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Decide When to Use Copyright Protection

Decide When to Use Copyright Protection
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In this segment, we’re going to talk about copyright law. That’s the area of law that deals with creative content. First, under the US Copyright Act, we see there are a wide number of works, kinds of works, that can be protected by copyright law. Literary works, which are not just books but are also the category where computer programs live. Musical works, including the words. Dramatic works, including music. Pantomimes and choreographic works. Pictorial, graphic, sculptural work so that would be the area for photographs, artwork. Motion pictures such as this video and other audio visual works, sound recordings which can be not only music but any kind of recorded sound, environmental sounds, and architectural works.
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And as a general matter, these are the kinds of works that can be registered under copyright internationally. In the US law, you’re not required to actually fit your work into a category. These categories were identified by Congress to help us think about the broad types of works. But you can actually create a new work, a new category of works, and so long as it contains expressive content that you have embodied in something fixed, a fixed medium, you can secure copyright for that work.
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Here are the rights of copyright owners. To reproduce copies of a work, to create a derivative work which we’ll talk about in a moment, a very powerful right, to publicly distribute copies of your work, to display your work publicly, such as posting, to publicly perform a work, such as on stage, and to digitally transmit sound recordings. This was added to the Copyright Act many years ago when, suddenly, music became digital and people were sending digital files around the world. And owners of copyrights in music compositions and sound recordings wanted judges to know that they had specific copyrights in the digital transmission of sound. So here’s a definition of derivative work under the US Copyright Act.
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A derivative work is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed, or adapted. So what does this mean? This means that when you secure copyright in, let’s say, a literary work, your right to create derivative work means you can create the foreign language translation. You can create an abridged version. You can create a stage play. You can license it for motion pictures. It’s a very, very powerful right. That recognizes that a particular work may be created in one form, but can have commercial application and non-commercial applications in other forms.
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What is very important in understanding copyright and in particular US copyright is how much copyright does not protect. When I work with engineers and scientists, this particular slide is the one I spend the most time on. In no case, does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied. So if we take that apart, what this means is an article can be written, a book can be written, a video can be created that has incredibly valuable ideas, incredibly powerful methods or concepts or principles. And copyright law says, it is completely unownable under copyright.
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It means that a company really needs to understand all of the intellectual property doctrines, to think through if copyright is not going to protect my ideas, is there some other doctrine that will? And we’ll be talking about trade secrets and patents a little later. It also means when you want to create a product, you are free to read from other materials or to learn from sound recordings or videos, ideas, procedures, processes, systems, methods of operation and unless they are protected by those other doctrines. You are free to use them. You don’t need to get permission from that author of that scientific article to use their idea because they don’t own the idea under copyright law.
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What’s interesting, too, when you work with scientists and engineers is that they often feel that what is the most valuable element of their work product are the ideas and the methods and the concepts. And that’s why you have to really understand under US law, copyright is about advancing knowledge. It is not about a property interest in a particular element of a work. So here are some core bedrock principles under US copyright law. For example, no copyright protection for recipes because recipes are considered systems, or methods, or facts. You wouldn’t know that by the mud slinging that goes on on the web when people copy recipes from each other you would think that they had stolen the Magna Carta.
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But indeed, if you understand that a recipe is a system or a method, it’s not protectable. There’s no copyright protection for algorithms because indeed algorithms are methods, processes,or systems. So again, if they’re not going to be protected by trade secret or patent, they’re not protected at all. No copyright in facts or data. This was a great shock to the information industry in 1991, when the US Supreme Court ruled unanimously. No protection for the telephone book. No protection for a name, a street, a phone number being organized alphabetically. And again, what this means to you, is that you have to be sure when you are working with your team that they understand they are free to use facts from other sources.
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They are free to use algorithms, unless those algorithms are indeed protected by patent. There is no copyright in unoriginal collections of data. No copyright in published research. So what does this mean? This means you need to make a distinction between the research, the knowledge, and the article that was written to embody it or to explain it. So if you can sift through and sort through the knowledge from the article, you can use the knowledge. And in the US, no copyright for works of the federal government.
