The plaintiff can can claim statutory damages if he 1) prevails in the lawsuit, and 2) has registered the work prior to the infringement lawsuit. In this situation, the copyright owner can choose whether to seek statutory damages or actual damages anytime before the final judgment. The decision typically depends on the amount of actual damages and the ability to proof and document them. For instance, if the actual damages can be easily demonstrated and these are significantly higher than the maximum statutory damages award, the plaintiff would likely be advised to seek actual damages. In both cases, the copyright owner sustains the burden of proof regarding the degree of the damages and willfulness. Despite the fact that intent is irrelevant for proving infringement, it is often an important factor to determine the award of statutory damages.

At the time of this writing, statutory damages for infringing a single work range from $750 to $30,000. However, the court may increase the award at its discretion up to $150,000 in cases of evident willful infringement. Similarly, if the court concludes that an infringement was innocent it also has discretion to reduce the statutory damages to a minimum of $200. These amounts are multiplied by the number of works infringed. In addition to the statutory damages, the loosing party may also have to pay all the attorney fees if the copyright owner registered the work prior tot he infringing activity.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976

Tags: copyright

The Copyright Act of 1976 (Section 507) establishes a three-year period of the copyright owner to bring a claim of copyright infringement. This statute of limitations assumes that the copyright owner knew or should reasonably have known that the infringement occurred. Consequently, the three-year limitation begins when the owner learns about the infringement activity. Furthermore, the statute of limitations period does not start necessarily when the copyright owner first learns about the copyright infringement as long as the infringement is continuing. In these cases, the three-year period can begin at any time during the infringing activity. Thus, the statue of limitations only applies if 1) the copyright owner knew or should reasonable have known about the infringement activity, and 2) the infringement activity is not ongoing (i.e. has stopped).

As an illustrative example, we can consider the case of a student that photocopies his professor's textbook and uses it for his class. Let's assume that the professor knows that the student has photocopied his textbook and copyrighted materials. After finishing the course the students disposes of the copies. Since the infringing activity has stopped, he can only be successfully sued within the next three years. In the case that a lawsuit was filed against him after the statute of limitations period, he will be able to claim the plaintiff waited an unreasonable amount of time to bring the lawsuit.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976

Tags: copyright

In the context of copyright law, copying is understood in more general terms than exact duplication. It is possible to violate one or more of the exclusive rights granted under copyright law in situations where the work is not an exact duplication. Generally, the user of the work will not be shielded from an infringement claim even if he paraphrased the original work as long as the resulting work has similarities that can result only from copying, rather than from coincidence, independent creation, or derivation from a common source in the public domain. This test is referred to as the "substantial similarity test" and includes both literal similarities (i.e. literal or verbatim copying) and nonliteral or comprehensive similarities.

It is also important to emphasize that it is possible to incur in copyright infringement even in situations where the user of the work cites the original source he is paraphrasing, Thus, the combination of attribution and paraphrasing will not necessarily prevent an infringement claim. Additionally, in certain situations this use of copyrighted material may also lead to other serious claims such as false endorsement and invasion of the right to publicity. This is specially important in the case of advertisement.

While paraphrasing and attribution may not shield the user of the work from infringement claims in general, in certain situations it may be acceptable. For instance, in works involving factual information, charts, maps, compilations, etc. paraphrasing and attribution would typically protect the user from infringement claims. In these cases, the courts use a higher standard for establishing infringement since there are only a limited number of ways to express facts. Consequently, the user would typically be protected as long as he is not copying at verbatim or paraphrasing very closely.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976

Tags: copyright

Owners of copyrighted work typically demonstrate that they are the rightful owners of the copyrighted work by introducing the copyright registration as evidence. As it was mentioned in an earlier post, copyright registration within five years of first publication creates a legal presumption of ownership and validity. While copyright registration does not prove ownership of copyright, this legal presumption of ownership and validity constitutes a prima facie proof (on first appearance). Consequently, in cases of infringement the court will presume that the ownership of the copyright and the registration is valid and will shift the burden of proof to the defendant to disprove by showing with sufficient evidence the falsity or invalidity of the allegation.

A third party may also bring a suit provided the owner of the copyrighted work has assigned (i.e. transferred) the rights to this party. In these cases, the party can introduce the transfer of copyright ownership written documentation as evidence to "prove" ownership.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976

Tags: copyright

While registration is generally not required to obtain copyright protection, it is currently a required administrative process to file a lawsuit. Specifically, the plaintiff in a copyright infringement lawsuit must acquire the "certificate of registration" in oder to formally file the lawsuit. The registration process is straightforward. It involves the submission of an application, a fee, and deposit materials. The normal processing of registration may take six weeks or longer. In cases of urgency (e.g. litigation) it is possible to request special expedited handling by preparing the form "Request for Special Handling" and paying an additional expedited handling fee of $500. In these cases, the Copyright Office will process the application within five working days.

