A copyright is a legal protection given to the authors of original literary, musical, or artistic works.1 It gives the right to reproduce, display, or produce derivative works from the protected item. It also gives the right to sue to collect damages if someone else infringes the copyright from the time the work was created until 70 years after the author’s death (or 95 years after publication for works for hire, which will be discussed later in this chapter). Infringement occurs if another party duplicates, displays, produces, or distributes the work; or gives, rents, or lends it to others.
What Can Be Copyrighted?
Many things can be protected by copyright, including books, movies, software, music, other recordings, databases, plays, pantomimes, dance, sculptures, graphics, and architectural designs.2 For example, the Lego Group has used copyrights to protect the appearance of its standard, eight-studded brick against imitation.3 The thing that you want to protect does not need to be novel or even lawful to receive copyright protection. For example, Napster’s software copyright still held even after the file-sharing service was deemed unlawful.4
However, there are some limitations on what can be protected by copyright. First, the thing being protected has to be tangible. Thus, you cannot copyright an impromptu speech, but you can copyright a written one. Second, titles and names cannot be protected by copyright; these things are protected by trademarks. Third, slogans, ideas, methods, principles, discoveries, or things composed of common property, such as calendars, cannot be copyrighted.5 Fourth, it has to be a finished product; ideas cannot be copyrighted.
Who Gets a Copyright and How Do They Get It?
So who can get a copyright? A copyright can be obtained by the author of any completed original artistic, literary, or musical work, unless the work is done for hire. Work-for-hire is a technical term for work that is done under the scope of a person’s employment or under a written agreement between the author and the person contracting for the work, which requests that the work be done on the contractor’s behalf. If the work is done for hire, then the copyright goes to the entity commissioning the work. For example, you could hire your neighbor to write some software for the insurance claims adjusting business that you are starting and the copyright on that software would then belong to you.6
You can obtain a copyright without taking any action other than putting the intellectual property into tangible form (e.g., writing something on paper or recording it on a DVD or CD). Alternatively, you can apply for copyright protection from the U.S. Patent and Trademark Office (USPTO). While applying for a copyright is not necessary, it does provide a couple of important advantages. Most notably, you need to have a registered copyright to file a lawsuit to protect your copyrighted intellectual property, so registration is useful in the event that you want to sue someone.
Enforcement Through Litigation
If you think that someone has improperly used your copyrighted materials, you can take them to court and sue them for infringement. Because plaintiffs in a copyright infringement lawsuit rarely have direct evidence of the actual incidence of copying (of course, having photos of people in the act of copying your copyrighted material and distributing it would strengthen your case!), the courts usually infer that copying has occurred if the new work is substantially similar to the copyrighted work and the defendant had access to the copyrighted work.
If you win a copyright infringement lawsuit, the court will award you damages. The size of those damages depends on the intent of the infringers, how much money they made, how they made their money, and how their actions affected your business. For example, if the infringers charged others for your copyrighted material, then the size of the damages that you can receive will be greater than if they gave away your material for free. Also, the size of the damage settlement will be larger if the infringers reduced the commercial value of your property through their actions.
If the court determines that the infringers’ imitation was intentional, then you can collect triple the value of your loss as damages. So it is important to affix the copyright symbol (©) to your material. Doing so allows the court to reject any claim by an infringer that he or she did not know the material was copyrighted and innocently infringed.7
If you believe that someone has infringed your copyright, you can have a court issue an injunction, stopping that party from using your copyrighted material while the case is being decided. However, if you believe that your copyrighted material has been infringed, you need to take action quickly. The statute of limitations on copyrights only lasts for 3 years.
Recent Developments to Strengthen Copyrights
Although copyrights were originally intended to protect written documents, in recent years, most of their growth has been as a means of protecting sound and images (as well as computer software). Now such things as video recordings of Super Bowl games and Web casts of the weather outside of college dorms are routinely copyrighted.
However, software is easier to copy than books and other printed material because duplicating and distributing multiple copies of a book takes more time and money than duplicating and distributing a piece of software. To deter copying and illegal distribution, software companies impose very restrictive end user license agreements (EULAs). By severely limiting how their customers can use their product, software companies strengthen their position against violators of their copyrights.
