2555 lines
118 KiB
Plaintext
2555 lines
118 KiB
Plaintext
Archive-name: Copyright-FAQ/part1
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FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.1)
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Part 1 - Introduction.
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Copyright 1993 Terry Carroll
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(c) 1993 Terry Carroll
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This article is the first in a series of six articles that
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contains frequently asked questions (FAQ) with answers relating to
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copyright law, particularly that of the United States. It is
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posted to the Usenet misc.legal, misc.legal.computing, and
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misc.int-property newsgroups monthly, on or near the 17th of each
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month. The FAQ maintainer is currently investigating the
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requirements for posting the FAQ in the news.answers and related
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newsgroups.
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This FAQ is available for anonymous FTP from rtfm.mit.edu
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[18.70.0.226], in directory /pub/usenet/news.answers/Copyright-
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FAQ, files part1 - part6. If you do not have direct access by
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FTP, you can obtain a copy via email: send a message to mail-
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server@rtfm.mit.edu with the following lines in it:
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send usenet/news.answers/Copyright-FAQ/part1
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send usenet/news.answers/Copyright-FAQ/part2
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send usenet/news.answers/Copyright-FAQ/part3
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send usenet/news.answers/Copyright-FAQ/part4
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send usenet/news.answers/Copyright-FAQ/part5
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send usenet/news.answers/Copyright-FAQ/part6
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quit
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The most current copy of the FAQ, generally identical to the
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version on rtfm.mit.edu, is always available for anonymous ftp
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from charon.amdahl.com [129.212.33.1], in the directory
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/pub/misc.legal/Copyright-FAQ, filenames part.1 - part.6.
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DISCLAIMER - PLEASE READ.
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This article is Copyright 1993 by Terry Carroll. It may be freely
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redistributed in its entirety provided that this copyright notice
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is not removed. It may not be sold for profit or incorporated in
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commercial documents without the written permission of the
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copyright holder. Permission is expressly granted for this
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document to be made available for file transfer from installations
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offering unrestricted anonymous file transfer on the Internet.
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Permission is further granted for this document to be made
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available for file transfer in the Legal Forum and Desktop
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Publishing Forum data libraries of Compuserve Information
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Services. This article is provided as is without any express or
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implied warranty. Nothing in this article represents the views of
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Amdahl Corporation, Santa Clara University, or the Santa Clara
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Computer and High Technology Law Journal.
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|
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While all information in this article is believed to be correct at
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the time of writing, this article is for educational purposes only
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and does not purport to provide legal advice. If you require
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legal advice, you should consult with a legal practitioner
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licensed to practice in your jurisdiction.
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Terry Carroll, the FAQ-maintainer, is a computer professional, and
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is currently (7/93) a student in his final year at Santa Clara
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University School of Law and Editor-in-Chief of the Santa Clara
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Computer and High Technology Law Journal.
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If you have any additions, corrections, or suggestions for
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improvement to this FAQ, please send them to one of the following
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addresses, in order of preference:
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tjc50@juts.ccc.amdahl.com
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tcarroll@scuacc.scu.edu
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71550.133@compuserve.com
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I will accept suggestions for questions to be added to the FAQ,
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but please be aware that I will be more receptive to questions
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that are accompanied by answers. :-)
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FAQ ORGANIZATION.
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The following table indicates the contents of each of the parts of
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the FAQ. For each part, the last version in which that part was
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substantially updated (excluding the reorganization into six parts
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done as part of V1.1.0) is indicated in parentheses.
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Part 1 (V1.1.1) - Introduction (including full table of
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contents).
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Part 2 (V1.1.1) - Copyright basics.
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Part 3 (V1.0.0) - Common miscellaneous questions.
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Part 4 (V1.0.0) - International aspects.
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Part 5 (V1.0.2) - Further copyright resources.
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Part 6 (V1.0.0) - Appendix: A note about legal citation form,
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or, "What's all this '17 U.S.C. 107' and '977
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F.2d 1510' stuff?"
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TABLE OF CONTENTS (for all parts).
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Part 1 - Introduction.
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Part 2 - Copyright Basics.
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2.1) What is a copyright?
