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A copyright is a legal right that can be given to the creator of an original work, which allows them exclusive control over the use, distribution, and reproduction of that work for a designated period of time. This right comes from the fundamental principle that creation and dissemination of this type of work is good for society—culturally, educationally, and economically. Article 1, Section 8, Clause 8 of the Constitution itself governs copyrights. This clause gives Congress the authority to enact laws that foster the advancement of the useful arts. Copyright protection is grounded in the phrase that grants authors “…the exclusive right to their respective writings.”
Copyright protection affords protection to a broad range of creative expressions, including literary, musical, dramatic, choreographic, pictorial, graphic, sculptural works, motion pictures, sound recordings, and architectural designs. The core aspect of copyright law is the act of vesting a set of exclusive rights to the creator of an original work fixed in a tangible medium. The two main requirements for a copyright are: (1) fixation—the requirement that the work can be captured in a sufficiently permanent medium to be perceived, reproduced, or otherwise communicated for a period more than transitory, and (2) originality—meaning the work is an original work of authorship.
Copyright does not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, which fall under patent law. Copyright protects the expression of ideas rather than the ideas themselves. Facts and data may not be copyrighted, although the specific way they are presented or organized can be through creative commentary or via arrangement in a database. If a work has elements that are functional or utilitarian in nature, these may not be protected by copyright to the extent that the design is dictated by its functional aspects.
Most people know that copyright protection occurs the moment a work is fixed in a tangible medium. The work must be expressed in a physical form for a time period more than transitory. It must be seen, heard, or otherwise sensed, and can then be copied or communicated to others. Some examples of fixation include a photograph saved in a digital format, a novel saved on a computer’s hard drive or printed on paper, music notation written down as sheet music or a song recorded as an audio file, a software program coded and saved onto a physical or digital medium, or a choreographic work recorded on video. The work must be original, which means it cannot be copied from another’s work and must have at least a minimal amount of creativity. The threshold for creativity is intended to be low—this way, even a slight amount of creativity is enough to qualify. The work may be inspired by pre-existing works or realities, but it cannot be derived from another existing work. Works created by artificial intelligence or non-human agents do not qualify for copyright protection in most jurisdictions.
An “original work of authorship” is a broad term encompassing literary, musical, dramatic, and choreographic works, pictorial, graphic, and sculptural works, motion pictures, sound recordings, and architectural works, pantomimes, choreography, motion pictures, audiovisual works, sound recordings, computer programs, and compilations of derivative works. By keeping the categorization broad, it allows greater inclusivity of creativity of works.
Copyright protection is automatic, but official registration of a copyright does provide substantial benefits to the copyright holder. Copyright registration can serve as prima facie evidence of copyright ownership and date of creation; this can be important in infringement cases where the burden of proof of ownership and originality rests with the copyright holder. In the United States, copyright registration is required as a precondition for filing a lawsuit for infringement. Without official registration, a copyright holder may find themselves limited in their recourses against unauthorized use. Official registration also allows the copyright holder to be eligible to receive statutory damages without the need to prove actual financial loss. It can also be a strong deterrent to potential infringers. Additionally, registration can allow for the possibility of recovering attorney’s fees, which makes legal action more feasible and is less of a risk for the copyright owner. Merely registering a copyright can show potential infringers that the owners of the protected copyright are more likely to assert their rights to their intellectual property. Another benefit of registration is that registering creates a public record of the copyright, which can facilitate interest in licensing and even perhaps potential sale of the copyright. In some countries, copyright registration can be used to block the importation of infringing copies. In those countries, registered copyrights can be recorded with customs authorities to help block unauthorized use and dissemination.
Registering a copyright in the United States is fairly straightforward; however, understanding the nuances of registration can make the process more effective and the protection stronger. The application is filed with the U.S. Copyright Office, which is a part of the Library of Congress. Before applying, it is important to determine the type of work to be registered, as different types dictate which application form and requirements will govern the filing. Once the correct application is chosen and completed, it is filed with the U.S. Copyright Office. The application can be completed online, which offers a lower filing fee and faster processing time than a paper filing.
To begin registering your work online, visit the following website: Register Your Work: Registration Portal | U.S. Copyright Office.
A copy or copies of the work to be registered must be filed with the application. Whether it needs to be a hard or electronic copy depends on the type of work and publication status. One complete copy is generally required for unpublished works. For published works, requirements vary, but typically two complete copies of the best edition are required. There is no substantive review of the copyright application. Once filed and accepted, the registration becomes effective.
Once registered, it is recommended that the owner use the copyright symbol (©) along with the year of first publication and the copyright owner’s name as a form of copyright notice. This gives notice of the registered copyright and can help deter infringement by clarifying the status of the work.
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