FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.3) Part 1 - Introduction. Copyright 1994 Terry Carroll (c) 1994 Terry Carroll Last update: January 6, 1994. This article is the first in a series of six articles that contains frequently asked questions (FAQ) with answers relating to copyright law, particularly that of the United States. It is posted to the Usenet misc.legal, misc.legal.computing, misc.int-property, comp.patents, misc.answers, comp.answers, and news.answers newsgroups monthly, on or near the 17th of each month. This FAQ is available for anonymous FTP from rtfm.mit.edu [18.70.0.209], in directory /pub/usenet/news.answers/law/Copyright-FAQ, files part1 - part6. If you do not have direct access by FTP, you can obtain a copy via email: send a message to mail-server@rtfm.mit.edu with the following lines in it: send usenet/news.answers/law/Copyright-FAQ/part1 send usenet/news.answers/law/Copyright-FAQ/part2 send usenet/news.answers/law/Copyright-FAQ/part3 send usenet/news.answers/law/Copyright-FAQ/part4 send usenet/news.answers/law/Copyright-FAQ/part5 send usenet/news.answers/law/Copyright-FAQ/part6 quit DISCLAIMER - PLEASE READ. This article is Copyright 1994 by Terry Carroll. It may be freely redistributed in its entirety provided that this copyright notice is not removed. It may not be sold for profit or incorporated in commercial documents without the written permission of the copyright holder. Permission is expressly granted for this document to be made available for file transfer from installations offering unrestricted anonymous file transfer on the Internet. Permission is further granted for this document to be made available for file transfer in the data libraries of associated with the following Compuserve Information Services fora: the Legal Forum, the Desktop Publishing Forum, the Show Business Forum, and the Ideas, Invention & Innovation Forum. This article is provided as is without any express or implied warranty. Nothing in this article represents the views of Santa Clara University or of the Santa Clara Computer and High Technology Law Journal. While all information in this article is believed to be correct at the time of writing, this article is for educational purposes only and does not purport to provide legal advice. If you require legal advice, you should consult with a legal practitioner licensed to practice in your jurisdiction. Terry Carroll, the FAQ-maintainer, is a computer professional, and is currently (January 1994) a student in his final semester at Santa Clara University School of Law, is currently Editor-in-Chief of the Santa Clara Computer and High Technology Law Journal, and is seeking employment as an attorney. If you have any additions, corrections, or suggestions for improvement to this FAQ, please send them to one of the following addresses, in order of preference: 71550.133@compuserve.com tcarroll@scuacc.scu.edu I will accept suggestions for questions to be added to the FAQ, but please be aware that I will be more receptive to questions that are accompanied by answers. :-) FAQ ORGANIZATION. The following table indicates the contents of each of the parts of the FAQ. For each part, the last version in which that part was substantially updated (excluding the reorganization into six parts done as part of V1.1.0) is indicated in parentheses. Part 1 (V1.1.1) - Introduction (including full table of contents). Part 2 (V1.1.2) - Copyright basics. Part 3 (V1.0.0) - Common miscellaneous questions. Part 4 (V1.0.0) - International aspects. Part 5 (V1.0.2) - Further copyright resources. Part 6 (V1.0.0) - Appendix: A note about legal citation form, or, "What's all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?" TABLE OF CONTENTS (for all parts). Part 1 - Introduction. Part 2 - Copyright Basics. 2.1) What is a copyright? 2.2) What is "public domain?" 2.3) I just wrote a great program/novel/song/whatever. How can I get a copyright on it? 2.4) How long does a copyright last? Does it need to be renewed? 2.5) What advantages are there to registering my work with the Copyright Office? 2.6) How can I register a copyright with the U.S. Copyright Office? 2.7) What advantages are there to including a copyright notice on my work? 2.8) Can I ever use a copyrighted work without permission of the copyright holder, or "What is 'fair use?'" 2.9) Fair use - the legal basis of the doctrine. 2.10) [reserved.] Part 3 - Common miscellaneous questions. 3.1) Who owns the copyright to something I wrote at work, me or my company? 3.2) [reserved.] 3.3) Is copyright infringement a crime, or a civil matter? 3.4) What is the statute of limitation for copyright infringement? 3.5) Can the government be sued for copyright infringement? 3.6) Can the government copyright its works? 3.7) Can I legally make a cassette copy of a musical CD for my own use, so I can play it in my car? 3.8) Are Usenet postings and email messages copyrighted? 3.9) Are fonts copyrighted? 3.10) What does "All Rights Reserved" mean? 3.11) What's the difference between a copyright and a patent? 3.12) Why is there so little in this FAQ about patents? 3.13 - 3.18) [reserved.] Part 4 - International aspects. 4.1) What international treaties exist governing copyright, or "What is this Berne Convention I keep hearing about?" 4.2) Is Freedonia a signatory to either the Berne Convention or to the Universal Copyright Convention? Part 5 - Further copyright resources. 5.1) Where can I get more information on copyright? 5.2) What materials related to copyright are available on the Internet? Part 6 - Appendix: A note about legal citation form, or, "What's all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?" INTRODUCTION This FAQ originally began as a general-purpose FAQ for the Usenet misc.legal newsgroup. After working on that broad FAQ for several months, it became apparent that such a FAQ was too monumental a task to be undertaken by a single FAQ maintainer. The person who succeeded me in the effort agreed. I've noticed that copyright questions seem to come up constantly on Usenet, not only in misc.legal, but in many newsgroups, from comp.fonts to rec.classical.music. It also happens to be my favorite area of law, so when I abandoned the misc.legal FAQ, I decided to retain the portions dealing with copyright law, and to fashion that into a Copyright Law FAQ. This document is the result. This FAQ betrays its misc.legal origin. On misc.legal, it's very common, and indeed preferred, for assertions of law to be accompanied by citations to the relevant legal authorities. This serves as a check against erroneous or misleading interpretations of the authorities. It also allows the reader to verify the authorities, and provides an enthusiastic reader with starting points for further research into the subject. In trimming the former misc.legal FAQ to discuss only copyright law, I've decided to retain these citations. This is not only for the reasons stated above, but also because this FAQ, like any other static document, is in danger of being made out of date by future developments in the law. By providing sources for the answers to the questions, an inquisitive reader will be able to investigate the source and determine, for example, if a particular appellate case has been overruled or has been declined to be followed by other appellate courts. I have included an appendix at the end of the FAQ to assist newcomers in understanding the legal notation used in citing references. ACKNOWLEDGMENTS I'd like to acknowledge the following people who reviewed early drafts of this FAQ and made valuable suggestions for modifications, or otherwise contributed to the FAQ: Richard A. Anderson Thomas Deardorff Stuart P. Derby Mary Jensen David Lassner George Mitchell Ronald Naylor Carol Odlum Laura A. Pitta Hank Roth Craig A. Summerhill Peter Stott David W. Tamkin Glenn S. Tenney Marina ___ [full name unknown] CHANGE LOG V1.0 (Jul. 12, 1993) - Initial release. V1.0.1 (Jul. 20, 1993) - Updates to reflect changes in FTP sites. V1.1.0 (Aug. 05, 1993) - Reorganized into six parts; minor editorial changes. V1.1.1 (Sep. 21, 1993) - Added FTP information for rtfm.mit.edu; major overhaul to section 2.4 (on copyright duration); minor editorial changes. V1.1.2 (Nov. 23, 1993) - Miscellaneous minor changes. V1.1.3 (Jan. 06, 1994) - Update to section 2.4 (on copyright duration) to reflect 1993 expirations; update to part 6 to include pointer to the Legal Research FAQ; updates to reflect changes in FTP sites; and, of course, the usual miscellaneous minor changes. FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.3) Part 2 - Copyright Basics. Copyright 1994 Terry Carroll (c) 1994 Terry Carroll Last update: January 6, 1994. This article is the second in a series of six articles that contains frequently asked questions (FAQ) with answers relating to copyright law, particularly that of the United States. It is posted to the Usenet misc.legal, misc.legal.computing, misc.int-property, comp.patents, misc.answers, comp.answers, and news.answers newsgroups monthly, on or near the 17th of each month. This FAQ is available for anonymous FTP from rtfm.mit.edu [18.70.0.209], in directory /pub/usenet/news.answers/law/Copyright-FAQ, files part1 - part6. If you do not have direct access by FTP, you can obtain a copy via email: send a message to mail-server@rtfm.mit.edu with the following lines in it: send usenet/news.answers/law/Copyright-FAQ/part1 send usenet/news.answers/law/Copyright-FAQ/part2 send usenet/news.answers/law/Copyright-FAQ/part3 send usenet/news.answers/law/Copyright-FAQ/part4 send usenet/news.answers/law/Copyright-FAQ/part5 send usenet/news.answers/law/Copyright-FAQ/part6 quit DISCLAIMER - PLEASE READ. This article is Copyright 1994 by Terry Carroll. It may be freely redistributed in its entirety provided that this copyright notice is not removed. It may not be sold for profit or incorporated in commercial documents without the written permission of the copyright holder. Permission is expressly granted for this document to be made available for file transfer from installations offering unrestricted anonymous file transfer on the Internet. Permission is further granted for this document to be made available for file transfer in the data libraries of associated with the following Compuserve Information Services fora: the Legal Forum, the Desktop Publishing Forum, the Show Business Forum, and the Ideas, Invention & Innovation Forum. This article is provided as is without any express or implied warranty. Nothing in this article represents the views of Santa Clara University or of the Santa Clara Computer and High Technology Law Journal. While all information in this article is believed to be correct at the time of writing, this article is for educational purposes only and does not purport to provide legal advice. If you require legal advice, you should consult with a legal practitioner licensed to practice in your jurisdiction. Terry Carroll, the FAQ-maintainer, is a computer professional, and is currently (January 1994) a student in his final semester at Santa Clara University School of Law, is currently Editor-in-Chief of the Santa Clara Computer and High Technology Law Journal, and is seeking employment as an attorney. If you have any additions, corrections, or suggestions for improvement to this FAQ, please send them to one of the following addresses, in order of preference: 71550.133@compuserve.com tcarroll@scuacc.scu.edu I will accept suggestions for questions to be added to the FAQ, but please be aware that I will be more receptive to questions that are accompanied by answers. :-) FAQ ORGANIZATION. The following table indicates the contents of each of the parts of the FAQ. Part 1 - Introduction (including full table of contents). Part 2 - Copyright basics. Part 3 - Common miscellaneous questions. Part 4 - International aspects. Part 5 - Further copyright resources. Part 6 - Appendix: A note about legal citation form, or, "What's all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?" TABLE OF CONTENTS (for this part). Part 2 - Copyright Basics. 2.1) What is a copyright? 2.2) What is "public domain?" 2.3) I just wrote a great program/novel/song/whatever. How can I get a copyright on it? 2.4) How long does a copyright last? Does it need to be renewed? 2.5) What advantages are there to registering my work with the Copyright Office? 2.6) How can I register a copyright with the U.S. Copyright Office? 2.7) What advantages are there to including a copyright notice on my work? 2.8) Can I ever use a copyrighted work without permission of the copyright holder, or "What is 'fair use?'" 2.9) Fair use - the legal basis of the doctrine. 2.10) [reserved.] 