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Copyright Protection

Tags:Commercialization, Issue Brief, Marketing

Copyright is commonly used as protection for educational materials, including the development of software applications for student with disabilities. 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 books, music, graphics, dramatic works, and software programs. A copyright gives the author and his or her heirs the exclusive right to a work for the life of the author plus 70 years. Copyrights can be registered with the Register of Copyrights at the Library of Congress. The familiar symbol © found on a range of produced works indicates that the work is copyrighted.

What can be copyrighted?

Copyright applies broadly to educational material, videos, Web sites, CD-ROMs, literary works, musical works, pictures, graphics, dramatic works, and sound recordings. To qualify for copyright, material must satisfy three criteria (SOURCE):

• The work must be “fixed in a tangible medium of expression.” The work must be in physical form for some amount of time, however brief, including existing in a computer’s random access memory (RAM) or in handwritten notes.
• It must be original, independently created by the author and not copied from someone else.
• It must be creative, although there is no hard rule about how much creativity is required.

Rights granted by copyright

The law concerning copyrights is the Copyright Act of 1976 (Title 17 of the United States Code). The exclusive rights granted by a copyright are as follows:

1. The exclusive right to reproduce the work.
2. The exclusive right to prepare derivative works such as translations and abridged versions.
3. The exclusive right to distribute copies of the work to the public by sale or rental.
4. The exclusive right to perform the work publicly such as for music, plays, dances, pantomimes, and motion pictures.
5. The exclusive right to display the work publicly such as for paintings, sculptures, or photographs.

The protection offered by a copyright is limited in that it only protects you from others who may copy your work. In the world of education technology, copyright protection is generally sought for software code, and the content within books and articles. Specifically, copyrights are applied to information on Web sites, technical reports, articles, packaging content, etc. You will typically see the symbol followed by a date or dates which indicate continual changes being made to the information.

The United States Copyright Office defines a computer software program as a “set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” Copyright protection is afforded to all of the expressions that combine to make up the computer program (i.e., the program’s source code). Copyright protection cannot be used to protect ideas, program logic, algorithms, systems, methods, concepts, and layouts.

Copyright protection is automatically afforded by the U.S. Copyright Office to the author of the materials listed above upon creation, once it is “fixed” or recorded in a tangible way. For more information about when to use and how to state your copyright, see the U.S. Copyright Office’s information about Notice of Copyright.

Registration of copyright

No registration of your copyright is necessary. However, it may be beneficial to pursue registration by the U.S. Copyright Office. If someone attempts to use your work and claim it as their own, you will not be able to defend your position without having registered your work at the Copyright Office. Copyright registration forms are available at http://www.copyright.gov/forms/.

Registration establishes a public record of your copyright claim. A work is considered registered as soon as the U.S. Copyright Office receives all of the information required in your application. To ensure entitlement to statutory damages for infringements upon a copyrighted work, you must register your copyright within three months of the first publication date or anytime before the date the copyright infringement began.

Once it is reviewed, the U.S. Copyright Office will send you a certificate of registration if the work is successfully registered, or a letter explaining why the application has been denied. If you wish to explore the status of a copyrighted work, the U.S. Copyright Office offers a search feature. Copyrights are often searched for in relation to litigation for infringement lawsuits.

Protecting software using copyright

To protect software or computer programs you will need to fill out the copyright protection form for literary works (Form TX). Upon applying for a registered copyright, you will be required to pay a $30 processing fee to the U.S. Copyright Office. This form of protection is both affordable and easy to apply for so it is an attractive option for people who are seeking to protect “original works of authorship” such as software programs. Form TX requires that you provide the following information:

• Nature of authorship. The U.S. Copyright Office suggests terms such as the following: computer program, entire text of computer program, entire program code, and text of user’s manual and computer program. Do not use this space to define the program’s features and functions or refer to the design, physical form, hardware, or algorithms related to the code. The code and any supporting materials (e.g., help menus or user’s manual) represent the full range of the original work of authorship in the case of software.
• Year of creation. Provide the year of creation and the exact date of first publication for the “particular version of the computer program for which registration is sought.”
• Derivative work or compilation. It is important to note on the application any items that may have been previously published or registered, items that are considered public domain, or revisions of prior work.

This information, plus additional information related to copyrighting software is available in Information Circular 61 of the U.S. Copyright Office entitled Copyright Registration for Computer Programs. It is advisable that you review this document to gain additional understanding of how copyright protection can apply to your computer programs. For example, this document will provide information on the requirements for Depositing Code for computer programs that contain Trade Secrets and those that do not.

In order to maximize the protection afforded by a copyright, it is advisable to register your work within three months of publication. According to Fishman (2001), a software product is published “when it is made available to the public in stores or by mail order.” The line is less clear for works offered for sale over the Internet, but he recommends that software distributed this way be considered published as soon as it is offered for sale.

Limitations on copyright

There are some limitations to the exclusive rights copyrights afford, such as the rights of others to “fair use” of the work or to obtain a compulsory license. Fair use includes such things as copying small excerpts, quoting parts in reviews and critiques, making parodies, and use by educators.

To clarify, “fair use” by educators would permit copying small excerpts from a literary work of play for use in teaching activities. Keep in mind that this is a very limited doctrine that only permits very short excerpts to be taken from a copyrighted work for the purposes identified above. It is unlikely that software code would be used in this manner as such a limited portion of the coding would not be usable. Whenever you seek to use copyrighted material in your work, it is advisable to obtain permission from the holder of the copyright. The holder is the only one who can grant this permission,even the U.S. Copyright office has no authority to intervene. In cases where permission cannot be secured, it is advisable to seek legal advice (U.S. Copyright Office, 1999). (SOURCE)

For more information, and how to apply for copyright registration, please see the U.S. Copyright Office’s Copyright Basics.