Bitlaw

Obtaining Copyright Protection

Executive summary:

Under the current U.S. Copyright Act, copyright protection exists in "original works of authorship fixed in a tangible medium of expression." The ease in which copyright rights are secured under this definition has led to copyrights becoming the most widely available form of intellectual property protection. The discussion of the acquisition of copyright protection is divided into the following sections:

Originality Requirement:

For a work to be protected by copyright law, it must be "original." However, the amount of originality required is extremely small. The work cannot be a mere mechanical reproduction of a previous work, nor can the work consists of only a few words or a short phrase. In addition, if the work is a compilation, the compilation must involve some originality beyond mere alphabetic sorting of all available works (see the discussion on compilations below for more information). Beyond that, almost any work that is created by an author will meet the originality requirement.Content

Works of Authorship:

The Copyright Act uses the phrase "works of authorship" to describe the types of works that are protected by copyright law. This purposefully broad phrase was chosen by Congress to avoid the need to rewrite the Copyright Act every time a new "medium" was discovered. This intended ambiguity allows the Copyright Act to protect World Wide Web pages and multimedia cd roms even though these items did not exist at the time the Copyright Act was written. In order to clarify what was considered a work of authorship, Congress included a list of eight works of authorship in the Act itself:

  1. literary works;
  2. musical works, including any accompanying words;
  3. dramatic works, including any accompanying music;
  4. pantomimes and choreographic works;
  5. pictorial, graphic, and sculptural works;
  6. motion pictures and other audiovisual works;
  7. sound recordings; and
  8. architectural works.

Although this list is not meant to be all-inclusive, most protected works fall into one of the specified categories. These categories are broader than they initially appear to be. For example, computer programs and most compilations are registered as "literary works," while maps and architectural plans are registered as "pictorial, graphic, and sculptural works."

Fixation:

In order for a work to be protectable, it must be fixed in a tangible medium of expression. A work is considered fixed when it is stored on some medium in which it can be perceived, reproduced, or otherwise communicated. For example, a song is considered fixed when it is written down on paper. The paper is the medium on which the song can be perceived, reproduced and communicated. It is not necessary that the medium be such that a human can perceive the work, as long as the work can be perceived by a machine. Thus, the song is also fixed the moment the author records it onto a cassette tape. Similarly, a computer program is fixed when stored on a computer hard drive. In fact, courts have even held that a computer program is fixed when it exists in the RAM of a computer. This is true even though this "fixation" is temporary, and will disappear once power is removed from the computer. (For more information on when a work is not fixed, see the BitLaw discussion on how unfixed works are not protected by copyright law).

Automatic Creation:

The above three requirements are the only requirements for copyright protection. As a result, copyright protection exists the moment an original work of authorship becomes fixed. For example, the song in the previous example is protected by copyright at the moment it is written to paper, or recorded on a cassette tape. A computer program is protected the exact moment that it is saved to disk.

No other actions are required for copyright protection. There is no need to file an application for copyright protection, or to even place a copyright notice on a work. These additional steps, often referred to as "formalities," were previously required to secure copyright protection. Under the current law, the formalities of registration and notice now merely serve as recommended steps to expand the protection provided by copyright (see the discussion on copyright formalities for more information).

This automatic creation of copyright protection in the United States began in 1978. Before 1978, statutory copyright was generally secured by the act of publishing a work with a notice of copyright on the work. If a work remained unpublished, statutory copyright could be secured by the act of registration. If a work was published without a copyright notice, the work could enter the public domain and would not have copyright protection. Any work that was in the public domain on January 1, 1978 remained in the public domain.

Compilation Copyrights:

Compilation copyrights are a special breed of copyrightable work. They are defined by the Copyright Act as a work that is formed by the "collection and assembling of preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship." An example of a compilation would be a collection of the most influential plays of the Eighteenth Century. The individual plays themselves would not be subject to copyright protection, since the copyright would have expired (see the discussion in BitLaw on copyright duration for more information). However, the selection of the plays (as well as their order) involves enough original, creative expression to be protected by copyright. Therefore, the grouping of plays is protected by the copyright in the compilation even though each individual play is not protected.

A grouping of facts is also protected as a compilation, assuming the grouping contains enough original expression to merit protection. An example of a protectable grouping of facts would be the links to other web sites found in the BitLaw legal links section. Each link consists merely of factual information, namely that a particular web site can be found at a particular URL location. Thus, there is no copyright protection for the links. Although the individual links can be copied and placed unto another web site, if the entire list (or a substantial portion) of the list were copied, the copyright in the compilation would be infringed. The creative, original expression that is being protected is the sorting, selecting, and grouping of all the legal oriented web sites into the ordered legal list found on these pages.

The white pages telephone directory is an example of an unprotected grouping of facts. The individual facts (name, address, and telephone number) are not protectable under the copyright law. In addition, the compilation in this case consisted solely of gathering all available telephone numbers in a particular area and sorting them alphabetically. The U.S. Supreme Court has held that this minimal level of selecting and arrangement does not involve enough originality to be protected by copyright.