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This comes back to the premise of US copyright law, which is to advance public knowledge and in a democracy, the decision of the congress that the work product of the government belongs to the people. So unless that work product is protected by other legal doctrines, state secrets, privacy, it does mean, that the work is available, for use by anyone, there is no copyright. So that might be, for example, images that come back from the Hubble Space Telescope. Or reports created by the Centers for Disease Control.
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These are unique to the US. Most copyright laws outside the US are not based upon the commitment to public knowledge, as the US law is. Most copyright laws outside the US are based upon personal notion of the human, the individual, who has infused a work with their spirit. It’s a very personal notion of copyright. That is not the version of copyright we have in the U.S., you are much freer in the U.S, to use content from third parties. Here’s an example, of a decision in the United States where, a computer model which had been created by placing tapes on the outside of a Toyota car.
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And those tapes had certain sensors and they capture the shape of the car and where used to create this model and the court ruled. It was all a collection of data, there was no originality, and there was no copyright protection for that model.
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Here’s another example in the U.S. where a photographer had taken a new photograph of an old painting. The example that’s used here is Vincent Van Gogh, The Diggers, from the Detroit Institute of Arts. We often think that if I take a new photograph today, I own copyright in that photograph. And as the court said a couple of years ago, if all you do is simply slavishly copy the original painting, you have added nothing new, copyright requires that you’ve added new authorship. And there is no copyright protection for a replica of a painting. A matte painting it’s in the public domain.
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As you might imagine, it upset a lot of museums, and libraries where they sell copies of their artwork or of their materials, and may of those materials’ the copyright expired a long time ago. But because the organization recently printed it, they print it with a new copyright notice. So you have to understand when a copyright notice is reflecting that this particular version was recently published as opposed to the material itself. Putting some of these principles to work, we see there was an individual, Mr. Hoehling, who had written a book called Who Destroyed the Hindenburg? And he provided a great deal of facts and research about certain events relating to the explosion of that dirigible.
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Universal City Studios created a film and used many of the facts from that book. And the court said that even though Mr. Hoehling sued, claiming you used content from my book, the court said the cause of knowledge is best served when history is the common property of all, and each generation remains free to draw upon the discoveries and insights of the past. So even though you can occasionally get drag into a lawsuit, if all you’ve used are facts, and theories, and insights, you have not used anything protected by copyright.
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In the US, and indeed in all of the industrialized countries, copyright is automatic. You do not need to register. Registration gets you certain benefits. But it is not a requirement in order to have the copyright. This is the opposite of patent. You have to secure a patent, or you do not have a patent. Under copyright, you have the copyright at the moment you’ve created this work, and you have embodied it in something tangible. It lasts a very long time, currently life of the author, plus 70 years. If you’re a corporation it will last essentially 95 years from publication. There is no longer any renewal of U.S. copyright.
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The copyright office does review your submissions but it does just to be sure that the information you’ve provided fits the requirements. The copyright office does not determine who was an author, it doesn’t determine who really owns the materials, those are issues, if they have to be fought out, they are fought out in court. Copyright is very inexpensive. Depending on whether you do a paper filing or an online filing it’s $50, $65. And what that means is we really should encourage companies to secure copyright protection. For their copyrightable material that is valuable to them. And copyright notice although it is no longer required is recommended for many reasons.
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One of which is it signals to the viewer that there is a company claiming copyright in this content.
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So why do we bother to register copyright? If the law does not requires it. First of all, as we know it’s inexpensive, it lasts a long time. As with trademark law, once you have that copyright certificate, it is legal evidence that you are the owner and that this work contains creative expression. Enforcement is very significant. In the U.S. you cannot go into court and enforce your rights and stop an infringer if you don’t have a registration. Very powerful. If you secure a registration and then you later discover an infringer, you have the ability to seek attorney’s fees and you have the ability to ask the court to choose a number between $750 and $30,000, that will fairly compensate you.
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You will not be able to get attorney’s fees or statutory damages, if you discover an infringement and then you secure the registration. Also having a registration enhances the value of an asset either for licensing, or for the sale of the company, or for use of the collateral as a loan. Next, we’re going to talk about copyright and collaborations, and you’ll see that the issue of who owns copyright can become very complicated in light of oral agreements, oral discussions that parties have, and what happens when they actually work together.
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