A Copyright Refresher

Every year, millions of Americans create original works – books, music, research and other forms of creative expression.  All of these creations are intellectual property, and all of them are protected by copyright.  For writers, editors, and publishers, understanding copyright issues is essential, especially now that the production of counterfeit and pirated goods, including written works, has become so prevalent.  Indeed, according to the World Customs Organization, more than $600 billion in pirated and counterfeited goods will flood the world market in 2005.  Making sure that your publication’s property is not among these counterfeit goods is critical.

While all U.S. businesses are vulnerable to IP theft, small businesses are often at a particular disadvantage.  This is especially true for writers and small publications – with more than 18,800 magazines and over 8,000 daily and weekly newspapers in the nation, there is a wealth of material for IP thieves to steal.  And now that the Internet has made copying and distributing protected material easier than ever before, it is critical that you understand the basics of protecting your original work.

That’s why the U.S. Patent and Trademark Office, along with other government agencies, is reaching out to small businesses to help them protect their intellectual property.  Our campaign includes a new Web site, www.stopfakes.gov/smallbusiness, specifically designed to help individuals and small businesses learn how to protect themselves. 

What is copyright?

Under the 1976 Copyright Act, the copyright owner has the exclusive right to reproduce, adapt, distribute, publicly perform, and publicly display the work.  In the case of sound recordings, the copyright has the right to perform the work publicly by means of a digital audio transmission.  These exclusive rights are freely transferable, and may be licensed, sold, donated to charity, or bequeathed to your heirs.  It is illegal for anyone to violate any of the exclusive rights of the copyright owner.  If the copyright owner prevails in an infringement claim, the available remedies include preliminary and permanent injunctions (court orders to stop current or prevent future infringements), impounding, and destroying the infringing articles.

The exclusive rights of the copyright owner, however, are limited in a number of important ways.  Under the "fair use" doctrine, which has long been part of U.S. copyright law and was expressly incorporated in the 1976 Copyright Act, a judge may excuse unauthorized uses that may otherwise be infringing.  Section 107 of the Copyright Act lists criticism, comment, news reporting, teaching, scholarship, and research as examples of uses that may be eligible for the fair use defense.  In other instances, the limitation takes the form of a "compulsory license" under which certain limited uses of copyrighted works are permitted upon payment of specified royalties and compliance with statutory conditions. The Copyright Act also contains a number of statutory limitations covering specific uses for educational, religious, and charitable purposes

How can I secure a copyright?

This is a frequently misunderstood topic because many people believe that you must register your work before you can claim copyright. However, no publication, registration or other action in the Copyright Office is required to secure copyright. Copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a “copy or a phonorecord for the first time.”  For example, a song can be fixed in sheet music or on a CD, or both.  Although registration with the Copyright Office is not required to secure protection, it is highly recommended for the following reasons:

• Registration establishes a public record of the copyright claim.
• Registration is necessary before an infringement suit may be filed in court (for works of U. S. origin).
• If made before or within 5 years of publication, registration establishes prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
• If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
• Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

How long does copyright protection last?

The length of your copyright depends on when the work was created, published, and/or registered.  Duration also depends on whether the work was created by an individual, more than one individual, or as employee or at the direction of another person or company.  For works created by individual authors on or after January 1, 1978, copyright protection begins at the moment of creation and lasts for a period of 70 years after the author's death.  In the case of "a joint work” (prepared by two or more authors) the term lasts for 70 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works, copyright protection generally lasts for 95 years from publication or 120 years from creation, whichever is shorter.

For works created before January 1, 1978 (protected under the 1909 Copyright Act), the duration rules are quite different (and much more complex).  Duration depends on a number of factors, including whether the work was “published” and whether or not the copyright was renewed.  In general, under the 1909 Copyright Act, copyright protection begins with first publication of the work and lasts for a period of 28 years, renewable for an additional term of 28 years, for a total term of protection of 56 years.  In 1976, Congress extended the renewal term to 47 years, increasing the total possible term of protection to 75 years.  In 1998, Congress again extended the renewal term by an additional 20 years, for total possible term of protection of 95 years from publication. 

For works created but not published or registered by January 1, 1978, copyright lasts for a period of 70 years after the author’s death (or at least through December 31, 2002).  For works published on or before December 31, 2002, the term of copyright lasts through December 31, 2047.

Will my copyright protect me overseas?

There is no such thing as an "international copyright" that will automatically protect an author's works in countries around the world. Instead, copyright protection is “territorial” in nature, which means that copyright protection depends on the national laws where protection is sought.  However, most countries are members of the Berne Convention on the Protection of Literary and Artistic Works and/or the Universal Copyright Convention, the two leading international copyright agreements, which provide important protections for foreign authors.

Under these treaties, a qualifying work foreign work generally must receive the same protection as a local work.  This bedrock principle of international copyright law is called “national treatment.”  International copyright agreements also set forth certain “minimum standards” of copyright protection.  For example, the duration of copyright generally lasts for a minimum period of life of the author plus 50 years.  The United States also maintains copyright relations on a country-by-country basis.  For further information and a list of countries that maintain copyright relations with the United States, you can request “Circular 38a, International Copyright Relations of the United States” from the Copyright Office.

Protecting America’s Ideas

America’s intellectual energy has always kept us on the cutting edge of innovation and creativity.  From original research to popular music, children’s books to movie scripts, America’ imaginative spirit is, I believe, stronger today than it has ever been.  Protecting the creative expression that comes from that spirit should be every writer’s, publisher’s, and editor’s priority.  At the U.S. Patent and Trademark Office, it is our job to make sure that American innovation and creativity continue to flourish. This is the goal of our Small Business Education Campaign.  To learn more about copyrights, I encourage you to visit www.stopfakes.gov/smallbusiness and check out the “All About Copyrights” section.