Frequently Asked Questions About Copyright

Part 3 - Common miscellaneous questions

Copyright (c) © 1993, 1994, 2002 Terry Carroll
Last update: September 11, 2002

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. Please read the disclaimer, below.

FAQ Contents

Part 1: Introduction (including full table of contents)
Part 2: Copyright basics
Part 3 - Common miscellaneous questions (this part)
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, Part 3: Common miscellaneous questions

3.1) Who owns the copyright to something I wrote at work, me or my company?
3.2) Is copyright infringement a crime, or a civil matter?
3.3) What is the statute of limitations for copyright infringement?
3.4) Can the government be sued for copyright infringement?
3.5) Can the government copyright its works?
3.6) Can the government copyright its laws?
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? What about MP3s?
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?

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

That depends on a lot of things. Normally, the individual who prepares a work is considered the author of the work, and therefore the owner of its copyright. However, there are two ways in which the company, rather than the person who creates the work, can own it. The first (and most common) is the work-made-for-hire doctrine, and the second is by assignment.

Work Made For Hire
If a work qualifies as a work made for hire, the company (rather than the person who prepared the work) is the author for purposes of copyright, and copyright initially vests in the company. If the work is a work made for hire, the person who prepared it isn't legally considered the author, and never had any ownership rights in the copyright.

So how does a work qualify as a "work made for hire"? The requirements for a work made for hire are set out in 17 U.S.C. § 101. Briefly, there are two ways: first, as a matter of employment, and second, as a matter of contract.

Let's take employment first. A work will be a work made for hire if two conditions are met. First, the individual preparing the work must be an employee of the hiring party. If he's an independent contractor, he's not an employee, and the work is not a work made for hire. 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).

To give a simple example of an employee-employer relationship, suppose you work for a software company. You work in an office in their building, have business cards from the company, and they pay you directly, providing benefits (say, medical insurance, a 401(k) and paid vacation), withholding income taxes and issuing you a W-2 at year-end. That's a great example of an employee-employer relationship. The works you create for that employer, if within the scope of your employment, will be works made for hire; the company will be the author and own the copyrights.

To give an example of an independent contractor, suppose you hire a photographer to take photographs at your daughter's wedding. The photographer provides his own equipment, does much of the work (such as developing and printing the pictures) at his own place of business, and bills you for services, which you pay in full (rather than deducting a withholding for taxes, which you send on to the IRS rather than to the photographer). In that case, the photographer is an independent contractor, and the photographs produced will not be considered works made for hire; the photographer will be the author and own the copyrights.

The second condition is that, even if you're an employee, the works you create must be created within the scope of your employment to be considered works made for hire. For example, even if you're a company employee, whose job is to write software, if you write a book of poetry at home on the weekends, that work won't be considered a work made for hire, because it was not produced within the scope of employment.

The other way a work can be considered a work made for hire is as a matter of contract. For this to apply, there must first be a signed written contract that states that the work in question is to be considered a work made for hire. In addition, the work must be specially commissioned, and must be 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.

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.

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3.2) 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 either is for the purpose of commercial advantage or private financial gain, or consists of reproducing or distributing over $1,000 worth of copyrighted works in a 6-month period. 17 U.S.C. § 506(a).

"Financial gain" is defined pretty broadly: it includes receiving (or expecting to receive) anything of value, including other copyrighted works. Running a "warez" site to exchange pirated software would meet this definition. In fact, that's why the definition was added. In 1994, an MIT student named David LaMacchia operated electronic bulletin boards on the Internet and encouraged users to upload and download copies of popular copyrighted commercial software, allegedly over a million dollars. However, LaMacchia did not have a commercial motive, which prevented the government from charging him with criminal copyright infringement. The government tried bringing criminal wire fraud charges instead, but those charges were dismissed. United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994) [1, 2]. Congress enacted the No Electronic Theft (NET) Act, Pub. L. 105-147 [TEXT; PDF], partially in response to this case. It was the NET Act that, among other things, added the broad definition of "financial gain.".

