One of the most disputed issues in intellectual property is how to Copyright something. Not because it is difficult, but rather because of how simple the process is. Technically, you already have copyright to your work from the moment you create it. It doesn’t have to be published to be protected. However, if you intend to formally protect your copyright, then this can be done by registering with the United States Patent and Trademark Office (USPTO).
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How do I obtain copyright protection?
The current U.S. Copyright Act (1976) states that copyright protection exists in a tangible medium of expression in a work of authorship that is original and fixed. Due to their ease of acquisition, copyrights have become the most popular form of intellectual property protection. These sections below discuss the nature and character of acquiring copyright protection:
- Originality Requirement
- Works of Authorship
- Automatic Creation
Copyright law protects works that are “original.” The amount of originality required to protect a work is very small. In order to satisfy the originality requirement, the work cannot be a reproduction from another source; it must also be unique. If the work is a compilation, it must have some originality beyond the alphabetic sorting and arrangement of all the available works. Beyond that, the originality requirement can be met by almost any work created by an author.
Works of Authorship
To express the types of works that are protected by the copyright law, the Copyright Act (1976) uses the phrase “works of authorship”. Congress deliberately chose this broad phrase to avoid having to rewrite the Copyright Act every time a new medium was discovered. The effect is that the Copyright Act (1976) can protect Web pages and mobile device apps, even though they were not available at the time it was written. To clarify what was meant by “work of authorship”, Congress included a list of eight works of authorship within the Act:
- Literary works;
- Music works, with any accompanying words;
- Dramatic works include any music that is accompanied by it;
- Choreographic works and Pantomimes;
- Sculptural works, Graphic and pictorial;
- Audiovisual works and Motion pictures;
- Sound recordings; and
- Architectural works.
The above list is not considered to be comprehensive, but most protected works can be found in one of these categories. Computer programs, compilations, and maps are all registered as “literary work,” while architectural plans and maps are “pictorial, graph, and sculptural works”.
For protection, a work must be fixed in a tangible medium of expression. If a work is on a medium that can be perceived, reproduced, or communicated, it is considered fixed. For example, by writing down a song on a piece of paper, it becomes fixed.
The medium through which the song can be perceived, reproduced, and communicated is paper. The medium does not have to be able to be perceived by humans. As long as it can be viewed by machines, the medium is acceptable. The song is fixed when the author records it using a voice recorder. A computer program can also be fixed if it is stored in its memory.
In 1978, the United States created automatic copyright protection. This means that copyright protection is not subjected to any other actions. You don’t need to apply for copyright protection or place a copyright notice on a work.
Before 1978, these “formalities” were once required in order to obtain copyright protection. The act of publishing work with a notice of copyright was the only way to secure statutory copyright. If unpublished, the only way to secure statutory copyright was registration. A work published without a copyright notice could enter the public domain and not have copyright protection.
Under the current law, the formalities of notice and registration have become recommended steps to increase copyright protection.
Compilation copyrights is a type of copyrightable work. The Copyright Act (1976) defines compilation copyrights as work that is made from the “collection and assembly of preexisting material or data that have been selected in such a manner that the resulting work constitutes an original work by authorship.”
Steps to Obtaining a Copyright
Technically, all work that is subject to copyright is copyrighted if it is in a tangible medium. Copyright registration offers important benefits such as the ability to assign the work, to sue for statutory damage, attorney’s fees, and court costs.
To obtain copyright registration, you need to create work that is eligible for protection and then register with the U.S. Copyright Office. Small businesses are encouraged to register in order to be able to transfer their copyrighted works. This could help your company in the event of a merger, takeover, or other circumstances.
Copyright registration is only possible if the works are original and contain some creativity. They must also be in fixed form like maybe a paper or on a compact disk. Copyright protection covers literary texts, visual arts like paintings and sculptures, musical and dramatic works, motion pictures, and architectural works.
Often, works are not eligible for copyright protection because they include facts, short phrases, slogans, ideas, and names.
2. Copyright Application
You have two options when applying for copyright registration: you can either use a paper application or apply online through the Electronic Copyright Office (eCO). An eCO application offers faster processing times, online tracking status, and credit card payment. You will need to provide the Copyright Office with your name, email address, and password in order to sign up for an eCO application.
3. Complete the Application
To complete your application, please tell the Copyright Office what type of work you want to register. You will also need to provide your name, address, contact information for the author of copyrighted works, the title and a statement if the work was previously published, the nation of publication, and your personal certification that you are authorized to apply for copyright registration on behalf of your business.
4. Submitting an Application
Once you have completed your copyright registration application, you will need to send a copy to the U.S. Copyright Office. You can upload a copy directly to the Copyright Office if you have used the online registration. You must send a copy of the work to the address indicated on your copyright application. Thereafter you will need to pay the filing fee.
The Benefits of Registering
While registration is not required, it can enhance the strength of a copyright claim. First, registration implies that the underlying copyright is valid. The registration also implies that the copyright holder is the one who registered it. A successful registration also proves that the material is eligible for copyright protection and that the registered party is the true owner.
Infringement litigation is only possible if registration is completed. Copyright owners can only initiate litigation for infringement if copyright registration is successful. A certificate of copyright registration must always be attached to an initial complaint in an infringing proceeding.
If you, as a copyright owner, want to be entitled to any copyright-related damages, copyright registration is required. Although copyright law allows courts to award statute-defined damages for infringement and additional damages for willful infringement, registration is required for these statutes.
A copyright registration application can be made at any point during the term of the copyright. Registration does not need to be requested immediately after the establishment of copyright rights. You can apply for registration even if a significant amount of time has passed since the date copyright rights were established.
The Copyright Office can grant an expedited review of a registration application in certain circumstances. However, the applicant must justify why expedited treatment is necessary. A common reason for such a request is the need to bring litigation against infringement. The Copyright Office has complete discretion over whether to grant an expedited review.