However, no two artists are in the same position. A strategy that works for Metallica is not going to work for an upstart blogger. So, nearly every tool out there, no matter how insane it might seem, probably does at least some good for someone.

But then there are the copyright ideas that just don’t do anything or, in extreme cases, actually do much more harm than good.

These are ideas that need to be shot down and put away so better ideas can take their place. However, even though some of these have been around (and debunked) for decades, they continue to linger.

So what are those ideas? There are many out there but here are the ones I’m seeing the most and would like to see finally done away with.

1. Badges and Buttons Everywhere

It seems that nearly every copyright-related service out there is offering badges, banners and buttons for others to use. Though many of these companies do great work and provide a valuable service, the badges and buttons are a complete, or at least near-complete, waste of time.

The problem is simple: Few, if any, would-be plagiarists are going to be deterred by such buttons (if they even notice them) and with so much of the copying taking place via automated means, especially RSS scraping, your infringer likely never even saw the site.

These buttons are just a means to generate links back to the companies. Nothing more.

Better Approach: Instead of using badges and buttons, make sure your copyright notice is in check and that it has all of the required elements.

2. No Right-Click/No Select Text Scripts

There are hundreds of scripts that block right clicks and text selection on a site and they, for the most part, do their job. However, the issue with these scripts isn’t that they don’t stop at least some infringement, but that they do much more harm than good.

My own experiments with Tynt have shown that the vast majority of copying is for use that’s clearly non-infringing. Far more people copy content to share legitimately than to infringe.

Couple that with how easily these systems are defeated and there is literally no reason to use them.

Better Approach: Tynt, if used correctly, can track your copied content and help you understand what’s being used. Be careful though not to use it to mess with the copy/paste function, only to track it.

3. Self-Written Licenses

I covered this in greater detail previously but it bears repeating: Never write your own copyright license.

Not only is it legally risky unless you are an attorney, but such licenses rarely get read and almost never change behavior.

Besides, you don’t need a license to require others to ask permission to use your work. Also, if you want to give permission, there are a slew of professionally-written and free licenses that you can apply at your leisure.

Better Approach: Either stick to “all rights reserved” and handle permission requests one at a time or, if you want, choose any one of the other, professionally-written licenses out there.

4. Fake “Copyright Registration” Services

Though there are some great non-repudation services out there such as Myows and Safe Creative, there are a slew of other services with insane pricing schemes and scare-tactic marketing strategies.

Some of these services will cost up to $20 or more to register one file. Worst of all, these services don’t even register the file with the U.S. Copyright Office (USCO), which is a requirement in the U.S. in order to have full legal protection.

Instead, these services just accept a copy of your file, print you a certificate as to when they got it and take your money.

Better Approach: Non-repudiation services can be helpful but Safe Creative and Myows are both free and provide a slew of additional features. Even advanced certification services, such as EastTimestamping charge well less than a dollar per registration. Never pay more.

5. EXIF Data

Theoretically, this should be a great idea. EXIF, or EXchangeable Image File format, lets you embed text-based information in a jpg file. This includes information about the camera, the date it was taken and even the GPS coordinates. It can also include copyright holder and author information.

The problem isn’t the format itself, which works very well, but that the data is stripped almost everywhere it’s uploaded. In short, nearly every time that you or a plagiarist posts the photo online, including Facebook and Flickr, that information is ripped out as part of the compression process.

Basically, most sites remove the information in a bid to make file size smaller and reduce bandwidth. An unfortunate decision, to say the least.

Better Approach: Image watermarking, either visisble or invisible, is your best approach to protect and track your content. EXIF data just doesn’t get passed along reliably enough to be useful.

Bottom Line

Though I would love to live in a world where I could give the same, simple copyright advice to everyone, that’s not the reality we face. However, there are a few things that I can definitely tell creators to avoid using or, at the very least, avoid relying on.

Whether it’s snake oil salesmen trying to separate you from your money or people with good intentions dealing with unfair realities, some ideas just don’t work.

It’s best to move away from those as quickly as possible so we can find the ideas that do work and focus our energies or productive ways to protect ones work.

Disclosure: I have done paid consulting for both Safe Creative and Myows.

Though the fact copyright affixes to a work upon creation certainly is a big help, the truth is that the law definitely, at least in places, has a pro-enterprise slant.

On that note, here are five quick examples of how copyright law and the current copyright climate, at least in the U.S., favor larger copyright entities and not the little guys.

1. The Registration Requirement

Though copyright affixes to a work upon its creation, in the U.S., you can’t use the courts to enforce those rights until you register it. That will cost you $35 per registration and will take a good chunk of your time.

The smaller you are, the more the time and money sacrifice to register your work hurts. A struggling artist might have to scrape together the money for a registration (if they even know to do so) but larger copyright holders largely keep their registrations up to date at a cost that is reasonable to them.

The larger you are, the easier it is to keep your registrations up to date, thus opening the doors up to additional damages and the ability to sue. In short, the more money you have, the better able you are to enforce your rights, even before you factor in the costs of suing.

