Patent It Yourself - PDF Archive

22 | Patent it YOURSELF
the holder of a copyright registration to sue in federal
court and to have the court issue an injunction ordering
the defendant, if found liable, to cease publishing or
copying the registered literary, dramatic, musical, artistic,
or software works.While a patent can effectively provide
offensive rights on an idea per se, assuming it’s capable of
being reduced to hardware form, a copyright covers only
the author’s or artist’s particular way of expressing an idea.
Thus, while a copyright can provide offensive rights on the
particular arrangement of words that constitute a book
or play, it can’t cover the book’s subject matter, message,
or teachings. Put otherwise, you are free to publish any of
the ideas, concepts, and information in this (or any) book,
provided that you write it in your own words. But if you
copy the specific wording, then you’ll infringe the copyright
on this book.
Some specific types of works that are covered by copyright
are books, poetry, plays, songs, catalogs, photographs,
computer programs, advertisements, labels, movies, maps,
drawings, sculpture, prints and art reproductions, game
boards and rules, and recordings. One yogi has even filed
a lawsuit for infringement claiming others have copied
his yoga poses. Certain materials, such as titles, slogans,
lettering, ideas, plans, forms, useful things, nonoriginal
material, and noncreative material (such as a list of
names and telephone numbers) can’t be covered through
copyright. U.S. government publications, by law, aren’t
covered by copyright and may almost always be freely
copied and sold by anyone, if desired.
The 1998 “Digital Millennium Copyright Act” supplements
the Copyright Act and provides criminal penalties for those
who provide technology that can circumvent copyright
protection. (It leaves a “safe harbor” for Internet Service
Providers who merely provide access to infringing materials.)
It also provides a way to protect original boat hull designs.
While I provide a brief overview of copyright principles
in the rest of this section, more complete discussions of
this subject are available in The Copyright Handbook (for
written works), The Public Domain, and A Legal Guide to
Web & Software Development. Stephen Fishman wrote all of
these books (Nolo).
1. What Is Copyright?
Now that we’ve seen what a copyright covers, what exactly
is a copyright? As stated, a copyright is the offensive right
that the government gives an author of any original work
of expression (such as those mentioned above) to exclude
others from copying or commercially using the work of
expression without proper authorization.
To obtain copyright rights, the work must be “original,”
not merely the result of extended effort. Thus, in 1991, the
Supreme Court held that a telephone company that compiled,
through much work, an alphabetical directory of names
and addresses could not prevent another publisher from
copying the directory, since it had no originality. (Feist
Publications Inc. v. Rural Telephone Service Co., 111 S.Ct.
1282 (1991).) Also, a copyright cannot cover any system,
method, process, concept, principle, or device, although it
can cover a specific explanation or description of anything.
The copyright springs into existence the instant the
work of expression first assumes some tangible form, and
lasts until it expires by law (the life of the author plus 70
years, or for works made for hire, 95 years from publication
or 120 years from creation, whichever is shorter). A work
made for hire is one made by an employee in the course of
the employment or by an independent contractor under a
written work-made-for-hire contract.
How to Secure Offensive
Copyright Rights in a Work
While no longer necessary for works published after
March 1, 1989, it’s still advisable first to place the familiar
copyright notice (for example, Copyright © 2010 Amanda
Author) on each published copy of the work. This tells
anyone who sees the work that the copyright is being
claimed, who is claiming it, and when the work was first
published. (The year isn’t used on pictures, sculptures,
or graphic works.) This notice prevents an infringer from
later claiming that the infringement was accidental.
Next you should register the work with the U.S.
Copyright Office. If done in a timely manner, registration
makes your case better if and when you prosecute
a court action (for example, you can get minimum
statutory damages and may be awarded attorney fees).
It’s useful to distinguish between steps (a) and (b), placing
the copyright notice on the work and actually getting a
copyright registration. Thus I suggest that you don’t say, “I
copyrighted my program,” but rather say, “I put a copyright
notice on my program,” or “I applied for (or received) a
copyright registration on my program.”
2. Copyright Compared With Utility Patent
The process involved in obtaining a patent differs significantly
from that of registering a copyright. A copyright is
deemed to exist automatically upon creation of the work,