Copyright constitutes only one aspect of intellectual property law, but since copyrights are far easier to obtain than patents or trademarks, for example, they tend to affect a significantly larger portion of the population.
U.S. copyright law is based on history’s first copyright act: the British Statute of Anne of 1710. Printers were publishing books without the author’s consent; the Statute acknowledged the financial damage this did to authors and sought to prevent this for a 21-year term: “The Author of any Book or Books already Printed… shall have the sole Right and Liberty of Printing such Book and Books.” This copyright act imposed financial damages as well.
The arrival and evolution of both the internet and the web have altered the landscape of laws protecting intellectual property. Since they are repeatedly bringing these statutes into mainstream news, we felt it was an appropriate time to present five things you didn’t know about copyright.
1- You don't need to publish a work to protect itThe copyright law is clear on this: In order to secure the copyright for your original work, you don’t have to do anything beyond create the work itself. As of April 1, 1989, the copyright law extends a copyright to your original work whether you register it with the copyright office or leave it tucked away in a drawer.
To some degree it is in your best interest to register the work, since not only can you not bring suit without registration, you will have a better chance of winning damages in court against whoever you believe violated the copyright law. However, keep in mind that when you do register a work with the copyright office, it becomes a matter of public record and a copy of it is automatically sent to the Library of Congress.
2- The copyright symbol can be used without registrationThe copyright notice (©) is familiar to almost everyone and it seems to carry a lot of authority. When we see it, we often believe the author or creator of this work has gone to significant legal lengths to secure use of the symbol. In reality, one can put it on a work without the need to register it with the government. Thus, if you are sending an original manuscript to publishers or an original music CD to record labels, you can -- and should -- include the copyright notice. However, you won’t be surrendering your rights in court for not having done so.
When you use the notice, it is important that it features three elements: The symbol © or the word “Copyright,” the year and your name: © 2008 John Smith.
Perhaps the most important and valuable reason to include a copyright notice is because, by doing so, you prevent any future court defendant from claiming so-called “innocent infringement,” meaning they did not knowingly steal your work. Innocent infringement is still infringement; they can still lose the case and you can still be awarded damages, but the statutory amount of those damages may be substantially reduced.
3- Copyright has a government loopholeIf you suspect anyone or any organization of infringing on your copyright, you can bring a lawsuit against them, but you have to do it in a federal court because they are the ones who hear them. This is fine unless your defendant is a state government or a state government employee acting on behalf of the state. Why? Because the Eleventh Amendment to the Constitution grants the states immunity from lawsuits brought in federal court unless the state has given its consent by waiving that immunity.
We take a look at a few more things you didn't know about copyright in the U.S...
Historically, in the eyes of copyright law, state governments have been seen as no different than private citizens, but everything changed with the Supreme Court’s 1985 decision in Atascadero State Hospital v. Scanlan. The high court ruled that while Congress had abolished federal government immunity in such cases, they had never done so for the states. While Congress has made a handful of efforts to abolish this unfair immunity, those efforts have been repeatedly invalidated whenever challenged in the federal court system.
Senate bill 1191 and House bill 2344 were proposed in 2003 to close this loophole, but neither has been enacted into law yet. According to the law firm Ruskin Moscou Faltischek, “until a sound legislative solution is implemented, the unjust and off-balance state of affairs will persist.”
4- Copyright law offers protection for life plus 70 yearsAs of January 1, 1978, copyright protection begins the moment a work is created and lasts for the length of the creator’s life, plus an additional 70 years after his or her death.
This is contrary to patents, which typically have a fixed term of 14 to 20 years depending on the type of patent, and especially contrary to trademarks, which have to be earned by using the mark long enough to establish its association with a product before it can be registered. Following that, trademark protection can last 20 years.
However, you can lose trademark rights on some terms if they become "genericized," which explains why Johnson & Johnson, owners of the "Band-Aid" trademark, changed their commercial jingle from “I am stuck on Band-Aids…” to “I am stuck on Band-Aid brand…” and why Google has discouraged the use of their trademark as a verb to connote web searches.
5- Copyright law does not protect ideas, facts or titlesCopyright law protects the following general categories:
- literary works (this includes computer programs);
- musical works (including the lyrics);
- dramatic works (including any accompanying music);
- pantomimes and choreographic works;
- pictorial, graphic and sculptural works (like maps and blueprints);
- motion pictures and other audiovisual works;
- sound recordings;
- architectural works.
- works not “fixed in a tangible form of expression” (like a dance routine or an improvisational speech that wasn’t notated, written or recorded);
- titles, names (including domain names) short phrases, slogans, familiar symbols, or designs such as mere variations of typographic ornamentation, lettering, or coloring and listings of ingredients or contents, as well as collections of facts not in the public realm;
- ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices (as opposed to descriptions, explanations or illustrations);
- works whose information is common property and have no original authorship (like calendars, height/weight charts, tape measures, rulers, and lists or tables taken from public documents).
Harry Potter author J.K. Rowling and Warner Bros., the producers of the Potter films, have filed an injunction against the publication of a book based on a popular Potter website, The Harry Potter Lexicon. A fan began building the online lexicon related to all things Potter in 1999, and it has become such an authoritative site that Rowling herself, as well as Warner Bros., have used portions of it for various reasons. However, they object to its print publication and are claiming copyright infringement.
The case goes to court in mid-April of 2008, and will test the reach of U.S. copyright law. The book’s publisher claims it is a literary reference book which constitutes fair use exemption. Supreme Court Justice O’Connor called originality “the sine qua non of copyright,” and as we’ve seen, a collection of facts is not protected by copyright law unless it has some literary merit of its own. What it may come down to is whether Rowlings’ and Warner Bros.’ use of the site effectively waived their right to sue for infringement.
As the Rowling lawsuit shows, the advent of the web, of web 2.0, proliferation of information over the internet, and the simple creation of cut-and-paste, and more have forced Congress, the U.S. courts system and copyright holders to scramble to keep up. We expect to see plenty of lawsuits and challenges in the future, and plenty of public interest in copyright law.
Labels: best rated