2. Moral Rights

In most countries, you have what are called moral rights, which are rights that are affixed to a work in addition to traditional copyrights. These rights include the right to attribution, the right to object to certain uses of your and the right to refuse attribution if desired.

However, the U.S. doesn’t offer real moral rights protection, save in a very limited sense for visual artists. These rights were almost exclusively for smaller artists and original creators to make sure they had rights over their works even if they sold the copyright.

This doesn’t mean that other nations have it any better though as most contracts require creators to either surrender their moral rights or agree not to enforce them. However, in the U.S., usually you don’t even have those rights to surrender, meaning corporations who purchase rights to works don’t have to ask for these rights nor negotiate around them. This puts smaller content creators, looking to sell their work, at a disadvantage in many cases.

3. Weak Copyright Terminations

Though not an example of copyright holders being screwed, it’s an example of how laws supposedly aimed at helping the “little guy” end up having no meaningful benefit at all.

Copyright law does allow, in certain circumstances, authors of older works or their estates to terminate “bad” agreements after 56 years and reclaim the remaining 39 years of copyright. However, the usefulness of this is almost nothing as very few creative works have any value after 56 years, no matter how bad the deal was. Also, after 56 years of use, there’s almost certainly a legitimate divided interest in a copyrighted work, meaning the buyer still owns a large portion of it.

This was the case with the creators of Superman, which were supposed to be the perfect case study. There, a recent rulling split elements of the character between the creators’ families and DC Comics, meaning creators don’t own the rights to several key elements such as his ability to fly, his nemesis Lex Luthor and other attributes.

In short, copyright termination, supposedly a boon to individual creators, is useful only on rare occasions and, when it is, often comes with very large caveats due to the nature of the law. The result is that creators still have to make sure they sign the right contract the first time.

4. Copyright Expiration

On the surface, it appears individuals have it better when it comes to the length of copyright. A work of individual authorship has a copyright term of life of the author plus seventy years where a work of corporate authorship has a term of 95 years from creation.

However, there are two critical problems with this. First, you can’t predict how long your copyright will last as it is tied directly to your death. If you live 100 more years you have a whopping 170 years of copyright protection in your work. Die tomorrow and you have only 70.

The other issue is that all of your works have the same expiration date, regardless of when they were created. Works you made when you were 12 will expire on the same day works you make today and works you’ll make when you are 90. However, every work of corporate authorship gets 95 years from the date of creation.

Though the “life plus” system for copyright expiration is tempting for authors as it ensures no creator will outlive their copyright, it creates disparity in the works a person creates and makes it impossible to actually predict how long it will last. Since corporations don’t necessarily die, a life plus system was impractical for them and it probably isn’t entirely practical for individuals either.

5. Lopsided Enforcement

Want to use the FBI logo on your site or to protect your YouTube clip? You can’t. It’s only for members of the MPAA. Want to pursue criminal charges against an infringer? It’s unlikely any infringement you see will meet the criteria.

Though large corporations already have much more robust civil enforcement divisions, they can also call on the U.S. government to help out as well in many cases. However, almost no individual content creator can bank on that, unless they are part of a larger group.

Even customs enforcement, which is supposed to be available to all copyright holders who register (see above) almost exclusively targets the works of the major copyright holders, namely the movie and record studios as well as some software companies.

As a small content creator, you are pretty much on your own.

Bottom Line

As mentioned above, these only apply to the U.S. but given how central the U.S. is to the world when it comes to copyright policy and enforcement, it’s easy to see how these problems can affect creators the world over.

In the end, if you’re a small, independent content creator, there are many ways that the law is tilted out of your advantage. However, don’t believe that it doesn’t mean bigger copyright holders don’t have some downsides as well. In another column I’ll explore those.

In the meantime, it’s important to note the way the current copyright law and climate is slanted against you, mostly so you can prepare for it.

It’s a scary world for small content creators and, in many respects, copyright law is not here to help.

photo credit: flakeparadigm

If you are a freelance writer/blogger, your copyright is quite literally your livelihood. After all, if you lose the ability to sell and trade on your work, you lose your revenue stream.

However, many freelance writers are woefully unaware of the copyright issues that surround their craft, either finding the issues too confusing or relying instead on misinformation and bad advice.

If you make your living selling your work, no matter what the content is, you owe it to yourself and your future to understand the laws that surround your craft and that is a big part of what Plagiarism Today is about.

However, for freelance writers, here are a few specific tips and points to be aware of in copyright law. Needless to say, this isn’t a thorough overview of all the issues you need to be aware of, but rather, just a few of the finer points that are often misunderstood.

1. Work for Hire May Not Apply

Work for hire law (PDF) is a sticky issue but, for most freelance writers, it doesn’t apply. If you are not an actual employee of the company that you’re writing for, which a freelancer generally wouldn’t be, then for a work to be considered a work for hire it has to meet two conditions:

(1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.