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2.2) What is "public domain?"
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2.3) I just wrote a great program/novel/song/whatever. How can I
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get a copyright on it?
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2.4) How long does a copyright last? Does it need to be renewed?
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2.5) What advantages are there to registering my work with the
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Copyright Office?
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2.6) How can I register a copyright with the U.S. Copyright
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Office?
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2.7) What advantages are there to including a copyright notice on
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my work?
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2.8) Can I ever use a copyrighted work without permission of the
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copyright holder, or "What is 'fair use?'"
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2.9) Fair use - the legal basis of the doctrine.
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2.10) [reserved.]
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Part 3 - Common miscellaneous questions.
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3.1) Who owns the copyright to something I wrote at work, me or my
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company?
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3.2) [reserved.]
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3.3) Is copyright infringement a crime, or a civil matter?
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3.4) What is the statute of limitation for copyright infringement?
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3.5) Can the government be sued for copyright infringement?
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3.6) Can the government copyright its works?
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3.7) Can I legally make a cassette copy of a musical CD for my own
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use, so I can play it in my car?
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3.8) Are Usenet postings and email messages copyrighted?
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3.9) Are fonts copyrighted?
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3.10) What does "All Rights Reserved" mean?
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3.11) What's the difference between a copyright and a patent?
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3.12) Why is there so little in this FAQ about patents?
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3.13 - 3.18) [reserved.]
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Part 4 - International aspects.
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4.1) What international treaties exist governing copyright, or
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"What is this Berne Convention I keep hearing about?"
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4.2) Is Freedonia a signatory to either the Berne Convention or to
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the Universal Copyright Convention?
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Part 5 - Further copyright resources.
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5.1) Where can I get more information on copyright?
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5.2) What materials related to copyright are available on the
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Internet?
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Part 6 - Appendix: A note about legal citation form, or, "What's
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all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?"
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INTRODUCTION
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This FAQ originally began as a general-purpose FAQ for the Usenet
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misc.legal newsgroup. After working on that broad FAQ for several
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months, it became apparent that such a FAQ was too monumental a
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task to be undertaken by a single FAQ maintainer. The person who
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succeeded me in the effort agreed.
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I've noticed that copyright questions seem to come up constantly
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on Usenet, not only in misc.legal, but in many newsgroups, from
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comp.fonts to rec.classical.music. It also happens to be my
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favorite area of law, so when I abandoned the misc.legal FAQ, I
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decided to retain the portions dealing with copyright law, and to
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fashion that into a Copyright Law FAQ. This document is the
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result.
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This FAQ betrays its misc.legal origin. On misc.legal, it's very
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common, and indeed preferred, for assertions of law to be
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accompanied by citations to the relevant legal authorities. This
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serves as a check against erroneous or misleading interpretations
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of the authorities. It also allows the reader to verify the
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authorities, and provides an enthusiastic reader with starting
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points for further research into the subject. In trimming the
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former misc.legal FAQ to discuss only copyright law, I've decided
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to retain these citations. This is not only for the reasons
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stated above, but also because this FAQ, like any other static
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document, is in danger of being made out of date by future
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developments in the law. By providing sources for the answers to
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the questions, an inquisitive reader will be able to investigate
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the source and determine, for example, if a particular appellate
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case has been overruled or has been declined to be followed by
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other appellate courts. I have included an appendix at the end of
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the FAQ to assist newcomers in understanding the legal notation
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used in citing references.
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ACKNOWLEDGMENTS
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I'd like to acknowledge the following people who reviewed early
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drafts of this FAQ and made valuable suggestions for
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modifications, or otherwise contributed to the FAQ:
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Thomas Deardorff <tdeardor@u.washington.edu>
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Stuart P. Derby <sderby@crick.ssctr.bcm.tmc.edu>
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Mary Jensen <cnicopy@charlie.usd.edu>
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David Lassner <david@oit.hawaii.edu>
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George Mitchell <gmitchel@library.unt.edu>
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Ronald Naylor <rnaylor@umiami.ir.miami.edu>
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Carol Odlum <carol@dreamer.rain.com>
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Laura A. Pitta <lpitta@scuacc.scu.edu>
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Hank Roth <odin@world.std.com>
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Craig A. Summerhill <craig@cni.org>
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Peter Stott <pstott@pearl.tufts.edu>
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David W. Tamkin <dattier@genesis.mcs.com>
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Glenn S. Tenney <tenney@netcom.com>
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Marina ___ [full name unknown] <marlen@sovam.com>
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CHANGE LOG
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V1.0 (Jul. 12, 1993) - Initial release.
