1. Copyright in the Digital Age Jennie Ness, Attorney-Advisor Office of Policy and External Affairs, USPTO Jennie.Ness@uspto.govJennie.Ness@uspto.gov - (571) 272-9300

2. 2 Outline The origins of Copyright Subjects of protection Obtaining and maintaining protection Protected rights Enforcing Copyright Copyright in the “digital age”

3. Are you an author?

4. Where it all Started...

5. If not authors, then who? Publishers? Employers? Owners of copies?

6. United States Constitution “The Congress shall have Power…To promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their Respective Writings and Discoveries. Article 1, Section 8, Clause 8

7. 7 Pop Quiz! I can make a copy of a work without asking the copyright owner’s permission if – 1. The work is out of print or otherwise unavailable. 2. I paid the contractor to make it (and, in fact, I paid quite a lot). 3. I made at least 7 changes to the work (or I changed 20% of it). Fact or Fiction?

8. Two Requirements for Protection Copyright protection subsists in original work of authorship fixed in any tangible medium of expression now known or later developed from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.

9. Originality?

10. Fixation?

11. What types of works are protected? Every production in the literary, scientific and artistic domains; whatever may be the mode of form of expression.

12. Copyright protects creative expression, not “ideas.” Protected WorksNot protected Literary Works Software Motion Pictures Musical Works Sound Recordings Choreographic Works Visual Art, including Applied Art Dramatic Works Architectural Works Facts or information Processes, methods, formulae, concepts, principles Lists of ingredients or contents Names or titles Familiar symbols or designs

13. 13 Works from Preexisting Works Derivative works Without prejudice to the rights of the author of the underlying work Must obtain permission of copyright owner in underlying work, where applicable. An adaptation, translation, arrangement

14. 14 Works from Preexisting Works Compilations Again, without prejudice to the rights of the author of the underlying works Again, must obtain permission of copyright owner in underlying works, where applicable. “which by reason of selection or arrangement of their contents constitute intellectual creations”

15. 15 Who receives protection? Three categories of authors: Individual Joint Works Made for Hire Special note: U.S. government works

16. 16 Ownership of Copyright Copyright initially belongs to the individual authors Joint authors are co-owners of, i.e., they have an undivided interest in, the copyright in joint works Under the work-made-for-hire doctrine, the employer is the owner of the copyright for works created within the scope of employment Special rules apply to “commissioned works”

17. 17 Who is an employee? Right to control the manner and means of production Skill required Employee benefits Tax treatment Right to assign additional projects Tools Location of work

18. Pop Quiz! I can make a copy of a work without asking the copyright owner’s permission if – 1. There’s no copyright notice. 2. The work is out of print. 3. The work is an unpublished letter in a research library. Fact or Fiction?

19. Obtaining and Maintaining Protection Copyright formalities

20. 20 Securing Protection Copyright protection is secured automatically upon creation (fixation). No publication or registration is required. No copyright notice required.

21. 21 Securing Protection – A Myth Debunked From the U.S. Copyright Office website FAQs: I’ve heard about a “poor man’s copyright.” What is it? The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

22. 22 Why Register? Registration puts others on notice of copyright claim. Registration (of works of U.S. origin) is required to file suit in federal court. Registration is prima facie evidence of validity of the copyright and facts in certificate (if made within five years of publication).

23. 23 Why Register? Registration may be recorded with U.S. Customs and Border Protection (CBP) to help prevent importation of pirated products. Statutory damages and attorney ’ s fees may be claimed in court suits, provided registration is obtained within three months after publication of the work or prior to infringement of the work. Easier to license work, collect royalties, and enforce your rights outside of court.

24. 24 Registration Process A copyright owner must: ◦File an application; ◦Pay a nominal filing fee ($35 - $65, depending on whether e-filing or paper filing and type of work); and ◦Deposit copies of the work at the Copyright Office

25. 25 Registration Registration is administered by the U.S. Copyright Office of the Library of Congress Forms available at www.copyright.gov Registration does not involve complex examination of applications as for patents and trademarks

26. 26 Notice No notice is required (for works published on or after March 1, 1989). Notice may benefit the owner against a supposed “innocent infringer.” Forms of notice: ©, the word “Copyright,” or the abbreviation “Copr.”, year of publication, and name of the copyright owner.