The nine categories referenced in that paragraph are as follow:

(1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;

Clearly, a freelance writing project does not fit neatly into any of those nine categories though it may be considered a contribution to a compilation sometimes.

What this means is that, in many cases, though paid for their work, a freelance author has the copyright in it and can do with it what they please. This includes reselling the work to others, stopping infringement and so forth.

The question then becomes can an author demand removal of a work that has been paid for? The answer is less clear. When you sell a work or write it for a site, there is at least an implied license to allow the customer to use it (what else did they pay for?) but how long the terms last and how other changes in the situation affect it remain unclear.

This is why it is best to get a contract with every project though, bear in mind, buyers can protect themselves with contracts to, mandating exclusivity for example.

2. No Registration, No Lawsuit

Though you have copyright protection in a work the moment it is fixed into a tangible medium of expression, to enforce those rights you need to have a registration on file with the U.S. Copyright Office and, ideally, you need to have done so either within three months of publication or before the infringement took place.

Without a registration, there is no means of filing a lawsuit in the U.S., unless you are a foreign copyright holder, and without a timely registration there is no way to collect statutory damages or attorney’s fees, which makes a suit impractical in most cases (this is true for both U.S. citizens and foreign copyright holders).

If you’re serious about enforcing your legal rights, you need to regularly register your work and maintain those registrations. Without them, though you can file takedown notices and take other action, you can not take the case before a court.

3. Attribution Not Always Required

Though some freelancers ghostwrite content by choice, and are paid well for it hopefully, others do not and are upset when they don’t receive attribution for their work.

Unfortunately, in the U.S., there is no protection for moral rights, at least not for writers and non-visual artists. as such, Attribution is usually not a requirement for such content use, unless it is stipulated in the contract.

This is an area where the U.S. deviates sharply from other countries, which usually have a very robust protection for moral rights and mandate that attribution be included, even when the copyright in the work has been sold.

However, even in countries with moral rights, authors can often times sign away their right to enforce them, which effectively negates them and such clauses are common.

4. Copyright Transfer Requires a Signed Contract

This is a related issue to the work for hire one mentioned above, but it is important to note that the law very explicitly states that, without a written and signed contract (at least one signed by the original rights holder), a transfer of copyright can not take place.

According to the law, copyright is very much like any other piece of property you have in that you can sell it, lease it, rent it or give it away. However, you can not transfer a copyright without a signed agreement, meaning that oral agreements and “handshake deals” are not valid.

In short, if you have not signed over the copyright to your work, you haven’t given up your copyright.

That being said, in many cases, as with the terms of service on various sites, you may grant licenses of use that can, in some cases, behave much like a transfer of copyright. It is a situation similar to being the owner of a car but not being able to drive or otherwise use it as those rights are assigned to someone else.

5. The Messy World of Joint Authorship

Under copyright law, the copyright of a work almost always transfers directly to the creator of it. But what happens if more than one person collaborate on a work? Things often get messy.

Joint authorship is a very confusing and difficult area of copyright law but the fundamentals are pretty easy.

First, all authors have an equal share of the work, regardless of the size of their contribution, and all can independently, without the agreement of the other parties, enter into non-exclusive license arrangements (though revenue earned has to be shared equally). However, exclusive licenses require the input of all authors.

Second, each author can do what they want with their portion of the copyright, including selling it, leasing it, etc. The exact same with any other copyright they hold. Finally, the authors are all given an undivided share, meaning that they own part of other’s contributions as well as their own.

However, a work only qualifies as a joint authorship when the authors work together “with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” In short, if the contributions can be easily separated, such as separate chapters in a book, joint authorship doesn’t apply.

Enter into joint authorships at your own risk and, if you do, always have a clear contract and clear understanding of what the rules are before going in. Joint authorships have destroyed many good friendships and partnerships over the years.

Bottom Line

If you don’t understand what your rights are in your works, you can not enforce them or exploit them and, if you’re a freelancer, that can have a very negative impact on your business.

The same as construction companies need to know building codes and delivery companies traffic laws, it is important for freelance writers to understand copyright law.

Once again, this is not meant to be a thorough overview of copyright law for freelancers, but rather, an overview of some of the most commonly misunderstood points of the law that relates to them. Any freelance writer would do well to visit the U.S. Copyright Office site and learn more about the law if they don’t know it well already.

A few hours of education can save you tons of money and tons of headaches down the road.

It is a worthwhile investment for every freelance writer.

As I mentioned yesterday, it has come en vogue for programmers to create simple plagiarism checkers that feed queries to Google or another search engine. The other tool commonly created is non-repudiation service, such as Numly, MyFreeCopyright, etc. that register works in their database to provide verification of ownership and time created. However, as with the new plagiarism checkers, they rarely meet or add anything to well-established and trusted services, such as the ones above.

Though non-repudiation services are never substitutes for formal registration with the U.S. Copyright Office, they can provide a stop-gap between USCO registrations and some verification in the court of public opinion. They can also help transmit license and other information, making them a potentially useful service.

