American Center Bulletin

July 2005

Copyright Protection

What is Copyright?

A copyright is an exclusive right to reproduce an original work of authorship fixed in any tangible medium of expression, to prepare derivative works based upon the original work, and to perform or display the work in the case of musical, dramatic, choreographic, and sculptural works. Copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, or embodied. Rather, copyright protection is limited to an author’s particular expression of an idea, process, concept, and the like, in a tangible medium.

Copyright protection automatically exists in all works of authorship from the moment of creation. The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement provides a minimum standard for duration of copyright protection. In the case of a person, the term is the life of the author plus 50 years. In the case of a corporate entity, it is 50 years from the end of the calendar year of authorized publication or, in the absence of publication, from the end of the calendar year of making (TRIPS Article 12). The term of protection for live performances that are recorded is 50 years for the performer and producer, and 20 years for the broadcaster of the work. The United States recently upgraded its protection for copyrighted works as part of the Digital Millennium Copyright Act, or DMCA. For instance, in the United States, the copyright for the work of an individual author created on or after January 1, 1978, lasts for his or her lifetime plus 70 years after the author’s death. However, if the work is made for hire, the copyright lasts for 120 years from the time of creation or 95 years from first publication, whichever is shorter.

The exclusive rights granted to the copyright owner do not include the right to prevent others from making fair use of the owner’s work. Such fair use may include use of the work for purposes of criticism, comment, news reporting, teaching or education, and scholarship or research. The nature of the work, the extent of the work copied, and the impact of copying on the work’s commercial value are all considered in determining whether an unauthorized use is a “fair use.”

Originality as the Key to Copyright

To secure copyright protection, the work in question must be an original work of authorship fixed in a tangible medium of expression. Works of authorship that fall within this definition may include:

Literary works (including computer programs)
Musical works and accompanying lyrics
Dramatic works and dialogue
Pantomimes and choreographic works
Pictorial, graphic, and sculptural works
Motion pictures and other audiovisual works
Sound recordings

It is important to note that the laws of many countries do not limit the type or form of work because authors are continuing to invent new ways of expressing themselves.

The test for the originality of a work is usually two- pronged. First, the work of authorship must originate from the author, in the sense that it must have actually been independently created by the author and not copied from other works. Second, the work must contain a sufficient amount of creativity so as to be more than trivial.

To be copyrightable, a work must be “fixed in a tangible medium of expression.” A work is fixed when its embodiment in a tangible medium is sufficiently permanent or stable as to permit it to be perceived, reproduced, or otherwise communicated for a period of time that is not transitory. The means, manner, or medium of fixation is irrelevant.

Copyright registration in most countries is relatively straightforward and inexpensive. Although copyright protection exists from the moment the work is fixed in a tangible expression, copyright registration confers additional important benefits in some countries. Although some WTO members, including the United States, retain a registration system for copyrighted works, the TRIPS Agreement precludes use of formalities such as a registration system as a prerequisite for foreign nationals before initiating legal action to stop copyright infringement or to recoup costs, including attorneys’ fees, of enforcement. So, for example, the United States may require that U.S. citizens, but not foreign authors, register works with the U.S. Copyright Office. In addition, in some countries, a copyright registration constitutes prima facie evidence of the validity and ownership of the copyright.

Why Should You Copyright Your Work

You are a writer, composer, computer programmer, or artist. Your work is not only your passion but also your livelihood. If someone copied your work, they would rob you of your thoughts, your labor and even your income. Copyrighting your material will literally provide a lifetime (and beyond!) of protection.

The official “©” is universally recognized as the stamp of copyright protection. Copyrighting gives you legal standing and peace of mind that your work is protected. For example:

Your copyrighted play is protected from being publicly performed
It is illegal to prepare “derivative work” from your copyrighted piece
Your recordings may not be transmitted or distributed
Your copyrighted artwork cannot be copied

You want others to view your work, but you also want to politely let them know that they may not abuse it. Protect your novels, screenplays, scripts, sheet music, and computer source code from potential publishers’ abuse.

Copyright in an Electronic Age

Today’s technological innovations present almost limitless opportunities for the worldwide distribution of copyrighted works. But these same technologies make it possible for anyone to pirate works with a single keystroke.

To address this situation, the World Intellectual Property Organization (WIPO) passed the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonogram Treaty (WPPT) in December 1996, marking the most extensive revision of international law in over 25 years. These treaties, once ratified by at least 30 member states, will grant writers, artists, and other creators of copyrighted material global protection from electronic piracy.

Following from this, on October 12, 1998, the U.S. Congress passed the Digital Millennium Copyright Act (DMCA), which was signed into law by President Bill Clinton on October 28. The act implements the two WIPO treaties; it also contains provisions addressing related matters for the electronic age. For more details on the act, log on to http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act.

"Fair Use" of Copyright

One of the rights accorded to the owner of copyright in the United States is the right to reproduce or to authorize others to reproduce a work in copies or phonorecords. This right is subject to certain limitations found in U.S. Code. One of the more important limitations is the doctrine of “fair use.”

Although fair use was not mentioned in earlier U.S. copyright law, the doctrine has developed through a substantial number of court decisions over the years. This doctrine has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered “fair,” such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
The nature of the copyrighted work
The amount and substantiality of the portion used in relation to the copyrighted work as a whole
The effect of the use upon the potential market for or value of the copyrighted work

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 1961 “Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law” cites examples of activities that courts have regarded as 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.

Copyright protects the particular way an author has expressed himself or herself; it does not extend to any ideas, systems, or factual information conveyed in the work. The safest course is always to get permission from the copyright owner before using copyrighted material.