Unfortunately for copyright holders, the development of network technology to share digital files has led to other issues. File sharing technology has made it easy to copy musical recordings, leading to the decline in sales of music CDs. This has prompted the record labels to sue anyone who does anything that lets users get around their copyrights. For example, several record labels sued XM Satellite Radio because XM’s Inno device allows users to record, store, and create playlists of songs that they have heard on XM. The record labels claim that the use of the Inno device violates the copyrights to their songs by allowing people to obtain a recording of it without paying a royalty.8
Similarly, the record labels sued Napster, charging that the company violated the copyrights of recording artists, and caused them financial loss, by making it possible for people to exchange digital music files without paying royalties. The record labels’ argument was that Napster created a market in which other people could avoid paying royalties on copyrighted songs, thus enabling infringement.9 (The copyright issue was not settled in this case because Napster was forced to shut down when the judge in the case issued an injunction banning Napster from offering the service until the courts had decided the case.10 However, many observers believe that file-sharing networks will not be able to claim “fair use” of copyrighted material.)
While the recording industry was able to use the court system to enforce its copyrights against the first generation of peer-to-peer networks like Napster, they face a more difficult time with second generation peer-to-peer networks that do not use a central server for file sharing. The use of peer-to-peer networks spreads the copyright violation across numerous parties and makes the value of their infringement too small to justify the use of lawsuits as a way to stop it.11
Recently, laws have been enacted to let companies use physical tools, such as embedded authentication chips, to make it more difficult for people to copy a piece of intellectual property. For example, the Audio Home Recording Act of 1992 requires that all digital recording devices include a Serial Copy Management System, which permits originals but not copies to be duplicated. And the Digital Millennium Copyright Act (DMCA) made it illegal to circumvent a technological device that is used to prevent duplication of copyrighted material. 12
However, the use of copy protection software to prevent sharing of intellectual property has had problematic side effects. It limits the devices that customers can use to play legitimately purchased recordings or even causes damage to computers that play the recordings.13 For example, Sony BMG recently had to reimburse its customers more than $100 each for computers damaged by hidden antipiracy software that Sony BMG had placed on their CDs because the software created security risks and was hard to uninstall.14
Efforts to strengthen copyrights have had other adverse effects as well. They have diluted the concept of “fair use” of copyrighted material. As a result, it is becoming more difficult to make noncommercial use of copyrighted materials. Second, these efforts have hindered the natural process by which innovators build on the work of others by requiring them to obtain the rights to use any copyrighted material to build on it.
Software Copyrights
Copyrights have become an important mechanism to protect software. While the mathematical formulas and equations underlying software programs are not copyrightable, nor are the ideas or methods behind them, copyrights can be used to protect many parts of computer software, including source code, object code, microcode, and screen displays.15 For example, ConnectU.com, a social networking Web site, uses copyrights to protect its source code.16
While copyrights provide some intellectual property protection for software, they are not an ideal form of protection for this medium because they only protect the expression of ideas, not the concepts underlying those ideas. Ideas can often be expressed in a variety of different ways, allowing someone to reverse engineer a piece of software and then write a new piece of software that works around the copyright by expressing the same idea in a different way. If a defendant in a software copyright case can show that they created a work independently and expressed an idea in a different way from the holder of the copyright, then there is no copyright violation.17
Moreover, demonstrating the infringement of a software copyright is not easy to do directly, making them difficult to enforce. Because it is impossible to show an exact linkage between the expression of an idea and the processes to express it, courts have had to interpret the “look and feel” of software to determine whether copyright infringement has occurred. Of course, this reliance on “look and feel” to determine infringement makes it harder to know if infringement has actually occurred. 18
On the other hand, software copyrights provide additional intellectual property protection to that provided by software patents. A wider variety of software programs can be copyrighted than can be patented because any originally authored work presented in tangible form can be protected by a copyright, whereas only novel, nonobvious, and useful inventions can be protected by a patent. Copyrights also are much easier to obtain than patents and are, consequently, a much less expensive form of protection. Furthermore, copyrights offer 70 years of protection from the time of the author’s death, whereas patents offer only 20 years of protection from the time of invention.19