27. 27 Why Use a Copyright Notice? It informs the public that the work is protected by copyright; It identifies the copyright owner; It shows the year of first publication; It defeats an “innocent infringer” defense. TIP: Provide sufficient additional information so that a third-party knows how to contact you to obtain your permission to use the work.

28. 28 Term of Copyright For works created on or after January 1, 1978: Life + 70: In the U.S., copyright subsists from creation and lasts the full life of the author, plus 70 years after the author’s death. 95 Years from Publication: If the author is not a natural person, then copyright lasts 95 years from publication or 120 years from creation, whichever expires first.

29. 29 Pop Quiz! I can do the following without asking the copyright owner’s permission– 1. I am producing a high school play and tickets are free. 2. A DJ plays music in my club, but I don’t charge admission. 3. I’m making a copy of a journal article for my own research files. Fact or Fiction?

30. A bundle of rights The “copy” right is actually...

31. Rights split into two categories “Economic”“Moral” Reproduction Distribution Performance Display Create derivative works Right of attribution Right to publish anonymously or pseudonymously Right of integrity

32. 32 Transfer of Copyright “Any or all of the copyright owner’s exclusive rights…may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing…. Transfer of a right on a nonexclusive basis does not require a written agreement.” -- U.S. Copyright Office, Circular 1, page 6

33. 33 Exercise of rights Many individual authors will exercise their rights collectively through a collective management organization such as ASCAP, BMI, Harry Fox, SoundExchange In limited cases, statutory licenses are used to remedy market failure.

34. Infringement Infringement is the unauthorized or prohibited use of works, infringing the copyright holder’s exclusive rights. In some limited exceptions, unauthorized uses may be permitted.

35. Exceptions First sale doctrine; Exceptions for libraries, archives, and teaching; Certain statutory licenses; TV & radio exceptions; Reproduction for those with disabilities; Single software copy for archival purposes.

36. Fair Use An exception allowing use for purposes such as: ◦Criticism or comment, ◦News reporting, ◦Teaching, Scholarship or Research. ◦No blanket exemptions!

37. Fair Use Four Factor Test: 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. The nature of the copyrighted work; 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4. The effect of the use upon the potential market for or value of the copyrighted work.

38. Weighing the Four Factors Fair Use? Transformative, Review, criticism, commentary, parody, news, educational, nonprofit Limited creativity, largely factual work Small amount Insubstantial portion Does not deprive the copyright owner of income or undermine potential market

39. 39 Weighing the Four Factors Infringement? Commercial, for-profit, non- transformative Highly creative work, unpublished Large amount The heart of the work Deprives the copyright owner of income or undermine potential market

40. 40 Pop Quiz! I can do the following without asking the copyright owner’s permission– 1. I can use a photograph on my web page that I found on another website. 2. I can use cracking software to make a back-up copy of a DVD that I legally own. Fact or Fiction?

41. The Digital Age New technology always confounds copyright: player piano, radio, TV, Betamax, and now the Internet We attempt to main technological neutrality.

42. The Digital Age The Digital Millennium Copyright Act (1998) Prohibits circumvention of technological protection measures Ensures integrity of Rights Management Information Creates a Notice-and Take Down system for online infringement. 2002: The TEACH Act sets parameters for use of works in distance learning.

43. 43 The Digital Age Newer challenges: Peer-to-peer file sharing adapts to court cases Digital locker sites Changing consumer expectations

44. 44 Pop Quiz Answers! Fact or Fiction?

45. Are you a copyright owner?

46. Copyright in the Digital Age Jennie Ness Jennie.Ness@uspto.gov (571) 272-9300 Jennie.Ness@uspto.gov