2.1) What is a copyright? A copyright is a right of intellectual property, whereby authors obtain, for a limited time, certain exclusive rights to their works. In the United States, copyright is exclusively federal law, and derives from the "copyright clause" of the Constitution (Art. 1, sec. 8, cl. 8), which provides Congress with the power "to promote science and the useful arts, by securing for limited times to authors ... the exclusive right to their ... writings." Copyright protects only an author's original expression. It doesn't extend to any ideas, system or factual information that is conveyed in a copyrighted work, and it doesn't extend to any pre-existing material that the author has incorporated into a work. 17 U.S.C. 102(b), 103. The standard for originality is very low. "Original" in this context means only that the work has its origin in the author. There is no requirement that the work be different from everything that has come before: it need only embody a minimum level of creativity and owe its origin to the author claiming copyright. To use an extreme example, if two poets, each working in total isolation and unaware of one another's work, were to compose identical poems, both of the poems would meet the originality requirement for purposes of the copyright statute. Feist Publications, Inc. v. Rural Telephone Service Company, Inc., 111 S.Ct. 1282, 1287-88 (1991). In the United States, these seven rights are recognized: 1) the reproductive right: the right to reproduce the work in copies; 2) the adaptative right: the right to produce derivative works based on the copyrighted work; 3) the distribution right: the right to distribute copies of the work; 4) the performance right: the right to perform the copyrighted work publicly; 5) the display right: the right to display the copyrighted work publicly; 6) the attribution right (sometimes called the paternity right): the right of the author to claim authorship of the work and to prevent the use of his or her name as the author of a work he or she did not create; 7) the integrity right: the right of an author to prevent the use of his or her name as the author of a distorted version of the work, to prevent intentional distortion of the work, and to prevent destruction of the work. 17 U.S.C. 106, 106A. Not all of these rights apply to all types of works. For example, the display right applies to literary, musical, dramatic and choreographic works, pantomimes, and motion pictures and other audiovisual works. It does not apply to sound recordings and to architectural works. The attribution right and the integrity right apply only to works of visual art. Also, not all rights have the same duration: in the U.S., rights 1-5 normally have a duration of the author's life plus 50 years, while rights 6-7 endure only for the life of the author. These rights are not unbounded, and in the U.S., sections 107 through 120 of the copyright law catalog a series of restrictions on the rights. Some of these restrictions are discussed elsewhere in the FAQ (see, e.g., sections 2.8, 2.9, and 3.7). And, by the way, many persons erroneously spell it "copywrite," apparently because of the association with written material. The correct word is "copyright." It derives from an author or publisher's right to the copy (copy here being used in the sense that it is used in the newspaper trade: the text of an article). 2.2) What is "public domain?" In contrast to copyright is "public domain." A work in the public domain is one that can be freely used by anyone for any purpose. It used to be that if a work was published without notice, it lost all copyright, and entered the public domain. That's no longer true, and now public domain is more the exception than the rule. There are still a number of ways that a work may be public domain. - The copyright may have expired (see section 2.4). - The work might be a work of the U.S. Government; such works can't be copyrighted (see section 3.6). - The work might be one that can't be copyrighted. For example, titles, names, short phrases and slogans can't be copyrighted (37 C.F.R. 202.1(a)). Note, however, they can be trademarks. As far as copyright law is concerned, they're public domain, but as far as trademark law is concerned, they might be protected. - The copyright might have been forfeited. For example, the work may have been published without notice prior to the change in the law that eliminated the notice requirement (March 1, 1988, the effective date of the Berne Convention Implementation Act, PL 100-568, 102 Stat. 2853). - The copyright might have been abandoned. This is pretty rare. Abandonment requires that the copyright holder intend to abandon the copyright, and generally requires an unambiguous statement or overt act on the part of the copyright holder that indicates his or her intent to dedicate the work to the public domain. National Comics Pub. v. Fawcett Pub., 191 F.2d 594, 598 (2d Cir., 1951). A statement that anyone who wishes to may reproduce, perform, or display the work without restrictions might be sufficient. Simply posting it on a computer network is not abandonment. There is a common belief that if someone infringes a copyright, and the copyright owner does not sue or otherwise put a stop to the infringement, the copyright is lost and the work goes into the public domain. There is some pre-1988 law on this (e.g., Stuff v. E.C. Publications, 432 F.2d 143 (2d Cir., 1965) and Transgo v. Ajac Transmission Parts, 768 F.2d 1001 (9th Cir. 1985)), but it seems to derive mostly from the fact that the copyright holder had acquiesced in the publication of the work without notice back when notice was a requirement. It was the publication without notice, and not the lack of enforcement, that actually worked to put the work in the public domain. This is forfeiture of copyright, not abandonment. Because the notice requirement is now gone from copyright law, these cases don't have much weight today. I can't find anything that supports the idea that failure to assert a copyright against an infringer can alone lead to placing the work in the public domain (if you have any authoritative information on this, please drop me a note at one of the addresses listed in the introduction). Of course, circumstances may be such that the ability to sue a particular infringer might be waived (e.g., a statute of limitations may expire (see section 3.4), or if the infringer has reasonably relied to his or her detriment on the copyright holder's failure to sue, the doctrine of laches may bar a suit), but that's only with respect to that particular infringer, and does not affect the status of the copyright with respect to others. Sometimes you'll see a program on the network accompanied by a statement like "This program is public domain. It may be freely distributed, but you may not charge more for it than the cost of the media." Statements like these are contradictory. If the program is public domain, you can do whatever you want with it, including charging whatever you want (although you might not get it). In this example, what the programmer really wants to do is to retain the copyright, but provide a non- exclusive license to copy and distribute the work, with a condition on the license that only the cost of the media may be charged for it. In this case, where the programmer has, in two consecutive sentences, both declared the work to be public domain and asserted a copyright in the work, it's unpredictable whether a court would interpret this as abandonment. If there is any restriction upon the use of the work, even the restriction that it cannot be sold, the work is not public domain. Rather, it's copyrighted, and the restrictions are essentially limitations on a licensee using one or more of the exclusive rights described above. For example, the restriction that a work may only be given away for free is a limitation using the distribution right. Once a work is in the public domain, whether by expiration of copyright or by expressly being dedicated to the public domain by its copyright holder, it can never again regain copyrighted status. 2.3) I just wrote a great program/novel/song/whatever. How can I get a copyright on it? Good news. You already have. In the United States, as in most nations, a work is copyrighted as soon as it is created: Copyright protection subsists . . . in original works 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. 17 U.S.C. 102(a). and, A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. 17 U.S.C. 101. What this means in simple terms is that as soon as you've created your original work, it's copyrighted. Because of the "either directly or with the aid of a machine or device" provision, it doesn't matter whether you've printed it out, or if it's only on your hard drive or floppy disk. You don't need any special formalities, such as registering the work with the Copyright Office, or providing a copyright notice (notice stopped being a requirement when the U.S. signed the Berne Convention and enacted Berne Convention Implementation Act in 1988; see section 4.1 for more information). That being said, you might want to register the work and provide a copyright notice anyway. There are certain advantages to doing so (see sections 2.5 and 2.7). 2.4) How long does a copyright last? Does it need to be renewed? The law of copyright duration has undergone many twists and turns. There have been several major changes in copyright duration law that contribute to this complication: - the number of years used in calculating durations has changed, from either 28 or 56 to either 50, 75 or 100, depending on the type of work. - the basis for determining the endpoint of a copyright has changed; it used to be measured based on when the work was published, now it's based on when the work's author dies, or sometimes on when the work was created and/or when it was published. - There used to be multiple copyright terms, and if the copyright was not renewed at the end of the first term, it lapsed. Today, except as a minor hangover from the past, there is a single copyright term; renewal is not required. - Not all the provisions changed at the same time. For one thing, although the Copyright Act of 1976 did not go into effect until 1978, well before the draft of the new law was complete, it was likely that the new statute would extend duration of copyright. Congress apparently wanted to minimize the impact on authors who would otherwise lose the benefit of the extended duration, and through a series of several special purpose laws (Public Laws 87-668, 89-142, 90-141, 90-416, 91-147, 91-555, 92-170, 92-566 and 93-573, and section 304(b) of the 1976 Copyright Act), delayed the expiration of copyrights that would otherwise have occurred in the 1962 - 1978 interim. The net cumulative effect is as if the duration provisions had begun to take effect in 1962, 16 years earlier than the rest of the Act. For another thing, even when the concept of multiple "copyright terms" was discarded, for a long time, works that were still in their first term of copyright still needed to be renewed to avoid going into public domain. This requirement remained in place until it was finally removed in 1992 (by P.L. 102-307, 106 Stat. 264). So while the law at anyone time has always been pretty simple, the cumulative effect of the changes have made the deceptively simple question "how long does a copyright last?" quite complicated to answer. The following discussion is based on a current year of 1994. I've tried to indicate the basis for calculations here, so you can see which need to be recalculated year by year, and which are okay as is. Regardless of the scheme used to compute duration, under 17 U.S.C. 305, copyrights always expire on December 31 of the expiration year, so at the time of this writing (January 1993), December 31, 1993 is the most recent date on which any copyright has expired. With these concerns in mind, here's a short analysis of copyright duration. Generally, for works created in 1978 or later, a copyright lasts for fifty years beyond the life of the work's author, after which it lapses into public domain. 17 U.S.C. 302(a). If the work is prepared by two or more authors (a "joint work"), its copyright lasts for fifty years after the last surviving author dies. 17 U.S.C. 302(b). For anonymous and pseudonymous works, and for works made for hire, copyright exists for 100 years from the date of creation, or 75 years from the date of first publication, whichever comes first. 17 U.S.C. 302(c). No renewal is necessary or permitted. (The year 1978 in this paragraph is because January 1, 1978 is the date on which the Copyright Act of 1976 took effect.) For works to which the attribution right and integrity right apply (see section 2.1), these rights endure only for the lifetime of the author. 17 U.S.C. 106A(d). For works published in the years 1964 through 1977, copyright lasts for 75 years from date of publication. 17 U.S.C. 304(a). In the past, copyright lasted only for 28 years, unless a renewal was filed with the Copyright Office. Such a renewal obtained an additional 47 years of protection. Renewal was made optional in June 1992 by P.L. 102-307, 106 Stat. 264. (The year 1964 comes from the fact that renewal was made optional in 1992, and 1992 minus 28 (the length of the first copyright period) equals 1964.) For works published in the years 1904 through 1963, the copyright lasted for 28 years from date of publication; if the copyright was not renewed, it lapsed, and the work went into the public domain. Another 28 years of protection could be obtained by filing a renewal, for a total term of 56 years (1906 comes from the fact that the U.S. effectively switched to a 47-year second term in 1962, and 1962 minus 56 (the old maximum duration of two 28-year terms) equals 1906). If the copyright was not renewed after its initial 28-year term, the work lapsed into public domain. Generally, all copyrights secured in 1918 or earlier lapsed at the latest in 1993 and are now in public domain (1993 (last year) minus 75 equals 1918). Copyrights secured in the period 1919 through 1949 continue to exist only if they were renewed, and expire in the period 1994 through 2024. Finally, just to complicate things: if the work was created but not published prior to 1978, its copyright duration is calculated as if it had been created on January 1, 1978, and lasts as long as that calculation specifies, or through 2002, whichever is later. If the work is published in 2002 or earlier, then the copyright lasts as long as that calculation specifies, or through 2027, whichever is later 17 U.S.C. 303. Whew! And to think I went into copyright law instead of tax to avoid the math. 2.5) What advantages are there to registering my work with the Copyright Office? In order to sue for infringement, with some exceptions, your work must be registered with the Copyright Office. However, you may register after the infringement occurs, as long as it's before filing your lawsuit. The advantage to registering prior to infringement is that it allows you some additional remedies that aren't available if you registered after infringement: namely, statutory damages and attorney's fees. 17 U.S.C. 412. "Statutory damages" are damages specified in the statute, as opposed to "actual damages," which are damages that you can demonstrate in court that you actually suffered. If you registered your work prior to infringement, you can skip showing any actual damage, and just elect to receive statutory damages. 