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TUCoPS :: Cyber Law :: claw3.txt

Copyright Law FAQ Part 3





Posted-By: auto-faq 2.4
Archive-name: Copyright-FAQ/part3

FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.0)
Part 3 - Common miscellaneous questions.

Copyright 1993 Terry Carroll
(c) 1993 Terry Carroll


This article is the third in a series of six articles that 
contains frequently asked questions (FAQ) with answers relating to 
copyright law, particularly that of the United States.  It is 
posted to the usenet misc.legal, misc.legal.computing, and 
misc.int-property newsgroups monthly, on or near the 17th of each 
month.  The FAQ maintainer is currently investigating the 
requirements for posting the FAQ in the news.answers and related 
newsgroups.

The most current copy of the FAQ is always available for anonymous 
ftp from charon.amdahl.com [129.212.33.1], in the directory 
/pub/misc.legal/Copyright-FAQ, filenames part.1 - part.6.

If you do not have direct access to FTP, you can use the FTP mail 
service offered by the DEC Western Research Laboratory to obtain a 
copy by mail [note: I have been unable to get this to work - once 
the FAQ is set up for *.answers, it will be available for email 
transfer by way of the rtfm.mit.edu mail-server].  To do this, 
send an email message to ftpmail@decwrl.dec.com with the following 
commands in the body of your message:

   connect charon.amdahl.com
   get /pub/misc.legal/Copyright-FAQ/part.1
   get /pub/misc.legal/Copyright-FAQ/part.2
   get /pub/misc.legal/Copyright-FAQ/part.3
   get /pub/misc.legal/Copyright-FAQ/part.4
   get /pub/misc.legal/Copyright-FAQ/part.5
   get /pub/misc.legal/Copyright-FAQ/part.6
   quit

For further information on the FTPmail service, send an email 
message to ftpmail@decwrl.dec.com with a single command "help" in 
the body of your message.


DISCLAIMER - PLEASE READ.

This article is Copyright 1993 by Terry Carroll.  It may be freely 
redistributed in its entirety provided that this copyright notice 
is not removed.  It may not be sold for profit or incorporated in 
commercial documents without the written permission of the 
copyright holder.  Permission is expressly granted for this 
document to be made available for file transfer from installations 
offering unrestricted anonymous file transfer on the Internet.  
Permission is further granted for this document to be made 
available for file transfer in the Legal Forum and Desktop 
Publishing Forum data libraries of Compuserve Information 
Services.  This article is provided as is without any express or 
implied warranty.  Nothing in this article represents the views of 
Amdahl Corporation, Santa Clara University, or the Santa Clara 
Computer and High Technology Law Journal.

While all information in this article is believed to be correct at 
the time of writing, this article is for educational purposes only 
and does not purport to provide legal advice.  If you require 
legal advice, you should consult with a legal practitioner 
licensed to practice in your jurisdiction.

Terry Carroll, the FAQ-maintainer, is a computer professional, and 
is currently (7/93) a student in his final year at Santa Clara 
University School of Law and Editor-in-Chief of the Santa Clara 
Computer and High Technology Law Journal.

If you have any additions, corrections, or suggestions for 
improvement to this FAQ, please send them to one of the following 
addresses, in order of preference:

  tjc50@juts.ccc.amdahl.com
  tcarroll@scuacc.scu.edu
  71550.133@compuserve.com

I will accept suggestions for questions to be added to the FAQ, 
but please be aware that I will be more receptive to questions 
that are accompanied by answers.  :-)


FAQ ORGANIZATION.

The following table indicates the contents of each of the parts of 
the FAQ.

  Part 1 - Introduction (including full table of contents).
  Part 2 - Copyright basics.
  Part 3 - Common miscellaneous questions.
  Part 4 - International aspects.
  Part 5 - Further copyright resources.
  Part 6 - Appendix: A note about legal citation form, or, "What's
           all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?"

