Festival Network Online Newsletter
November/December - 2004
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A note from the editor.....
Between shows I design websites, and this question comes up quite often. I did a little research on the subject and found a great article (and website) compiled by a real lawyer (since 1992) - with a great sense of humor!
Hope this helps answer some of your questions - if not, I'm sure she would be happy to help. Her name is Jodi Sax, and her website is http://www.lawgirl.com. Have a wonderful holiday season! As always, keep on, keeping on. Diane
How do I copyright my website?
One of the most frequent questions that I have been getting lately is how does one go about protecting a copyright interest in a website? Well, the government is a little bit slow on the uptake in all things web, but the powers that be are starting to realize that this medium is not going away anytime soon. As such, both the trademark office and the copyright office are getting hip to the fact that some special procedures need to be implemented to deal with protecting internet-related intellectual property.
The good folks at the copyright office have recently issued an information circular entitled Copyright Registration for Online Works which is supposed to explain all this. If you ask me, it's about as helpful as reading a dictionary, in a foreign language. As such, and because I was needing something to write about this week, I have taken it upon myself to try to guide you through the process of registering a copyright in an online work.
How does one get copyright protection?
As a preliminary matter, it is important to remember that copyright protects original works of authorship fixed in a tangible film, and that a work does not become subject to copyright protection through registration. Rather, copyright protection exists in an eligible work from the moment of fixation. That means, the moment you put something in "fixed" form, whether it be by writing it down, recording it, or taking a photo of it, the work has copyright protection.
That being said, people often wonder why they need to register? I go into this in detail on my copyright help page, so you can see all the reasons why you should register your copyright there. Accordingly, I won't bore you with the details here. Suffice to Dec '04 - How do I copyright my.ems say, you get extra protection, and if you think someone might rip you off, it's a good idea. Oh, and you need to register before you can sue if someone does rip you off.
What does register for online works protect?
The copyright registration procedure described here covers online works such as websites. It does not cover copyright protection for computer programs or copyright protection for automatic databases. These have their own registration rules and you can figure those out by following the above links. This distinction is drawn because, for online works, copyright protection will extend only to the copyrightable content of the work identified as the subject of the copyright and deposited with the copyright office. More on this later, but the same is not the case for computer programs and automatic databases.
How to Register
The first step in registering your online work is to figure out which type of application form you need. The copyright office gives you several choices: Form TX for literary material, including computer programs and databases; Form VA for pictorial and graphic works; Form PA for audiovisual material, including any sounds, music or lyrics; and Form SR for sound recordings not accompanying an audiovisual work.
Now, at this point you probably are scratching your head because your website has a little bit of all of these things. Well, use the form that corresponds to the type of work of which you have the most. If you get it wrong, most likely nothing will happen, EXCEPT sound recordings unaccompanied by a series of images must be registered on a Form SR. (Note to people with music sites with no Dec '04 - How do I copyright my.ems moving images: use Form SR).
Completeing the Application Form
The application forms above come with instructions, but the copyright office guide to registering online works highlights a few portions of the application, so I guess a lot of people get these parts wrong. These sections are relatively self explanatory, but for the sake of clarity, I will reiterate them here:
Space 2: Nature of Authorship - give a brief statement describing the original authorship being registered. Use terms that clearly refer to copyrightable authorship, such as "text," "music," "artwork," Photographs," "audiovisual material," or "computer program." Don't give ambiguous descriptions of noncopyrightable authorship such as "format," layout," or "design." I take it they don't want you to just say "website" either.
Space 3: Determining if your work is published or unpublished. - there is a legal distinction between works that are published or unpublished, the origins of which go back to the time when copyright notice was required, and if you published a work without notice you injected it into the public domain. This is not relevant any longer, however, the distinction remains, and may have some effect upon the computation of damages in a copyright infringement lawsuit. In short, you still need to state whether your work is published or unpublished.
Publication in the copyright context is a somewhat amorphous concept even to those of us in this line of work. Under the current copyright law, publication is defined as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display or a work does not of itself constitute publication."
I know, this says a lot without really saying anything. OneDec '04 - How do I copyright my.ems definition of "publication" that I find a bit more useful is the following: "when a work is made available to members of the public at large without regard to who they are or what they propose to do with it." So, if your work is on the web, I would put my money on it being published. But don't say you heard it here.
After you have completed your application, you need to prepare the deposit material, which is the representative portion of your website that you deposit with the Library of Congress. There are no specific regulations for depositing online materials yet (surprised?). Until that time, however, the Copyright Office guidelines state that you will need to deposit one of the following:
Deposit option 1 - a computer disk (labelled with the title and author) containing the entire work (i.e., the html pages and graphic and other files) PLUS representative portions of the website that the copyright office can see without a computer, such as screen prints, audiocassettes or videotape. If your website is smaller than five pages or three minutes of taped material, deposit representative portions of all of your pages. If longer, deposit five pages or three minutes of tape.
Deposit option 2 - a reproduction of the entire work, regardless of length. Send the format appropriate for the authorship being registered, for example, a printout, audio cassette, or videotape. No computer disk is required.
Note that if a website is merely a reproduction of an offline work, such as a book, the deposit requirements for the offline work will supercede these rules. You can go to my copyright registration page or to the Copyright Office Website for info on registration procedures for other types of works.
(Here's the part I said we would get to later). If the bulk of what you are depDec '04 - How do I copyright my.ems ositing for your website is is a computer program or database, you need to follow the specific guidelines for those types of works. The information circulars covering copyright protection for computer programs or copyright protection for automatic databases will guide you through the process.
Now that you have completed your application and prepared your deposit material, you will need to prepare a check or money order for $30 payable to the Register of Copyrights, and mail the whole package, as directed on your application, to: Register of Copyrights, Library of Congress, Washington, D.C. 20559-6000.
What does this cover?
Now, if you update your site every week, you're probably wondering what this all covers. Well, unfortunately, your application and $30 fee only covers what is deposited, not updates to your site. Thus, every time you change your site significantly (or not so significantly depending on your level of paranoia), you will need to re-register. Note, however, that frequently updated sites may qualify as a serial or daily newsletter, which may be able to apply for group registrations at a reduced rate. For more information, follow the above links.
Well, with this you all should be well underway to happy and productive site registration. Have fun, but don't get too nutty over this. I'll confess to you here that lawgirl.com to this day remains unregistered.
Article provided by:
Owner of the website http://www.lawgirl.com. Reprinted with permission.
Diane Elliott Bruckner
Diane@festivalnet.com - dianebruckner.com
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