17 U.S.C. 504(a). Statutory damages for copyright infringement are $500 - $20,000, as determined by the judge. If the infringer proves that he or she was not aware and had no reason to believe that his or her acts constituted infringement, the court may lower damages to as low as $200 per infringement. On the other hand, if the plaintiff proves that the defendant's infringement was "committed willfully," the judge may award damages to as high as $100,000 per infringement. 17 U.S.C. 504(c). In deciding whether to register your work, you must weigh the probability of an infringement action (and the advantages of attorney's fees and statutory damages in such an action) against the $20 cost of registration. CAVEAT: On February 16, 1993, the Copyright Reform Act of 1993 was introduced in both houses of the 103nd Congress (H.R. 897 in the House of Representatives and S.373 in the Senate). If the bill passes, much of the information in this entry will be rendered incorrect. Specifically, the bill would, among other things, remove the requirement for registration prior to bringing suit, and would remove the restrictions on statutory damages that are described above. 2.6) How can I register a copyright with the U.S. Copyright Office? To register a copyright, file the appropriate form with the U.S. Copyright Office, including the payment for registration costs ($20). For most types of work being published in the United States, two copies of the work being registered must be deposited with the Copyright Office for the use of the Library of Congress. Strictly speaking, the deposit is not a requirement for copyright. However, failing to make the deposit at time of publication can result in fines. Some works are exempt from the deposit requirement. Registration forms may be ordered by calling the Copyright Office Hotline (see section 5.1). When the answering machine answers, leave a message with your name and address, identifying the material you are ordering. Ask for the form either by form number, or by Copyright Office Information Package number. A Copyright Office Information Package is a collection of information on registering copyright for a particular type of work. It includes the appropriate forms, instructions for completing them and other useful information. Here is a list of commonly requested forms and Copyright Office Information Packages, arranged by type of copyrighted work: - Books, manuscripts and speeches and other nondramatic literary works: Form TX, Package 109 - Computer programs: Form TX, Package 113 - Music (sheet or lyrics): Form PA, Package 105 - Music (sound recording): Form SR, Package 121 - Cartoons and comic strips: Form VA, Package 111 - Photographs: Form VA, Package 107 - Drawings, prints, and other works of visual arts: Form VA, Package 115 - Motion pictures and video recordings: Form PA, Package 110 - Dramatic scripts, plays, and screenplays: Form PA, Package 119 - Games: Form TX, Package 108 2.7) What advantages are there to including a copyright notice on my work? As noted in section 2.3, under U.S. law, a work is copyrighted as soon as it is created. No notice is required to retain copyright. While most of the world has operated this way for some time, this is a comparatively recent change in U.S. copyright law, as of March 1, 1988, the effective date of the Berne Convention Implementation Act, PL 100-568, 102 Stat. 2853 (See sections 4.1 and 4.2 for a discussion of the Berne Convention). Although notice is no longer a requirement, there are still some sound reasons for using one anyway. If you include a copyright notice on a published copy of your work to which the defendant in an infringement suit had access, he or she may not plead "innocent infringement" (i.e., that he or she was not aware and had no reason to believe that his or her acts constituted infringement, the so-called "innocent infringement" defense) in mitigation of actual or statutory damages. 17 U.S.C. 401(d), 402(d). Unlike the decision of whether to register your work, this is a no- brainer, since it's simple and free: just include a notice on every published copy of the work. A proper copyright notice consists of three things: 1) the letter "C" in a circle (called, logically enough, the "copyright symbol"), or the word "Copyright," or the abbreviation "Copr."; 2) the year of first publication; 3) the name of the copyright owner. 17 U.S.C. 401(b). Using "(C)" in place of a copyright symbol is not a good idea. To the best of my knowledge, no court has expressly ruled one way or another whether "(C)" is a sufficient substitute for a copyright symbol. One case, Videotronics v. Bend Electronics, 586 F.Supp. 478, 481 (D. Nev. 1984), implies that it is not sufficient; another, Forry v. Neundorfer, 837 F.2d 259, 266 (6th Cir., 1988), implies that it might be. While courts are generally lenient in allowing for what makes up a valid notice, it's best to be squarely within the statute. If you can't make a copyright symbol, either spell the word out, or use the "Copr." abbreviation. As a side note with regard to international protection, the Universal Copyright Convention requires that, at a minimum, all signatory nations that require notice must accept the C-in-a-circle variant; it does not provide a provision for a spelled out variant. On the other hand, most nations that have signed a copyright treaty are signatories to the Berne Convention, which forbids requiring a notice as a condition to copyright. See section 4.1 for details. For a sound recording, the notice requirement is similar, except that it uses the letter "P" (for "Phonorecord") in a circle, plus the year and owner name. 17 U.S.C. 402(b). The statute does not provide a spelled out alternative to the P-in-a-circle. 2.8) Can I ever use a copyrighted work without permission of the copyright holder, or "What is 'fair use?'" In any analysis of copyright, it's important to remember the law's constitutional purpose: to promote science and the useful arts. "Fair use" is a doctrine that permits courts to avoid rigid application of the copyright statute when to do otherwise would stifle the very creativity that copyright law is designed to foster. The doctrine of fair use recognizes that the exclusive rights inherent in a copyright are not absolute, and that non-holders of the copyright are entitled to make use of a copyrighted work that technically would otherwise infringe upon one or more of the exclusive rights. Although fair use originated "for purposes such as criticism, comment, news reporting, teaching, ... scholarship, or research," it also applies in other areas, as some of the examples below illustrate. However, courts seem more willing to accept an assertion of fair use when the use falls into one of the above categories. Perhaps more than any other area of copyright, fair use is a highly fact- specific determination. Copyright Office document FL102 puts it this way: "The distinction between 'fair use' and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission." The document then quotes from the 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law., providing the following examples of activities that courts have held to be fair use: - Quotation of excerpts in a review or criticism for purposes of illustration or comment; - Quotation of short passages in a scholarly or technical work for illustration or clarification of the author's observations; - Use in a parody of some of the content of the work parodied; - Summary of an address or article with brief quotations, in a news report; - Reproduction by a library of a portion of a work to replace part of a damaged copy; - Reproduction by a teacher or student of a small part of a work to illustrate a lesson; - Reproduction of a work in legislative or judicial proceedings or reports; - Incidental and fortuitous reproduction in a newsreel or broadcast, of a work located in the scene of an event being reported. Document FL102 is included in Copyright Office information kit 102 ("Fair Use"), which can be ordered from the Copyright Office (see section 5.1). Carol Odlum , a free-lance editor, has provided a set of guidelines used by one publisher as rules of thumb. These certainly have no legal force, but it's instructive to note at least one publisher's interpretation of what "fair use" means in the real world. The publisher uses the following criteria for determining when permission of the copyright holder must be sought in order for the work to be used: - Prose quotations of more than 300 words from a scholarly book. (If a source is quoted several times for a total of 300 words or more, permission must be obtained.); - Prose quotations of more than 150 words from a popular, general-market book; - Prose quotations of more than 50 words from a scholarly journal; - Quotations of more than 2 lines of poetry or lyrics; - Quotations of more than 1 sentence from a popular magazine or newspaper; - Quotations of any length from letters or other personal communications, interviews, questionnaires, speeches, unpublished dissertations, and radio or television broadcasts. - Illustrations -- including drawings, graphs, diagrams, charts, maps, artwork, and photographs -- created by someone else; - Music examples of more than 4 measures; - Tables compiled by someone else. 2.9) Fair use - the legal basis of the doctrine. Section 2.8, above, describes fair use in a nutshell. This follow-on entry provides a more detailed description of the doctrine for those interested in the nuts and bolts. There are four factors used to decide whether a particular use of a copyrighted work is a fair use: (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. 17 U.S.C. 107. The remainder of this answer discusses how each of these factors has been interpreted. (1) The purpose and character of the use: In considering the purpose and character of the use, courts have looked to two characteristics of the use: whether the use is commercial and, somewhat less frequently, whether the use is a "productive" one. If the copyrighted work is being used commercially, e.g., all or part of a copyrighted drawing being used in a commercially published book on drawing techniques, that's a strike against it being fair use. On the other hand, if the same drawing were used in a non-profit school to teach children to draw, then this factor would be in favor of finding a fair use. Most situations are somewhere in between. That is, a use might not be commercial, but it's not necessarily non-profit educational, either. Note, though, that the statute does not command this "commercial/non- profit educational" balance, and not all courts use it, at least not by itself. Commercial use might be forgiven if the use is characterized as a "productive" or "transformative" use, i.e., a use of the material that interprets or otherwise adds value to the material taken from the copyrighted work. See Consumers Union v. General Signal Corp., 724 F.2d 1044, 1047 (2nd Cir. 1983) (noting that the use of one of Consumer Report magazine's reviews of a vacuum cleaner in an advertisement was a fair use, in part because the purpose and character of the advertisement was in part to educate consumers). The Supreme Court has noted that the distinction between "productive" and "unproductive" uses is not wholly determinative, but is helpful in balancing the interests. Sony Corp. v. Universal City Studios, 464 U.S. 417, 451 n.40 (1983). (2) The nature of the copyrighted work: If the work being used is one that is factual or functional in nature, then that's a point in favor of use of that work being a fair use. That's because copyright isn't available for facts themselves, and the courts recognize that it's kind of dumb to force someone with a newspaper clipping to completely rewrite it to avoid infringement (besides, a paraphrase is still an infringement, because it qualifies as creating a derivative work, even if it's not a direct copy). If the work is a fictional or artistic one, though, taking the work is taking much more than any underlying facts. A fictional or artistic work is more expressive than a factual one, so the copyright (which is designed to protect expression) is stronger. Even in factual works, however, where the portion used includes subjective descriptions whose power lies in the author's individualized expression, this factor might go against a finding of fair use, if the use exceeds that necessary to disseminate the facts. See Harper and Row v. Nation Enterprises, 471 U.S. 539 (1985) (finding no fair use for infringement of former U.S. President Ford's memoirs despite its factual content). Another point that's often examined in looking at the nature of the copyrighted work is whether the work has been published. Courts will generally consider a use of an unpublished work as more likely to infringe than a similar use of a published work. Harper and Row v. Nation Enterprises, 471 U.S. 539, 564 (1985). This is for two reasons. First, the first publication is often the most valuable to the copyright holder. Second, it affects the copyright holder's ability to choose not to publish the work at all. See Salinger v. Random House, 811 F.2d 90, 97 (2nd Cir. 1987). As with the first factor, while the "fact/fiction" balance and "published/unpublished" balance are two of the most common, they are not commanded by the statute, which only requires considering the "nature of the copyrighted work." For example, in Sega v. Accolade, 977 F.2d 1510, 1525 (9th Cir., 1993), the Court of Appeals noted that the nature of most computer programs distributed in object code is that the functional (and therefore unprotected) elements cannot be discerned without disassembly. This supported the court's opinion that, in certain limited instances, disassembling of a competitor's product to find interface information that cannot be obtained in any other way is a fair use of the work, despite the fact that code disassembly necessarily involves making a copy of the copyrighted program. (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole: This appears simpler than it really is. On the face of it, it means that if you incorporate 95% of a copyrighted work into another work, it's a lot less likely to be a fair use than if you take only a small portion, say, 5%. And that's true. However, assessing this factor is a bit more complex than that simple statement. Even if only a small portion of the work is used, if that portion is "qualitatively