When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of “fair use” would clearly apply to the situation.

A Selection of FAQs on U.S. Copyrights

How is a copyright different from a patent or a trademark?

Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

When is my work protected?

Your work is under copyright protection the moment it is created and fixed in a tangible form that is perceptible either directly or with the aid of a machine or device.

Can I copyright my web site?

The original authorship appearing on a web site may be protected by copyright. This includes writings, artwork, photographs, and other forms of authorship protected by copyright.

How do I protect my recipe?

A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. Note that if you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records.

Can I register a diary I found in my grandmother’s attic?

You can register copyright in the diary only if you own the rights to the work, for example, by will or by inheritance. Copyright is the right of the author of the work or the author’s heirs or assignees, not of the one who only owns or possesses the physical work itself.

The American Center acknowledges the following websites in compiling the essay:

http://usinfo.state.gov/products/pubs/intelprp/
http://www.protectyourart.com/html/why_copyright_.html
http://usinfo.state.gov/products/pubs/intelprp/copyrt.htm
http://usinfo.state.gov/products/pubs/intelprp/fair.htm
http://www.copyright.gov/help/faq/

Goodbye India

It’s very difficult to say goodbye to India. It has been a fabulous five years for me and my family. Mumbai especially will always be in our hearts, but there were so many other places (and the people in them!) that I’ll never forget: Goa, Ahmedabad, Baroda, Pune, Bhopal, Indore, Raipur, and on and on.

I’m heading back to Washington, D.C. to a domestic assignment for 2-3 years. If you are coming through Washington, please look me up. The Mumbai PAS staff will always know how to contact me. All the best to all of Western India! Anne E. Grimes.

We Will Miss You Anne

Anne E. Grimes

It is time to bid adieu to American Center Deputy Director Anne E. Grimes as her five-year posting in Mumbai ends this month and she leaves to take up an assignment in Washington, D.C. Anne has been a wonderful person to work with and she is known for her hard work and concern for her fellow staff. During her tenure, she has made many friends which speaks volumes for her relationships. We will all miss her, her husband Tala Ramiandrisoa, son Joshua, and daughter Joelle. We take this opportunity to wish her and her family success in their future endeavors.

Anne’s replacement, Ruth Bennett, will arrive in Mumbai in October

A Word From the Center

Mention July to Americans, and July 4 – our Independence Day – almost inevitably comes to mind. It’s a day on which we celebrate not only our freedom but the rights that we enjoy – and share with others – in the United States. One of those rights is copyright protection, the focus of this issue of our bulletin. Just a few weeks ago I was struck by a front-page newspaper article here about a remarkable young Indian, working in the U.S., who happily discussed the lucrative commercial implications of an important invention of his for which, he noted with satisfaction, “I own the IPR” – i.e., the intellectual property rights, the copyright or patent. To find out what you and I can and cannot copyright under U.S. law – a web site, for instance, or a recipe? – do read on.

For Americans moving home from another country, July also brings days of packing up belongings and getting plane tickets in time to settle kids into new homes before the start of the school year there. For us at the American Center, that means preparing to bid a fond farewell to Deputy Director Anne Grimes, who will depart Mumbai on August 1 for her next assignment in Washington, D.C. Many of you have gotten to know Anne as she hosted programs here at the Center and traveled throughout western India over the past five years, and many more of you have come to know her through her writings in this column. I am sure that you join us in thanking Anne for everything she’s done to promote friendship and understanding between our two countries – and in wishing her all the best for the future.

Linda C. Cheatham
Director

Notes From the AIRC

A Select Webliography on Copyrights

http://www.ala.org/ala/washoff/WOissues/copyrightb/copyright.htm
American Library Association – Copyright Issues

http://www.ascap.com/index.html
The American Society of Composers, Authors and Publishers

http://www.copyright.com/
Copyright Clearance Center

http://copyright.iupui.edu/
Copyright Management Center

http://www.csusa.org/
The Copyright Society of the U.S.A.

http://www.csusa.org/face/
Friends of Active Copyright Education

http://www.gag.org/
Graphic Artists Guild

http://www.ipo.org/
Intellectual Property Owners Association

http://www.iipa.com/copyrighttrade_issues.html
International Intellectual Property Alliance – Copyright and Trade Issues

http://www.law.cornell.edu/topics/copyright.html
Cornell University Law School – Legal Information Institute – Copyright: An Overview

http://www.mpaa.org/home.htm
Motion Picture Association of America

http://www.mplc.com/
Motion Picture Licensing Corporation

http://www.mpa.org/
Music Publishers’ Association of the United States

http://ip.nationalacademies.org/Copyright.html
The National Academies – Copyright

http://www2.nea.org/he/abouthe/intelprop.html
National Education Association – Intellectual Property and Copyright Resources

http://www.nmpa.org/
National Music Publishers’ Association

http://www.nwu.org/
National Writers Union

http://fairuse.stanford.edu/
Stanford University Libraries – Copyright & Fair Use

http://www.copyright.gov/
United States Copyright Office

http://www.uspto.gov
United States Patent and Trademark Office

http://www.lib.umn.edu/copyright/
University of Minnesota – Copyright Information & Education

http://www.wipo.int/copyright/en/
World Intellectual Property Organization – Copyright and Related Rights

Note: Internet sites included in this listing, other than those of the U.S.
government, should not be construed as an endorsement of the views contained therein.

This site is managed by the U.S. Department of State. External links to other Internet sites should not be construed as an endorsement of the views or privacy policies contained therein.

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