photo credit: advisorymatters

I’m going to be working over the next week or so to fill out the static pages in the site a little bit and put some critical content where new users can easily find it.

On that note, I wanted to let everyone know I’ve added the first of those new pages, one entitled “Copyright Myths”.

This page deals with ten of my “favorite” copyright myths and debunks them. I’ll be adding to this list over time as new myths are brought to my attention. Definitely feel free to leave me a comment with anything you feel that I did not address.

Up next will be an expansion to the Stopping Internet Plagiarism section as well as overhauls to the DMCA Agent information.

Thank you all for your support and keep the feedback coming!

However, the Copyright Advisory Network, a part of the American Librarian’s Association, has aimed to help fix that by creating a simple Copyright/Public Domain Slider.

It is a great tool and it illustrates how complicated and convoluted copyright law has become thanks to the patchwork of changes that have taken place. It becomes clear when using this slider, especially when you look at the asterisks and other caveats, that there is a real need for simplification of copyright law in the U.S.

To make matters worse, the slider only covers some of the potential situations. If you take a look at the table provided by Cornell, you can see that there are many possibilities not covered by the slider.

Still, the slider is a great tool for most situations and serves as a great introduction to the public domain and when works expire.

However, as we have discussed before, the registration system does not fit neatly with the realities of the Web and even their new electronic system does not bring the service up to modern standards.

Still, some Webmasters may benefit from registering their works with the USCO and should consider doing so. However, registering every work is impractical and most Webmasters will gain nothing at all from a registration, no matter how frequently they do ti.

So when should a Webmaster register their work with the USCO? It’s a difficult question with no easy answers.

The Limitations to Understand

Though the advantages of a USCO registration are great, there are two limitations to such registrations that limit their usefulness to webmasters.

1. Registration has no impact on the most common copyright infringement resolution techniques (DMCA Notices, Cease and Desists, etc.)
2. It only applies to works included in the registration, not ones that came later.

These elements combine to virtually guarantee that any registration you file for your site will be useless.

You will not require a formal registration in well over 99.9% of all of your copyright disputes and, in the rare times where it might be useful, it likely will not apply. Since newer works, for most sites, are the ones more commonly infringed, the odds of the works involved being covered by your registration are slim.

The only way to keep your copyright registration relevant on a site that is active is to constantly re-register your site. However, that comes both at a high cost to one’s time and to one’s bottom line. If you register your site every three months, as some recommend, it would cost $140, even using the cheaper online service.

However, even with that system, since copyright law does not consider merely posting a work to the Web publication, but rather public display, most works posted to the Web are not eligible for the three-month grace period of registration.

Update: See this comment for more information about the issue of public display vs. publication as it pertains to the copyright registration process. Many thanks to Matt Saunders for the clarification.

This, in turn, means that at any given time, would have a three-month gap in your registration, where the newer works would not be eligible for protection until the next cycle begins. During that time, infringement of new works is ongoing.

In short, even if you took every reasonable precaution possible and spent the time and money to keep your registration up to date, you would still leave gaping holes where you would not be eligible for full protection of your work, likely until it is too late.

Exceptions to the Rule

This isn’t to say that there are no cases where a site might benefit from a copyright registration, just that most sites will not. There are at least a few situations where a webmaster can and should seriously consider making use of the USCO’s service.

However, those cases would typically be limited to sites that meet the following criteria:

1. Static Sites: Sites where the content remains largely constant or, at the very least, see a large amount of misuse of older works may benefit from registration as there is a good probability that any infringement will be of a protected work.
2. Ability and Will to Sue: Suing for copyright infringement takes a great deal of time and money. Even if you are able to recoup the costs of the suit, the energy expended may not be worth the results. You need to make sure that you are willing to go through a long, protracted legal fight that could end up going nowhere, especially if the party is in another country or can’t pay any penalties. Most people and many businesses are in no position to do that.
3. Financial Reasons to Sue: Though there are many reasons to sue for copyright infringement, courts put the most weight on the monetary damages as it is what they can most easily assess. It is important to note that damages awarded for infringement are statutory, not punitive, and thus will be related to the value of the work itself.

If you have a dynamic site and/or lack the ability or reason to actively sue infringers, most likely, a copyright registration is a waste of time and money.

The question then becomes a matter of which sites meet the criteria and become good targets for registration? The answer is surprisingly few.

Sites that Should Consider Registering

If you and your site meet the above criteria, then registering your site is probably a wise move. However, if you are looking for examples of the types of sites and content that should be registered, consider the ones below:

1. Art/Literature Sites: Content on art and literature sites tend to have longer shelf lives than those on blogs or news sites. Works on those are much more likely to be infringed after a registration is filed than on other dynamic sites.
2. Business Sites: Though a competitor copying your marketing or promotional material raises other legal issues, including unfair competition, it may be worthwhile to register the site since a great deal of time and money goes into it. Furthermore, the content, typically, does not change much making it likely that a protected work will be infringed.
3. Stand-alone Works: Any work that takes a decent amount of time and/or money to create should, if possible, be registered before it is posted to the Web. Novels, movies, music compilations, etc. should, if possible, be registered regardless of the type of site they are to be posted to.

But while these works, and others that warrant registration, may seem to cover most of the Web, the truth is that very little of the content on the Web is registered and only a small percentage of that content benefits from their more official status.

Your average blogger or Webmaster has little, if any, reason to consider registering their site with the USCO.

