Copyright Overview & The DMCA Safe Harbor
A copyright is the exclusive property right granted to the author or creator of original works. Despite what some people think – if it is posted on the Internet it already belongs to somebody. This outline will provide an overview of the Copyright laws and provide you with an understanding of the ownership rights involved.
Included in this outline is information about the safe harbor immunity for Web Site operators created by the Digital Millennium Copyright Act (DMCA.) The Safe Harbor provisions are especially valuable to web sites providing blogging, social networking, etc. The DMCA with its Safe Harbor was signed into law in 1996 and many authors have said this legislation is responsible for the Internet’s phenomenal growth over the past decade.
WHAT IS A COPYRIGHT?
A copyright is the exclusive property right granted to the author or creator of original works including literary, dramatic, musical, artistic, and certain other intellectual works.
HOW ARE COPYRIGHT RIGHTS ACQUIRED?
Copyright is Secured Automatically upon Creation
The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. There are, however, certain definite advantages to registration.
Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy for the first time. “Copies” are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm.
WHAT WORKS ARE PROTECTED?
Copyright protects “original works of authorship” that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device. Copyrightable works include the following categories: literary works, musical works, including any accompanying words, dramatic works, including any accompanying music, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings, architectural works. These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”
WHAT IS NOT PROTECTED BY COPYRIGHT?
Several categories of material are generally not eligible for federal copyright protection. These include among others:
- Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded.)
- Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.
- Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).
NOTICE OF COPYRIGHT
The use of a copyright notice is no longer required under U. S. law, although it is often beneficial. Use of the notice may be important because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. Furthermore, in the event that a work is infringed, if a proper notice of copyright appears on the published copy to which a defendant in a copyright infringement suit had access, then no weight shall be given to such a defendant’s interposition of a defense based on innocent infringement. Innocent infringement occurs when the infringer did not realize that the work was protected.
The use of the copyright notice is the responsibility of the copyright owner and does not require advance permission from, or registration with, the Copyright Office. The notice should contain all three of the following elements:
- The symbol © (the letter C in a circle), or the word “Copyright,”
- The year of first publication of the work.
- The name of the owner of copyright in the work. Example: © 2008 John Doe
TRANSFER OF COPYRIGHT
A copyright owner’s exclusive rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights. Transfer of a right on a nonexclusive basis does not require a written agreement.
In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection. Registration may be made at any time within the life of the copyright.
Even though registration is not a requirement for protection, the copyright law provides several inducements and advantages to encourage copyright owners to make registration. Among these advantages are the following:
- Registration establishes a public record of the copyright claim.
- Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
- If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
- If registration is made within three 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.
Filing an Original Claim to Copyright with the U.S. Copyright Office
An application for copyright registration contains a completed application form, a nonrefundable filing fee, and a non-returnable deposit copy of the work being registered and “deposited” with the Copyright Office.
A copyright registration is effective on the date the Copyright Office receives all required elements in acceptable form, regardless of how long it takes to process the application and mail the certificate of registration.
Online registration through the electronic Copyright Office (eCO) is the preferred way to register basic claims. Advantages of online filing include a lower filing fee, faster processing time, online status tracking, secure payment by credit and the ability to upload certain categories of deposits directly into eCO as electronic files.
The DMCA Safe Harbor
DMCA Title II, the Online Copyright Infringement Liability Limitation Act (“OCILLA”), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) if they receive a notification claiming infringement from a copyright holder.
The Safe Harbor provisions are especially valuable to web sites providing blogging, social networking, etc. The DMCA with its Safe Harbor was signed into law in 1996 and many authors have said this legislation is responsible for the Internets phenomenal growth over the past decade.
As a website operator the Safe Harbor means you are not responsible for the copyright infringement of others on your site as long as you do not have actual knowledge that the material is infringing, that you are not receiving a financial benefit directly attributable to the infringing activity and that you adhere to the takedown provisions of the act. The safe harbor applies to links posted by others as well as the content they post.
The DMCA safe harbor is not automatic and requires a web site operator to have the DMCA proceedures in writing on the site, as well as having a registered DMCA agent with the U.S. Copyright Office.