TABLE OF CONTENTS (for this part).

Part 3 - Common miscellaneous questions.

3.1) Who owns the copyright to something I wrote at work, me or my 
     company?
3.2) [reserved.]
3.3) Is copyright infringement a crime, or a civil matter?
3.4) What is the statute of limitation for copyright infringement?
3.5) Can the government be sued for copyright infringement?
3.6) Can the government copyright its works?
3.7) Can I legally make a cassette copy of a musical CD for my own
     use, so I can play it in my car?
3.8) Are Usenet postings and email messages copyrighted?
3.9) Are fonts copyrighted?
3.10) What does "All Rights Reserved" mean?
3.11) What's the difference between a copyright and a patent?
3.12) Why is there so little in this FAQ about patents?
3.13 - 3.18) [reserved.]


3.1) Who owns the copyright to something I wrote at work, me or my 
company?

That depends on a lot of things.  Normally, you are the author of 
the work and own the copyright.  There are two broad mechanisms by 
which your company may own the copyright, though: assignment and 
the work-made-for-hire doctrine.

ASSIGNMENT: Even if you are the author, and therefore the 
copyright is initially yours, it may now belong to your company if 
you assigned the copyright to them.  A full assignment of 
copyright must be in writing, and signed; it can't be implied.  17 
U.S.C. 204.  Therefore, if you're the author in a copyright sense, 
and did not assign the copyright to your company in writing, you 
still own it.  Please note, however, that some companies make it a 
practice to acquire a blanket assignment of copyright in any works 
created on the job at time of hiring.

Note, though, that even in the absence of a written contract, your 
actions might have been sufficient to grant the company an implied 
license to the work.  For example, in the case of Effects 
Associates v. Cohen, 908 F.2d 555 (9th Cir., 1990), a film 
producer (Cohen) claimed that he owned copyright in special 
effects film footage depicting "great gobs of alien yogurt oozing 
out of a defunct factory."  The footage was produced by Effects 
Associates, a special effects company, and there was no written 
assignment of copyright.  The court ruled that Effects retained 
ownership of the copyright, but that Cohen had an implied license 
to use it in his horror film, "The Stuff," because Effects had 
"created the work at [Cohen's] request and handed it over, 
intending that [Cohen] copy and distribute it."  Because the 
license was non-exclusive, it wasn't a complete transfer of 
copyright, and did not need to be in writing.  Effects was free to 
sell the same footage to other moviemakers.

WORK MADE FOR HIRE:  If a work qualifies as a work made for hire, 
the company is the author for purposes of copyright, and copyright 
initially vests in the company.  A work is a work made for hire 
under either of two circumstances.  First, if it is a work 
prepared by an employee within the scope of employment.  Second, 
if the work was specially commissioned, is one of a short list of 
relatively esoteric types (a contribution to a collective work, a 
part of a motion picture or other audiovisual work, a translation, 
a supplementary work, as a compilation, as an instructional text, 
a test, answer material for a test, or an atlas), and the parties 
agreed in writing that it was to be considered a work for hire.  
17 U.S.C. 101.

To determine if a work is one prepared by an employee within the 
scope of employment, there are two important considerations.

First, was the work prepared by an employee, or by an independent 
contractor?  Several facts, such as whether taxes were withheld, 
who supervised the work, artistic control, setting of working 
hours, etc., will be examined to determine this factor.  A good 
case discussing these factors is CCNV v. Reid, 490 U.S. 730 
(1989).

The second consideration is whether the work was within the scope 
of the employment.

Unless these two considerations are met, the work will not be 
considered one made for hire under the employee test, and the 
"employee" will retain copyright.  Of course, the same 
considerations discussed above regarding an implied license might 
exist, even in cases where the work-made-for-hire doctrine does 
not apply.


3.2) [reserved.]


3.3) Is copyright infringement a crime, or a civil matter?