Now, we have another entrant into the non-repudiation field, this one entitled Safe Creative. Though, on the service, it provides a pretty standard set of features, time and date stamp, downloading of content, etc., the service hopes that its additional features might make it a compelling alternative to competing services and that its price tag of free makes it the number one choice for creators on the Web.

But can it stand up to the established services? The answer seems to be a resounding yes.

How it Works

Safe Creative works on the same principles as virtually all other non-repudiation services. Users register for an account on the site and then set it up with their personal information.

Users can then upload the works that they wish to register. Doing so requires them to provide the title of the work, the content of the work, either as a file upload or pasted text, select the work type, select public or private registration, indicate whether they are the author, the rights holder or both, and then select a license for the work. Authors also have the option of providing an excerpt for the work, tagging it and designating an alias for it.

Once the author has uploaded the work, they are then provided with a series of buttons and badges that they can use on the work and a URL that links to the registration online (sample).

One way that Safe Creative stands out from the other sites and services is that it does not merely fingerprint the data, but actually stores the files. Whether you upload text, images, audio or video, the site actually stores the content (up to 400 mb), making available for download if that option is selected. Where other services have relied on investigators to check a fingerprint to verify the validity of a file, Safe Creative lets those interested view the file for themselves.

All of this is fairly straightforward but what makes Safe Creative unique is a series of “add on” features that it hopes will make the service more compelling, powerful and easy to use.

The Good

Beyond the standard set of features that let users upload, stamp and license their work, Safe Creative tries to expand its service offerings in a number of ways, including the following:

1. Barcodes: With each registration, Safe Creative provides a series of barcodes and labels that can be applied to the work. Though Numly has done this for years, what makes Safe Creative unique is that it provides various kinds of barcodes, including a numerical one (human readable), a regular line barcode and a data matrix one (example above). Also interesting is that Safe Creative provides the labels in 72, 150 and 300 DPI, making them viable for works posted on the Web, printed at home and printed professionally.
2. Bulk Register Feature: If you wish to register multiple works at the same time, such as all of the images in a gallery, you can use the bulk register feature. This will allow you to create a registration template and then upload many files at once to save time. You can also save the template for use later.
3. Bookmarklet: Under “Tools” in the account area, there is an IE and Firefox-compatible bookmarklet that lets users automatically register content on the Web. You can use it with any text that you select or, if you are a WordPress or Blogger user, it can pull the content straight from your post creation page, adding the title and other information in for you.
4. Advanced API: Though no applications use it yet and the features appear to be in early testing, Safe Creative has laid the groundwork for a robust API, giving all users both shared and private keys. This could easily pave the way for Safe Creative integration into various applications and platforms.
5. Pre-Registration: Finally, the site allows you to upload a work and then make modifications to it for the next 24 hours. Though any changes, obviously, also alter the timestamp, it’s a great way to fix any errors that you see in your post after submission and don’t want to appear in your final record.

But as impressive as these features are, the service also has its drawbacks and limitations. Unfortunately, some of them may hinder the effectiveness of the site as a non-repudiation service.

Some Problems

Before one jumps to Safe Creative and begins using the service, there are a few issues that need to be weighed before trusting it blindly as a service.

1. Based in Spain: Though this is not a drawback in and of itself, the site is registered and hosted in Spain. Since the effectiveness of any such service in court would depend heavily on the creators of the site testifying to the validity of the information, for U.S. residents, having the service creators so far away could pose a large challenge in that unlikely event. Obviously though, this would be a benefit for anyone in Spain or elsewhere close by.
2. No WordPress/MovableType Plugin: Though the bookmarklet reads from the WordPress write page and the API should, theoretically, make it possible to create such a plugin, one does not exist right now and there is no automated system for pulling from a feed, as with MyFreeCopyright. As such, the system is hardly “set and forget” but something that you have to remember to do with every post. This limits its usefulness by virtually ensuring that some works will not be registered timely.
3. Bugs and Glitches: As I’ve gone through the service, I’ve seen a variety of minor issues with usability. Some visual bugs caused tabs and headers in the site to break, a confusing navigation system kept dropping me onto the home page of the site and help is pretty scarce at the moment. Though you can easily overcome most of these problems with a little work, it makes the service more difficult to use and seem less professional than one would like.

It is also worth noting that the bulk import feature is somewhat limited by the fact that it only accepts file. While photographers and podcasters will likely not have an issue, there is no way, at this time, to easily import a WordPress database or a collection of content posted solely on the Web. If you do not have your content in a collection of files on your PC, you pretty much have to do the works one at a time through the ordinary process (though the bookmarklet can help some).

Though none of these problems are what I would consider “deal breakers”, they do show that the service is far from flawless and does have a ways to go before it becomes the perfect solution.

Comparisons to Other Services

Compared to other services in the field, Safe Creative fares pretty well.

