home
***
CD-ROM
|
disk
|
FTP
|
other
***
search
/
Hackers Underworld 2: Forbidden Knowledge
/
Hackers Underworld 2: Forbidden Knowledge.iso
/
LEGAL
/
COPYRIT3.TXT
< prev
next >
Wrap
Text File
|
1994-07-17
|
11KB
|
202 lines
Copyright 1991 by S. Kitterman Jr. and the Las Vegas PC Users Group,
316 Bridger Avenue, Suite 240; Las Vegas, NV 89101. All rights reserved.
This file was originally printed in the December 1991 issue of The Bytes
of Las Vegas, a publication of the Las Vegas PC Users Group, and may be
reprinted only by nonprofit organizations.
Please give proper credit to the author and The Bytes of Las Vegas.
-------------------------------------------------------------------------------
Copyrights and Computer Software: Part III
by Sam Kitterman, Jr., LVPCUG
[The purpose of these articles is to give general information
regarding copyrights and how they pertain to protection of
software. It is not intended to constitute legal advice nor should
it be relief upon to address a particular situation since the tone
of these articles is general in nature.]
As discussed in last month's article, the Copyright Act
requires a protectible work to have been "original" to its author.
Yet, once a work has been created and a copyright registration is
being sought for that work, who owns the copyright? That is the
subject of this month's article.
The Copyright Act distinguishes between three types of
ownership of a copyrighted work, i.e.,
(a) Where the author is the sole creator of the work
and the work was NOT a work "made for hire", then
the author is also the owner of the work;
(b) Where there were joint authors of the work and
they had agreed that the work would be jointly-
owned, then the joint authors are the joint
owners of the work; and,
(c) Where the author(s) were creating the work as a
work "made for hire", then the author's employer
will become the owner of the work.
Perhaps the easiest of these situations to understand is (a),
i.e., single author is also the owner of the copyright in the work
if he or she created the work for themselves, not for another
party. 201(a) of the Copyright Act states this as follows:
Copyright in a work protected under this title
vests initially in the author or authors of
the work. The authors of a joint work are
coowners of copyright in the work.
The second of these situations to understand is that of joint
authorship - joint ownership. Although the above subsection seems
to be clear, the Copyright Act requires more than parties to have
been joint authors in order for joint ownership of the copyright to
be found.
101 of the Copyright Act (Definitions) states that a joint
work
is a work prepared by two or more authors
with the intention that their contributions
be merged into inseparable or interdependent
parts of a unitary whole.
As noted in the House Report on the 1976 Copyright Act, the
"touchstone" of a joint work
is the intention, at the time the writing was
done, that the parts be absorbed or combined
into an integrated unit, although the parts
themselves may be either 'inseparable' (as
[in] the case of a novel or painting or
'interdependent' (as in the case of a
motion picture, opera, or the words and music
of a song. The test of joint authorship under
the 1976 Act...[is] 'to constitute joint
authorship, there must be a common design.'
In summary, a "joint work" will be found where there are
multiple authors, they had agreed that the "Work" of their labors
would be one Work, and that they had further agreed that they
should be treated as joint authors/owners of that Work.
The third of these situations of ownership is that of a "work
made for hire". Once again, the Copyright Act itself gives us
a general framework for such works. As defined by the Act, a "work
made for hire" is---
(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. For the purpose of the
foregoing sentence, a "supplementary work" is a work
prepared for publication as a secondary adjunct to
a work by another author for the purpose of
introducing, concluding, illustrating, explaining,
revising, commenting upon, or assisting in the use
of the other work, such as forewords, afterwords,
pictorial illustrations, maps, charts, tables,
editorial notes, musical arrangements, answer
material for tests, bibliographies, appendixes, and
indexes, and an "instructional test" is a literary,
pictorial, or graphic work prepared for publication
and with the purpose of use in systematic
instructional activities.
17 U.S.C. 101.
Simplified, a "work made for hire" will be found either where
the work was done as a result of, and related to, your employment
or under those specific categories set forth above in "2" WHERE the
parties had specifically agreed in writing that such work would
constitute a "work made for hire".
Yet, what is employment? For example, what if you are an
independent contractor and there is no agreement between you and
the party who hired you concerning ownership of the copyright? Who
owns the copyright in the Work?
This issue was addressed by the United States Supreme Court in
the case of Community for Creative Non-Violence v. Reid, 490
U.S.___, 109 S.Ct. 2166 (1989). In that case a non-profit
organization hired a sculpter to do a sculpture concerning the
plight of the homeless. There was no language in the contract
concerning who would own the copyright in the Work. After the work
had been completed, the parties began arguing about control of the
piece and subsequently sued each other. Although the local court
ruled the organization owned the copyright because it was a "work
made for hire", the Supreme Court upheld the reversal of that
decision, a decision holding that the independent contractor owned
the copyright in the work.
In so ruling, the Supreme Court focused on three issues:
(1) The nature of the employment relationship between
the organization and the sculpter, i.e.,
what is called "master-servant" in the law;
(2) Whether the organization meaninfully exercised
any control over the sculpter's work; and,
(3) Whether the organization treated the sculpter as
an employee for purposes of benefits and taxes.
Although much of that decision is beyond the scope of this
article, what must be remembered when you are doing work for
someone else is the following:
(a) Are you an employee?
(b) Is the work you are doing something that falls
within the scope of your normal duties for your
employer?
(c) Does your employer supervise the work?
If the answers to all three of the above questions are yes,
then the work is most likely a work made for hire and your
employer, not you, owns rights in that work.
(a) Are you an independent contractor?
(b) Do you have a written agreement wherein