Copyright Protection for Websites

Copyright Protection for Websites

Tom James

Published by Echion Books

Smashwords Edition

Copyright © 2017 Tom James

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including information storage and retrieval systems, without permission in writing from the publisher, except by a reviewer who may quote brief passages in a review. Scanning, uploading, and electronic distribution of this book or the facilitation of such without the permission of the publisher is prohibited. Any member of an educational institution wishing to photocopy all or part of the work for classroom use, or anthology, should send inquiries to permissions@EchionBooks.com

This publication is designed to provide accurate and authoritative information. It is sold with the understanding that the publisher is not engaged in rendering professional services. If professional advice is needed, the services of a qualified professional should be sought.

ISBN: 978-1-946397-02-7

Echion, LLC

P.O. Box 46162

Plymouth, MN 55446

info@EchionBooks.com

Smashwords Edition - License Notes

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CONTENTS

Preface

1. Why register a copyright in a website?

2. What can be registered

Subject matter limitations

Expression vs. ideas and information

Creativity

Originality

Fixation in a tangible medium

Federal emblems, names, slogans and insignia

Architecture

Foreign works

Summary of uncopyrightable subject matter

Compilations and derivative works

3. Preparing to apply

Publication: The copyright definition

Register early

Step-by-step instructions

When to apply

Preregistration

Foreign works

4. Applying for registration

Elements of the application

Online vs. Mail

Privacy

Registering updated website content

Registering derivative works

Foreign works

5. Registering unpublished content

Collection, collective work or single work

Forms and categories

Completing the application

6. Registering published content

Collection, collective work or single work

Group registration

Filing

7. Deposit copies and fees

The deposit requirement

Mandatory vs. registration deposits

Number of copies

Exclusively online works

Works that have been published in hard copies

Receipts

Special relief

Fees

Special handling

Effective date of registration

8. Copyright Office actions

9. Other copyright protection measures

About the author

Other books by Tom James

Connect with Tom James

Notes

PREFACE

The content of a website, like any other creative content, may be protected by copyright. Like any other kind of creative content, it arises as soon as it is fixed in a tangible medium of expression, which can include a computer or other digital storage device. The thornier questions are whether you should take the further step of registering the copyright and, if so, how?

The copyright system in the United States was developed during the print era. The forms, procedures, rules and regulations reflect that history. For example, while clear-cut rules exist for determining the publication date of a book or magazine, very little guidance exists for determining the publication date of a website. (It isn’t necessarily the date you go live with your site, by the way.) Moreover, while specialized forms exist for registering literary works, photographs, audiovisual works, hull designs, and so on, no form specifically for websites exists.

With this book, you will be in a better position to decide whether and when to register a copyright in your website or blog. You will be better equipped to navigate the process of registering a copyright in a website. And you will have an understanding of how other measures, such as the copyright notice, can help, too.

The first chapter explains why registration of a copyright in website content can be important. Chapter 2 identifies what kinds of things are protected by copyright, and therefore may be registered, and what kinds of things are not. Chapters 3 through 8 detail the steps that need to be taken in order to register a copyright in website content. Chapter 9 discusses some additional ways to protect copyrights, such as the copyright notice and technological measures.

The book is written for the average person. No specialized training in law or technology is either assumed or required.

The information provided relates to U.S. law. The laws of other countries are different. The omission of a reference to a difference between U.S. and foreign laws should not be taken to mean that U.S. and foreign laws on a particular subject are identical, or even similar. A reference to the laws of a particular country does not imply anything about the laws of other countries not mentioned.

Laws are constantly changing and undergoing new interpretations. Consequently, no assurance can be given that the information in this book will still be current at the time you acquire it. It is a good idea to keep informed about new developments in the law.

This book provides only general information, not legal advice. While I am an attorney, I am not your attorney. Neither your acquisition of this book nor your reading of it creates an attorney-client relationship between us. You should hire a licensed attorney if you need legal advice regarding your website or blog.

All examples in this book are hypothetical. Any similarity to any person, whether living or dead, or to any past, present or future legal entity, is purely coincidental.

This book uses both masculine and feminine pronouns. Unless the context clearly indicates otherwise, the masculine includes the feminine; the feminine includes the masculine; and the use of either pronoun includes transsexuals, bisexuals, asexuals, and every other variant that has been, is currently being, or may in the future be used in the taxonomy of human beings.

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CHAPTER 1. Why register a copyright?