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V1.0.1 (Jul. 20, 1993) - Modified Q32 to add information on ftp
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from charon.amdahl.com
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V1.1.0 (Aug. 05, 1993) - Reorganized into six parts; minor
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editorial changes.
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V1.1.1 (Sep. 21, 1993) - Added FTP information for rtfm.mit.edu;
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major
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overhaul to section 2.4 (on copyright
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duration);
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minor editorial changes.
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===================================================================================================
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Archive-name: Copyright-FAQ/part2
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FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.1)
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Part 2 - Copyright Basics.
|
|
|
|
Copyright 1993 Terry Carroll
|
|
(c) 1993 Terry Carroll
|
|
|
|
|
|
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, and
|
|
misc.int-property newsgroups monthly, on or near the 17th of each
|
|
month. The FAQ maintainer is currently investigating the
|
|
requirements for posting the FAQ in the news.answers and related
|
|
newsgroups.
|
|
|
|
This FAQ is available for anonymous FTP from rtfm.mit.edu
|
|
[18.70.0.226], in directory /pub/usenet/news.answers/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/Copyright-FAQ/part1
|
|
send usenet/news.answers/Copyright-FAQ/part2
|
|
send usenet/news.answers/Copyright-FAQ/part3
|
|
send usenet/news.answers/Copyright-FAQ/part4
|
|
send usenet/news.answers/Copyright-FAQ/part5
|
|
send usenet/news.answers/Copyright-FAQ/part6
|
|
quit
|
|
|
|
|
|
DISCLAIMER - PLEASE READ.
|
|
|
|
This article is Copyright 1993 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 Legal Forum and Desktop
|
|
Publishing Forum data libraries of Compuserve Information
|
|
Services. This article is provided as is without any express or
|
|
implied warranty. Nothing in this article represents the views of
|
|
Amdahl Corporation, Santa Clara University, or 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 (7/93) a student in his final year at Santa Clara
|
|
University School of Law and Editor-in-Chief of the Santa Clara
|
|
Computer and High Technology Law Journal.
|
|
|
|
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:
|
|
|
|
tjc50@juts.ccc.amdahl.com
|
|
tcarroll@scuacc.scu.edu
|
|
71550.133@compuserve.com
|
|
|
|
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.]
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2.1) What is a copyright?
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A copyright is a right of intellectual property granted to authors
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whereby they obtain, for a limited time, certain exclusive rights
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to their works. In the United States, copyright is exclusively
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federal law, and derives from the "copyright clause" of the
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Constitution (Art. 1, sec. 8, cl. 8), which provides Congress with
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the power "to promote science and the useful arts, by securing for
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limited times to authors ... the exclusive right to their ...
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writings."
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Copyright protects only an author's original expression. It
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doesn't extend to any ideas, system or factual information that is
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conveyed in a copyrighted work, and it doesn't extend to any pre-
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existing material that the author has incorporated into a work.
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17 U.S.C. 102(b), 103.
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The standard for originality is very low. "Original" in this
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context means only that the work has its origin in the author.
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There is no requirement that the work be different from everything
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that has come before: it need only embody a minimum level of
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creativity and owe its origin to the author claiming copyright.
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To use an extreme example, if two poets, each working in total
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isolation and unaware of one another's work, were to compose
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identical poems, both of the poems would meet the originality
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requirement for purposes of the copyright statute. Feist
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Publications, Inc. v. Rural Telephone Service Company, Inc., 111
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S.Ct. 1282, 1287-88 (1991).