Generally actions for infringement cannot be instituted until registration of the copyright claim has been made. However, there are a couple of exceptions to this rule. For instance, if the registration is refused despite having filed the correct form, the copyright owner can still institute the lawsuit. Other exceptions include simultaneous transmissions and certain situations under the Berne Amendments.

Additionally, copyright registration within five years of first publication creates a legal presumption of ownership and validity. While copyright registration does not prove ownership of copyright, this legal presumption of ownership and validity constitutes a prima facie proof (on first appearance). Consequently, in cases of infringement the court will presume that the ownership of the copyright and the registration is valid and will shift the burden of proof to the defendant to disprove by showing with sufficient evidence the falsity or invalidity of the allegation.

Finally, statutory damages can only be awarded in a copyright infringement lawsuit if the work was registered prior to the infringement or within three months of the first publication of the work.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976

Tags: copyright

Copyright registration within five years of first publication creates a legal presumption of ownership and validity. While copyright registration does not prove ownership of copyright, this legal presumption of ownership and validity constitutes a prima facie proof (on first appearance). Consequently, in cases of infringement the court will presume that the ownership of the copyright and the registration is valid and will shift the burden of proof to the defendant to disprove by showing with sufficient evidence the falsity or invalidity of the allegation.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).

Tags: copyright

The copyright notice must include three elements: 1) the symbol (c), word Copyright, or abbreviation copr; 2) the year of first publication; and 3) the name or abbreviation of the owner of copyright. In the cases of derivative works it is recommended to indicate a range of years for a work (although this is not required by law). For instance, a copyright notice may be specified according to any of the following variants:

-Copyright (c) Mateo Aboy
-(c) 2007 Mateo Aboy
-Copyright 2007 Mateo Aboy
-Copr. 2007 Mateo Aboy

An exception to the above relates to the copyright notice of sound recordings. Sound recordings embodied on phonorecords are required to include a special notice consisting of the letter P in a circle followed by the year of first publication and by the name of the copyright holder.

Under the Copyright Act of 1909 if an authorized copy of a work was published without notice, the work would be placed permanently on the public domain. This would result in the loss of copyright ownership. This requirement changed when the US passed the Berne Implementation Act of 1998 which became effective on March, 1989. For works published after this date, the omission of the copyright notice does not result in loss of copyright protection. Despite this change in the law it still strongly recommended to use the copyright notice. The notice serves to inform the public that the work is protected and identifies the owner of the work. Additionally, the proper use of a copyright notice makes it significantly more difficult for defendants to claim innocent infringement.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976

Tags: copyright

Copyrights grant the copyright holder exclusive rights of reproduction, preparation of derivative works, and public performance. In its current state copyright law does a decent job protecting some copyrightable works such as books, songs, and screenplays; but it still seems to be underdeveloped in other areas such as the protection of computer programs.

Since copyright protection does not extend to the underlying idea, procedure, or method of operation; other authors are free to use the same ideas and methods to create independent works. For instance, after reading a novel an author could write another novel using the same plot and as long as he doesn't copy parts of the original copyrighted work literally he will not violate copyright law. This limitation is specially significant in the case of computer programs. Consider the example of a scientist that after investing a considerable amount of time seeking a solution to a scientific problem writes a computer program that can significantly help others in a specific area. In this scenario copyrights will provide very limited IP protection. Other other people can develop their own version of the program that does the exact same thing and will not violate copyright law as long as they do not use the exact same source code. Additionally, reverse engineering is not prohibited either.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976

Tags: copyright

The Copyright Act of 1976 defines "joint work" as creative work prepared by two or more authors working under the intention that their contributions will be merged into a inseparable or interdependent parts of a unitary whole. This Copyright Act does not specify guidelines on how to value the different contributions in joint works. However, common-law principles, court decisions, and the writing of legal commentators agree that when there is no agreement between the authors, a court will presume that each author had an undivided interest in relation to the total number of authors (i.e. the value is divided equally among the authors).