The most obvious comparison is with Numly, as the features seem to be most on parity. In that regard, Safe Creative actually seems to hold something of an advantage as it provides more bar code options and is completely free for unlimited use, where Numly requires a monthly fee for more advanced accounts. However, Numly is based within the U.S., allows users to designate a licensee (thus enabling them to register each copy of a work) and has offered a WordPress plugin in the past and is likely to do so again soon (though it is currently defunct).

MyFreeCopyright, on the other hand, holds a slight edge on simplicity. Due to its integration with RSS, the site makes it easier for bloggers to get content into the system (though there is often a delay in the material appearing) but offers fewer features in terms of registration services. There are no labels, no pre-registration (Numly provides no pre-registration either) and a more limited set of licenses available (MFC is CC and “All Rights Reserved” only).

All in all, Safe Creative stacks up pretty well against the competition, providing a free, albeit somewhat more limited, alternative to Numly. However, it lacks some of the critical features that were introduced by MyFreeCopyright, but those problems can and likely will be fixed by programmers as they take advantage of the API to create the plugins and extensions that are needed.

Though Safe Creative does provide a lot to get excited about, it is far from the perfect non-repudiation service. However, with a few simple fixes and improvements, it could become something that is pretty close.

Conclusions

In the end, Safe Creative is a solid choice for a non-repudiation service. Though bloggers will probably be better off with MyFreeCopyright for the moment, it makes sense to keep an eye open for plugins for Safe Creative. If done correctly, Safe Creative not only could provide a solution more effective than MyFreeCopyright, registering works as they are created rather than once a day, but with added features.

Ideally, I think it would be interesting if a plugin for Safe Creative took advantage of the pre-registration feature of Safe Creative to register posts in the draft stage, updating them until they were registered. That way, if there were a dispute over an unplublished post, say one involving a multiple-author blog, the service could be used to verify ownership.

All in all though, it is a solid service and it would be nice to see programmers and others take advantage of the API to create some new tools.

In the end, The Safe Creative available today is really just the beginning. How useful it becomes is going to depend upon what others decide to do with it.

Here’s hoping that there are some crafty programmers that are going to do some very exciting things.

Meanwhile, the rest of Americans, as well as the vast majority of copyright holders, were threatened with prison if we used the logo without permission.

Though the commenters to the original piece were worried about the nature of the logo and the preferential treatment that the government was giving big copyright, the FBI logo is relatively harmless abuse. It hasn’t done anything to stop piracy and, aside from being a slap in the face, has very little meaning to your average copyright holder.

However, the FBI logo is just a microcosm of the larger problem. The United States stands alone in the world as a country that has created a copyright class struggle by unfairly stacking the deck against your average rightsholder.

In short, the entire copyright system in the United States is tilted to favor big copyright. It makes possible both the $222,000 Jammie Thomas ruling and the recent misappropriation by Fox Sports of a cherished family photo.

This system ensures that individuals have almost no protection of their works while corporations are free to sue for massive amounts of money. The scariest part of all, the process only requires two simple laws, both of which should have been fixed a long time ago.

Registration Requirements

When the United States joined the Berne convention in 1988, one of the supposed requirements was that the U.S. was supposed to do away with all copyright formalities, making protection automatic upon creation of the work.

However, the United States dodged that requirement. Though they did make protection automatic upon fixation, it was decided to still require registration before either suing in a Federal court or obtaining statutory damages and attorney fees.

So, while you technically have all of the same rights on a registered work as an unregistered one, you can not enforce those rights without first paying the $30 or $45 fee to register your work with the United States Copyright Office. Ideally, this registration needs to be filed before the work is infringed to ensure that you can claim the maximum amount of damages.

The problem with this is very simple. Most individuals can not afford to register every single work and most don’t have time to file for registration before posting it online. Of the photographs, blog entries, stories and even novels posted on the Web, only a tiny fraction of a percent are actually registered.

Big copyright holders, such as the RIAA and MPAA, have no trouble with this requirement at all. When your spending thousands or even millions on a single copyrighted work, the registration fee is barely noticeable. Their distribution model also makes it possible to register before the work is seen outside their studio.

The result is that only a handful of copyright holders in the U.S. have access to our courts. Without registration many cases are thrown out and works registered after the infringement are, generally, only eligible for actual damages. Without statutory damages and attorney fees, such cases are rarely worth pursuing.

But when big copyright holders show up in court, they are able to sue for very big damages. Not only does the law make it possible, but since such cases rarely reach courtrooms, even these days, judges and juries have little reason not to give big judgments.

In short, one Jammie Thomas ruling makes sense, but if every copyright holder who was infringed could make that much or more, the system would fail. Both the law and the judgments would undergo something akin to a market shift and more reasonable rates would have to be reached.

Unfortunately, we don’t have that kind of access. Not only does this keep rulings artificially high, but also enables them to take copyrighted works with relative immunity. Since we have no effective legal recourse, they can do, in many cases, exactly what they please.

