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While the U.S. Copyright Office has been somewhat slow
in adopting precise criteria for gaining copyright protection in Web sites,
such protection is available by obtaining a “copyright registration” for the
site. Copyright registration for a Web site can be obtained by filing a form
with the Copyright Office, paying a fee, and depositing representative
portions of the work being registered, but one must be aware of what the
registration will protect.
What can be copyrighted?
In general, a copyright protects original works of authorship “fixed in
tangible form of expression.” For works transmitted online, the
copyrightable authorship may consist of text, artwork, music, audiovisual
works, and the like. However, copyright in no case protects ideas,
procedures, systems, or short words or phrases. For online works (other than
computer programs and databases), the copyright registration extends only to
the copyrightable content of the work as received in the Copyright Office
and identified as the subject of the claim. “Copyrightable content” means
original works of authorship, and does not include certain things, such as
facts or materials that are in the public domain. However, protection may be
available for compilations of facts or public domain materials. For example,
one may obtain copyright in a compilation of facts in the form of a
database. (See
http://www.copyright.gov/ under “Copyright Basics” for more information
regarding compilations, databases, and links to most other copyright-related
topics).
Who can apply for a U.S. copyright registration?
The copyright in a work becomes the property of the author who fixed the
work in the tangible medium of expression. Only the author (or those
deriving their rights through the author) can claim copyright. But what
about U.S. copyright registrations for authors who are not citizens of the
U.S.?
Unpublished works are eligible for U.S. copyright
registration by anyone who is the author of the work. However, published
works have to meet certain conditions to be eligible for copyright
registration in the U.S. These conditions depend upon publication, which,
for online works, can be considered to be when the site becomes accessible
to the public. However, the “place” of publication for a web site can be a
difficult concept, because public web sites are generally accessible in many
different countries as soon as they go live. The easiest way to determine
whether a U.S. copyright registration for a web site can be obtained is if
the following question can be answered in the affirmative:
On the date the work became available online and
accessible to the public, was one or more of the authors a national or
domiciliary of the United States, or a national, domiciliary, or sovereign
authority of a treaty party, or was a stateless person wherever domiciled?
If the answer to this question is affirmative, a U.S.
copyright registration can be obtained for the web site. It should be noted
that the most important treaty referred to in this question is the Berne
Convention. At the time of this publication, 160 countries were parties to
the Berne Convention. The complete list of parties to the Berne Convention
is available at
http://www.wipo.org/treaties/ip/berne/index.html.
Getting it right
As noted above, copyright in online works only extends to the
copyrightable content as received by the Copyright Office and identified as
the subject of the claim. This means care should be taken to fill out the
registration form carefully and be sure to include an appropriate deposit
copy. The application for registration should exclude materials that have
been previously registered or are in the public domain. Registration forms
are available online at
http://www.copyright.gov/ under the “Forms” tab. In general, the form
corresponding to the predominant type of content on the Web site should be
chosen. For example, a site with mostly artwork should be registered using
Form VA, while a site with mostly text should be registered using Form TX.
When identifying the subject of the claim (usually in space 2 of the form),
a brief statement describing the original authorship being registered should
be given using terms that clearly refer to the copyrightable portion of the
work. “Text,” “music,” “artwork,” and “photographs” are suitable
descriptions. However, ambiguous statements that refer to elements that may
not be protected by copyright should not be used here, such as “layout” or
“design.”
Along with the form, a deposit (a sample) of the work
must be sent to the Copyright Office. There are essentially two options for
choosing the form of deposit to submit. One option is a computer disk that
includes the entire work. This can be the .html or other files but must
include the entire content. Also, representative portions of the Web site
that a copyright examiner can see without a computer (such as a printout)
also must be included, generally consisting of five pages. The other deposit
option is a reproduction (hard copy) of the entire work, regardless of
length. In this case, no computer disk is required.
Generally, the fee for registration is $30, which can
be money well spent, as copyright registration is a pre-requisite to taking
copyright infringers to court and for recovery of statutory damages, which
range from nominal awards to $150,000. Once a registration is in hand, the
owner has standing to sue those who may be unlawfully reproducing
copyrighted portions of the website. This is often of considerable
importance when the infringer is a competitor of the copyrighted site’s
owner, so get those Web site registrations completed early!
John D. Lopinski is an attorney in Hodgson Russ
LLP’s Intellectual Property & Technology Practice Group who advises on
biotechnology patents and copyright law, including infringement matters,
development of corporate copyright policy, and protection of Internet sites
and software. He can be reached at
jlopinsk@hodgsonruss.com.
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