It is often the case that not all the authors of a copyrighted work contribute equally to the work. When multiple authors write of a textbook or a band that writes a song together it is often the case that not all the authors contributed equally. In these situations it is important for the authors to sign a contract where they specify the rights, obligations, percentage of copyright ownership, and revenues attributable to each author. This type of contract is known as a "collaboration agreement." Collaboration agreements are very common in the creation of works such as books, software programs, screenplays, and songs.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976

Tags: copyright

The owner of a computer program has the right to make a copy of that program for the following two purposes: 1) the copy is intended for archival (i.e. backup) purposes only and 2) the copy is created to utilize the computer program and not for the purposes of sale or commercial gain (1984 Congress amendment 117 of the Copyright Act). More recently, Congress passed the Digital Millennium Copyright Act (1998). This Act included provisions granting lawful owners or lessees of a computer program additional rights regarding computer programs. Specifically, under the provisions of the Digital Millennium Act lawful owners of computer programs have the right to authorize independent service providers to activate the machine for the sole purpose of repairing or servicing its hardware components. Consequently, a computer repair company does not infringe copyright law under these situations.

We must emphasize that while "owners" of computer programs have the right to make copies for the purposes specified above, selling or renting copies of the software would constitute copyright infringement. To understand these limitations, especially the inability to rent computer programs, it is important to understand "Shrink--Wrap Agreements." Under the first sale doctrine the purchaser of software could rent copies. To avoid this situation, software products are not ``sold", instead they are ``licensed." This license is a contract that grants certain rights and specifies limitations. Anyone who purchases any software and violates the terms of the agreement can be sued for breach of the contract. This arrangement enabled software companies to gain additional protection because the software was licensed and not sold. Consequently, no first sale occurs and the first sale doctrine is not triggered. This practice is known as the "shrink-wrap agreement" or the "click-wrap agreement", depending on whether the software is sold as a packaged product or if it is sold directly on the internet for immediate download. The user enters into a contractual agreement by breaking the shrink--wrapped plastic that seals the CD or DVD or when it clicks on the accept button to accept the terms of the agreement. These agreements typically replace many of the rights granted by copyright law with restrictions. While in the past there was some debate regarding the enforceability of these agreements, since the Electronic Signatures in Global and National Commerce Act became effective in 2000 the law makes it difficult to challenge the validity of click-wrap agreements.

While the amendment of the Copyright Act of 1990 prohibits rental of computer programs, it may be possible to do so in certain situations. For instance, nonprofit libraries may be permitted to lend software without authorization, and software intended for "limited purpose" computers such as video game devices may be rented in certain situations.

Finally, another area of user confusion relates to the rights involved in using shareware (trial software) and freeware (free software). It is important to emphasize that both of these forms are protected by copyright law and cannot be reproduced or distributed unless explicitly authorized by the copyright owners.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976

Tags: copyright

Under the Copyright Act of 1976 17 U.S.C. 101 there are situations where the ownership of the copyright does not belong to the person responsible for creating the work (i.e. the creator) but to the party commissioning the work (e.g. the employer). This is known as the "work-made-for-hire doctrine."

In order for a hiring party to acquire the copyrights it must meet either of the following two requirements: 1) the work was prepared by an employee within the scope of his or her employment, and/or 2) the work was specially ordered or commissioned for use as a contribution within the following categories: a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answers material for a test, or as an atlas. Additionally, the parties involved expressly agree in writing that the work shall be considered a work made for hire.

While it is relatively simple to apply these two requirements in certain situations (e.g. a waiter that writes a movie script would be an example of a work that falls outside the scope of employment), these two requirements can be problematic. In certain situations it is difficult to determine whether the work was created within the scope of an employer-employee relationship. For instance, a university professor may create instructional materials and seek copyright protection for himself. The employer university could claim that the creation of instructional materials falls within the scope of the employment and seek to obtain ownership of the materials. Similarly, an employed software programmer could create a computer program and seek copyright protection for his creation claiming that he created the program on "his own time" and using his personal tools (e.g. personal computer and software). In both examples it would be difficult to determine who is the legal owner of the copyright. In these situations where an employee desires to retain control of specific works that may be considered to be created within the scope of employment, he should execute an agreement with the employer confirming the arrangement.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976

Tags: copyright

I was looking for copyright legislation related to the
recording of course lectures. I found the following Act that
amends chapter 1 of title 17, relating to the exemption of
certain performances or displays for educational purposes
from copyright infringement provisions. This ACT may be
cited as the "Technology, Education, and Copyright
Harmonization Act of 2001." Below is the link to the PDF.

http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=107_cong_bills&docid=f:s487es.txt.pdf

While this Act is helpful because it provides a general
framework detailing general exemptions of performances and
displays for educational uses, it does touch on recent
issues such as students recoding lectures using iPods,
editing these, and creating their own podcasts based on
lectures.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).