Moral Rights

Another element of the Berne convention that the U.S. did not implement was the issue of moral rights.

In most countries, including Canada, artists have rights to the work that go beyond traditional copyrights. These include the right to attribution and the right to protect the integrity of the work, even after it has been sold.

In many countries, especially in Europe, these rights are inalienable, meaning they can not be bought, sold or given away. You can agree not to enforce those rights, but you can never outright surrender them.

Moral rights are an important protection for individuals in other countries. It means that, even when sells or gives way some or all of their copyright, the work will still bear their name and continue to work for them as it is distributed and copied.

Many see it as an anti-corporation set of rights as it protects the creator of a work against the publishers and distributors that purchase or acquire copyright interest in the work.

According to the United States, there was no need for specific moral rights legislation since much of it was covered under other statutes, specifically slander and libel.

But despite that claim, the U.S. did implement some moral rights in the Visual Artists Rights Act (VARA). However, those rights were limited in nature and restricted solely to certain kinds of visual artists. Writers, musicians and other copyright holders still have no concrete moral rights protection.

This means that, once you have sold commercial interest in your work, there is little that you can do to protect it, even if a third party comes along and plagiarizes it. This greatly limits your control over your name and reputation while putting control over the work in corporations with very little motive to defend your work.

However, since moral rights restrict what a copyright buyer can do with a purchased work, even if only slightly, corporations have typically opposed implementing any serious moral rights regime.

This, in turn promotes a “sell and forget” system that encourages copyright holders to sell away their works without questioning how they will be used once they are bought. This kind of complacency serves big copyright holders well and ensures that they are the only ones actively enforcing rights in the courtrooms.

Fixing the System

The solution to the problem is simple, fully implement the Berne convention standards, both in law and in spirit. Other countries have had these items in effect for decades and have not seen the kind of copyright insanity we see here in the United States.

Yes, there are some oddities in foreign laws, but overall they do a better job of protecting artists, the people copyright is supposed to protect, without trampling on users.

Basically, the U.S. copyright system was built from the ground up to be an almost purely commercial system. The rights of copyright holders are expressed almost exclusively in terms of dollars and cents, not creativity and art.

This has lead to the rise of not just big copyright as an entity, but a two-tiered copyright system. Even as more and more individuals are self-publishing and becoming copyright holders with a legitimate stake in their own work, albeit not always a financial one, the system does not treat them as such.

If the United States fulfilled the promises it made decades ago, this issue would be significantly lessened.

Unfortunately, given the grip that big copyright has on our current legal system, it seems unlikely that such a change will happen any time in the near future.

Conclusions

Before we can talk about copyright reform or adjusting the rights that copyright provides, we need to first make sure that all rightsholders are treated equally.

Simply put, any copyright reform that only impacts one kind of rightsholder is no more fair than the current system. Furthermore, as long as big copyright has all of the power and all of the court access, it is very hard for the majority to be heard.

But since the current system prohibits most copyright holders form leveraging their rights in a courtroom, it is easy for the corporations to cull the “us vs. them” system to obtain newer and stronger laws that benefit them alone.

Rather than looking at us as content creators and copyright holders, the system treats us primarily as consumers, even if we are producing over 99% of the copyrighted works available.

Once we have equal access and an equal voice, then we can talk about fixing the system. Without balance between the classes of copyright holders, there can be no balance between creator and consumer.

This class warfare greatly behooves big copyright. It is time to stop it and the way to start is to demand your own rights equal to those that the RIAA and MPAA gets.

It seems a strange way to reform the law, I admit. But is the only way we are going to be heard and taken seriously. Until we have legal power behind us, we are simply too easily ignored.

Worst hit of all are the bloggers, who often endure the worst kinds of infringement only to discover that they have no ability to enforce their rights.

At fault is a legal system that is still in place nearly 20 years after it was supposed to be eradicated. It ensures that copyright in the United States favors big businesses, such as the publishing houses, record labels and movie studios, while limiting the rights of the everyday citizen.

Worst of all, even as the government talks about strengthening other areas of copyright law to the point of insanity, there is no mention of righting this fundamental imbalance.

It is time to close the United States Copyright Office, or at least a large portion of it, end the registration requirement and, finally, bring small copyright holders to table.

No other Western nation has this requirement and it is time for the U.S. to catch up with the rest of the world.

A Bit of History

When the United States signed on to the Berne Convention in 1989, well after nearly every other country had signed on, all formalities required to obtain a copyright were supposed to be eliminated. This included, in theory, copyright registration.

The United States, however, found a way around that. According to U.S. law, all of the rights a copyright holder obtains are bestowed upon them once the work is “fixated into a tangible medium of expression” but one has to register their copyright and pay the $45 fee before they can sue for any infringement in a Federal court.

This is akin to saying that you own a vehicle once you have paid for it, however, you have to register it with the motor vehicle office and pay a fee before the police will look for it if it is stolen. The ownership is effectively meaningless.