Foreign Authors

To take a quick aside, it is worth noting that authors in countries outside of the U.S. stand to gain very little from registering their works.

While there is some debate whether or not a foreign-born author can sue without first registering a work (Note: I am seeking clarification on this issue and will update when I get a reply), the issue is moot since, in most cases, the cost and expense of suing in a United States court would far exceed any potential gains.

Foreign authors, both legally and practically, have the least to gain from copyright registration.

Conclusions

If the question is whether or not one should register their Web page or blog with the United States Copyright Office, the answer will usually be “No”.

Though there are exceptions to the rule, there are very few sites that would significantly benefit from registering their work. The nature of the Web and the limitations of the registration system make it so that, for most webmasters, a USCO registration is a waste of both time and money.

Fortunately, most of the protections we rely upon as webmasters are ours from the moment our work is fixed into a tangible medium of expression and do not require a copyright registration. DMCA notices and desist letters are all available to us with no formalities at all.

Even if a major copyright dispute were to arise, one could likely leverage copyright management information (CMI) to sue for a previously unregistered work. Though that avenue is limited and controversial, it may provide an avenue for when registration was impossible or impractical.

However, the bottom line is U.S. copyright law does not effectively protect bloggers and others who post content to the Web. Our copyright protection is second rate to the rest of the world and, until the law changes, many of us will have our best legal avenues closed off.

The flaw is not with bloggers unwilling to protect their works, but with a system that is out of touch with realities of the Web.

In honor of that, I wanted to spend a few hours today getting back to basics as well. This is both for the benefit of long-time readers and for new readers as well as anyone on the Web that need this fundamental information.

To help with that, I’m going over ten basic copyright facts that everyone who creates or uses copyrighted goods should know.

So let’s take a moment to review some copyright basics and, perhaps, learn a few new things along the way.

Ten Facts About Copyright

In order to speed up this process and make this information easier to digest, I’ve broken down the facts into ten short explanations with links to more information if desired.

1. Copyright Is Immediate: Copyright in a work is created once it is fixed into a tangible medium of expression. Though added legal avenues can be opened by registering the work with the Copyright Office, there are no formalities needed to obtain copyright in a work, including placing the copyright symbol.
2. Copyright Protects a Set of Rights: Copyright is not just about the exclusive right to copy, it also provides the copyright holder with a sole right to publicly display a work, to publicly perform the work and create derivative works. Doing any of these things without the permission of the rightsholder is likely to be an infringement.
3. Copyright Lasts a Really Long Time: In the United States, copyright in a personal creation lasts the life of the author plus seventy years. In corporate works, the term is a flat 95 years. After that term expires, the work passes into the public domain.
4. Copyright Does Not Protect Many Things: Copyright protects the expression of an idea, not the idea itself. It also, typically, does not protect titles of a work, systems, concepts and anything that has not been fixed into a permanent medium. Finally, all works that are in the public domain are not protected by copyright and can be used freely.
5. Not All Copying is Prevented: Though copyright gives the author of a work the sole right to produce copies, not all copying is prohibited. Fair use allows limited copying of a work “for purposes such as criticism, comment, news reporting, teaching, scholarship or research.”
6. Fair Use is a Defense, Not a Right: Legally speaking, fair use is not a right, it is a defense against a copyright infringement suit (see footnote 20). Fair use rights do not exist and a whether or not a use is fair or not can only be determined conclusively by a judge/jury after the case has gone to the courts.
7. Work For Hire is Limited: Though, in most cases, copyright in the work transfers to the author, in some cases it can transfer to the employer. Those cases are called “works for hire” and are limited to employees of the company (as recognized by Federal guidelines) and contractors in a limited set of fields that sign a work for hire agreement before the work is created. Most contract work is not a work for hire.
8. It is Possible to Remove Many Infringing Works on the Web: If you find that your work is being misused on the Web, you can have it removed by filing a DMCA notice with the host. Alternatively, you can file a notice with the search engines and have the the content removed from their indexes. This can be done without an attorney or registering a work.
9. Benefits of Registration: Though registering your work with the U.S. Copyright Office does not earn you any new rights to your work, it is a prerequisite to filing suit for infringement in a Federal court, it enables you to collect attorney fees and statutory damages, serves as a public record of the copyright and services as prima facie evidence of ownership.
10. Poor Man’s Copyright is a Myth: Finally, many claim that you can protect a work by mailing it to yourself and using the postmark as proof of copyright. This does not work and no provision of the law exists to make it possible. So-called “Poor Man’s Copyright” is not a substitute for registration.

Notes

Please note that all of the links above point to references on the U.S. Copyright Office Web site. Thus, it is crucial to know that all of these facts are based solely in U.S. law and may or may not apply to other countries.

As always, I am not a lawyer and nothing on this site should be taken as legal advice. If you need legal counsel, seek out a qualified attorney.

Conclusions

Though this information may seem very basic to anyone who has read this site for a very long time, it is important to note and to keep it close to heart.

These facts, and others like them, are the foundations upon which all of the work on this site is built and, without a robust understanding of the fundamentals, there is no way that one would be able to adequately protect their works or avoid copyright disputes down the road.

To new readers of Plagiarism Today, I hope that this helps you gain the fundamental knowledge that is necessary to understand and work with the other tools and methods taught on this site.

I look forward to building upon these facts to create a much more robust understanding of the confusing and difficult copyright climate on the Web.

Image Credit: Copyright Exposed image from the U.S. Copyright Office and is licensed in the public domain.l