substantial," e.g., if the portion used is essentially the heart of the work, that use will be deemed to have been "substantial," and could go against a finding of fair use. See Harper and Row v. Nation Enterprises, 471 U.S. 539 (1985) (finding no fair use for infringement of former U.S. President Ford's memoirs, where the portion used (which described Ford's decision to pardon former President Nixon) included "the most interesting and moving parts of the entire manuscript"), and Roy Export Co. v. Columbia Broadcasting System, 503 F.Supp. 1137 (S.D.N.Y. 1980) (taking of 55 seconds out of 89-minute film deemed "qualitatively substantial"). To confuse matters further, some courts have (probably erroneously) interpreted this factor by looking at what percentage of the work _using_ the material is composed of material from the copyrighted work, rather than what percentage of the copyrighted work was used. See, e.g., Association of American Medical Colleges v. Mikaelian, 571 F.Supp. 144 (E.D. Pa, 1983), aff'd 734 F.2d 3 (3rd Cir., 1984), aff'd 734 F.2d 6 (3rd Cir., 1984). While this interpretation is probably erroneous, it's worth bearing in mind that, at least in one judge's courtroom in the Eastern District of Pennsylvania, that's how the statute will be interpreted. (4) The effect of the use upon the potential market for or value of the copyrighted work: The U.S. Supreme Court has stated that this factor is "undoubtedly the single most important element of fair use." Harper and Row v. Nation Enterprises, 471 U.S. 539 (1985). The late Professor Melville Nimmer, in his treatise on copyright law, paraphrased it, "Fair use, when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied." Nimmer on Copyright, section 1.10[D]. If the use impacts the market for the work, the use is less likely to be held to be a fair use. Note also that the weighing is of the impact on the potential market, not on the actual market. For example, although Playboy magazine does not distribute its pictures in machine-readable form, it may choose to do so in the future. One might argue that digitizing a picture and posting it on the net does not impact the current market for the magazine originals. However, it impacts the potential (but currently non-existent) market for machine-readable copies. Because there is an impact on the potential market, an analysis of this factor in such a situation would not support a finding of fair use. If all this sounds like hopeless confusion, you're not too far off. Often, whether a use is a fair use is a very subjective conclusion. In the Harper and Row case cited above, for example, the Supreme Court was split 6-3. In the famous "Betamax case," Sony v. Universal City Studios, 464 U.S. 417 (1984) (in which the Supreme Court found that off-air non- archival videotaping of broadcast television was a fair use), the split was 5-4. In both of these cases, the District Court ruled one way (no fair use in Harper and Row, fair use in Sony) and was reversed by the Court of Appeals, which was then itself reversed by the Supreme Court. This goes to show that even well-educated jurists are capable of disagreeing on the application of this doctrine. 2.10) [reserved.] FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.3) Part 3 - Common miscellaneous questions. Copyright 1994 Terry Carroll (c) 1994 Terry Carroll Last update: January 6, 1994. This article is the third in a series of six articles that contains frequently asked questions (FAQ) with answers relating to copyright law, particularly that of the United States. It is posted to the Usenet misc.legal, misc.legal.computing, misc.int-property, comp.patents, misc.answers, comp.answers, and news.answers newsgroups monthly, on or near the 17th of each month. This FAQ is available for anonymous FTP from rtfm.mit.edu [18.70.0.209], in directory /pub/usenet/news.answers/law/Copyright-FAQ, files part1 - part6. If you do not have direct access by FTP, you can obtain a copy via email: send a message to mail-server@rtfm.mit.edu with the following lines in it: send usenet/news.answers/law/Copyright-FAQ/part1 send usenet/news.answers/law/Copyright-FAQ/part2 send usenet/news.answers/law/Copyright-FAQ/part3 send usenet/news.answers/law/Copyright-FAQ/part4 send usenet/news.answers/law/Copyright-FAQ/part5 send usenet/news.answers/law/Copyright-FAQ/part6 quit DISCLAIMER - PLEASE READ. This article is Copyright 1994 by Terry Carroll. It may be freely redistributed in its entirety provided that this copyright notice is not removed. It may not be sold for profit or incorporated in commercial documents without the written permission of the copyright holder. Permission is expressly granted for this document to be made available for file transfer from installations offering unrestricted anonymous file transfer on the Internet. Permission is further granted for this document to be made available for file transfer in the data libraries of associated with the following Compuserve Information Services fora: the Legal Forum, the Desktop Publishing Forum, the Show Business Forum, and the Ideas, Invention & Innovation Forum. This article is provided as is without any express or implied warranty. Nothing in this article represents the views of Santa Clara University or of the Santa Clara Computer and High Technology Law Journal. While all information in this article is believed to be correct at the time of writing, this article is for educational purposes only and does not purport to provide legal advice. If you require legal advice, you should consult with a legal practitioner licensed to practice in your jurisdiction. Terry Carroll, the FAQ-maintainer, is a computer professional, and is currently (January 1994) a student in his final semester at Santa Clara University School of Law, is currently Editor-in-Chief of the Santa Clara Computer and High Technology Law Journal, and is seeking employment as an attorney. If you have any additions, corrections, or suggestions for improvement to this FAQ, please send them to one of the following addresses, in order of preference: 71550.133@compuserve.com tcarroll@scuacc.scu.edu I will accept suggestions for questions to be added to the FAQ, but please be aware that I will be more receptive to questions that are accompanied by answers. :-) FAQ ORGANIZATION. The following table indicates the contents of each of the parts of the FAQ. Part 1 - Introduction (including full table of contents). Part 2 - Copyright basics. Part 3 - Common miscellaneous questions. Part 4 - International aspects. Part 5 - Further copyright resources. Part 6 - Appendix: A note about legal citation form, or, "What's all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?" TABLE OF CONTENTS (for this part). Part 3 - Common miscellaneous questions. 3.1) Who owns the copyright to something I wrote at work, me or my company? 3.2) [reserved.] 3.3) Is copyright infringement a crime, or a civil matter? 3.4) What is the statute of limitation for copyright infringement? 3.5) Can the government be sued for copyright infringement? 3.6) Can the government copyright its works? 3.7) Can I legally make a cassette copy of a musical CD for my own use, so I can play it in my car? 3.8) Are Usenet postings and email messages copyrighted? 3.9) Are fonts copyrighted? 3.10) What does "All Rights Reserved" mean? 3.11) What's the difference between a copyright and a patent? 3.12) Why is there so little in this FAQ about patents? 3.13 - 3.18) [reserved.] 3.1) Who owns the copyright to something I wrote at work, me or my company? That depends on a lot of things. Normally, you are the author of the work and own the copyright. There are two broad mechanisms by which your company may own the copyright, though: assignment and the work-made-for- hire doctrine. ASSIGNMENT: Even if you are the author, and therefore the copyright is initially yours, it may now belong to your company if you assigned the copyright to them. A full assignment of copyright must be in writing, and signed; it can't be implied. 17 U.S.C. 204. Therefore, if you're the author in a copyright sense, and did not assign the copyright to your company in writing, you still own it. Please note, however, that some companies make it a practice to acquire a blanket assignment of copyright in any works created on the job at time of hiring. Note, though, that even in the absence of a written contract, your actions might have been sufficient to grant the company an implied license to the work. For example, in the case of Effects Associates v. Cohen, 908 F.2d 555 (9th Cir., 1990), a film producer (Cohen) claimed that he owned copyright in special effects film footage depicting "great gobs of alien yogurt oozing out of a defunct factory." The footage was produced by Effects Associates, a special effects company, and there was no written assignment of copyright. The court ruled that Effects retained ownership of the copyright, but that Cohen had an implied license to use it in his horror film, "The Stuff," because Effects had "created the work at [Cohen's] request and handed it over, intending that [Cohen] copy and distribute it." Because the license was non-exclusive, it wasn't a complete transfer of copyright, and did not need to be in writing. Effects was free to sell the same footage to other moviemakers. WORK MADE FOR HIRE: If a work qualifies as a work made for hire, the company is the author for purposes of copyright, and copyright initially vests in the company. A work is a work made for hire under either of two circumstances. First, if it is a work prepared by an employee within the scope of employment. Second, if the work was specially commissioned, is one of a short list of relatively esoteric types (a contribution to a collective work, a part of a motion picture or other audiovisual work, a translation, a supplementary work, as a compilation, as an instructional text, a test, answer material for a test, or an atlas), and the parties agreed in writing that it was to be considered a work for hire. 17 U.S.C. 101. To determine if a work is one prepared by an employee within the scope of employment, there are two important considerations. First, was the work prepared by an employee, or by an independent contractor? Several facts, such as whether taxes were withheld, who supervised the work, artistic control, setting of working hours, etc., will be examined to determine this factor. A good case discussing these factors is CCNV v. Reid, 490 U.S. 730 (1989). The second consideration is whether the work was within the scope of the employment. Unless these two considerations are met, the work will not be considered one made for hire under the employee test, and the "employee" will retain copyright. Of course, the same considerations discussed above regarding an implied license might exist, even in cases where the work-made-for- hire doctrine does not apply. 3.2) [reserved.] 3.3) Is copyright infringement a crime, or a civil matter? It's always at least a civil matter (a tort). 17 U.S.C. 501(b) details the mechanisms by which an owner of a copyright may file a civil suit, and 28 U.S.C. 1338 expressly refers to civil actions arising under the copyright act. However, under certain circumstances, it may also be a federal crime. A copyright infringement is subject to criminal prosecution if infringement is willful and for purposes of commercial advantage or private financial gain. 17 U.S.C. 506(a). If the offense consists of the reproduction or distribution, during any 180-day period, of 10 or more copies having a retail value of more than $2,500, the offense is a felony; otherwise, the offense is a misdemeanor. 18 U.S.C. 2319. As a side note, although 18 U.S.C. 2319 purports to prescribe the penalties for criminal infringement, all crimes covered by Title 18 have their penalties determined by the U.S. Sentencing Guidelines, another part of Title 18. 3.4) What is the statute of limitation for copyright infringement? For both civil suits and criminal prosecutions, the statute of limitations for copyright infringement is three years. 17 U.S.C. 507. 3.5) Can the government be sued for copyright infringement? Yes. The United States has expressly waived its immunity to suit for copyright infringement. 28 U.S.C. 1498. For some time, it was unclear whether the Eleventh Amendment of the U.S. Constitution operated to make a state immune from suit for copyright infringement. In BV Engineering v. University of California at Los Angeles, 858 F.2d 1394 (9th Cir., 1988), UCLA successfully defended a copyright infringement suit on the ground that it had such immunity. Although UCLA won that suit, Congress responded by passing the Copyright Remedy Clarification Act, PL 101-553, in 1990. This law added section 511 to the Copyright Act, which had the effect of removing the immunity defense. It became effective June 1, 1991. Today the law is very clear: the United States government and the governments of each state may be sued for copyright infringement, and may not plead immunity as a defense. 3.6) Can the government copyright its works? This one has to be taken slowly, and we'll look at federal and state governments separately, because the rules are different. With one exception, works of the United States government are public domain. 