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In the United States, these seven rights are recognized:
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1) the reproductive right: the right to reproduce the work in
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copies;
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2) the adaptative right: the right to produce derivative works
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based on the copyrighted work;
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3) the distribution right: the right to distribute copies of
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the work;
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4) the performance right: the right to perform the copyrighted
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work publicly;
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5) the display right: the right to display the copyrighted work
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publicly;
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6) the attribution right (sometimes called the paternity
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right): the right of the author to claim authorship of the
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work and to prevent the use of his or her name as the author
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of a work he or she did not create;
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7) the integrity right: the right of an author to prevent the
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use of his or her name as the author of a distorted version
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of the work, to prevent intentional distortion of the work,
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and to prevent destruction of the work.
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17 U.S.C. 106, 106A.
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Not all of these rights apply to all types of works. For example,
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the display right applies to literary, musical, dramatic and
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choreographic works, pantomimes, and motion pictures and other
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audiovisual works. It does not apply to sound recordings and to
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architectural works. The attribution right and the integrity
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right apply only to works of visual art.
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Also, not all rights have the same duration: in the U.S., rights
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1-5 normally have a duration of the author's life plus 50 years,
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while rights 6-7 endure only for the life of the author.
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These rights are not unbounded, and in the U.S., sections 107
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through 120 of the copyright law catalog a series of restrictions
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on the rights. Some of these restrictions are discussed elsewhere
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in the FAQ (see, e.g., sections 2.8, 2.9, and 3.7).
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And, by the way, many persons erroneously spell it "copywrite,"
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apparently because of the association with written material. The
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correct word is "copyright." It derives from an author or
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publisher's right to the copy (copy here being used in the sense
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that it is used in the newspaper trade: the text of an article).
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2.2) What is "public domain?"
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In contrast to copyright is "public domain." A work in the public
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domain is one that can be freely used by anyone for any purpose.
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It used to be that if a work was published without notice, it lost
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all copyright, and entered the public domain. That's no longer
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true, and now public domain is more the exception than the rule.
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There are still a number of ways that a work may be public domain.
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- The copyright may have expired (see section 2.4).
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- The work might be a work of the U.S. Government; such works
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can't be copyrighted (see section 3.6).
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- The work might be one that can't be copyrighted. For example,
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titles, names, short phrases and slogans can't be copyrighted
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(37 C.F.R. 202.1(a)). Note, however, they can be trademarks.
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As far as copyright law is concerned, they're public domain,
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but as far as trademark law is concerned, they might be
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protected.
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- The copyright might have been forfeited. For example, the work
|
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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).
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- The copyright might have been abandoned. This is pretty rare.
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Abandonment requires that the copyright holder intend to
|
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abandon the copyright, and generally requires an unambiguous
|
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statement or overt act on the part of the copyright holder that
|
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indicates his or her intent to dedicate the work to the public
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domain. National Comics Pub. v. Fawcett Pub., 191 F.2d 594,
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|
598 (2d Cir., 1951). A statement that anyone who wishes to may
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reproduce, perform, or display the work without restrictions
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might be sufficient. Simply posting it on a computer network
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is not abandonment.
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There is a common belief that if someone infringes a copyright,
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|
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.
|
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|
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:
|
|
|
|
1 - 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.
|
|
|
|
2 - 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, and sometimes the work
|
|
was
|
|
created and/or when it was published.
|
|
|
|
3 - 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.
|
|
|
|
4 - 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,
|
|
the duration provisions were settled very early, 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), began 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 1993. 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. Note that 1992 is listed as a special year twice, and for two
|
|
different reasons. First, it's the year in which renewals were
|
|
made optional. Second, 1992 is the most recent year that has seen
|
|
any copyright expirations (regardless of the scheme used to
|
|
compute duration, under 17 U.S.C. 305, copyrights always expire on
|
|
December 31 of the expiration year and at the time of this writing
|
|
(September 1993), December 31, 1993 has not yet arrived). The
|
|
second use will obviously change as the years advance.
|
|
|
|
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 (1904 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 1904). If the copyright was not renewed after its
|
|
initial 28-year term, the work lapsed into public domain.
