fair use” is difficult because any decision requires weighing a number of factors including:
the purpose and character of the use
the nature of the work
the amount of the work involved
the effect of the activity on the market for the original work
whether the original work is published or unpublished
The character of the use is often the most important factor in a “fair use” analysis. If the character of the use is related to a profit making activity, as opposed to a personal non-profit activity, this suggests that the use is not a fair use.
However, simply because a use is related to a profit making activity does not automatically rule out the right to copy or use a work as a fair use. The other factors must always be considered. For example, if a work is a collection of facts (like a database or encyclopedia) as opposed to a fictional work, the fair use doctrine sometimes grants broader use without infringement.
Likewise, if the amount of copyrighted material used is small and/or does not adversely impact the copyright owner’s commercial position, this will weigh in favor of fair use. Uses of unpublished works are less likely to be “fair uses” than uses of published works. This is because the law gives a copyright owner the right to control when their work is first published.
All of the "fair use" factors must be considered and weighed in deciding if an activity is exempt from infringement liability. As this involves making a legal judgment, questions about fair use should always be referred to an attorney experienced in copyright law.
Penalties for Copyright Infringement
The penalties for copyright infringement can be severe. The law provides the copyright owner with the right to obtain actual damages or “statutory damages.”
Statutory damages are those set by law and can range from $200 to $150,000 per infringement, plus attorney fees. As a result, damage awards can be much higher than the actual loss to the copyright owner. Also, in some circumstances copyright infringement may be a criminal offense punishable by fine or imprisonment.
For those reasons, it is important to work with experienced legal counsel when dealing with copyright issues.
Comparison of Patent and Copyright Protection
The elements of “access” and “substantial similarity” must be present for copyright infringement of works of any type. For example, many photographers take photographs of the same scene, and all their copyrighted photographs are virtually identical. However, there is no infringement because the photographers did not have access to the others’ photographs, and they did not copy from one another.
Copyright protection is very different from patent protection with respect to infringement. Copyright infringement requires "access," and therefore some knowledge of the work that is infringed. However, patent infringement occurs whenever someone makes, uses, sells or offers to sell a patented invention, regardless of whether they are aware of the patent or the patent owner's products.
Copyright protection is also limited in that it does not protect features that are included primarily due to functional considerations. For example, a series of screens in a user interface for a computer program may contain textual material necessary to guide the user through a series of logical steps. Another program may have a similar interface without infringing, because the screens are primarily functional. However, screens in an interface that include unique graphics and other material not dictated by functional considerations probably cannot be used by another without an infringement problem.
Deciding to what extent the "look and feel" of an interface of a computer program is protected by copyright is often difficult, and legal advice on these issues should always be obtained.
Intellectual Property Audits
Many businesses only think about protecting their patents, trademarks, copyrights or trade secrets after they have encountered a problem. It is much less costly to have a plan for protection of your valuable “intellectual property” so that problems can be avoided.
One approach to avoiding problems is to have an “intellectual property audit” conducted. An intellectual property audit involves having an attorney experienced in intellectual property review the business activities and the protection you currently have. Such reviews usually uncover areas in which protection can be improved at a very low cost. Just like an annual physical checkup by a doctor, an annual review of intellectual property protection may avoid serious problems later.