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Copyright: How to protect a copyrighted work

In 1998, President Bill Clinton signed into law the Copyright Term Extension Act³ and the Digital Millennium Copyright Act.⁴

The 1998 Copyright Term Extension Act extended the duration of the copyright period for 20 years for works protected under copyright on or after Oct. 27, 1998. Works generally are now protected for the author's life plus 70 years. If the work is made for hire, or is an anonymous or pseudonymous work, the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

Works that have fallen into the public domain prior to the act's implementation date do not receive additional protection. The new legislation also restored copyright protection for foreign artists and authors who have copyrights in their home countries, but whose copyright has lapsed in the United States.

The U.S. Supreme Court recently heard a challenge to the CTEA and found the act to be constitutional. In Eldred v. Ashcroft, a group of publishers who utilized copyrighted works that had moved into the public domain questioned the constitutionality of the CTEA. They claimed it violated both the First Amendment and the Copyright Clause of the Constitution. The Court dismissed these claims, holding that "copyright's limited monopolies are compatible with free speech principles," and that Congress has the right to extend the terms of copyrights.⁵

The DMCA made several changes to copyright law, especially in the areas of digital technology. Title I of the act makes it illegal to circumvent copyright protection technology, such as that used by digital versatile disks, or DVDs. This prohibition, however, does not trump fair use or other traditional defenses to copyright infringement. Additionally, the new provision is not intended "to diminish any rights of free speech or the press for activities using consumer electronics, telecommunications, or computing products."⁶

The title also establishes rules for the use and misuse of Copyright Management Information. As defined in the Act, CMI includes information about a work, its author, and the terms and conditions for its use. The act prohibits publication or distribution of CMI that is known to be false. Additionally, removal or alteration of CMI is illegal. Broadcasters or cable systems will not be liable if they did not intend to engage in this activity or if avoiding the practice would pose technical or financial difficulties.⁷

Although both laws make substantial changes to the 1976 law, the fundamentals of copyright protection remain the same.

No formal registration with the Copyright Office or other action is required to secure a copyright. Copyright is secured automatically when a work is fixed in a copy for the first time.⁸

For works published on or after March 1, 1989, inclusion of a copyright notice is optional. Use of notice is recommended, however, because if the work is infringed, the defendant will not be able to claim that he is an "innocent infringer."

The copyright notice has three parts: the word "Copyright," or the letter C in a circle or the abbreviation "Copr."; the year of the first publication; and the name of the copyright owner. This copyright notice will ordinarily protect the work for a specified period of time.

The copyright owner cannot collect damages for copyright infringement merely because she placed a copyright notice on a work. Copyright registration is a prerequisite to bringing a lawsuit in federal court to protect owners' rights. Registering the work with the Copyright Office also makes it easier for people to find out who owns the work and where they can reach the owner to obtain permission to use it.

To register a work one must fill out the proper form, which can be obtained from the Information and Publications Section, LM-455, Copyright Office, Library of Congress, 101 Independence Ave., S.E., Washington, D.C. 20599. Send the completed registration form, the applicable fee and two complete copies of the work to the Register of Copyrights at the Library of Congress. It is also a good idea to record any transfer of ownership of the copyright with the Register of Copyrights. Registration forms and extensive copyright information are available online from the Library of Congress Web site at lcweb.loc.gov/copyright/.

Regardless of whether an author registers a published work, two copies must be deposited with the U.S. Copyright Office within three months after a work has been "published." Failure to do so will not affect copyright protection, but the Copyright Office could charge a hefty fine if a written demand for the copies is ignored.

Notes

3. Pub. L. No. 105-298 (Oct. 27, 1998), amending 17 U.S.C. § 101 et seq. (1998).

4. Pub. L. No. 105-304 (Oct. 28, 1998), amending 17 U.S.C. § 101 et seq. (1998).

5. Eldred v. Ashcroft, 123 S. Ct. 769 (2003). The Copyright Clause grants Congress the power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." U.S. Const., Art. I, § 8, cl. 8 (emphasis added).

6. 17 U.S.C. §§ 1201(a), 1201(c)(1), 1201(c)(4).

7. Id. at § 1202(e)(1).

8. Consult Copyright Office Circular 1, "Copyright Basics."

Next section: Copyright: Copyright ownership rights