|
|
Generally, all copyrights granted in 1917 or earlier lapsed at the
|
|
latest in 1992 and are now in public domain (1992 (last year)
|
|
minus 75 equals 1917). Copyrights granted in the period 1918
|
|
through 1949 continue to exist only if they were renewed, and
|
|
expire in the period 1993 through 2006.
|
|
|
|
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.
|
|
|
|
Phew! And I thought that there wouldn't be much math in law.
|
|
|
|
|
|
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 102nd 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 <carol@dreamer.rain.com>, 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 Melvin 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.
|
|
|
|
*****************************************************************************
|
|
|
|
Archive-name: Copyright-FAQ/part3
|
|
|
|
FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.1)
|
|
Part 3 - Common miscellaneous questions.
|
|
|
|
Copyright 1993 Terry Carroll
|
|
(c) 1993 Terry Carroll
|
|
|
|
|
|
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, and
|
|
misc.int-property newsgroups monthly, on or near the 17th of each
|
|
month. The FAQ maintainer is currently investigating the
|
|
requirements for posting the FAQ in the news.answers and related
|
|
newsgroups.
|
|
|
|
This FAQ is available for anonymous FTP from rtfm.mit.edu
|
|
[18.70.0.226], in directory /pub/usenet/news.answers/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/Copyright-FAQ/part1
|
|
send usenet/news.answers/Copyright-FAQ/part2
|
|
send usenet/news.answers/Copyright-FAQ/part3
|
|
send usenet/news.answers/Copyright-FAQ/part4
|
|
send usenet/news.answers/Copyright-FAQ/part5
|
|
send usenet/news.answers/Copyright-FAQ/part6
|
|
quit
|
|
|
|
|
|
DISCLAIMER - PLEASE READ.
|
|
|
|
This article is Copyright 1993 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 Legal Forum and Desktop
|
|
Publishing Forum data libraries of Compuserve Information
|
|
Services. This article is provided as is without any express or
|
|
implied warranty. Nothing in this article represents the views of
|
|
Amdahl Corporation, Santa Clara University, or 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 (7/93) a student in his final year at Santa Clara
|
|
University School of Law and Editor-in-Chief of the Santa Clara
|
|
Computer and High Technology Law Journal.
|
|
|
|
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:
|
|
|
|
tjc50@juts.ccc.amdahl.com
|
|
tcarroll@scuacc.scu.edu
|
|
71550.133@compuserve.com
|
|
|
|
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 apples 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 rtfm.mit.edu, in the /pub/Usenet/comp.patents/ directory,
|
|
in the file "[ADMIN]_Comp.patents_FAQ." If you do not have access
|
|
to anonymous FTP, you may obtain it via the MIT mail server by
|
|
sending an electronic mail message to mail-server@rtfm.mit.edu,
|
|
consisting of a single line reading:
|
|
|
|
send Usenet/comp.patents/[ADMIN]_Comp.patents_FAQ
|
|
|
|
in the body of the message. The subject of the message is
|
|
immaterial.
|
|
|
|
|
|
******************************************************************************
|
|
|
|
Archive-name: Copyright-FAQ/part4
|
|
|
|
FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.1)
|
|
Part 4 - International aspects.
|
|
|
|
Copyright 1993 Terry Carroll
|
|
(c) 1993 Terry Carroll
|
|
|
|
|
|
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, and
|
|
misc.int-property newsgroups monthly, on or near the 17th of each
|
|
month. The FAQ maintainer is currently investigating the
|
|
requirements for posting the FAQ in the news.answers and related
|
|
newsgroups.
|
|
|
|
This FAQ is available for anonymous FTP from rtfm.mit.edu
|
|
[18.70.0.226], in directory /pub/usenet/news.answers/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/Copyright-FAQ/part1
|
|
send usenet/news.answers/Copyright-FAQ/part2
|
|
send usenet/news.answers/Copyright-FAQ/part3
|
|
send usenet/news.answers/Copyright-FAQ/part4
|
|
send usenet/news.answers/Copyright-FAQ/part5
|
|
send usenet/news.answers/Copyright-FAQ/part6
|
|
quit
|
|
|
|
|
|
DISCLAIMER - PLEASE READ.