17 U.S.C. 105. The only exception is for standard reference data produced by the U.S. Secretary of Commerce under the Standard Reference Data Act, 15 U.S.C. 290e. However, there's a big loophole here: while the U.S government can't get copyright for its own works, it can have an existing copyright assigned to it. So if the U.S. government produces a work, it's not copyrighted. But if an independent contractor working for the government produces a work, it is copyrighted, and nothing prevents that contractor from assigning the copyright back to the government. This reconciles the fact that the U.S. government can't copyright its works with the fact that if you stay up late on weekends, you'll see Public Service Announcements against drunk driving that say "Copyright U.S. Department of Transportation." Also, there are some entities that might seem to be part of the U.S. government, but are not. For example, the U.S. Postal Service is no longer a branch of the U.S. government. In addition, while under U.S. control, the District of Columbia, Puerto Rico, and organized territories of the U.S. are not considered to be part of the U.S. government for purposes of copyright law. Whether a state can copyright its works is a different matter. Unlike the U.S. government, a state government's works are subject to copyright. It is up to each state to decide whether to retain the copyright or whether such works are to be automatically made public domain. A related question that sometimes comes up is whether a government may copyright its laws. In the case of the federal government, because of the factors discussed above, the answer is clearly that it cannot. With state governments, it's a little less clear. There is no statute, case, or regulation that indicates that a state cannot copyright its laws. However, it is the position of the U.S. Copyright Office that a state's laws may not be copyrighted. The Compendium of Copyright Office Practices (Compendium II) section 206.01 states, "Edicts of government, such as judicial opinions, administrative rulings, legislative enactments, public ordinances, and similar official legal documents are not copyrightable for reasons of public policy. This applies to such works whether they are Federal, State, or local as well as to those of foreign governments." Now, the Compendium II does not have force of law. But this does indicate that any state trying to register a copyright in its laws would be refused registration by the Copyright Office. As a result, it would either have to successfully sue the Office to force registration, or it would bear the burden of establishing that its work was indeed copyrighted in the event of an infringement suit (normally, a registration fulfills that burden). It's a safe bet that any state or city trying to assert a copyright in its laws would have an uphill battle ahead of it. 3.7) Can I legally make a cassette copy of a musical CD for my own use, so I can play it in my car? This issue has been argued back and forth for many years, with consumers groups arguing that this was a fair use (see sections 2.8 and 2.9), and the recording industry arguing that it was not. The issue was finally settled by Congress when the Audio Home Recording Act (AHRA) (P.L. 102- 563, 106 Stat. 4237, codified at 17 U.S.C. 1001 - 1010) was passed in October 1992. This Act added ten sections to Title 17, one of which provided an alternative to the fair use analysis for musical recordings. The new section states: No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings. 17 U.S.C. 1008. As the legislative history to this statute noted, "In short, the reported legislation would clearly establish that consumers cannot be sued for making analog or digital audio copies for private noncommercial use." H.R. Rep. 102-780(I). Does this mean you can make copies for your family and friends, as long as it's not "commercial?" A strict reading of the words in the statute would seem to say that you may. This is not as outrageous as it sounds. Part of the impetus behind the AHRA was the perception that blank tapes were being used mostly to copy commercial musical sound recordings. As a result, the AHRA provided that a royalty payment (referred to as a "DAT tax" by its detractors) be paid for each sale of digital audio tape to compensate authors of musical works and sound recordings for the profits lost due to these copies. See 17 U.S.C. 1003, 1004. Arguably, the AHRA anticipates and allows exactly this type of copying, and a literal reading of section 1008 would tend to support this position. But the AHRA is still sufficiently new this hasn't been tested in court yet. Note, also, that this section applies only to musical recordings; it clearly does not include spoken word recordings. Of course, it is still possible that such a use of a spoken word recording might still be considered a section 107 fair use (see sections 2.8 and 2.9), even though section 1008 does not apply to provide a clear exemption. 3.8) Are Usenet postings and email messages copyrighted? Almost certainly. They meet the requirement of being original works of authorship fixed in a tangible medium of expression (see section 2.3). They haven't been put in the public domain; generally, only an expiration of copyright or an unambiguous declaration by an author is sufficient to place a work into public domain. However, at least with Usenet postings, there are two doctrines which probably allow at least some copying: fair use (see sections 2.8 and 2.9) and implied license. Whether a particular use of a Usenet posting is a fair use is, as always, a very fact-specific determination. However, it's probably safe to say that it's a fair use if the use was not commercial in nature, the posting was not an artistic or dramatic work (e.g.,, it was the writer's opinion, or a declaration of facts, and not something like a poem or short story), only as much of the posting was copied as was necessary (e.g., a short quotation for purposes of criticism and comment), and there was little or no impact on any market for the posting. A similar argument can be made for quoting of private email messages. Of course, revealing the contents of a private email message could run afoul of any of a number of non-copyright laws: defamation, invasion of privacy, and trade secrecy, to name a few. So even if you won't be violating any copyright laws, you should consider other factors that may expose you to legal liability before revealing a private message's contents. Proponents of the implied license idea point out that Usenet postings are routinely copied and quoted, and anyone posting to Usenet is granting an implied license for others to similarly copy or quote that posting, too. It's not clear whether such implied license extends beyond Usenet, or indeed, what "Usenet" really means (does it include, for example, Internet mailing lists? Does it include netnews on CD-ROM?). If a posting includes an express limitation on the right to copy or quote, it's not at all certain whether the express limitation or the implied license will control. No doubt it depends on the specific facts. For example, was the limitation clearly visible to the person who did the copying? Was the limitation placed such that it would be visible only after the person who did the copying invested time and money to get the posting, believing it to be without any limitation? With private email messages, a copier who relies solely on the implied license argument will probably lose, since it's hard to argue that by sending the private message to a limited audience, the sender intended for it to be copied and quoted. For email messages to a public mailing list, the implied license argument may still be sound. These theories are largely speculative, because there has been little litigation to test them in the courts. As a practical matter, most postings, with a small number of notable exceptions, are not registered with the Copyright Office. As such, to prevail in court, the copyright holder would need to show actual damages (see section 2.5). Since most of these cases will result in little or no actual damage, no cases have been be brought; it's simply too expensive to sue for negligible damages. 3.9) Are fonts copyrighted? First, let's distinguish between a font and a typeface. A typeface is the scheme of letterforms (which is really what you're probably talking about), and the font is the computer file or program (or for that matter, a chunk of metal) which physically embodies the typeface. A font may be the proper subject of copyright, but the generally accepted rule is that a typeface embodied in the font is not (see Eltra Corp. v. Ringer, 579 F.2d 294, 208 U.S.P.Q. 1 (4th Cir., 1978), and the House of Representatives Report on the Copyright Law Revision, 94-1476, 94th Congress, 2d Session at 55 (1976), reprinted in 1978 U.S. Cong. and Admin. News 5659, 5668). The letterforms themselves are not copyrightable under U.S. law as a typeface. 37 CFR 202.1(e). A font is copyrightable if it adds some level of protectable expression to the typeface, but that protection does not extend to the underlying uncopyrightable typeface itself (see 17 U.S.C. 102(b)). In essence, a font will be protectable only if it rises to the level of a computer program. Truetype and other scalable fonts will therefore be protected as computer programs, a particular species of literary works. Bitmapped fonts are not copyrightable, because in the opinion of the Copyright Office, the bitmap does not add the requisite level of originality to satisfy the requirement for copyright. So, to summarize this point, a typeface is not copyrightable. While a scalable font might be copyrightable as a program, merely copied the uncopyrightable typeface, and creating your own font, either scalable or bitmapped, is probably not an infringement, assuming you did not copy any of the scalable font's code. Two warnings: First, even if typefaces can't be copyrighted, they can be patented under existing design patent laws. 35 U.S.C. 171. Copying a typeface and distributing such a font, while not a violation of copyright, might be an infringement of the patent. Second, Congress has been considering design protection legislation for many years (most recently, the 102nd Congress' H.R. 1790) which, if passed, would protect typeface design. If such a bill is enacted, the above opinion will be obsolete and incorrect. 3.10) What does "All Rights Reserved" mean? One of the earliest international copyright treaties to which the U.S. was a member was the 1911 Buenos Aires Convention on Literary and Artistic Copyrights (see section 4.1 for more information). This treaty provided that, once copyright was obtained for a work in one signatory country, all other signatories accorded protection as well without requiring any further formalities (i.e., notice or registration), provided that the work contained a notice reserving these rights. The typical notice complying with Buenos Aires was "All Rights Reserved." As noted in section 4.1, the Buenos Aires Convention is essentially dead today, and the "All Rights Reserved" notice no longer serves much useful purpose. It lives on mostly as a testament to inertia on the part of U.S. publishers. 3.11) What's the difference between a copyright and a patent? This answer is included in both the Copyright and Patents FAQs. There are basically five major legal differences between a copyright and a patent in the United States: subject matter protected, requirement for protection, when protection begins, duration, and infringement. There's also a sixth practical one: cost. Subject matter: A copyright covers "works of authorship," which essentially means literary, dramatic, and musical works, pictorial, graphic, and sculptural works, audio-visual works, sound recordings, pantomimes and choreography. A patent covers an invention, which essentially means a new and non-obvious useful and functional feature of a product or process. Requirement for protection: In order for a work to be copyrighted, it must be original and fixed in a tangible medium of expression; no formalities are required (see section 2.3). In order for an invention to be patented, it must be novel (i.e., new), non-obvious, and useful and a patent must be issued by the United States Patent and Trademark Office. Start of protection: Copyright protection begins as soon as a work is created. Patent protection does not begin until the patent is issued. Duration: A copyright generally lasts for the life of the author, plus 50 years (see section 2.4). In the U.S., a patent lasts for 17 years from the date granted (in some nations, particularly Japan and most European nations, the duration is 20 years, and is measured from date of application). Infringement: For a copyright to be infringed, the work itself must have actually been copied from (either wholly or to create a derivative work), distributed, performed, or displayed. If a person other than the copyright owner independently comes up with the same or a similar work, there is no infringement. In contrast, a patent confers a statutory monopoly that prevents anyone other than the patent holder from making, using, or selling the patented invention. This is true even if that person independently invents the patented invention. Cost: A copyright is essentially free. Even if you want to register the copyright, the cost is only $20, and the paperwork is much less complicated than the 1040A short form for filing your income tax, well within the capabilities of the person registering the copyright. A patent, on the other hand, is much more costly; there are fees to the Patent and Trademark Office, and the patent application process is much more complex, usually requiring the services of a registered patent agent (and perhaps a lawyer) to draft and prosecute the application, adding to the cost. Philosophically, you can look at a copyright as protecting the author's rights that are inherent in the work; in contrast, a patent is a reward of a statutory monopoly to an inventor in exchange for providing the details of the invention to the public. 