Generally, a first offense is a misdemeanor. But 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, or if it's a second (or more) offense, the offense is a felony. 18 U.S.C. § 2319.

As a side note, although 18 U.S.C. § 2319 generally prescribes 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. The guidelines for criminal copyright infringement are in USSG § 2B5.3.

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

For both civil suits, the statute of limitations for copyright infringement is three years; for criminal prosecutions, it's five years. 17 U.S.C. § 507.

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3.4) Can the government be sued for copyright infringement?

Which government, the federal government, or a state government?

For the federal government, the answer is yes. The United States has expressly waived its immunity to suit for copyright infringement. However, the sole remedy for copyright infringement is an action against the government for reasonable compensation. In other words, you can't get an injunction against the federal government to make it stop infringing; you can only get reasonable damages. 28 U.S.C. § 1498.

For state governments, the short story is that states are essentially immune from suit for copyright infringement, under the Eleventh Amendment, although you wouldn't know it by looking at the text of the Copyright law.

Here's the long story. First, under 28 U.S.C. § 1338(a), federal district courts have exclusive jurisdiction for copyright infringement suits. That is, if you want to bring a copyright infringement suit, you must bring it in federal court, not in state court. Second, under the text of the Eleventh Amendment, the federal courts' jurisdiction does not extend to covering suits against a state by a citizen of another state. This combination of factors essentially means that a state can't be sued for copyright infringement (at least not by a resident of a different state).

Here's the history. In 1988, UCLA successfully defended a copyright infringement suit on the ground that it had immunity under the Eleventh Amendment of the U.S. Constitution. BV Engineering v. University of California at Los Angeles, 858 F.2d 1394 (9th Cir., 1988). Congress responded by passing the Copyright Remedy Clarification Act, Pub L. 101-553, which became effective June 1, 1991. This law added section 511 to the Copyright Act, which seemed to pretty clearly remove the immunity defense: " Any State ... shall not be immune, under the Eleventh Amendment of the Constitution of the United States, from suit in Federal court ... for a violation of any of the exclusive rights of a copyright owner." 17 U.S.C. § 511.

In a previous version of this FAQ, I concluded this section with "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." Well, that was then, this is now. After I wrote those words, the Supreme Court decided to revisit the issue of Eleventh Amendment immunity, which started in 1995 with Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1995). This case had nothing to do with copyright: it involved the Seminole Indian tribe trying to sue the state of Florida for refusing to negotiate with it regarding an Indian gaming compact, as federal law required. The state claimed immunity, and the Supreme Court ultimately sided with the state of Florida, holding that Congress can't enact a simple statute that bypasses part of the Constitution. Fair enough; but this was an express disagreement with the Supreme Court's earlier 1989 decision, Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989). The Union Gas case set forth the prevailing Eleventh Amendment jurisprudence when Congress when added section 511 in 1991; so Congress can't really be blamed for following it in enacting section 511.

It was only a matter of time before intellectual property cases came forward, and they did; again, out of Florida. A pair of related cases were issued by the Supreme Court in 1999: Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 119 S.Ct. 2219 (1999) (a patent case); and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 119 S.Ct. 2199 (1999) (a trademark case). (I am convinced, by the way, that the Supreme Court some how arranged to issue these cases on the same day, with identical citations except for the two middle digits in the page number (2219 and 2199) just to make things difficult for intellectual property lawyers.) Both these cases found in favor of the state on the Eleventh Amendment issue, even though both the federal patent and trademark statutes have provisions (35 U.S.C. § 271(h) and 15 U.S.C. § 1125(a)(2), respectively) that mirror section 511 of the Copyright Act.

Justice Stevens, in footnote 9 of his dissent in the patent case, suggests that the Copyright Act's provision might survive these cases, but I think that that's just wishful thinking.

