For free initial consultation, call (858) 674-6177.
Mr. Himelstein is a San Diego attorney who helps clients to provide
legal protection for their intellectual property associated with the
internet and computer software and hardware and assists them in
general business matters.
The following contains information on copyright law and the legal protection of web sites and computer software using copyright law.
Typically the primary means of affording legal protection for web sites or for software is by copyright, although other intellectual property protections are sometimes advisable. This document provides some basic information about the protection of web sites and computer software using copyright law.
Copyright Issues.
Copyright law attempts to balance various interests: provide protection of the copyright owner's intellectual property so that he/she will have a financial incentive to create and innovate, but not so much protection that he/she will too severely inhibit or prevent others from building on the art form. Copyright law attempts to balance the rights of the creators, users, competitors, licensees, et al.
"Web Sites" or "Software" are terms which are much too broad to use in describing the application of copyright protection. Instead copyrights are typically applied separately to graphics or other design elements, site mapping, source and object code, algorithms, program or other technical descriptions, data flow charts, logic flow charts, user manuals, data structures, database contents, i.e. almost anything written. Thus, to apply copyright law the specific thing to be protected must be identified. Copyright law protects best against literal copying of graphics or other designs, source or object code, text or documentation; protecting the web site or program structure and other elements from non-literal copying, depending on the circumstances, may be more problematic.
Copyright Requirements.
Copyrights apply to original works of authorship fixed in any tangible medium of expression.
Original means basically not copied. The work need not be too original, but may not be merely a trivial variation of another work.
Works of authorship specifically excludes an idea, procedure, process, system, method of operation, concept, principle or discovery. So, for example, an idea cannot be protected by copyright law, only the expression of the idea. This prevents an author from obtaining a monopoly on an idea merely by writing it down.
Fixed in any tangible medium of expression includes a piece of paper, or a computer disk (hard drive or floppy or CD or DVD) or tape. Even though RAM is volatile RAM is included.
Authorship applies to either the individual creator or to a "work for hire" (an employee or consultant). When an individual creates an original work, that individual owns all the rights under copyright law. An employer owns the rights when an employee working within the scope of his/her employment creates a work, unless there is an agreement to the contrary properly drafted. An independent consultant owns the rights to a work created by that consultant, unless certain signed writings exist which effectively ensure that copyright ownership is to be held by the consultee and the work is one of several categories. Seldom does software fit into one of the required categories. If more than one author is involved, they may be coauthors. Each coauthor has rights and obligations with regard to the other coauthors.
Certain subject matter is excluded from copyright protection, e.g. facts (but certain compilations of facts may be protectable, as in a database), useful articles, typefaces, semiconductor chips and mask works (protected by a different law), ideas. The merger doctrine provides that when an idea and the expression of the idea are so closely linked that it is difficult or impossible to separate them, then even the idea's expression is not protected.
The copyright owner's exclusive rights are: 1) the right to reproduce (copy), 2) the right to distribute, 3) the right to create a derivative, 4) the right to perform, and 5) the right to display to the public. So the book author has the exclusive right to make copies; the owner of the book may sell, loan, or destroy his/her copy, but may not copy the book. Only the copyright owner may distribute copies by rent, sale, lease or loan or prepare derivative works.
Current law does not require a copyright notice in the work for the work to be protectable, but notice prevents an infringer from claiming he/she did not know the work was protected by copyright law. Notice consists of the symbol © (or the word "Copyright" or the abbreviation"Copr."), the year of first publication and the owner's name. Additionally, "All rights reserved" may be added. The copyright notice should be incorporated upon creation. Speak with your attorney or me about placement of the notice.
The rights under copyright law arise as the author creates the work in any tangible medium. Current law states that for individuals the rights continue for the life of the author plus 70 years or for joint authros for the life of the author who is last to die plus 70 years. In the case of a "work for hire," or an anonymous or pseudonymous work, the rights continue for 95 years from publication or 120 years from creation, whichever is shorter.
Registration with the US Copyright Office is not required but does provide certain rights and is recommended. You must register before you can sue an infringer. If the registration is accomplished soon enough after first publication, the copyright owner secures additional legal benefits, which could be extremely important.
Please see my sub page on Internet law for additional information on copyrights.
The legal information contained above is informational in nature and cannot be considered legal advice. Every situation has its own factual context and cannot be judged without that context.
For free initial consultation call (858) 674-6177.
This web site is a work in progress. Some parts are knowingly incomplete; other parts are known to need revisions. Certainly, the future will reveal the need for further additions and revisions.
Last update of this sub-page August 25, 2009 by David B. Himelstein.
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