Du Val Business
Law Resources
| Why
should you care about copyright? Most businesses create materials
that are eligible for copyright protection. Computer software,
printed materials, advertisements, photographs, video presentations,
architectural drawings, and web sites are just a few of the
types of copyrightable expression. There are three reasons to
think about copyright law. First, preventing infringement of
your copyright can preserve your competitive advantage. Second,
licensing your copyright materials can provide |
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additional
revenue streams. Third, raising your awareness of copyright
can help you avoid the liability of unintentional infringement
of others copyright. Because copyright protection begins at
the moment of creation, registration is not required, but it
is an easy and inexpensive process that provides an excellent
extra layer of protection. So why register? Because copyright
registration is easy and it provides significant procedural
advantages in the event of a dispute. |
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What
is copyright?
Copyright protection is based in the Constitution. Certain monopoly
rights are granted for original works of authorship fixed in a
tangible medium of expression. The originality requirement is low:
a work must add something creative, but it need not be much. The
fixation requirement is also low: a fleeting instant, such as an
image shown on a video monitor or a software program stored in temporary
computer memory (RAM), is sufficient.
There are three important limits on what type of work is copyrightable.
First, it must be one of the enumerated types of work: literary
(including computer software), musical, dramatic, pictorial (including
photographic), graphic, sculptural, audiovisual, sound recording,
or architectural. Second, copyright protects only expression of
creative ideas, not the ideas themselves. For example, one can have
a copyright in a particular picture one draws of an apple, but not
a copyright in the idea of drawing a picture of an apple. Third,
copyright protection does not extend to procedures, methods, processes,
inventions, slogans, business names, or other subject matter covered
by patent or trademark law. A functional design, such as the now
common U-shaped bicycle rack, is not copyrightable, but an additional
creative non-functional twist, such as making the rack the shape
of a fish, may be.
Copyright ownership initially belongs to the creative author. As
Stephen King writes each page of a novel, he has a copyright in
those pages, and a copyright in the aggregate whole. Businesses
can obtain copyrights either through corporate authorship or licensing.
If certain conditions are met, a business can be considered the
author of a specially commissioned work. Under the work for hire
doctrine, a business is also the author of works created by employees
acting within the scope of their employment. Under this doctrine,
Microsoft is the author of computer software created by its employee
programmers. Copyright of a work for hire endures for 95 to 120
years, while for individuals it lasts for the life of the author
plus 70 years.
What does copyright do?
Copyright provides economic benefits by giving the owner a number
of exclusive rights to the use of a work. A copyright is actually
a bundle of rights. The original author of a work holds this bundle
of rights, and can sell or license any particular right or rights.
These include the exclusive right to reproduce, distribute, perform,
and display works, as well as the exclusive right to make derivative
works such as arrangements and adaptations. A movie version of a
novel is one example of a derivative work. If a third party infringes
one of these rights, the owner may sue and collect damages. The
infringer may be liable for either (a) the owners actual damages
and the additional profits of the defendant, or (b) statutory damages
ranging from $750 to $30,000 per infringement. Statutory damages
are even higher if the infringement was willful.
As any of the rights are freely assignable, a particular right
can be transferred to a succession of owners. So, the right to distribute
a novel could be sold by an author to a publisher, and from that
publisher to another. A business can take advantage of its creative
efforts either by selling copyrights or licensing proscribed uses
while retaining the copyrights.
How to protect your copyrights (So why register?)
Copyright law continues to evolve. Since 1978, ownership of copyright
begins at the instant of creation. Registration, while helpful,
is no longer required. Also, since 1989, displaying the copyright
notice symbol (©) on protected works is not required. However, both
registration and notice provide certain benefits. Registering a
work with the United States Copyright Office functions as an inexpensive
insurance policy, providing procedural protections in an infringement
suit of a presumption of ownership, as well as potential attorneys
fees and costs, statutory damages, and injunctions. Registration
and the use of the © symbol also act as a preventative measure,
providing notice to potential infringers. This extra layer of protection
may also encourage a third party to license the use of, rather than
"borrow," the copyright work, providing additional revenue to the
owner.
To gain the protection of registration is quite simple, requiring
filing of only a short form and a modest fee. Forms are available
online at http://www.copyright.gov/register/index.html.
For most works, filing fees are $30. The deposit of a sample of
the work is now voluntary, unless the Copyright Office demands a
copy.
Poorly defined objectives
Companies often randomly collect information, bypassing critical steps necessary to obtain actionable intelligence. It is important to define key intelligence topics which provide the structure and criteria for information gathering and analysis. Without good methodology the end result is usually disappointing.
Conclusion
Given the increased interconnectivity and ease of copying provided
by contemporary technology, businesses need to be aware of the benefits
and limitations of copyright law. The Internet contains potential
pitfalls for unintentional infringement because it is so simple
to download files that may contain copyright material. On the plus
side, content producers face a plethora of licensing opportunities.
Even entrepreneurs who may not consider themselves creative may
be producing original works that can be sold or licensed to other
businesses. Assessing the works produced by a business may turn
up potential revenue streams. Protecting existing works can prevent
infringement, preserve the intellectual property assets of a business,
and provide lucrative remedies. Registration of creative works is
a simple prophylactic measure that can allow significant recovery
from infringers.
© 2002 Du Val Business Law, P.C. Suite 103 The Durham House 1012 SW King Ave. Portland, Oregon
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