3.12) Why is there so little in this FAQ about patents? Peter Treloar, the moderator of comp.patents, currently maintains a FAQ devoted exclusively to patents, and duplicating his effort here would be needlessly redundant. The comp.patents FAQ is periodically posted to the Usenet comp.patents newsgroup. A current copy is available by anonymous FTP from ftp.su.oz.au, in directory /pub/patents/incoming, and from ftp.uni-stuttgart.de [129.69.8.13], in directory /pub/doc/comp.patents. The comp.patents FAQ (or "The Internet Patent Book") is available in two versions. The file named "internet_patents.txt" is a plain ascii text; "internet_patents.ps" is a PostScript version. The PostScript version is by far the more readable of the two. For further information regarding the comp.patents FAQ, please correspond with Peter directly, at pjt@research.canon.oz.au. 3.13 - 3.18) [reserved.] FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.3) Part 4 - International aspects. Copyright 1994 Terry Carroll (c) 1994 Terry Carroll Last update: January 6, 1994. This article is the fourth in a series of six articles that contains frequently asked questions (FAQ) with answers relating to copyright law, particularly that of the United States. It is posted to the Usenet misc.legal, misc.legal.computing, misc.int-property, comp.patents, misc.answers, comp.answers, and news.answers newsgroups monthly, on or near the 17th of each month. This FAQ is available for anonymous FTP from rtfm.mit.edu [18.70.0.209], in directory /pub/usenet/news.answers/law/Copyright-FAQ, files part1 - part6. If you do not have direct access by FTP, you can obtain a copy via email: send a message to mail-server@rtfm.mit.edu with the following lines in it: send usenet/news.answers/law/Copyright-FAQ/part1 send usenet/news.answers/law/Copyright-FAQ/part2 send usenet/news.answers/law/Copyright-FAQ/part3 send usenet/news.answers/law/Copyright-FAQ/part4 send usenet/news.answers/law/Copyright-FAQ/part5 send usenet/news.answers/law/Copyright-FAQ/part6 quit DISCLAIMER - PLEASE READ. This article is Copyright 1994 by Terry Carroll. It may be freely redistributed in its entirety provided that this copyright notice is not removed. It may not be sold for profit or incorporated in commercial documents without the written permission of the copyright holder. Permission is expressly granted for this document to be made available for file transfer from installations offering unrestricted anonymous file transfer on the Internet. Permission is further granted for this document to be made available for file transfer in the data libraries of associated with the following Compuserve Information Services fora: the Legal Forum, the Desktop Publishing Forum, the Show Business Forum, and the Ideas, Invention & Innovation Forum. This article is provided as is without any express or implied warranty. Nothing in this article represents the views of Santa Clara University or of the Santa Clara Computer and High Technology Law Journal. While all information in this article is believed to be correct at the time of writing, this article is for educational purposes only and does not purport to provide legal advice. If you require legal advice, you should consult with a legal practitioner licensed to practice in your jurisdiction. Terry Carroll, the FAQ-maintainer, is a computer professional, and is currently (January 1994) a student in his final semester at Santa Clara University School of Law, is currently Editor-in-Chief of the Santa Clara Computer and High Technology Law Journal, and is seeking employment as an attorney. If you have any additions, corrections, or suggestions for improvement to this FAQ, please send them to one of the following addresses, in order of preference: 71550.133@compuserve.com tcarroll@scuacc.scu.edu I will accept suggestions for questions to be added to the FAQ, but please be aware that I will be more receptive to questions that are accompanied by answers. :-) FAQ ORGANIZATION. The following table indicates the contents of each of the parts of the FAQ. Part 1 - Introduction (including full table of contents). Part 2 - Copyright basics. Part 3 - Common miscellaneous questions. Part 4 - International aspects. Part 5 - Further copyright resources. Part 6 - Appendix: A note about legal citation form, or, "What's all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?" TABLE OF CONTENTS (for this part). Part 4 - International aspects. 4.1) What international treaties exist governing copyright, or "What is this Berne Convention I keep hearing about?" 4.2) Is Freedonia a signatory to either the Berne Convention or to the Universal Copyright Convention? 4.1) What international treaties exist governing copyright, or "What is this Berne Convention I keep hearing about?" The two major treaties governing copyright are the Berne Convention (U.S. Senate Treaty Doc. 99-27, KAV 2245, 1 B.D.I.E.L. 715; also reprinted at 17 U.S.C.A. 104). and the Universal Copyright Convention (U.C.C.), (25 U.S.T. 1341, T.I.A.S. 7868, 1 B.D.I.E.L. 813 (1971 Paris text); and 6 U.S.T. 2731, T.I.A.S. 3324, 216 U.N.T.S. 132 (1952 Geneva text)). (Note: the abbreviation U.C.C. to denote the Universal Copyright Convention should not be confused with the same abbreviation to denote the Uniform Commercial Code.) The Berne Convention for the Protection of Literary and Artistic Works was established in 1886 in Berne, Switzerland. The text has been revised, and the current edition (and the one to which the United States and most other nations are a signatory) is the 1971 Paris text. The treaty is administered by the World Intellectual Property Organization (WIPO), an international organization headquartered in Geneva, Switzerland. The Berne Convention has four main points: National treatment, preclusion of formalities, minimum terms of protection, and minimum exclusive rights. National treatment: Under Berne, an author's rights are respected in another country as though the author were a national (citizen) of that country (Art. 5(1)). For example, works by U.S. authors are protected by French copyright in France, and vice versa, because both the U.S. and France are signatories to Berne. Preclusion of formalities: Under Berne, copyright cannot be dependent on formalities such as registration or copyright notice (Art. 5(2)). However, as noted in sections 2.5 and 2.7, this provision apparently does not prevent a member nation from taking adherence to formalities into account when determining what remedies apply. Minimum terms of protection: Under Berne, the minimum duration for copyright protection is the life of the author plus 50 years (Art. 7(1)). Signatory nations may have provide longer durations if they so choose. Minimum exclusive rights: Under Berne, a nation must provide for protection of six rights: translation (Art. 8(1)), reproduction (Art. 9(1)), public performance (Art. 11(1), and Art. 11ter), adaptation (Art. 12), paternity (Art. 6bis(1)) and integrity (Art. 6bis(1)). In certain of these areas, U.S. copyright law does not quite align with Berne. For example, Berne requires that the paternity and integrity rights endure for the same term as the other rights (Art. 6bis(2)), while in the U.S., those rights terminate at the death of the author (17 U.S.C. 106A(e)). The two have been reconciled by the premise that other sources of federal law, such as trademark, combined with the trademark, unfair competition, and defamation laws of the individual states, satisfy these requirements. The Universal Copyright Convention was originally written in 1952 in Geneva. It became effective in 1955. Like the Berne Convention, the text has been revised. As with the Berne Convention, the most recent revision was in Paris in 1971. The United States is party to both the 1952 Geneva text and the 1971 Paris text. The U.C.C. is administered by UNESCO, a United Nations agency. Like Berne, the UCC requires national treatment for authors. However, the UCC differs from Berne in four material ways. First, the UCC permits (but does not require) member states to require formalities such as copyright notice and registration as a condition of copyright (Art. III). Second, copyright duration must be until least 25 years after the author's death or after the first publication, depending on whether a nation calculates duration based on the author's life or on publication (Art. IV). Third, the UCC's provisions on minimum rights are considerably less demanding than Berne's; the UCC demands recognition only of the rights to reproduce, adapt, and to publicly perform or broadcast the work. Furthermore, the UCC expressly permits a nation to make exceptions to these rights, as long as the exceptions do not conflict with the spirit of the treaty (Art. IVbis). Fourth and finally, the UCC recognizes the Berne Convention, and includes language so that, between two nations which are signatories to both Berne and the UCC, the Berne Convention controls and the UCC does not apply. Furthermore, if a nation is a signatory to both conventions, and withdraws from Berne, it will not be protected by the UCC (Art. XVII and Appendix). These provisions were added by nations fearing that creation of the UCC in 1955 would undermine the already existing Berne Convention. The United States was the primary mover behind the creation of the U.C.C., because the formalities that existed in U.S. copyright law at that time did not permit adherence to Berne. With the U.S. joining Berne, and consequently abandoning the formalities that were the driving force behind the U.C.C., the significance of the U.C.C. is waning. In addition to Berne and the UCC, other copyright treaties include the 1971 Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (25 U.S.T. 309, T.I.A.S. 7808, 888 U.N.T.S. 67), the 1984 Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (T.I.A.S. 11078), and the 1911 Buenos Aires Convention on Literary and Artistic Copyrights (38 Stat. 1785, T.S. 593, 1 Bevans 758), which regulated copyright in the Americas. The U.S. did not sign the Buenos Aires Convention when it was revised in 1948, and all of its signatories are now also signatories to either or both of Berne or the UCC. The Buenos Aires Convention is now essentially a dead letter in international copyright law. The texts of both versions of the U.C.C., the Buenos Aires Convention, and the Geneva Convention, are in Circular 38c, "International Copyright Conventions," available from the Copyright Office (see section 5.1). Texts of the Berne Convention and the U.C.C. are available by anonymous FTP from the Multilaterals Project (see section 5.2). 4.2) Is Freedonia a signatory to either the Berne Convention or to the Universal Copyright Convention? The answer in section 4.1 is generally almost always followed by a query as to whether a specific country has signed one or more of the conventions, so the following lists provide that information. This data comes from the January 1992 edition (the most current) of Treaties In Force, with some supplemental information as noted. Each list indicates only that the nations listed have signed the convention. It does not indicate whether a particular nation has also signed one or more of the optional protocols associated with the convention. For example, Protocol 1 of the U.C.C. establishes that stateless persons are to be considered nationals of the nation within which they reside for purposes of the convention; a number of nations have signed the U.C.C., but have not signed that protocol. If you really want to get down to that level of detail, consult a current edition of Treaties In Force. If you're interested in knowing more detail about what copyright treaties are in effect between the U.S. and a particular nation, there is a table in the back of Treaties In Force containing an alphabetical list of countries, listing the copyright treaties (both unilateral and multilateral) to which it is a party with the U.S., including the dates on which each treaty entered into force. This table is also reproduced in the Copyright Office's Circular 38a, "International Copyright Relations of the United States," contains You can order it from the Copyright Office (see section 5.1). This circular is also included in Copyright Office information kit 100. A similar table is included as an appendix in the Nimmer treatise (see section 5.1). Note that, while the U.S.S.R. is listed as a signatory to the 1952 Geneva text of the U.C.C., the status of the former soviet states is unclear at this time. I've been told that Russia and some of the other newly independent states have announced that they will honor nearly all of the treaties of the former Soviet Union. Other states, for example, Estonia, Latvia, and Lithuania, take the position that they were never legally part of the Soviet Union, and that treaties entered into by the Soviet Union are totally irrelevant to their international obligations. In addition, I've been cited to an article entitled "Post-Soviet Law: The Case of Intellectual Property Law," by Peter Maggs (an attorney and professor at University of Illinois at Urbana-Champaign) in the Harriman Institute Forum, Vol. 5, No. 3 (Nov. 1991), pp. 3-9. Professor Maggs reportedly concludes that, under international law, all newly independent states that were previously legitimate parts of the USSR (i.e., all except Estonia, Latvia, and Lithuania), remain bound by the UCC, although whether they actually have functional copyright protection is another matter altogether. Thank you to for contacting Professor Maggs and providing me with most of the information in the preceding two paragraphs. In addition, in May 1993, the TASS news agency reported that Russia has enacted a new copyright law that is Berne-compliant, in preparation for an anticipated signing of the Berne Convention. The following nations are signatories to the Berne Convention (1971 Paris text): Argentina, Australia, Austria, the Bahamas, Barbados, Belgium, Benin (formerly Dahomey), Brazil, Bulgaria, Burkina Faso (formerly Upper Volta), Cameroon, Canada, the Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Cote d'Ivoire (Ivory Coast), Cyprus, Czechoslovakia, Denmark, Ecuador, Egypt, Fiji, Finland, France, Gabon, Germany, Ghana, Greece, Guinea, Holy See (Vatican City), Honduras, Hungary, Iceland, India, Ireland, Israel, Italy, Japan, Lebanon, Lesotho, Liberia, Libya, Liechtenstein, Luxembourg, Madagascar (Malagasy Republic), Malawi, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico, Monaco, Morocco, the Netherlands, New Zealand, Niger, Norway, Pakistan, Peru, Philippines, Poland, Portugal, Romania, Rwanda, Senegal, South Africa, Spain, Sri Lanka (formerly Ceylon), Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, the United Kingdom, the United States, Uruguay, Venezuela, Yugoslavia, Zaire, and Zimbabwe. According to U.S. State Department Dispatches published since January 1992, additional nations to sign Berne include Gambia (Dec. 12, 1992), China (July 10, 1992) and Kenya (March 11, 1993). The following nations are signatories to the Universal Copyright Convention (1971 Paris text): Algeria, Australia, Austria, the Bahamas, Bangladesh, Barbados, Bolivia, Brazil, Bulgaria, Cameroon, Colombia, Costa Rica, Cyprus, Czechoslovakia, Denmark, the Dominican