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Protection and ownership
What works are eligible for copyright protection in your jurisdiction?
US copyright law protects any qualifying ‘original works of authorship’ that are fixed in a tangible form of expression. The fixation need not be directly perceptible so long as it may be communicated with the aid of a machine or device.
Viewed broadly, copyrightable works include the following categories, which are illustrative and not exhaustive:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic and sculptural works;
- motion pictures and other audio-visual works;
- sound recordings; and
- architectural works.
Are there any special provisions for the protection of non-artistic works (eg, software and databases)?
A ‘computer program’ is copyrightable under the Copyright Act (Apple Computer, Inc v Franklin Computer Corp, 714 F2d 1240 (3d Cir 1983), cert dismissed, 464 US 1033, 104 S Ct 690, 79 LEd2d 158 (1984)). Courts have analogised ‘computer programs’ to ‘literary works’, which is one of the categories of works of authorship specifically listed in the Copyright Act (id; see also 17 USC 102).
Databases are essentially a form of compilation and therefore are protected by copyright. Copyright protection for a database extends to the original ways in which the pre-existing data is selected, coordinated or arranged, and not the data itself.
Are any works explicitly excluded from copyright protection?
Ideas, procedures, principles, discoveries and devices are all specifically excluded from copyright protection. Facts are not copyrightable. Titles, names, short phrases and slogans are not protected by copyright law. Copyright protection is generally not available to articles which have a utilitarian function (so-called ‘useful articles’). Since fixation is one of the prerequisites for copyright protection, works that have not been fixed in a tangible form or medium are excluded from copyright protection. This may include choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded.
Related IP rights
Can copyrightable works be protected by other IP rights (eg, trademarks and designs)?
Where applicable, copyrightable works can be protected under trademark rights, patent rights and trade secrets.
For example, software can be protected by both patents and copyrights. The copyright would protect the artistic expression of the idea (eg, the software code itself), while the patent would protect the functional expression of the idea (eg, using a single click to purchase something online).
An additional example would be a logo for a brand. The logo serves as a trademark indicating that products affixed with the logo are from the same source. The creative and artistic aspects of the logo may also be protected by a copyright.
Who may own copyright in a work?
The author of a work generally owns the copyright in the work. Joint authors of a work are co-owners of the copyright unless there is an agreement to the contrary. In the case of works made for hire, the employer – not the employee – is considered to be the author. Minors under the age of 18 may claim copyright, but state laws may regulate the business dealings involving copyrights owned by minors. Once the owner of a copyright dies, ownership may be passed on to his or her heirs.
Joint and collective ownership
What rules and restrictions govern the joint or collective ownership of a copyright work?
When two or more authors prepare a work with the intent to combine their contributions into inseparable or interdependent parts, the work is considered a joint work and the authors are considered joint copyright owners. A common example of a joint work is when a book has two or more authors. However, if one author primarily writes the book, but the other author contributes only a specific chapter and is given credit for his or her chapter, the work would probably not be a joint work because the contributions are not inseparable or interdependent.
If, at the time of creation, the authors did not intend their works to be part of an inseparable whole, the fact that their works are later put together does not create a joint work. Rather, the result is considered a collective work. In the case of a collective work, each author owns a copyright in only the material that he or she contributed to the final product.
The Copyright office considers joint copyright owners to have an equal right to register and enforce the copyright. Unless the joint owners make a written agreement to the contrary, each copyright owner has the right to commercially exploit the copyright, provided that the other copyright owners get an equal share of the proceeds.
Employee and commissioned work
What rules and restrictions govern the ownership of copyright in a work created in the course of employment (including works by employees and commissioned works by independent contractors)?
If a work is created by an employee in the course of his or her employment, the employer owns the copyright.
If the work is created by an independent contractor and the independent contractor signs a written agreement stating that the work shall be “made for hire”, the commissioning person or organisation owns the copyright only if the work is:
- part of a larger literary work (eg, an article in a magazine or a poem or story in an anthology);
- part of a motion picture or other audio-visual work (eg, a screenplay);
- a translation;
- a supplementary work (eg, an afterword, introduction, chart, editorial note, bibliography, appendix or index);
- a compilation;
- an instructional text;
- a test or answer material for a test; or
- an atlas.
Works that do not fall within one of these eight categories constitute works made for hire only if they are created by an employee within the scope of his or her employment.
If the creator has sold the entire copyright, the purchasing business or person becomes the copyright owner.
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