It's always at least a civil matter (a tort).  17 U.S.C. 501(b) 
details the mechanisms by which an owner of a copyright may file a 
civil suit, and 28 U.S.C. 1338 expressly refers to civil actions 
arising under the copyright act.

However, under certain circumstances, it may also be a federal 
crime.  A copyright infringement is subject to criminal 
prosecution if infringement is willful and for purposes of 
commercial advantage or private financial gain.  17 U.S.C. 506(a).  
If the offense consists of the reproduction or distribution, 
during any 180-day period, of 10 or more copies having a retail 
value of more than $2,500, the offense is a felony; otherwise, the 
offense is a misdemeanor.  18 U.S.C. 2319.

As a side note, although 18 U.S.C. 2319 purports to prescribe the 
penalties for criminal infringement, all crimes covered by Title 
18 have their penalties determined by the U.S. Sentencing 
Guidelines, another part of Title 18.


3.4) What is the statute of limitation for copyright infringement?

For both civil suits and criminal prosecutions, the statute of 
limitations for copyright infringement is three years.  17 U.S.C. 
507.


3.5) Can the government be sued for copyright infringement?

Yes.  The United States has expressly waived its immunity to suit 
for copyright infringement.  28 U.S.C. 1498.

For some time, it was unclear whether the Eleventh Amendment of 
the U.S. Constitution operated to make a state immune from suit 
for copyright infringement.  In BV Engineering v. University of 
California at Los Angeles, 858 F.2d 1394 (9th Cir., 1988), UCLA 
successfully defended a copyright infringement suit on the ground 
that it had such immunity.  Although UCLA won that suit, Congress 
responded by passing the Copyright Remedy Clarification Act, PL 
101-553, in 1990.  This law added section 511 to the Copyright 
Act, which had the effect of removing the immunity defense.  It 
became effective June 1, 1991.

Today the law is very clear: the United States government and the 
governments of each state may be sued for copyright infringement, 
and may not plead immunity as a defense.


3.6) Can the government copyright its works?

This one has to be taken slowly, and we'll look at federal and 
state governments separately, because the rules are different.

With one exception, works of the United States government are 
public domain.  17 U.S.C. 105.  The only exception is for standard 
reference data produced by the U.S. Secretary of Commerce under 
the Standard Reference Data Act, 15 U.S.C. 290e.

However, there's a big loophole here: while the U.S government 
can't get copyright for its own works, it can have an existing 
copyright assigned to it.  So if the U.S. government produces a 
work, it's not copyrighted.  But if an independent contractor 
working for the government produces a work, it is copyrighted, and 
nothing prevents that contractor from assigning the copyright back 
to the government.  This reconciles the fact that the U.S. 
government can't copyright its works with the fact that if you 
stay up late on weekends, you'll see Public Service Announcements 
against drunk driving that say "Copyright U.S. Department of 
Transportation."

Also, there are some entities that might seem to be part of the 
U.S. government, but are not.  For example, the U.S. Postal 
Service is no longer a branch of the U.S. government.  In 
addition, while under U.S. control, the District of Columbia, 
Puerto Rico, and organized territories of the U.S. are not 
considered to be part of the U.S. government for purposes of 
copyright law.

Whether a state can copyright its works is a different matter.  
Unlike the U.S. government, a state government's works are subject 
to copyright.  It is up to each state to decide whether to retain 
the copyright or whether such works are to be automatically made 
public domain.

A related question that sometimes comes up is whether a government 
may copyright its laws.  In the case of the federal government, 
because of the factors discussed above, the answer is clearly that 
it cannot.  With state governments, it's a little less clear.  
There is no statute, case, or regulation that indicates that a 
state cannot copyright its laws.  However, it is the position of 
the U.S. Copyright Office that a state's laws may not be 
copyrighted.  The Compendium of Copyright Office Practices 
(Compendium II) section 206.01 states, "Edicts of government, such 
as judicial opinions, administrative rulings, legislative 
enactments, public ordinances, and similar official legal 
documents are not copyrightable for reasons of public policy.  
This apples to such works whether they are Federal, State, or 
local as well as to those of foreign governments."