|
|
|
|
This article is Copyright 1993 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 Legal Forum and Desktop
|
|
Publishing Forum data libraries of Compuserve Information
|
|
Services. This article is provided as is without any express or
|
|
implied warranty. Nothing in this article represents the views of
|
|
Amdahl Corporation, Santa Clara University, or 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 (7/93) a student in his final year at Santa Clara
|
|
University School of Law and Editor-in-Chief of the Santa Clara
|
|
Computer and High Technology Law Journal.
|
|
|
|
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:
|
|
|
|
tjc50@juts.ccc.amdahl.com
|
|
tcarroll@scuacc.scu.edu
|
|
71550.133@compuserve.com
|
|
|
|
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 <marlen@sovam.com> 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.
|
|
|
|
|
|
|
|
******************************************************************************
|
|
|
|
Archive-name: Copyright-FAQ/part5
|
|
|
|
FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.1)
|
|
Part 5 - Further copyright resources.
|
|
|
|
Copyright 1993 Terry Carroll
|
|
(c) 1993 Terry Carroll
|
|
|
|
|
|
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, and
|
|
misc.int-property newsgroups monthly, on or near the 17th of each
|
|
month. The FAQ maintainer is currently investigating the
|
|
requirements for posting the FAQ in the news.answers and related
|
|
newsgroups.
|
|
|
|
This FAQ is available for anonymous FTP from rtfm.mit.edu
|
|
[18.70.0.226], in directory /pub/usenet/news.answers/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/Copyright-FAQ/part1
|
|
send usenet/news.answers/Copyright-FAQ/part2
|
|
send usenet/news.answers/Copyright-FAQ/part3
|
|
send usenet/news.answers/Copyright-FAQ/part4
|
|
send usenet/news.answers/Copyright-FAQ/part5
|
|
send usenet/news.answers/Copyright-FAQ/part6
|
|
quit
|
|
|
|
|
|
DISCLAIMER - PLEASE READ.
|
|
|
|
This article is Copyright 1993 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 Legal Forum and Desktop
|
|
Publishing Forum data libraries of Compuserve Information
|
|
Services. This article is provided as is without any express or
|
|
implied warranty. Nothing in this article represents the views of
|
|
Amdahl Corporation, Santa Clara University, or 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 (7/93) a student in his final year at Santa Clara
|
|
University School of Law and Editor-in-Chief of the Santa Clara
|
|
Computer and High Technology Law Journal.
|
|
|
|
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:
|
|
|
|
tjc50@juts.ccc.amdahl.com
|
|
tcarroll@scuacc.scu.edu
|
|
71550.133@compuserve.com
|
|
|
|
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 Melvin
|
|
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.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.
|
|
|
|
misc.legal: the main newsgroup covering legal issues, including
|
|
copyright law.
|
|
|
|
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."
|
|
|
|
|
|
|
|
|
|
******************************************************************************
|
|
|
|
Archive-name: Copyright-FAQ/part6
|
|
|
|
FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.1)
|
|
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 1993 Terry Carroll
|
|
(c) 1993 Terry Carroll
|
|
|
|
|
|
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, and
|
|
misc.int-property newsgroups monthly, on or near the 17th of each
|
|
month. The FAQ maintainer is currently investigating the
|
|
requirements for posting the FAQ in the news.answers and related
|
|
newsgroups.
|
|
|
|
This FAQ is available for anonymous FTP from rtfm.mit.edu
|
|
[18.70.0.226], in directory /pub/usenet/news.answers/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/Copyright-FAQ/part1
|
|
send usenet/news.answers/Copyright-FAQ/part2
|
|
send usenet/news.answers/Copyright-FAQ/part3
|
|
send usenet/news.answers/Copyright-FAQ/part4
|
|
send usenet/news.answers/Copyright-FAQ/part5
|
|
send usenet/news.answers/Copyright-FAQ/part6
|
|
quit
|
|
|
|
|
|
DISCLAIMER - PLEASE READ.
|
|
|
|
This article is Copyright 1993 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
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commercial documents without the written permission of the
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copyright holder. Permission is expressly granted for this
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document to be made available for file transfer from installations
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offering unrestricted anonymous file transfer on the Internet.
