Your intellectual creations can be some of your most important assets. Copyright protection can help protect these creations from being used or replicated without your permission. Today’s post will explain the following:
- What is copyright,
- What can be copyrighted,
- How you can get copyright protection in the United States, and
- How copyright protection is obtained internationally.
What is copyright?
Copyright is an intellectual property right that gives a copyright holder the right to prevent others from using the copyrighted work without permission.
The idea of copyright is referenced in Article I, Section 8, Clause 8 of the United States Constitution, which states that Congress has the power to “promote the progress of science and useful arts, by securing for limited Times to Authors . . . the exclusive right to their respective writings . . . .” Exercising this power, Congress passed the Copyright Act of 1790, which closely resembled the Statute of Anne, the world’s first copyright statute.
U.S. copyright law has changed significantly since the original Copyright Act. Today, it is enshrined in Title 17 of the United States Code.
What can be Copyrighted?
In the U.S., copyright protects expressions that are original and fixed in tangible forms.
It is important to realize that copyright protects expressions only. Copyright does not protect the underlying idea, concept, principle or procedure of the expression. What this means is that your recipe for strawberry mint cheesecake nachos, cannot be protected by copyright even if you were the first person to think of it because a recipe is essentially a procedure. However, the way you expressed your recipe, such as descriptions and embellishments to the procedure, may be protected.
In order for an expression to be original, it cannot be copied or obtained from another source. Courts have also interpreted “originality” to include a modicum of creativity. However, if the expression is in addition to another source, it may be considered a “derivative.” A derivative can receive copyright protection, for the original part, to the extent the derivative is not the result of copyright infringement. Thus, the ballet “Sleeping Beauty,” which is a derivative of the story “Sleeping Beauty,” has copyright protection for its choreography and score, but not necessarily to the story itself.
Lastly, to be protected by copyright, an expression needs to be fixed in a tangible form. Simply put, the expression cannot solely exist in someone’s mind, and wherever outside the mind the expression is, it needs to be there at least temporarily (yes, under U.S. copyright law, there are different standards for “a really short period of time,” i.e. temporary > transitory > ephemeral).
How can Copyright Protection be Obtained
U.S. copyright protection is obtained automatically once the requisites for copyright protection has been fulfilled. So when an author writes an original story on paper or a computer, he or she obtains copyright protection for that story immediately. So grab a pen and start writing!
In order to keep U.S. copyright protection when publishing (i.e. distributing) one of the following conditions must be fulfilled:
- One of the authors is a citizen or resident of the U.S., or a person with no nationality, at time of publication;
- The work is first published in the U.S.;
- the work is first published in a country where the U.S. has signed one or more specific treaties related to copyright;
- The work is a sound recording first recorded in one of those copyright related treaty countries;
- The work is a visual art attached to a building or structure that is located in the U.S. or one of those treaty countries; or
- The work is first published in the United Nations or a United Nations system organization, or the Organization of American States.
Copyright registration is not needed to obtain copyright protection, but doing so offers some benefits. Using a copyright notice, such as using the © symbol is not needed to obtain copyright protection, but doing so also offers some benefits. These benefits will be discussed in a later post.
One very important warning: U.S. copyright law has a doctrine known as “works made for hire.” Generally speaking, this means that copyright for the stuff you have created in the scope of your employment, or as a consultant or freelancer, may belong to your employer or whomever is commissioning your work. That being said, the more distance you put between your own work and the work you have been employed or commissioned to do, the safer you are. Some ways to create this distance include creating the work on your own time, using your own resources (as opposed to your employer’s physical or intellectual property), and creating stuff that does not compete with your employer. However, you should also be aware that employment and independent contractor contracts sometimes use creative ways to expand the “works made for hire doctrine” to try to reduce your slice of the pie, so make sure you read and understand that contract!
How is Copyright Protection Obtained Internationally?
If an author needed to individually register a work in every country of the world to obtain copyright protection, you can imagine how inefficient the process can be. Fortunately, many countries in the world recognized this and have agreed upon international copyright frameworks. Some of the most significant international treaties involving copyright include the Berne Convention for the Protection of Literary and Artistic Work, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), and the WIPO Copyright Treaty (WCT).
The Berne Convention is the oldest multilateral treaty (agreement signed by more than two countries). Two core concepts of the Berne Convention relevant to obtaining international copyright protection are those of “points of attachment” and “national treatment.”
The concept of “points of attachment,” is set forth in Articles 3 and 4 of the Berne Convention. It describes how copyright protection in all signatories to the Berne Convention can be obtained in one fell swoop. Thus, when an author fulfills at least one of the “points of attachments,” his or her work gains copyright protection in France, South Korea, Japan, the U.S., China, and every other country that has signed the Berne Convention.
Not surprisingly, since the U.S. is a member of the convention, the points of attachment are very similar to the means through which U.S. copyright protection is obtained. For example, for unpublished works, Berne protection attaches if an author is a national or resident of a Berne member country; for published works, Berne protection attaches if an author is a national or resident of a Berne member country, or the work is published in a Berne member country within 30 days of its first publication. What this essentially means is that when you gain U.S. copyright protection, you gain copyright protection in a whole list of other countries as well!
The principle of “national treatment,” enshrined in Article 5(1), is another bulwark of the Berne Convention. Generally, what it means is that a Berne member country cannot treat copyright protection obtained under the Berne convention differently from copyright protection gained under a Berne member country’s own laws. Essentially, copyright protection gained through the Berne convention process must be be treated like “national copyright protection.” What this means is that if you publish your work in the U.S., you get U.S. standards of copyright protection in the U.S., South Korean standards of copyright protection in South Korea, and French standards of copyright protection in France.
The WCT is a “special agreement” of the Berne convention. One object of the WCT was to address the circumvention of copyright protections guaranteed by the Berne convention brought about by the advent of the internet. The U.S. implemented its WCT obligations by enacting the Digital Millennium Copyright Act (DMCA), which authors have utilized extensively to protect their copyrighted works from unauthorized internet proliferation.
TRIPs is a treaty that was negotiated under the auspices of the World Trade Organization (WTO), which sets forth minimum standards for several forms of intellectual property protection to be adhered to by members of the WTO. With regard to copyright, the minimum standards do not differ significantly from the Berne Convention. The main differences between TRIPs and Berne are that TRIPs recognizes data compilations and computer programs as copyrightable works, and does not recognize “moral rights.” A “moral right” is a subset of copyright recognized in several countries (but only at the bare minimum by the U.S.) that is tethered to an author’s reputation and honor, rather than his or her solely economic interests.
The main benefit of TRIPs is that it extends the concept of Berne Protection to countries that are not signatories of the convention, and holds countries more accountable due to the World Trade Organization’s more robust enforcement regime.
We hope this post was helpful to you. Copyright is the champion of beauty. Protect your creations: Protect beauty. Create and copyright your work today!
This blog post is provided for general informational purposes only. It is not legal advice, and should not be a substitute for legal advice. If you have questions or comments about the post, or would like to learn more about something in the post, please feel free to contact me.