Now, the Compendium II does not have force of law.  But this does 
indicate that any state trying to register a copyright in its laws 
would be refused registration by the Copyright Office.  As a 
result, it would either have to successfully sue the Office to 
force registration, or it would bear the burden of establishing 
that its work was indeed copyrighted in the event of an 
infringement suit (normally, a registration fulfills that burden).  
It's a safe bet that any state or city trying to assert a 
copyright in its laws would have an uphill battle ahead of it.


3.7) Can I legally make a cassette copy of a musical CD for my own 
use, so I can play it in my car?

This issue has been argued back and forth for many years, with 
consumers groups arguing that this was a fair use (see sections 
2.8 and 2.9), and the recording industry arguing that it was not.  
The issue was finally settled by Congress when the Audio Home 
Recording Act (AHRA) (P.L. 102-563, 106 Stat. 4237, codified at 17 
U.S.C. 1001 - 1010) was passed in October 1992.  This Act added 
ten sections to Title 17, one of which provided an alternative to 
the fair use analysis for musical recordings.  The new section 
states:

   No action may be brought under this title alleging infringement
   of copyright based on the manufacture, importation, or
   distribution of a digital audio recording device, a digital
   audio recording medium, an analog recording device, or an
   analog recording medium, or based on the noncommercial use by a
   consumer of such a device or medium for making digital musical
   recordings or analog musical recordings.

                                 17 U.S.C. 1008.

As the legislative history to this statute noted, "In short, the 
reported legislation would clearly establish that consumers cannot 
be sued for making analog or digital audio copies for private 
noncommercial use." H.R. Rep. 102-780(I).

Does this mean you can make copies for your family and friends, as 
long as it's not "commercial?"  A strict reading of the words in 
the statute would seem to say that you may.  This is not as 
outrageous as it sounds.  Part of the impetus behind the AHRA was 
the perception that blank tapes were being used mostly to copy 
commercial musical sound recordings.  As a result, the AHRA 
provided that a royalty payment (referred to as a "DAT tax" by its 
detractors) be paid for each sale of digital audio tape to 
compensate authors of musical works and sound recordings for the 
profits lost due to these copies. See 17 U.S.C. 1003, 1004.  
Arguably, the AHRA anticipates and allows exactly this type of 
copying, and a literal reading of section 1008 would tend to 
support this position.  But the AHRA is still sufficiently new 
this hasn't been tested in court yet.

Note, also, that this section applies only to musical recordings; 
it clearly does not include spoken word recordings.  Of course, it 
is still possible that such a use of a spoken word recording might 
still be considered a section 107 fair use (see sections 2.8 and 
2.9), even though section 1008 does not apply to provide a clear 
exemption.


3.8) Are Usenet postings and email messages copyrighted?

Almost certainly.  They meet the requirement of being original 
works of authorship fixed in a tangible medium of expression (see 
section 2.3).  They haven't been put in the public domain; 
generally, only an expiration of copyright or an unambiguous 
declaration by an author is sufficient to place a work into public 
domain.

However, at least with Usenet postings, there are two doctrines 
which probably allow at least some copying: fair use (see sections 
2.8 and 2.9) and implied license.

Whether a particular use of a Usenet posting is a fair use is, as 
always, a very fact-specific determination.  However, it's 
probably safe to say that it's a fair use if the use was not 
commercial in nature, the posting was not an artistic or dramatic 
work (e.g.,, it was the writer's opinion, or a declaration of 
facts, and not something like a poem or short story), only as much 
of the posting was copied as was necessary (e.g., a short 
quotation for purposes of criticism and comment), and there was 
little or no impact on any market for the posting.

