Copyright Law is indeed a slippery slope. Over at Vitamin, Stephan Nipper, writes on March 2nd, 2007 a post entitled Copyright: Get to know the Facts but having read the article I really must ask Attorney Nipper what exactly are the facts please? According to Attorney Nipper, his article encourages the purchase of US copyright registration (at $45/a pop) in order to avoid
"...a common misconception about copyright law that still exists today, some thirty years later. This misconception often serves as a trap that many a copyright owner, including web developers and designers, unknowingly falls for. What is it? Its the belief that “a copyright owner does not have to file a copyright application to protect its works…rather, copyright protection forms when the works are created.”
While technically true (copyright protection begins at the ‘publication’ of the work), taking a “I don’t need to file copyright applications” attitude can often come back to haunt you. The reason for this, under the US Copyright Act, is that registration of the copyright within ninety (90) days of publication (or before infringement takes place) is necessary to enable the copyright owner to receive what are referred to as “statutory damages.”
I would first like to point out that Mr. Nipper is incorrect when he states that copyright in a work is created at ‘publication.’ The current U.S. law creates a copyright when a work is fixed in a tangible form of expression. US Copyright Office states the following:
When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.
Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work.
Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law.
Houston We Have a Problem!
So from what I read of all this is... that copyright is indeed bestowed upon a work at its creation BUT in order to ACTUALLY be protected in a court of law (which is frankly in my eyes the whole point of copyright protection) for statutory rights and attorneys fees, that work MUST be registered. Therefore to ensure compliance with these laws all artists, writers, developers etc MUST REGISTER each piece of work or you're screwed. That means each photograph, each website, each graphic, each illustration, painting or sculpture. Are you kidding me?
So if Jane the Artist creates a masterpiece for which she hasn't registered a copyright and the masterpiece is sold to a collector, that collector/buyer could conceivably go forth and reproduce that masterpiece into coffee mugs, tshirts, greeting cards etc...make a fortune and Jane the Artist has NO LEGAL STANDING??
Additionally Attorney Nipper points out:
Finally, web developers should remember that in the US the author of the work is the owner of the work unless the author has assigned his/her rights in writing, has a duty to do so based upon an employment agreement, or the work is one of the few other “works for hire” exceptions.
(Please see ArtLOOK's May 13, 2006 post on Work for Hire Situations and why it's a bad idea for creative freelancers.)
Mr. Nippers article and the info at the US copyright office therefore begs the questions... does a artist or creative own a work upon creation or not? Is it 90 days or 5 years? And if a work is being stolen or misused, does that creator have protection and rights under US copyright law and/or WIPO and/or the Berne Convention or not? If not, what is the point of bestowing copyright upon creation in the first place, and who then is really benefiting from the registration process? If these questions can not be answered clearly then we have some mighty big problems folks and I'm going to have to go and re-mortgage my house in order to protect my rights! (of course it might be too late according to the 90 day time limit...for heaven's sake)
WIPO - World Intellectual Property Organization
Now I am not an attorney. I am simply a designer who wishes to figure this all out. I encourage you to all read Mr. Nipper's article as well as the comments made by numerous designers, artists, writers and EU visitors all questioning such things as "I've created 100's of sites/layouts/articles/paintings or illustrations and registering each one is going to get expensive." and how does Creative Commons work into all this. Many EU visitors also wished additional information regarding intellectual property in their countries. I have done a little bit of research and have provided links below which will direct readers to information regarding US copyright law, WIPO, Creative Commons and other resources.
Interesting comments that some readers point out over at Vitamin are the comments regarding UK law whereby copyright does not need to be filled and that UK creatives are protected regardless of registration as Rick Curran's research points out '
"So long as you have created a work that qualifies for copyright protection, that is it falls into one of the categories of material protected by copyright, you will have copyright protection without having to do anything to establish this. It is a requirement of various international conventions on copyright that copyright should be automatic with no need to register.
To help protect your copyright work, it is advisable to mark it with the © symbol, the name of the copyright owner and the year of publication. Although this is not essential, it will let others know when the term of protection started and hence whether it is still covered by copyright, and indicate who to approach should they need to ask permission to use the work."
Kevin Rapley comments:
"...you will be covered regardless! If a country is part of the WIPO (which the UK and US are) Add the copyright and your covered. Save your dollars America, would be interesting to see where Stephen Nipper got his information from."
Obviously clarification is needed here. Many of us rely (heaven forbid) on our government and legal system to protect some semblance of our rights as creatives who contribute in vast and rich ways to our society. Clearly this is an issue that should be examined and recified by our legal system and those who represent us. It seems quite clear to me that if copyright is bestowed upon creation that all rights and legal protections should follow that entitlement. Additionally, it has been my experience that when an artist creates a work the artist usually has all preliminary sketches, layouts, and files supporting dates and progress of the work. This should be evidentiary and significant in a court of law.
According to the WIPO website - How are copyrights and related rights protected on the Internet:
Both treaties require countries to provide a framework of basic rights, allowing creators to control and/or be compensated for the various ways in which their creations are used and enjoyed by others. Most importantly, the treaties ensure that the owners of those rights will continue to be adequately and effectively protected when their works are disseminated through new technologies and communications systems such as the Internet. The treaties thus clarify that existing rights continue to apply in the digital environment. They also create new online rights.
And with regard to what rights does copyright provide:
The creator - or the owner of the copyright in a work - can enforce rights administratively and in the courts, by inspection of premises for evidence of production or possession of illegally made - "pirated" - goods related to protected works. The owner may obtain court orders to stop such activities, as well as seek damages for loss of financial rewards and recognition.
And do you need to register to be protected?:
Copyright itself does not depend on official procedures. A created work is considered protected by copyright as soon as it exists. According to the Berne Convention for the Protection of Literary and Artistic Works, literary and artistic works are protected without any formalities in the countries party to that Convention. Thus, WIPO does not offer any kind of copyright registration system.
However, many countries have a national copyright office and some national laws allow for registration of works for the purposes of, for example, identifying and distinguishing titles of works. In certain countries, registration can also serve as prima facie evidence in a court of law with reference to disputes relating to copyright.
Please see the following sources of information regarding copyright law and please tell me your thoughts.