The Internet has enabled an explosion of copyright infringement. Roughly one-quarter (9,567 petabytes) of total Internet bandwidth is used for activity focused on infringing other people’s copyrights. Over 300 million unique Internet users explicitly seek or access infringing content each month. Meanwhile, copyright infringement litigation has skyrocketed, nearly tripling between 2010 and 2015 alone.

In this kind of environment, every website owner and blogger should take steps to protect the copyright in their website content. Even those who don’t care if their material is copied or not should take steps to protect their copyrights. Failing to do so could put you in the unenviable position of having to defend against claims that the content you created infringes someone else’s copyright.

Copyright protection comes into existence when a creative expression is fixed in a tangible medium. For most websites, protection begins when the digital files comprising the website content are created and saved on a computer or other digital storage device. Registration is not required in order for a copyright to exist. Failure to register the copyright in a website will not cause loss of copyright protection. Nevertheless, registration is a very good idea, for a number of reasons.

NECESSARY FOR ENFORCEMENT

Although copyright protection for a website may exist whether it is registered or not, that assurance is not of any practical value unless you are able to enforce it. Under the Copyright Act, registration is required in order to file a copyright infringement claim in court.

There are two exceptions to this rule.

First, if the Copyright Office has refused registration for some reason, then an infringement lawsuit may be commenced without it. In that situation, the claimant must serve notice of the suit on the Copyright Office in addition to serving notice of it on the other parties to the proceeding.

The second exception is for foreign works. A claim alleging infringement of a foreign work may proceed whether the copyright has been registered or not. Failing to timely register a foreign work may result in ineligibility for statutory damages and attorney fees, but it is not an absolute bar to filing an infringement lawsuit.

There is some case law to the effect that failure to register before filing an infringement suit is not jurisdictional. This doesn’t mean that registration is not required, though. It just means that in lieu of dismissing the lawsuit and forever barring any such claim in the future, a court may make its dismissal of the lawsuit without prejudice. When a court dismisses a claim without prejudice, the claimant may re-file the case after he has taken care of getting the copyright registered. The disadvantage to proceeding this way, of course, is that the court filing fee – and all the other costs that are incurred when initiating litigation – will have to be paid again. Also, if the statute of limitations runs out between the time the first lawsuit was filed and the time the second one is, then the infringement claim will be time-barred. Accordingly, even though registration is not jurisdictional, it still makes a great deal of sense to register the copyright before attempting to enforce it in court.

PROOF OF AUTHORSHIP, OWNERSHIP, VALIDITY & DATE

The issuance of a registration certificate creates a rebuttable presumption that the copyright is valid and that the facts stated in the registration certificate are true. Among other things, this means it establishes a rebuttable presumption that the person(s) alleged in the registration to be the owner(s) and author(s) is/are, in fact, the owner(s) and author(s). It also establishes a presumption as to when the copyright came into existence.

Without the benefit of these presumptions, a claimant would need to marshal evidence to prove each of these things in court.

As indicated, these presumptions are rebuttable. That means a challenger may still introduce evidence to try to prove that someone else is the author or owner, or that the copyright is not valid, or that the copyright came into being at a different time. If the work is registered, though, the burden will be on the challenger to prove those things. While not impossible, that can be very difficult to do.

To be considered timely, and to get the benefit of these presumptions, you must register the work either before you first publish it, or within five years after publication. Waiting more than five years after publication before registering a work does not automatically result in loss of copyright protection, but it can cause you to lose the benefit of the presumptions that arise when registration is timely. If the registration is filed too late, then you will have to introduce evidence other to prove authorships, ownership, and the validity and date of the copyright. You will not be able to rely on the registration certificate alone.

PRESUMPTION OF COPYING

If you register the copyright before publishing the work, or within three months after publishing it, then you get the benefit of an additional presumption, namely, a presumption that no one else independently created the same work or a work that has significant elements in common with yours. In other words, it is presumed that a subsequent creator of an identical or similar work copied yours. This shifts the burden of proof to the alleged infringer to prove that no copying – not even subconscious copying – occurred. This is important because it can be quite difficult to prove a negative.

STATUTORY DAMAGES

The Copyright Act gives the copyright owner two alternative methods of determining the amount of recovery for infringement:

a) actual damages plus the infringer’s profits (to the extent not included in actual damages); or

b) statutory damages.

The amount of statutory damages that may be awarded is between $750 and $30,000. If the infringement is willful, then the amount may be increased to $150,000. On the other hand, the amount of statutory damages may be reduced to as little as $200 if the infringement was innocent, i.e., without the infringer’s knowledge or notice that he was infringing a copyright. And a court may reduce statutory damages to $0 if the infringer reasonably believed the