Worse still, in the U.S., you can only sue for statutory damages for infringement that occurs after the work is registered. Since actual damages in many infringements is effectively zero (and are difficult to prove when they take place), suing for infringements that take place before registration is almost impossible.

This system does not hurt traditional media. The cost of registering works is not prohibitive to them and, generally, they can register works before they are distributed, such as submitting a CD or book before publication. Bloggers, on the other hand, can not afford the $45 per work fee and can not wait to register a work before publishing it. For us, creation and distribution are the same process.

At best, bloggers can register their site as a collection, for one fee, months after the first works were published. This is far too late to deal with most infringement as the life cycle of a blog entry is often measured in hours, not weeks.

By the time the registration is complete, the opportunity to enforce copyright has long since passed.

An Unfair System

In addition to favoring large copyright holders, the system is unfair for a spate of of other reasons as well.

• Favors Foreign Works: Due to the Berne Convention, courts have to treat foreign works as if they were registered whether or not they were. Though many foreign copyright holders still register for the prima facie evidence of ownership, they can sue for statutory damages regardless of registration status. In short, the U.S. treats its own copyright holders worse than ones in other countries.
• Favors Wealthy Copyright Holders: A $45 registration fee might not seem like a great deal, but when you register many works, the cost can add up quickly. Simply put, wealthy copyright holders are better able to register and protect their works than poorer ones. The removal of formalities was designed to remove that kind of bias.
• Harms those Ignorant of the Law: Copyright holders unaware that they need to register in order to sue for infringement or collect statutory damages might not register and, out of ignorance, harm their rights. Since copyright law is such a difficult and misunderstood area of law, such confusion is bound to happen among artists, who tend to be laypeople.
• Harms Immediate Media: Any media that does not have a delay between completion and distribution can be harmed by this. Since the copyright holder can not wait for the work to arrive at the USCO, which is when the registration becomes effective, some infringement will almost always happen before the work is registered. This hurts journalists, both traditional and Web-based, as well as many types of radio/tv programming.
• No Benefit to Artists: If the intent of copyright is “To promote the progress of science and useful arts” then this system is a total failure. Removing it would not harm any copyright holders, including those that work well under the system now, but would help the vast majority of rights holders.

None of this would be an issue if the copyright office and copyright law would recognize online distribution of a work as publication. Since you have three months after the date of publication to register a work without missing out on any damages, it would, theoretically, be possible for a blogger to re-register their site every three months.

However, the copyright office, generally, does not consider posting to the Web as publication (PDF), but rather, as public display. Though the author can choose to present the work as published, there is no guarantee that would hold up in court.

When it is all said and done, there is no legitimate reason for keeping this copyright registration policy in place. There is a good reason that other nations have done away with their registration requirements, at least as a requirement for copyright enforcement and it becomes clear why when one looks at the problems associated with such a system.

Worse still, as the Internet not only increases the distribution of works, but the speed with which they are published, it only pushes the Copyright Office further and further in to obseletion, making it nothing more than a relic and an antiquated system.

Some Good News

Fortunately, when it comes to copyright registration and bloggers, there is some good news.

First, copyright registration is not required to file a DMCA notice or send a cease and desist letter.

However, if either of those notices are ignored, then enforcement through a court of law would be almost impossible. One could register then and hope that the work arrives at the USCO before the infringing copy is removed, but even as the work was traveling to the Copyright Office, unclaimable damages would be accruing.

Second, there is one kind of copyright infringement that does not require a registration to sue for, the removal or falsifying of copyright management information (CMI). This is basically the removal of attribution, copyright information or licensing data from a copyright protected work, a critical element of plagiarism but not all copyright infringement.

Though you would still have to register your work before you sued, you could still claim damages for infringements that took place before the registration was filed. Those damages, according to the law, are between $2,500 and $25,000 per work. This amount could easily be worth suing over if more than a few works were taken.

But even with these tools available to non-registered rightsholders, it is clear that severe limitations are still imposed on them, limitations that do not appear ready to be lifted any time soon.

Conclusions

It is the height of insanity that the United States, on one hand, keeps increasing penalties for copyright infringement and empowering copyright holders more than ever while simultaneously keeping the majority of rightsholders from enjoying those privileges.

It is a showcase of favoritism and raises severe questions about the impartiality of our copyright policy.

Of course, if all copyright holders were brought to the table and able to eat the same food as the RIAA, the insanity of much of the U.S. copyright code might be exposed. Drastic steps might seem prudent when trying to defend a multi-billion dollar industry, but what happens when bloggers get the same rights and start to use them?

Strangely, empowering all rightsholders might help users and the public at large by forcing the government to look at its other policies and make rational changes. The abuse of the wealthy can be justified on paper but the abuse of many can not. In short, the current system encourages the RIAA and the MPAA abuses we’ve witnessed by ensuring only a wealthy handful have the ability to take advantage of the law, letting those in power justify the system that is in place.

However, all copyright holders are, supposedly, equal and should enjoy the same protections for their work, regardless of their wealth or background.