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Permission is further granted for this document to be made
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available for file transfer in the Legal Forum and Desktop
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Publishing Forum data libraries of Compuserve Information
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Services. This article is provided as is without any express or
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implied warranty. Nothing in this article represents the views of
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Amdahl Corporation, Santa Clara University, or the Santa Clara
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Computer and High Technology Law Journal.
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While all information in this article is believed to be correct at
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the time of writing, this article is for educational purposes only
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and does not purport to provide legal advice. If you require
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legal advice, you should consult with a legal practitioner
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licensed to practice in your jurisdiction.
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Terry Carroll, the FAQ-maintainer, is a computer professional, and
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is currently (7/93) a student in his final year at Santa Clara
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University School of Law and Editor-in-Chief of the Santa Clara
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Computer and High Technology Law Journal.
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If you have any additions, corrections, or suggestions for
|
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improvement to this FAQ, please send them to one of the following
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addresses, in order of preference:
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tjc50@juts.ccc.amdahl.com
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tcarroll@scuacc.scu.edu
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71550.133@compuserve.com
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I will accept suggestions for questions to be added to the FAQ,
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but please be aware that I will be more receptive to questions
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that are accompanied by answers. :-)
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FAQ ORGANIZATION.
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The following table indicates the contents of each of the parts of
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the FAQ.
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Part 1 - Introduction (including full table of contents).
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Part 2 - Copyright basics.
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Part 3 - Common miscellaneous questions.
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Part 4 - International aspects.
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Part 5 - Further copyright resources.
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Part 6 - Appendix: A note about legal citation form, or, "What's
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all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?"
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APPENDIX: A note about legal citation form, or, "What's all this
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'17 U.S.C. 107' and.'977 F.2d 1510' stuff?"
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Citations to legal materials can be intimidating when first
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encountered. The purpose of this entry is to provide a short
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description of the legal citations used in this article to reduce
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that intimidation. It's not intended as a be-all and end-all to
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legal research, but just a way of letting you find the sources
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that are cited in this FAQ if you head to a law library. If you
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don't care about looking up any of the legal materials cited in
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this FAQ, skip this entry.
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CASES: Cases are reported in books called "reporters." A
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reporter generally consists of a series of bound volumes. Often
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when the volume number becomes too high, the reporter publisher
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starts over with volume 1, designating the new set as a "second
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series," "third series," etc., as appropriate.
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Because copyright is almost entirely a matter of federal law, most
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(if not all) cases referenced in this FAQ are federal cases. The
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most common reporters (with their abbreviations shown in
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parentheses) are:
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United States Reports (U.S.) - This is the official reporter for
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cases from the United States Supreme Court. This is the standard
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reporter reference provided when referencing a Supreme Court case.
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If a case is especially recent, it may not yet be published in the
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U.S. Reports, in which case, the proper reference is to one of the
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unofficial reporters (either the Supreme Court Reporter or the
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Lawyers' Edition).
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The unofficial reporters are also cross-indexed by the U.S.
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Report's volume and page numbers, so that given a citation to a
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case in the U.S. Reports, you should be able to also find it in
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either of the unofficial reporters. The converse is not true: if,
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for example, you have a citation to the Supreme Court Reporter,
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you will not be able to find the case in the U.S. Reports. All
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law libraries carry a set of books called Shepard's Citations,
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which will permit you to cross-reference this way. See your law
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librarian for help using these intimidating-looking books.
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Supreme Court Reporter (S.Ct.) - This is an unofficial reporter
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published by West Publishing. It too reports cases from the
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United States Supreme Court. The advantages of this reporter is
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that it comes out more quickly than the official reporter, and
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also includes West's headnotes and case summaries.
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United States Supreme Court Reporter, Lawyers' Edition (L.Ed.) -
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This is another unofficial reporter, similar to the Supreme Court
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Reporter, but published by the Lawyers Cooperative Publishing Co.
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In addition to the advantages offered by the Supreme Court
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Reporter, it often includes short essays (called annotations) on
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points of law dealt with in a case.