Republic, Ecuador, El Salvador, France, Germany, Grenada, Guinea, Hungary, Italy, Japan, Kenya, Korea, Mexico, Monaco, Morocco, the Netherlands, Norway, Panama, Poland, Portugal, St. Lucia, St, Vincent and the Grenadines, Senegal, Seychelles, Spain, Sri Lanka (formerly Ceylon), Sweden, Trinidad and Tobago, the United Kingdom, the United States, Vatican City, and Yugoslavia. The following nations are signatories to the Universal Copyright Convention (1952 Geneva text): Algeria, Andorra, Argentina, Australia, Austria, the Bahamas, Bangladesh, Barbados, Belgium, Belize, Bolivia, Brazil, Bulgaria, Cambodia, Cameroon, Canada, Chile, Colombia, Costa Rica, Cuba, Cyprus, Czechoslovakia, Denmark, the Dominican Republic, Ecuador, El Salvador, Fiji, Finland, France, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guyana, Haiti, Holy See, Hungary, Iceland, India, Ireland, Israel, Italy, Japan, Kenya, Korea, Laos, Lebanon, Liberia, Liechtenstein, Luxembourg, Malawi, Malta, Mauritius, Mexico, Monaco, Morocco, the Netherlands, New Zealand, Nicaragua, Nigeria, Norway, Pakistan, Panama, Paraguay, Peru, Poland, Portugal, St. Lucia, St, Vincent and the Grenadines, Senegal, Seychelles, Spain, Sri Lanka (formerly Ceylon), Sweden, Switzerland, Tunisia, the Union of the Soviet Socialist Republics, the United Kingdom, the United States, Venezuela, Yugoslavia, and Zambia. FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.3) Part 5 - Further copyright resources. Copyright 1994 Terry Carroll (c) 1994 Terry Carroll Last update: January 6, 1994. This article is the fifth in a series of six articles that contains frequently asked questions (FAQ) with answers relating to copyright law, particularly that of the United States. It is posted to the Usenet misc.legal, misc.legal.computing, misc.int-property, comp.patents, misc.answers, comp.answers, and news.answers newsgroups monthly, on or near the 17th of each month. This FAQ is available for anonymous FTP from rtfm.mit.edu [18.70.0.209], in directory /pub/usenet/news.answers/law/Copyright-FAQ, files part1 - part6. If you do not have direct access by FTP, you can obtain a copy via email: send a message to mail-server@rtfm.mit.edu with the following lines in it: send usenet/news.answers/law/Copyright-FAQ/part1 send usenet/news.answers/law/Copyright-FAQ/part2 send usenet/news.answers/law/Copyright-FAQ/part3 send usenet/news.answers/law/Copyright-FAQ/part4 send usenet/news.answers/law/Copyright-FAQ/part5 send usenet/news.answers/law/Copyright-FAQ/part6 quit DISCLAIMER - PLEASE READ. This article is Copyright 1994 by Terry Carroll. It may be freely redistributed in its entirety provided that this copyright notice is not removed. It may not be sold for profit or incorporated in commercial documents without the written permission of the copyright holder. Permission is expressly granted for this document to be made available for file transfer from installations offering unrestricted anonymous file transfer on the Internet. Permission is further granted for this document to be made available for file transfer in the data libraries of associated with the following Compuserve Information Services fora: the Legal Forum, the Desktop Publishing Forum, the Show Business Forum, and the Ideas, Invention & Innovation Forum. This article is provided as is without any express or implied warranty. Nothing in this article represents the views of Santa Clara University or of the Santa Clara Computer and High Technology Law Journal. While all information in this article is believed to be correct at the time of writing, this article is for educational purposes only and does not purport to provide legal advice. If you require legal advice, you should consult with a legal practitioner licensed to practice in your jurisdiction. Terry Carroll, the FAQ-maintainer, is a computer professional, and is currently (January 1994) a student in his final semester at Santa Clara University School of Law, is currently Editor-in-Chief of the Santa Clara Computer and High Technology Law Journal, and is seeking employment as an attorney. If you have any additions, corrections, or suggestions for improvement to this FAQ, please send them to one of the following addresses, in order of preference: 71550.133@compuserve.com tcarroll@scuacc.scu.edu I will accept suggestions for questions to be added to the FAQ, but please be aware that I will be more receptive to questions that are accompanied by answers. :-) FAQ ORGANIZATION. The following table indicates the contents of each of the parts of the FAQ. Part 1 - Introduction (including full table of contents). Part 2 - Copyright basics. Part 3 - Common miscellaneous questions. Part 4 - International aspects. Part 5 - Further copyright resources. Part 6 - Appendix: A note about legal citation form, or, "What's all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?" TABLE OF CONTENTS (for this part). Part 5 - Further copyright resources. 5.1) Where can I get more information on copyright? 5.2) What materials related to copyright are available on the Internet? 5.1) Where can I get more information on copyright? The U.S. Copyright Office General Information Package 118 provides general information on copyright law. Copyright Office Circular 2, "Publications on Copyright," provides a complete list of publications relating to copyright which are available from the Copyright Office. These materials and many others may be ordered (generally free of charge) by calling the Copyright Office Hotline at 202-707-9100 and leaving a voice mail message. Call the Hotline only if you already know the number of the publication you want. If you don't know the publication number, the Copyright Office maintains a prerecorded information line at 202-707- 3000. This line provides an automatic voice mail attendant that provides information according to responses presented from a touch-tone keypad. Much of the information in section 2.6 was obtained from this information line. The book "Intellectual Property in a Nutshell," by Arthur R. Miller of Harvard Law School and Michael H. Davis of Cleveland-Marshall College of Law (West Publishing, 1990, ISBN 0-314-75738-4), provides a fine introduction not only to copyright law, but also to patent and trademark law. It's typically available from college or law school bookstores for about $15. The authoritative secondary source for information on copyright is the five-volume loose-leaf opus, "Nimmer on Copyright." Originally written and maintained by the late Professor Melville Nimmer and now maintained by his son, David Nimmer, this is the most respected source of copyright information, short of the texts of the statutes, regulations, and cases themselves. Nimmer is frequently cited by courts, including the U.S. Supreme Court, as an authority to justify their opinions. I've been surprised to find short essays on even the most obscure copyright questions (e.g., whether a food recipe is subject to copyright). I heartily recommend it as an initial source for research. It is, however, a bit dense for casual reading. Several readers have recommended L. Ray Patterson & Stanley W. Lindberg, "The Nature Of Copyright" (1991), ISBNs 0-8203-1362-9 (paperback) and 0- 8203-1347-5 (hardback). Patterson and Stanley reportedly argue for a broad interpretation of a user's rights in a work, and a more narrow interpretation of the right of the copyright holder. Be aware that this interpretation may or may not match the law of your jurisdiction. In preparing this FAQ, I consulted the casebook that was used in my Copyright class in Fall of 1991 at Santa Clara University School of Law: Joyce, Patry, Leaffer and Jaszi, "Copyright Law, Second Edition" (1991), ISBN 0-8205-0115-8. Like most casebooks, it contains edited versions of most of the landmark decisions in the law, including most of the cases that are cited in this FAQ. It's not for beginners, but it's well- written, and often contains illustrations of the works being discussed in the cases (a very useful feature, since copyright questions often turn on questions of similarity or originality that can only be determined by seeing the work). The book's best features are a good review of the history of copyright, an excellent description of the international treaties covering copyright, and a detailed bibliography at the end of each chapter. An unfortunate feature is the index, which is not the best organized, and often provides incorrect page numbers (perhaps because of the editors' hurry to include the Feist case that had been decided only a few months before the book was in stores). Nolo Press publishes two books on copyright for the lay reader: "The Copyright Handbook: How to Protect and Use Written Works," by Stephen Fishman, ISBN 0-87337-130-5 ($24.95) and "How to Copyright Software," by M.J. Salone, ISBN 0-87337-102-X ($39.95). My knowledge of these books is limited to the entries in the catalog, but Nolo Press generally enjoys an excellent reputation for publishing accurate and understandable books on law. Nolo's telephone number is (510) 549-1976. 5.2) What materials related to copyright are available on the Internet? The following is a list of materials relating to copyright that I have been able to verify are available on the Internet. STATUTES: - FATTY.LAW.CORNELL.EDU - Most portions of the current copyright law have been made available by Cornell University. To review the statute, enter the command telnet fatty.law.cornell.edu 8210 and sign on with a user ID of "www." No password is necessary. This will allow you to use the World Wide Web software to navigate the copyright law. It also includes access to the Berne Convention. TREATIES: - THE MULTILATERALS PROJECT - The Fletcher School of Law and Diplomacy maintains the Multilaterals Project, an anonymous ftp site with a number of multilateral treaties, at jade.tufts.edu. This archive includes versions of both the Berne Convention and the Universal Copyright Convention. The treaties are in directory /pub/diplomacy. The following files are of particular interest: README - A one-page description of the Multilaterals Project, by Peter Stott, its director. INDEX - An index of all the treaties and other documents available from the project. BH006-1971.txt - The 1971 Paris text of the Berne Convention for the Protection of Literary and Artistic Works. UNTS11850.txt - The 1967 Stockholm text of the Berne Convention for the Protection of Literary and Artistic Works. The United States is not a party to the this text. UNTS13444.txt - The 1971 Paris text of the Universal Copyright Convention. In addition, The Berne Convention may also be viewed via telnet to fatty.law.cornell.edu as noted above, under "STATUTES." OTHER RESOURCES: - THE CNI-COPYRIGHT MAILING LIST - The Coalition for Networked Information (CNI) sponsors CNI-Copyright, an Internet mailing list devoted to copyright issues. To join, send a message to LISTSERV@CNI.ORG with a single line of text in the body that says: SUBSCRIBE CNI-COPYRIGHT your name If that doesn't work, send a message to CRAIG@CNI.ORG (Craig Summerhill) and ask him to manually add you to the list. After joining, messages may be sent to the list at CNI-COPYRIGHT@CNI.ORG. Archives of the CNI-COPYRIGHT list are available and may be searched online via telnet. To access them, telnet to a.cni.org, login with the ID "brsuser" (no password is required), and follow the instructions presented. CNI-COPYRIGHT archives are in the COPY database. CNI is a not for profit corporation and is a joint project of the Association of Research Libraries (ARL), CAUSE, and EDUCOM. It promotes the creation of and access to information resources in networked environments in order to enrich scholarship and to enhance intellectual productivity. - COPYRIGHT GUIDE FOR PHOTOGRAPHERS - FTP site moink.nmsu.edu (128.123.4.58) has a repository, /pub/rec.photo, for files related to photography. Among the files contained in this directory is the Copyright Guide For Photographers, produced by the American Society of Media Photographers, Inc. While the Guide is particularly oriented towards photographers, much of the information it provides will be of use to anyone interested in copyright. The file asmp-copyright-guide is an ASCII version of this document. A TeX version is also available, in asmp-copyright-TeX.tar.z. - USENET NEWSGROUPS - There are several newsgroups that from time to time discuss copyright issues. misc.legal: the main newsgroup covering legal issues, including copyright law. misc.legal.moderated: A moderated analog to misc.legal, but moderated, and probably with a higher signal-to-noise ratio as a result. misc.int-property: Discussions of intellectual property; copyright, patent, trademark and trade secrecy, and their alternatives. misc.legal.computing: Legal issues related to computers. Copyright and patent issues predominate. comp.patents: Moderated newsgroup discussing issues related to computers and patents, including software patents. The newsgroup is moderated by patents-request@cs.su.oz.au (Peter Treloar). Please note that the focus of this group is more on patent law than copyright law. comp.software.licensing: Trends, practices, and techniques in software licensing. gnu.misc.discuss: Discussions in this group frequently include issues of software patents, copyright, and "copyleft." FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.2) Part 6 - Appendix: A note about legal citation form, or, "What's all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?" Copyright 1994 Terry Carroll (c) 1994 Terry Carroll Last update: January 6, 1994. This article is the last in a series of six articles that contains frequently asked questions (FAQ) with answers relating to copyright law, particularly that of the United States. It is posted to the Usenet misc.legal, misc.legal.computing, misc.int-property, comp.patents, misc.answers, comp.answers, and news.answers newsgroups monthly, on or near the 17th of each month. This FAQ is available for anonymous FTP from rtfm.mit.edu [18.70.0.209], in directory /pub/usenet/news.answers/law/Copyright-FAQ, files part1 - part6. If you do not have direct access by FTP, you can obtain a copy via email: send a message to mail-server@rtfm.mit.edu with