It seems pretty certain, then, that, despite the clear wording of section 511, a state cannot be sued for copyright infringement by a citizen of a different state, unless it consents to suit. Cases since the Florida Prepaid cases are reaching the same conclusion. See, e.g., Rodriguez v. Texas Commission on the Arts, no. 98-10251 (5th Cir., Jan. 10, 2000) and Chavez v. Arte Publico Press, no. 93-2881 (5th Cir., Mar 10, 2000).

This may not be the end of the story, though. In the last two Congresses since the Florida Prepaid cases, there has been legislation introduced to get around these cases. See S. 1835, 106th Cong., 1st Sess. (Nov 4, 1999); and S. 2031, 107th Cong., 2d Sess. (March 19, 2002). Although Congress can't prevent a state from claiming Eleventh Amendment immunity, what it can do is prevent a state from enforcing its own copyrights unless it has waived the immunity, and that's the approach that these bills take. If such a bill becomes law, and withstands attack, expect a lot of states to eventually waive their immunity.

I really like this approach. It strikes me as fair and even-handed, while preserving the state independence that was the impetus for the Eleventh Amendment. Under this approach, each state can either opt-in or opt-out of the copyright system. It can choose to have and enforce copyrights, but only if it's willing to respect the copyrights of others; or it can choose to be immune from copyright suit, with the cost being that it can't file copyright suits of its own.

I'll also note that another way this situation could be rectified is for Congress to amend 28 U.S.C. § 1338(a) to allow copyright infringement cases (or at least copyright infringement cases against states) to be brought in state court. So far, to the best of my knowledge, this approach has never been pursued.

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3.5) Can the government copyright its works?

Which government, the federal government, or a state government?

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.

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3.6) Can the government copyright its laws?

Another question, related to the previous question, that sometimes comes up is whether a government may copyright its laws (as opposed to other types of works). 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) § 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 applies 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.

My own opinion is that laws aren't subject to copyright, even though there is no express provision in the Copyright Act that says so. It raises far too many due process issues for a government to have the ability to prevent its laws from being copied. And even if a state could technically claim a copyright in a law, I believe that, given the particular nature of the work, almost any reproduction of the law would be considered to be a fair use.

It gets trickier, however, when a private party drafts a proposed law, such as a model code, and a state or city enacts that code. In most cases where this issue has come up, the courts have generally upheld the copyright in the private party's work. However, a recent case has held that, to the extent that the model code is actually enacted, the enacted version is not subject to copyright. Veeck v. Southern Building Code Congress, Inc., No. 99-40632 (5th Cir. June 2, 2002) (en banc).

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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? What about MP3s?

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) (Pub. 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:

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.

This invites a whole discussion of the MP3 issue. Although a lot of MP3 litigation is proceeding, mostly in the Ninth Circuit, I think it's safe to say the following. First, under Recording Industry Assoc. of America (RIAA) v. Diamond Multimedia Systems, Inc., 180 F.3d 1072 (9th Cir., 1999), converting your own CDs to MP3 files and loading them onto an MP3 player is a fair use, not infringement. Second, under cases like A&M Records, Inc., et al. v. Napster, Inc., 239 F.3d 1004 (9th Cir., 2001) (amended), distributing MP3 files to others is infringement, not a fair use.

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3.8) Are Usenet postings and email messages copyrighted?

In almost all cases, yes. 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? The former Deja News archive now maintained at groups.google.com?). 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 (such as this Copyright FAQ, registered in 1994 as reg. no. TX-3-908-677; to the best of my knowledge, this is the first Internet-published document to have its copyright registered by the United States Copyright Office), 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.

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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 Copyright Office position is that letterforms themselves are not copyrightable under U.S. law, and that a typeface cannot be registered, as a typeface. 37 CFR § 202.1(e). However, 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 (for example, the 102nd Congress' H.R. 1790 (102d Cong.) which, if passed, would protect typeface design. In 1998, design protection was added by the Vessel Hull Design Protection Act, part of the Digital Milleneum Copyright Act, Pub. L. No. 105-304 [TEXT; PDF], codified at 17 U.S.C. §§ 1301-1322. As enacted, the protection applies only to the design of a useful article (see section 1301(a)(1)), and "useful article" is restrictively defined in section 1301(b)(2) to cover only the hull of a vessel (i.e., of a boat).