A similar argument can be made for quoting of private email 
messages.  Of course, revealing the contents of a private email 
message could run afoul of any of a number of non-copyright laws: 
defamation, invasion of privacy, and trade secrecy, to name a few.  
So even if you won't be violating any copyright laws, you should 
consider other factors that may expose you to legal liability 
before revealing a private message's contents.

Proponents of the implied license idea point out that Usenet 
postings are routinely copied and quoted, and anyone posting to 
Usenet is granting an implied license for others to similarly copy 
or quote that posting, too.  It's not clear whether such implied 
license extends beyond Usenet, or indeed, what "Usenet" really 
means (does it include, for example, Internet mailing lists?  Does 
it include netnews on CD-ROM?).  If a posting includes an express 
limitation on the right to copy or quote, it's not at all certain 
whether the express limitation or the implied license will 
control.  No doubt it depends on the specific facts.  For example, 
was the limitation clearly visible to the person who did the 
copying?  Was the limitation placed such that it would be visible 
only after the person who did the copying invested time and money 
to get the posting, believing it to be without any limitation?

With private email messages, a copier who relies solely on the 
implied license argument will probably lose, since it's hard to 
argue that by sending the private message to a limited audience, 
the sender intended for it to be copied and quoted.  For email 
messages to a public mailing list, the implied license argument 
may still be sound.

These theories are largely speculative, because there has been 
little litigation to test them in the courts.  As a practical 
matter, most postings, with a small number of notable exceptions, 
are not registered with the Copyright Office.  As such, to prevail 
in court, the copyright holder would need to show actual damages 
(see section 2.5).  Since most of these cases will result in 
little or no actual damage, no cases have been be brought; it's 
simply too expensive to sue for negligible damages.


3.9) Are fonts copyrighted?

First, let's distinguish between a font and a typeface.  A 
typeface is the scheme of letterforms (which is really what you're 
probably talking about), and the font is the computer file or 
program (or for that matter, a chunk of metal) which physically 
embodies the typeface.

A font may be the proper subject of copyright, but the generally 
accepted rule is that a typeface embodied in the font is not (see 
Eltra Corp. v. Ringer, 579 F.2d 294, 208 U.S.P.Q. 1 (4th Cir., 
1978), and the House of Representatives Report on the Copyright 
Law Revision, 94-1476, 94th Congress, 2d Session at 55 (1976), 
reprinted in 1978 U.S. Cong. and Admin. News 5659, 5668).

The letterforms themselves are not copyrightable under U.S. law as 
a typeface.  37 CFR 202.1(e).  A font is copyrightable if it adds 
some level of protectable expression to the typeface, but that 
protection does not extend to the underlying uncopyrightable 
typeface itself (see 17 U.S.C. 102(b)).

In essence, a font will be protectable only if it rises to the 
level of a computer program.  Truetype and other scalable fonts 
will therefore be protected as computer programs, a particular 
species of literary works.  Bitmapped fonts are not copyrightable, 
because in the opinion of the Copyright Office, the bitmap does 
not add the requisite level of originality to satisfy the 
requirement for copyright.

So, to summarize this point, a typeface is not copyrightable.  
While a scalable font might be copyrightable as a program, merely 
copied the uncopyrightable typeface, and creating your own font, 
either scalable or bitmapped, is probably not an infringement, 
assuming you did not copy any of the scalable font's code.

Two warnings:

First, even if typefaces can't be copyrighted, they can be 
patented under existing design patent laws.  35 U.S.C. 171.  
Copying a typeface and distributing such a font, while not a 
violation of copyright, might be an infringement of the patent.

Second, Congress has been considering design protection 
legislation for many years (most recently, the 102nd Congress' 
H.R. 1790) which, if passed, would protect typeface design.  If 
such a bill is enacted, the above opinion will be obsolete and 
incorrect.


3.10) What does "All Rights Reserved" mean?