the following lines in it: send usenet/news.answers/law/Copyright-FAQ/part1 send usenet/news.answers/law/Copyright-FAQ/part2 send usenet/news.answers/law/Copyright-FAQ/part3 send usenet/news.answers/law/Copyright-FAQ/part4 send usenet/news.answers/law/Copyright-FAQ/part5 send usenet/news.answers/law/Copyright-FAQ/part6 quit DISCLAIMER - PLEASE READ. This article is Copyright 1994 by Terry Carroll. It may be freely redistributed in its entirety provided that this copyright notice is not removed. It may not be sold for profit or incorporated in commercial documents without the written permission of the copyright holder. Permission is expressly granted for this document to be made available for file transfer from installations offering unrestricted anonymous file transfer on the Internet. Permission is further granted for this document to be made available for file transfer in the data libraries of associated with the following Compuserve Information Services fora: the Legal Forum, the Desktop Publishing Forum, the Show Business Forum, and the Ideas, Invention & Innovation Forum. This article is provided as is without any express or implied warranty. Nothing in this article represents the views of Santa Clara University or of the Santa Clara Computer and High Technology Law Journal. While all information in this article is believed to be correct at the time of writing, this article is for educational purposes only and does not purport to provide legal advice. If you require legal advice, you should consult with a legal practitioner licensed to practice in your jurisdiction. Terry Carroll, the FAQ-maintainer, is a computer professional, and is currently (January 1994) a student in his final semester at Santa Clara University School of Law, is currently Editor-in-Chief of the Santa Clara Computer and High Technology Law Journal, and is seeking employment as an attorney. If you have any additions, corrections, or suggestions for improvement to this FAQ, please send them to one of the following addresses, in order of preference: 71550.133@compuserve.com tcarroll@scuacc.scu.edu I will accept suggestions for questions to be added to the FAQ, but please be aware that I will be more receptive to questions that are accompanied by answers. :-) FAQ ORGANIZATION. The following table indicates the contents of each of the parts of the FAQ. Part 1 - Introduction (including full table of contents). Part 2 - Copyright basics. Part 3 - Common miscellaneous questions. Part 4 - International aspects. Part 5 - Further copyright resources. Part 6 - Appendix: A note about legal citation form, or, "What's all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?" APPENDIX: A note about legal citation form, or, "What's all this '17 U.S.C. 107' and.'977 F.2d 1510' stuff?" Citations to legal materials can be intimidating when first encountered. The purpose of this entry is to provide a short description of the legal citations used in this article to reduce that intimidation. It's not intended as a be-all and end-all to legal research, but just a way of letting you find the sources that are cited in this FAQ if you head to a law library. If you don't care about looking up any of the legal materials cited in this FAQ, you can skip this entry. On the other hand, if you find this interesting and would like more information, I recommend Mark Eckenwiler's Legal Research FAQ. This FAQ is archived at rtfm.mit.edu, directory /pub/usenet/news/answers/law/research, files part1 and part2. If you do not have direct access by FTP, you can obtain a copy via email: send a message to mail-server@rtfm.mit.edu with the following lines in it: send usenet/news.answers/law/research/part1 send usenet/news.answers/law/research/part2 quit Questions regarding the Legal Research FAQ should be directed to Mark at eck@panix.com. CASES: Cases are reported in books called "reporters." A reporter generally consists of a series of bound volumes. Often when the volume number becomes too high, the reporter publisher starts over with volume 1, designating the new set as a "second series," "third series," etc., as appropriate. Because copyright is almost entirely a matter of federal law, most (if not all) cases referenced in this FAQ are federal cases. The most common reporters (with their abbreviations shown in parentheses) are: United States Reports (U.S.) - This is the official reporter for cases from the United States Supreme Court. This is the standard reporter reference provided when referencing a Supreme Court case. If a case is especially recent, it may not yet be published in the U.S. Reports, in which case, the proper reference is to one of the unofficial reporters (either the Supreme Court Reporter or the Lawyers' Edition). The unofficial reporters are also cross-indexed by the U.S. Report's volume and page numbers, so that given a citation to a case in the U.S. Reports, you should be able to also find it in either of the unofficial reporters. The converse is not true: if, for example, you have a citation to the Supreme Court Reporter, you will not be able to find the case in the U.S. Reports. All law libraries carry a set of books called Shepard's Citations, which will permit you to cross-reference this way. See your law librarian for help using these intimidating-looking books. Supreme Court Reporter (S.Ct.) - This is an unofficial reporter published by West Publishing. It too reports cases from the United States Supreme Court. The advantages of this reporter is that it comes out more quickly than the official reporter, and also includes West's headnotes and case summaries. United States Supreme Court Reporter, Lawyers' Edition (L.Ed.) - This is another unofficial reporter, similar to the Supreme Court Reporter, but published by the Lawyers Cooperative Publishing Co. In addition to the advantages offered by the Supreme Court Reporter, it often includes short essays (called annotations) on points of law dealt with in a case. Federal Reporter (F.) - This is an unofficial reporter, published by West, that reports cases from the various United States Courts of Appeal. There is no official reporter for these cases, and the Federal Reporter de facto fills that role. Federal Supplement (F.Supp) - This is an unofficial reporter, published by West, that reports cases from the various United States District Courts (that is, from the courts of "original jurisdiction," where trials are originally held and often appealed to the higher courts). There is no official reporter for these cases, and the Federal Supplement de facto fills that role. United States Patent Quarterly (U.S.P.Q.) - This is a topical reporting service from the Bureau of National Affairs (BNA). It reports cases from various courts, but because it's a "topical reporter," it only reports cases dealing with a certain topic, in this case, intellectual property (despite its name, it's not limited to patent cases). This is only a very small subset of the reporters and services that report cases. For a more complete list, see "The Bluebook: A Uniform System of Citation, 15th Edition," in particular, tables T.1 (United States Jurisdictions), T.2 (Foreign Jurisdictions) and T.16 (Services). The standard way of referencing a case is in the format: case-name volume-number reporter [series, if applicable] page-number (jurisdiction, date) "Jurisdiction" is omitted for U.S. Supreme Court cases; the fact that the reporter is U.S., S.Ct., or L.Ed. is enough to show that it's a U.S. Supreme Court case. If two page numbers are included, the first page number is the page on which the case begins, and the second is the page that contains the particular point being referenced (called a "pinpoint cite" or "jump cite"). Here is an example of a case citation: Sega v. Accolade, 977 F.2d 1510, 1520 (9th Cir., 1993). From this citation, we know that the parties in the case are Sega and Accolade; the case is reported in volume 977 (second series) of the Federal Reporter; the case begins on page 1510, but the particular point being referenced is on page 1520; the case was decided in the 9th Circuit Court of Appeals, in 1993. STATUTES: A federal statute is generally enacted as a "public law," and is assigned a P.L. number. This number indicates the Congress in which it was enacted, and the law number within the Congress. For example, the Copyright Act of 1976 was the 553rd law enacted by the 94th Congress, and so is officially catalogued as P.L. 94-553. If you know the P.L. number of a law, you can generally find it in the United States Code Congressional and Administrative News (U.S.C.C.A.N.), or in Statutes at Large (see below) easily. Once enacted, Public Laws are catalogued in a official statute list called "Statutes At Large." Citations to Statutes at Large ("Stat.") are similar to that for cases: volume, service identifier, and page number. For example, the Copyright Act of 1976 may be cited as 90 Stat 2541, meaning that it is in Statutes At Large, volume 90, page 2541. However, most statutes, as enacted, are not very useful to read. They're generally written in a style saying that a prior act is amended by adding certain words or phrases, and deleting others. Without seeing the context of the modified portion, you really can't see what the statute actually does. This problem is handled by statutory codifications. In particular, most U.S. laws are organized into "titles" of the U.S. Code (U.S.C.). Each title governs a particular area of law. For example, Title 17 deals with copyright law. These codifications are periodically updated by taking the original laws and applying the modifications made by subsequent laws so that the result is the text of the law as it is in effect today. In practice, almost every citation to law (including the majority of those in this FAQ) are to the U.S.C., not to the individual public laws. A typical citation to the U.S.C. looks like this: 17 U.S.C. 107. This is a reference to U.S. Code, Title 17, section 107 (which happens to be the fair use provisions of copyright). While there is an official U.S. Code published by the U.S. government, there are two commercially published versions of the code, too. These are West Publishing's U.S. Code Annotated (U.S.C.A.) and Lawyers Cooperative Publishing Co.'s U.S. Code Service (U.S.C.S.). In practice, because of the private versions are frequently updated, and contain extras such as cross-references to other statutes, cases, law review articles and other resources, they are used far more frequently than the official U.S.C. REGULATIONS: In addition to statutes passed by Congress, law also comes in the form of regulations promulgated by the various federal agencies. In the case of copyright, the regulations we're most interested in are those promulgated by the Copyright Office. Regulations become effective by publication of the regulation in the Federal Register (Fed. Reg.). Like statutes, they are then periodically codified, in this case in the Code of Federal Regulations (C.F.R.). Usually, regulations are cited to the C.F.R. for the same reason that statutes are usually cited to the U.S.C. However, the promulgation documents as published in the Federal Register include not only the regulation itself, but usually information justifying or explaining the regulation, so occasionally the Fed. Reg. citation is used. Here are some examples of citations to a regulation, in this case, to a regulation preventing registration of a copyright in a blank form: 45 Fed. Reg. 63297, 63299 (Sep. 24, 1980). (Federal Register volume 45, beginning on page 63297, with a pinpoint cite to page 63299.) 37 C.F.R. 202.1(c) (1992). (the same regulation, as codified in the C.F.R.) TREATIES: Treaties are compiled in several treaty sources. If the U.S. is a party, the treaty will generally be found in United States Treaties and Other International Agreements (U.S.T.) or Treaties and Other International Acts Series (T.I.A.S.). In some cases (especially with older treaties signed before the State Department took on their publication), they'll be in Statutes at Large; in some case (especially with important newer treaties not yet published by the State Department), they'll be in the private versions of the U.S. Code. If the U.S. is not a party, the treaty won't be in the above sources. It might be found the United Nations Treaty Series (U.N.T.S.) (or the League of Nations Treaty Series (L.N.T.S.) for older treaties), the Pan-American Treaty Series (Pan-Am. T.S.) or European Treaty Series (Europ. T.S.). In addition, treaties may be found in many unofficial compilations, e.g., International Legal Materials (I.L.M.), Basic Documents of International Economic Law (B.D.I.E.L.), Bevans, and Kavass (KAV). This is only a small list of treaty sources. For more sources, see "The Bluebook: A Uniform System of Citation, 15th Edition," in particular, table T.4 (Treaty Sources). Generally, treaties are cited in the standard way: volume number, reporter, and page number (e.g., the Berne Convention is 1 B.D.I.E.L. 715). A few series (e.g., T.I.A.S. and Europ. T.S.) are cited by treaty number within the series, with no volume number specified. The document "Treaties In Force" lists all the treaties to which the U.S. is a party, and it lists all the other nations that are also a party. This is a good source to find out if a particular nation is a signatory to a particular treaty. One final note on treaties: In section 4.1, many citations to treaties look like typographical errors: "Art. 6bis" and "Art. 11ter," for example. Well, these aren't typos. "bis," "ter, and "quater" are suffixes derived from the French words for "second," "third," and "fourth," respectively These suffixes are used when a treaty has already been written, and a revision will insert a new article between already existing articles. This avoids the need to renumber the treaty articles, and so provides a consistency between multiple revisions of the treaties. For example, Article 6bis of the Berne Convention is an article that was inserted between Article 6 and Article 7 when the convention text was revised. (This is also the reason why some modems are advertised as supporting the V.32 protocol, while others support V.32bis, in case you've ever wondered.)