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Copyright for Entrepreneurs
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 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.

 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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