One of the earliest international copyright treaties to which the 
U.S. was a member was the 1911 Buenos Aires Convention on Literary 
and Artistic Copyrights (see section 4.1 for more information).  
This treaty provided that, once copyright was obtained for a work 
in one signatory country, all other signatories accorded 
protection as well without requiring any further formalities 
(i.e., notice or registration), provided that the work contained a 
notice reserving these rights.  The typical notice complying with 
Buenos Aires was "All Rights Reserved."

As noted in section 4.1, the Buenos Aires Convention is 
essentially dead today, and the "All Rights Reserved" notice no 
longer serves much useful purpose.  It lives on mostly as a 
testament to inertia on the part of U.S. publishers.


3.11) What's the difference between a copyright and a patent?

This answer is included in both the Copyright and Patents FAQs.

There are basically five major legal differences between a 
copyright and a patent in the United States: subject matter 
protected, requirement for protection, when protection begins, 
duration, and infringement.  There's also a sixth practical one: 
cost.

Subject matter: A copyright covers "works of authorship," which 
essentially means literary, dramatic, and musical works, 
pictorial, graphic, and sculptural works, audio-visual works, 
sound recordings, pantomimes and choreography.  A patent covers an 
invention, which essentially means a new and non-obvious useful 
and functional feature of a product or process.

Requirement for protection: In order for a work to be copyrighted, 
it must be original and fixed in a tangible medium of expression; 
no formalities are required (see section 2.3).  In order for an 
invention to be patented, it must be novel (i.e., new), non-
obvious, and useful and a patent must be issued by the United 
States Patent and Trademark Office.

Start of protection: Copyright protection begins as soon as a work 
is created.  Patent protection does not begin until the patent is 
issued.

Duration: A copyright generally lasts for the life of the author, 
plus 50 years (see section 2.4).  In the U.S., a patent lasts for 
17 years from the date granted (in some nations, particularly 
Japan and most European nations, the duration is 20 years, and is 
measured from date of application).

Infringement: For a copyright to be infringed, the work itself 
must have actually been copied from (either wholly or to create a 
derivative work), distributed, performed, or displayed.  If a 
person other than the copyright owner independently comes up with 
the same or a similar work, there is no infringement.  In 
contrast, a patent confers a statutory monopoly that prevents 
anyone other than the patent holder from making, using, or selling 
the patented invention.  This is true even if that person 
independently invents the patented invention.

Cost: A copyright is essentially free.  Even if you want to 
register the copyright, the cost is only $20, and the paperwork is 
much less complicated than the 1040A short form for filing your 
income tax, well within the capabilities of the person registering 
the copyright.  A patent, on the other hand, is much more costly; 
there are fees to the Patent and Trademark Office, and the patent 
application process is much more complex, usually requiring the 
services of a registered patent agent (and perhaps a lawyer) to 
draft and prosecute the application, adding to the cost.

Philosophically, you can look at a copyright as protecting the 
author's rights that are inherent in the work; in contrast, a 
patent is a reward of a statutory monopoly to an inventor in 
exchange for providing the details of the invention to the public.


3.12) Why is there so little in this FAQ about patents?

Peter Treloar, the moderator of comp.patents, currently maintains 
a FAQ devoted exclusively to patents, and duplicating his effort 
here would be needlessly redundant.

The comp.patents FAQ is periodically posted to the Usenet 
comp.patents newsgroup.  A current copy is available by anonymous 
FTP from rtfm.mit.edu, in the /pub/usenet/comp.patents/ directory, 
in the file "[ADMIN]_Comp.patents_FAQ."  If you do not have access 
to anonymous FTP, you may obtain it via the MIT mail server by 
sending an electronic mail message to mail-server@rtfm.mit.edu, 
consisting of a single line reading:

 send usenet/comp.patents/[ADMIN]_Comp.patents_FAQ

in the body of the message.  The subject of the message is 
immaterial.


3.13 - 3.18) [reserved.]



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