The published poet did not work more than the unpublished one. The musician with the record contract put as much love into his music as the one still in his garage.

Copyright law should reflect that, even if it means making other changes to the law. It is that simple.

That, in turn, opens up the possibility for statutory damages as well as the return of any legal fees. Without these damages and fees, suing for copyright infringement, the in vast majority of cases, is simply not feasible. The actual damages are just too low to warrant hiring an attorney and going to court.

So, while registering your work with the USCO is not a requirement for copyright protection in the United States, it is a necessity in order to defend your work in court.

But the USCO’s system for registration was designed and developed in a different era. It is built to handle books, records and movies, not blogs and Web sites. Thus, registering your work with the USCO is both a tough decision and a difficult challenge.

Who Should Register

The first question most people ask when dealing with the USCO is whether or not they should register at all. After all, going through the trouble and expense of registration can be a daunting challenge.

To answer that, one has look at how likely they are to actually sue someone for infringement. Registration with the USCO is not necessary to file DMCA notices with hosts/search engines or cease and desist letters to plagiarists. If your sole interest is getting your work removed, registration with the USCO does not give you any extra tools, save, perhaps, some extra intimidation.

Given the global nature of the Web, suing someone for infringement is a very difficult matter. Once you’ve tracked them down they could be thousands of miles away, necessitating that you hire attorneys far away from you, travel to their location and take days off to handle these matter.

Though these costs can be recovered upon victory, many plagiarists are financially indigent and unable to pay, leaving you with the bill.

The end result is that, even though registering with the USCO never hurts, unless you think you might have cause to sue someone, it doesn’t do much good.

Still, it is better to be safe than sorry. Even if the chances seem slim, it may still be worth registering. After all, it’s a situation where a small investment can result in thousands of dollars in damages.

How to Register

Since the USCO hasn’t yet turned on their online registration functionality, registering a Web site, especially one that is regularly updated, is a tricky matter.

First, you need to download a complete copy of your site. If you have a static site that is backed up on your computer, you can use that, otherwise, you can use a tool such as HTTrack to download a copy of it to your computer.

Once you have a copy of your site downloaded, burn one copy of it onto CD and label those CDs with the work title and the author name. Also print out five representative pages of the site, for example, five articles or entries,

Then, fill out the appropriate form (most Web sites will use short form TX (PDF) as they are considered textual works with or without photographs and illustrations) and fill it out. The instructions for filling out the form are with the form itself.

One important note is that, even with blogs, do not use the form for serials or periodicals, those are for collective works, not serials published one article at a time. It would also be much more expensive, $25 per issue rather than a one-time $45 fee.

The only difficult question is whether or not the work is considered published or unpublished. Sadly, U.S. copyright law does not answer the question about whether or not posting a work online constitutes publication. That is left up to your discretion but, since a public performance or display of a work does not, in and of itself, constitute publication, most choose to say it is unpublished unless copies of the work are also being sold.

If you choose to consider it a published work, the publication date would be date the version you are registering was published. Most likely, that would be when the last changes were made and the latest updates were uploaded.

All in all, the process of registering a Web site is fairly easy. However, it requires thinking of one’s site in a very old-fashioned way, as a collective work that is still being revised. Hopefully the online registration system will change much of that and bring the registration process up to speed.

When To Register

The law states that, in order for the registration to be prima facie evidence of validity of copyright, it has to be made within five years of publication. However, since most Web sites are not going to be considered published works, there is no hard requirement.

When one should register and how often they should update will depend on how frequently the site is updated, the potential harm to the content if it goes unprotected and the expenses involved. Some people register yearly or even less often, others re-register monthly and others run the gamut between.

There is no right or wrong answer to this question. It is just a matter of finding the right balance between cost and protection for you.

Extra Help

Though registering a site with the USCO is fairly easy, if you need extra help, there are other services such as Godaddy’s C-Site service available to help you for a fee.

These services can provide excellent support and convenience at a decent price. However, it is important to note that there is little reason to use these services other than the ease they provide.

Though some services will promise to provide you with faster service or greater protection, they can provide neither. Other than offering a legal review of the application, which is rarely necessary, these services can not provide anything you can not give yourself.

Conclusions

For most bloggers and Webmaster, registering their works with the USCO is not a necessity. Since they are unlikely to ever sue for infringement, registering with the USCO is simply a drain on time and money.

Those who are interested in registering are, most likely, better served by waiting for the USCO to release their online registration as it is promised to be cheaper, faster and easier to use. Hopefully that is only a few months away.

But those who don’t want to wait can, for the most part, file their own registration easily and quickly. All that it takes is a downloaded copy of the site, a few printed pages, filling out a short form and the writing of a check.

However, if that is too complicated or intimidating, there are a slew of services standing by to help, for a small fee. One can now register their site without ever leaving their computer.

In short, if you want to register your site with the USCO, there is no reason not to. The tools are widely available, it is just a matter of putting them to use.