Are you considering taking your business to the United States? If so, it is essential you protect your assets, including by way of intellectual property. This article introduces the copyright protection process in the United States.
What is a copyright?
Copyright is a form of intellectual property which protects original works of authorship, including literary works, such as software, or digital content. Copyright is different from a patent or a trademark in that it protects original works of authorship, whereas patents protect inventions or discoveries, and trademarks protect words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.
Furthermore, copyright, unlike trademarks or patents, is automatically generated upon the creation of original work. Thus, the registration of a copyright is voluntary, as it exists automatically from the moment the work is created. Nonetheless, registration is strongly recommended, as it provides notice to everyone about your copyright claim, which may be key in case of a dispute. Indeed, registration is necessary to enforce the exclusive rights of copyright before U.S. courts. Besides, it also allows the copyright owner to seek certain types of monetary damages and attorney fees in case of a lawsuit, and provides a presumption that the information found on the copyright registration certificate is correct.
U.S. copyright law, the Copyright Act, provides copyright owners with the following exclusive rights: the right to reproduce the work; the right to prepare derivative works based upon the work; the right to distribute copies or phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease, or lending; the right to perform the work publicly if it is a literary, musical, dramatic, or choreographic work, a pantomime, or a motion picture or other audiovisual work; the right to display the work publicly if it is a literary, musical, dramatic, or choreographic work, a pantomime, a pictorial, graphic, or sculptural work. Copyright also applies to the individual images of a motion picture or other audiovisual work; and the right to perform the work publicly by means of a digital audio transmission if the work is a sound recording. The owner of the copyright also has the right to authorize others to exercise these exclusive rights.
How to apply for copyright protection?
Any person can apply for copyright protection with the U.S. Copyright Office (the “Office”), by submitting an application through the online registration portal. There are two general application forms, the Standard Application, and the Single Application.
The Standard Application is the general method chosen to register most works, including an original work, a derivative work, a collective work, or a compilation, whereas the Single Application may be used for registering a copyright linked to one work created by one individual composed of material created by the same individual. There are other available registration options, such as registering a group of unpublished works, registering a group of photographs, registering certain groups of published works. It is important to select the option that best corresponds to your case.
To complete the application for registration, one must generally (1) provide all the required information on the application form, (2) pay the required fee, and (3) upload or mail in a copy of the work.
How long does copyright protection last?
Copyright is not an indefinite right and, after a certain period of time, the work will fall into public domain. The length of copyright protection will vary depending on when the work was created: works created on or after January 1, 1978 (which is the date of the current U.S. law on copyright) have a copyright protection equal to the life of the author plus seventy years. The same rule applies to joint works (i.e., works prepared by two or more authors), the protection lasting 70 years after the last surviving author’s death. When it comes to work made for hire (i.e. “a work prepared by an employee within the scope of his or her employment” or “a work specially ordered or commissioned” 1 ), the protection is of 95 years from the first publication or 120 years from the creation, whichever is shorter.
For the works that were created but neither published not registered before January 1, 1978, the duration of copyright is also generally computed under the aforementioned rules.
Is there such a thing as international copyright?
There is no such thing as an international copyright which automatically applies worldwide to a work. Nonetheless, some international conventions address the subject, the main one being the Berne Convention for the Protection of Literary and Artistic Works of 1886. It protects literary and artistic works, which are defined as
“every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science 2 .”
The Berne Convention introduces three basic principles: (1) principle of national treatment, to the effect that works originating in one of the contracting States to the Berne Convention must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals, (2) principle of automatic protection, to the effect that protection in another contracting State must not be conditional upon compliance with any formality, and (3) principle of independence of protection, to the effect that copyright protection is independent of the existence of protection in the country of origin of the work. However, when it comes to providing a course of action, the Berne Convention refers to the national legislation of the contracting State where the copyright protection is claimed. Thus, it is in the interest of the author of a work to register the corresponding copyright in all the countries where they consider conducting business, as it may be hard to provide sufficient proof of copyright ownership in case of litigation.
The copyright registration process can be lengthy and complicated. Intellectual Property lawyers in Canada, the UK and the U.S. we are ideally positioned to help you take your business to the U.S. or comply with your legal obligations in the U.S. Do not wait! We would be pleased to assist you.
1 Copyright Act, section 101.
2 Berne Convention for the Protection of Literary and Artistic Works of 1886, section 2 (1).