Tags: copyright

The Copyright Act of 1976 (Section 106) grants the author of the work or the party commissioning the work of authorship all the means of commercially exploiting the copyrightable work. This collection of rights includes the exclusive rights of 1) reproduction, 2) adaptation, 3) publication, 4) performance, and 5) display. In addition to these five rights, the copyright owner may prohibit the importation of infringing copies into the US in certain situations.

In principle, the author of any copyrightable work is granted these basic five rights. However, different works may have different limitations depending on the nature of the work. This is especially true in the case of computer programs, reproduction of pictorial, graphic, or sculptural works, internet material, and sound recordings. For instance, it is not an infringement to make a copy of a computer program provided the copy is to utilize the software for backup purposes and not for sale. In the case of works of art -pictorial, graphic, and sculptural- it is also permitted for third parties to reproduce these works on useful articles such as in new reports, commentaries, and advertisement. This is an example where the Copyright Act of 1976 prevents the author from enforcing the exclusivity rights of reproduction.

Finally, the nature of the work is also an important factor in the assessment of fair use. As an example, it would be easier to protect the rights of a movie or a movie script than those of a public news broadcast, a public scientific information session, or scientific literature. This is the case because the copying from scholarly and informational works is easier to justify as fair use since the purpose is often to educate and disseminate knowledge.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).
[3] Copyright Act of 1976

Tags: copyright

The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship. To this end, the US Copyright Act of 1976 -a complete revision of the Copyright Act of 1909- protects all the works of authorship created between 1978 and the present. This protection extends to works that are unpublished but are in a fixed and tangible form. Copyright law is regulated by the federal government by registering copyrighted works through the Copyright Office (a division of the Library of Congress) and by enforcing copyright laws in the federal court system.

The most commonly litigated issue in copyright law involves copyright infringement. Disputes regarding the violation of any exclusive right granted under copyright law, such as copying a work, are filed in federal courts due to Federal Preemption.

Copyright law protects literary, musical, graphic, or other artistic forms in which an author expresses intellectual concepts. In the context of copyright law an author is the creator of any copyrightable creation. Any author creation that meets the standards of copyright law is protectible under copyright law and considered to be a work of authorship. The main two requirements to meet the standards of copyright law are originality and fixation.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).

Tags: copyright

In the context of copyright law, a work is considered to be fixed when it is embodied in a tangible, stable, and concrete form. For instance, a short story that is printed on paper meets this requirement, while a live performance of the same short story that is not being simultaneously recorded does not. The Copyright Act of 1976 requires that in order to meet the standards of copyright law, works of authorship must be embodied in a form that is sufficiently permanent to be reproduced, communicated, and perceived. Consequently, works that are transitory in nature are not protectible under copyright law, since they are not fixed.

To illustrate the difference between a fixed work and a work that is not fixed in a practical scenario I will consider a real situation involving a university professor and a graduate student regarding the copyrights of lecture materials and associated class notes. A personal friend of mine completing graduate studies had been taking excellent class notes during lectures and creating thorough course guides by complementing the class notes with materials from additional sources and using a professional quality typesetting system to publish them. Additionally, the student decided to make these course guides freely available to other students as PDF documents. I recently learned about a dispute involving the copyrights of the lecture materials between the university professor and the student. The dispute goes as follows. Allegedly, the university professor wanted to prevent the student from sharing her course guides with other students on the basis that since the student had created them based on her lectures, she -as the professor-- was the copyright owner of the materials.

Analyzing the previous case, we find that based on the US Copyright Act of 1976 and the Berne Convention Implementation Act, the student not only is within her right to distribute the course guides as she pleases without any copyright infringement, but also has the right to seek copyright protection for her work of authorship. Given that the professor lectures have not been simultaneously taped or transcribed, they are transient in nature and cannot be protected by copyright laws since they do not meet the fixation requirement. On the other hand, the student's work of authorship meets the originality, fixation, and Judge Learned Hand's abstraction tests. Additionally, copyright protection does not extend to the ideas, but only to the author's unique expression of the ideas. Consequently, in this particular case the student has the right to copyright the course guides or make them public domain.

References:
[1] Stim, R. "Intellectual Property. Patents, Trademarks, and Copyrights" West Legal Studies.
[2] Black's Law Dictionary 5th ed., (West Publishing, 1979).

Tags: copyright