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Federal Reporter (F.) - This is an unofficial reporter, published
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by West, that reports cases from the various United States Courts
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of Appeal. There is no official reporter for these cases, and the
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Federal Reporter de facto fills that role.
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Federal Supplement (F.Supp) - This is an unofficial reporter,
|
|
published by West, that reports cases from the various United
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States District Courts (that is, from the courts of "original
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jurisdiction," where trials are originally held and often appealed
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to the higher courts). There is no official reporter for these
|
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cases, and the Federal Supplement de facto fills that role.
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United States Patent Quarterly (U.S.P.Q.) - This is a topical
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reporting service from the Bureau of National Affairs (BNA). It
|
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reports cases from various courts, but because it's a "topical
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reporter," it only reports cases dealing with a certain topic, in
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this case, intellectual property (despite its name, it's not
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limited to patent cases).
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This is only a very small subset of the reporters and services
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that report cases. For a more complete list, see "The Bluebook: A
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Uniform System of Citation, 15th Edition," in particular, tables
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T.1 (United States Jurisdictions), T.2 (Foreign Jurisdictions) and
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T.16 (Services).
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The standard way of referencing a case is in the format:
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case-name volume-number reporter [series, if applicable] page-
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number (jurisdiction, date)
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"Jurisdiction" is omitted for U.S. Supreme Court cases; the fact
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that the reporter is U.S., S.Ct., or L.Ed. is enough to show that
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it's a U.S. Supreme Court case. If two page numbers are included,
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the first page number is the page on which the case begins, and
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the second is the page that contains the particular point being
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referenced (called a "pinpoint cite" or "jump cite").
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Here is an example of a case citation:
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Sega v. Accolade, 977 F.2d 1510, 1520 (9th Cir., 1993).
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From this citation, we know that the parties in the case are Sega
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and Accolade; the case is reported in volume 977 (second series)
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of the Federal Reporter; the case begins on page 1510, but the
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particular point being referenced is on page 1520; the case was
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decided in the 9th Circuit Court of Appeals, in 1993.
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STATUTES: A federal statute is generally enacted as a "public
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law," and is assigned a P.L. number. This number indicates the
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Congress in which it was enacted, and the law number within the
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|
Congress. For example, the Copyright Act of 1976 was the 553rd
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law enacted by the 94th Congress, and so is officially catalogued
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as P.L. 94-553. If you know the P.L. number of a law, you can
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generally find it in the United States Code Congressional and
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Administrative News (U.S.C.C.A.N.), or in Statutes at Large (see
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below) easily.
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Once enacted, Public Laws are catalogued in a official statute
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list called "Statutes At Large." Citations to Statutes at Large
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("Stat.") are similar to that for cases: volume, service
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identifier, and page number. For example, the Copyright Act of
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1976 may be cited as 90 Stat 2541, meaning that it is in Statutes
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At Large, volume 90, page 2541.
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However, most statutes, as enacted, are not very useful to read.
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They're generally written in a style saying that a prior act is
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amended by adding certain words or phrases, and deleting others.
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Without seeing the context of the modified portion, you really
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can't see what the statute actually does.
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This problem is handled by statutory codifications. In
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|
particular, most U.S. laws are organized into "titles" of the U.S.
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|
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
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every citation to law (including the majority of those in this
|
|
FAQ) are to the U.S.C., not to the individual public laws.
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A typical citation to the U.S.C. looks like this: 17 U.S.C. 107.
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This is a reference to U.S. Code, Title 17, section 107 (which
|
|
happens to be the fair use provisions of copyright).
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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
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(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
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U.S.C.
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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.
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|
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
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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.
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|
|
Here are some examples of citations to a regulation, in this case,
|
|
to a regulation preventing registration of a copyright in a blank
|
|
form:
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45 Fed. Reg. 63297, 63299 (Sep. 24, 1980). (Federal Register
|
|
volume 45, beginning on page 63297, with a pinpoint cite to page
|
|
63299.)
|
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|
|
37 C.F.R. 202.1(c) (1992). (the same regulation, as codified in
|
|
the C.F.R.)
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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.
|
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|
|
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.).
|
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|
|
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).
|
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|
|
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.
|
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|
|
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.)
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******************************************************************************
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