Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/tut/cir1.stb

Text File | 1993-08-01 | 44KB | 975 lines

/*Home Legal Encyclopedia Commentary: The nice folk at the
Copyright Office have prepared a whole series of educational
releases containing the "gospel according to the copyright
office" on the copyright law. Please note that some of the
material has been outdated by the Berne Convention, and we place
comments at those points illustrating the changes. However, this
circular is correct for all works published prior to 3/1/89. */


Circular 1:  Copyright Basics

     On  January 1, 1978, the Copyright Act of 1976 (title 17  of
the United States Code) came into effect.  This general revision
of the copyright law of the United States, the first such
revision since 1909, made important changes in our copyright
system and superseded the previous Federal copyright statute.

WHAT COPYRIGHT IS

     Copyright is a form of protection provided by the laws of
the United States (title 17, U.S. Code) to the authors of
"original works of authorship" including literary, dramatic,
musical, artistic, and certain other intellectual works.  This
protection is available to both published and unpublished works.
Section 106 of the Copyright Act generally gives the owner of
copyright the exclusive right to do and to authorize others to do
the following:

-    To reproduce the copyrighted work in copies or phonorecords;

-    To prepare derivative work based upon the copyrighted work;

-    To distribute copies or phonorecords of the copyrighted work
     to the public by sales or other transfer of ownership, or by
     rental, lease, or lending;

-    To perform the copyrighted work publicly, in the case of
     literary, musical, dramatic, and choreographic works,
     pantomimes, and motion picture and other audiovisual works
     and

-    To display the copyrighted work publicly, in the case of
     literary, musical, dramatic, and choreographic works,
     pantomimes, and pictorial, graphic, or sculptural works,
     including the individual images of a motion picture or
     other audiovisual work.

     It is illegal for anyone to violate any of the rights
provided to the owner of copyright by the Act.  These rights,
however, are not unlimited in scope.  Sections 107 through 118 of
the Copyright Act establish limitations on these rights.  In some
cases, these limitations are specified exemptions from copyright
liability.  One major limitation is the doctrine of "fair use,"
which is given a statutory basis by section 107 of the Act.  In
other instances, the limitation takes the form of a "compulsory
license" under which certain limited uses of copyrighted works
are permitted upon payment of specified royalties and compliance
with statutory conditions.  For further information about
limitations of any of these rights, consult the Copyright Act or
write to the Copyright Office.

WHO CAN CLAIM COPYRIGHT

     Copyright protection subsists from the time the work is
created in fixed form; that is, it is an incident of the process
of authorship.  The copyright in the work of authorship
immediately becomes the property of the author who created it.
Only the author or those deriving their rights through the author
can rightfully claim copyright.

     In the case of works made for hire, the employer and not the
employee is presumptively considered the author.  Section 101 of
the copyright statute defines a "work made for hire" as:

1.   a work prepared by an employee within the scope of his or
     her employment; or

2.   a work specially ordered or commissioned for use as a
     contribution to a collective work, as a part of a motion
     picture or other audiovisual work, as a translation, as a
     supplementary work, as a compilation, as an instructional
     text, as a test, as answer material for a test, or as an
     atlas, if the parties expressly agree in a written
     instrument signed by them that the work shall be
     considered a work made for hire . . . .

/* An independent contractor is not an employee, and thus owns
the copyright, unless there is a contractual assignment. */

     The authors of a joint work are co-owners of the copyright
in the work, unless there is an agreement to the contrary.

     Copyright in each separate contribution to a periodical or
other collective work is distinct from copyright in the
collective work as a whole and vests initially with the author of
the contribution.

Two General Principles

Mere ownership of a book, manuscript, painting, or any other
copy or phonorecord does not give the possessor the copyright.
The law provides that transfer of ownership of any
material object that embodies a protected work does not
of itself convey any rights in the copyright.

-    Minors may claim copyright, but state laws may regulate the
     business dealings involving copyrights owned by minors.
     For information on relevant state laws, consult an attorney.

COPYRIGHT AND NATIONAL ORIGIN OF THE WORK

     Copyright protection is available for all unpublished works,
regardless of the nationality or domicile of the author.

     Published works are eligible for copyright protection in the
United States if any one of the following conditions is met:

-    On the date of the first publication, one or more of the
     authors is a national or domiciliary of the United States
     or is a national, domiciliary, or sovereign authority of
     a foreign nation that is a party to a copyright treaty to
     which the United States is also a party, or is a stateless
     person wherever that person may be domiciled; or

-    The work is first published in the United States or in a
     foreign nation that, on the date of first publication, is
     a party to the Universal Copyright Convention; or the work
     comes within the scope of a Presidential proclamation.

/* As noted earlier, the Berne Convention became effective
in the U.S. on March 1, 1989, so, works published in the U.S.
are also protected under the Berne Convention.*/

THE MANUFACTURING CLAUSE

     The manufacturing clause in the copyright law, section 601
of the 1976 Copyright Act (title 17, U.S. Code), expired July 1,
1986.

WHAT WORKS ARE PROTECTED

     Copyright protection exists for "original works of
authorship" when they become fixed in a tangible form of
expression.  The fixation does not need to be directly
perceptible, so long as it may be communicated with the aid of a
machine or device.  Copyrightable works include the following
categories:

1.   literary works;

2.   musical works, including any accompanying words;

3.   dramatic works, including any accompanying music;

4.   pantomimes and choreographic works;

5.   pictorial, graphic, and sculptural works;

6.   motion pictures and other audiovisual works; and

7.   sound recordings.

This list is illustrative and is not meant to exhaust the
categories of copyrightable works.  These categories should be
viewed quite broadly:  for example, computer programs and most
"compilations" are registrable as "literary works"; maps and
architectural blueprints are registrable as "pictorial, graphic,
and sculptural works."

WHAT IS NOT PROTECTED BY COPYRIGHT

     Several categories of material are generally not eligible
for statutory copyright protection.  These include among others:

-    Works that have not been fixed in a tangible form of
expression.  For example, choreographic works which have not been
notated or recorded, or improvisational speeches or performances
that have not been written or recorded.

-    Titles, names, short phrases, and slogans; familiar symbols
or designs; mere variations of typographic ornamentation,
lettering, or coloring; mere listings of ingredients or contents.

/* Many of these items can be trademarks though.*/

-    Ideas, procedures, methods, systems, processes, concepts,
principles, discoveries, or devices, as distinguished from a
description, explanation, or illustration.

     Works consisting entirely of infor