Netpreneur Exchange.. Intellectual Property Resource Center - THREE STEPS TO BASIC COPYRIGHT PROTECTION

THREE STEPS TO BASIC COPYRIGHT PROTECTION

By Evan Smith

Copyright law is one component of a complete program for protecting intellectual property. By following simple guidelines, you can preserve important legal rights in software, online content, written material, website designs, graphic artwork, and other original works.

Copyright prevents others from using your unique expression of an idea, but doesn't protect the idea itself. For example, if your website offers a new type of online service, copyrighting the website will not prevent others from offering that service. However, it will protect the appearance and layout of your site so that nobody can create a direct copy. Similarly, copyrights will prevent direct copying of original Java and Perl scripts, and other custom software that you develop, but will not prevent others from writing their own software that performs the same functions. It may be possible to patent functional features of your website and software.

Three key steps to protecting copyrights are: (1) Ownership (2) Notice and (3) Registration.

1. OWNERSHIP

If you're not careful, "your" copyrights may end up belonging to someone else. Just because you paid for work doesn't mean the copyright belongs to you. If a programmer, artist, or writer is anything other than a full-time employee working within her job description, the legal presumption is that the creator is the copyright owner.

To avoid unintended loss of rights to employees or contractors, employment and consulting contracts should specify assignment to your company of copyrights in all materials to be prepared, and in appropriate cases should state that the material to be prepared is a "work for hire."

2. NOTICE

A valid copyright notice is important in preserving rights, and should be placed on every copy of the material. A complete notice includes four elements:

1. The word "Copyright" and/or © (the "circle c" symbol);
2. The first year of publication;
3. The legal name of the true copyright owner, which may be a person or a business entity; and
4. The words "All Rights Reserved." This element is not required in the United States, but is needed to preserve rights in certain Central and South American nations.

3. REGISTRATION

The notice preserves some of your legal rights, but copyrights should be registered with the Copyright Office to obtain enhanced protection. If your copyright was not promptly registered, you are limited to actual damages for the copying. It is often hard to prove specific dollar losses resulting from (for example) copying elements of your website. It may cost more than it is worth to enforce a copyright that was not promptly registered.

Registration provides both additional remedies and procedural advantages. If a copyright was promptly registered, you can obtain "statutory damages" for infringement without quantifying harm to your business, and the infringer may also have to pay your attorneys. Statutory damages are established by the judge or jury, normally at a level between $500 and $20,000, although up to $100,000 may be awarded if the copying was willful. Prompt registration also provides a public record of copyright ownership and can be used in court as evidence (1) of the validity of the copyright and (2) of the facts stated in the certificate. To protect your right to seek statutory damages, register copyrights within three months of the first publication.

Registration is particularly important where (1) the likelihood of copying, or (2) the harm resulting from copying, are significant. Materials available to the public (like software you distribute, or anything posted on the web) are easily copied. If you have a valuable product and copying would harm your business, your copyright in that work should be registered even if it is not publicly accessible.

Many entrepreneurs register their own copyrights. The government fee for registering a copyright is only $20, and complete instructions and forms for registration can be downloaded in Adobe Acrobat format from the Copyright Office website. Websites and online content can be registered using Form TX; submit both HTML code and printed output versions for more complete protection. Registration takes three to four months, but if the form and fees were in order on the date received, the registration will be given that date.

Please read the IP Resource Center Ground Rules.