Intellectual Property and the World Wide Web

The internet is a great resource of information as well as images, documents, programs and web pages. Various types of intellectual property protection are available to protect these owners of these works. For example, Copyright protects original authorship fixed in tangible form. For works transmitted online, the copyrightable authorship may consist of text, artwork, music, audiovisual material, sound recordings, etc. Copyright does not protect ideas, procedures, systems, or methods of operation. Under U.S. law, copyright protection subsists from the time the work is fixed. Copyright registration is not mandatory, but it has important benefits. The vast majority of the images that are online are copyrighted to someone. Only works with an expired copyright, works created by the government, or works specifically dedicated by the copyright holder as “public domain” are considered public domain.

Copyright Registration of Online Works

Although the Copyright Act affords protection just for creating a work and reducing it to a tangible form, that protection is somewhat illusory without registration. A Web site must be registered in order to sue anybody else for infringement. Also, if a work is registered within three months from the date of first publication, or at least prior to the date of infringement, an owner can collect statutory damages from the infringer.

For all online works other than computer programs and databases, the registration will extend only to the copyrightable content of the work as received in the Copyright Office and identified as the subject of the claim. The application for registration should exclude any material that has been previously registered or published or that is in the public domain. For published works, the registration should be limited to the content of the work asserted to be published on the date given on the application.

Revisions and Updates

Many works transmitted online are revised or updated frequently. For individual works, there is no blanket registration available to cover revisions published on multiple dates. A revised version for each daily revision may be registered separately, provided the revisions constitute copyrightable authorship. A separate application and filing fee are required for each separately published update.

Databases

In some cases, a frequently updated online work may constitute an automated database. A group of updates, published or unpublished, to a database, covering up to a three-month period within the same calendar year, may be combined in a single registration. All updates from a three-month period may be registered with a single application and filing fee.

Serials and Newsletters

Group registration, which covers a single registration covering multiple issues published on different dates, is available for serials, which are published weekly or less often, and daily newsletters, which are published more often than weekly,including those published online. Group registration for serials is available only if the claim is in a “collective work.” Thus, group registration is not available for electronic journals published one article at a time because such works are not collective works.

Unauthorized Posting of Copyrighted Material

Unauthorized posting of material protected by copyright on the Internet constitute a copyright violation. In addition, although copyright infringement through the posting of protected material on the Internet is often accomplished anonymously, a copyright owner can obtain the identity of an anonymous unauthorized poster by serving a subpoena on the poster’s Internet Service Provider (ISP) under the Digital Millennium Copyright Act. A prima facie case of copyright infringement requires proof of ownership of a valid copyright and defendant’s violation of the copyright owner’s statutory rights by an act such as copying.

Owners of Copyrighted Musical Compositions

The rights of owners of copyrighted musical compositions have been recognized in the Internet context. Once a musical composition has been publicly distributed with the copyright owner’s authorization, the Copyright Act requires the copyright owner, under certain circumstances, to grant others a compulsory mechanical license to make and distribute recordings of the work, subject to the payment of royalties at statutory or negotiated rates.

Potential Copyright Liability of Service Provider

The Digital Millennium Copyright Act significantly limits the liability of an ISP for copyright infringement by creating four ”safe harbor” categories of activity for which ISPs may not be held liable for monetary damages and for which the scope of any injunctive relief is limited. The four categories are (1) transitory digital network communications, (2) system caching, (3) information residing on systems or networks at the direction of users, and (4) information location tools.

Ownership

Every item on a Web site needs to have been created for that Website or there must be a mechanism to transfer the ownership before a copyright notice is put on the Website. There are many elements to a Website that must be considered, including text, graphics, script, data, and code.

Notice

It is generally a good idea to include a copyright notice on a Web site because it allows the copyright owner to be eligible for certain types of damages. The copyright notice consists of at least elements that include the copyright symbol and/or the term “Copyright,” the year of copyright, and the name of the copyright holder.

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