It would be a simple matter to amend section 1301(b)(2) to cover ornamental designs in general, and not just those designs of vessel hulls. If such a bill is enacted, the above opinion will be obsolete and incorrect.

I should also note that I personally disagree with the position that typefaces are categorically uncopyrightable works. Although I recognize that many, perhaps most, typefaces are drawn so much from pre-existing materials that they cannot be considered "original" in a copyright sense, many other typefaces are quite original indeed, and ought to be subject to copyright. For a detailed discussion of my position, please see my article Carroll, Protection For Typeface Designs: A Copyright Proposal, 10 Santa Clara Computer & High Tech. L.J. 139 (1994). In the article, I argue that Eltra Corp. v. Ringer was wrongly decided, and that the Copyright Office regulation 37 C.F.R. § 202.1(e) is inconsistent with mainstream copyright cases construing copyright in useful articles. The article proposes an amendment to the Copyright Act, expressly providing for copyright in typefaces, which is about as likely as my being elected President.

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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 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.

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

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 a "work of authorship," which essentially means an original literary, dramatic, and musical works, pictorial, graphic, and sculptural works, audio-visual works, sound recordings, pantomimes and choreography. 17 U.S.C. § 102. A patent covers an invention, which essentially means a new and non-obvious useful and functional feature of a product or process. 35 U.S.C. § 101-103.

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 new (novel and non-obvious), and useful and a patent must be issued by the United States Patent and Trademark Office. 35 U.S.C. §§ 101-103.

Start of protection. Copyright protection begins as soon as a work is created. 17 U.S.C. § 302. Patent protection does not begin until the patent is issued. 35 U.S.C. § 154.

Duration. A copyright generally lasts for the life of the author, plus 70 years (see section 2.4 for specifics). 17 U.S.C. § 302. In the U.S., a patent lasts for 20 years from the date applied for (patents applied for prior to June 7, 1995 have a term of 17 years from the date granted or 20 years from the date applied for, whichever is longer; see 35 U.S.C. § 154(c)(1)). 35 U.S.C. § 154.

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. 17 U.S.C. §§ 501, 106. 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. 35 U.S.C. § 271. 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 of registration is only $30, 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 substantial 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.

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

This is a FAQ about Copyright, not about patents. I really cover patents only to compare them with copyrights (see section 3.11).

At one point, Peter Treloar, then the moderator of the comp.patents usenet newsgroup, maintained a FAQ devoted exclusively to patents, which he periodically posted in the newsgroup. That FAQ died out a long time ago, although an archived 1994 version (now very out of date) of it can be found at http://sulcus.berkeley.edu/FLM/SH/MDL/Invention/Pat.Faq.1.html.

For more current information on patent law (particularly U.S. patent law), try some of the following resources:

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Disclaimer -- please read

This article is Copyright © 1993, 1994, 2002 by Terry Carroll. It may not be redistributed, either in its entirety or in part, whether for profit or not, nor incorporated in any other document without the written permission of the copyright holder.

This document is provided "as is" without any warranty, express or implied, including no warranty of merchantability or of fitness for a particular purpose. Use at your own risk. 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.

The views expressed, the interpretations made, and the conclusions reached in this article are those of the author. Specifically, such views, interpretations and conclusions are not intended to reflect those held by any party or institution employing, associated with, or represented by the author.

References to the first person ("I," "me" and the like) generally refer to Terry Carroll, the author and maintainer of the Copyright FAQ, unless context suggests otherwise.

If you have any additions, corrections, or suggestions for improvement to this FAQ, please send them to copyright-faq@tjc.com.

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