The decision to file for copyright registration is one many site owners seem to struggle with these days. It ‘s hard to understand why. Registering a copyright is a smart move in just about every case.
The creation of a “work” automatically conveys ownership in that work to the creator of it. The title of this concept is “common law” copyright. It is a relatively weak form of ownership from a legal perspective. Fortunately, registering a copyright with the Copyright Office can resolve this problem.
Advantages of Registering
There are definite advantages associated with registering a work with the Copyright Office. They include:
• Registration is a necessary prerequisite for a copyright infringement suit for works of U.S. origin. 17 USC §411(a).
• Registration establishes a public record of the copyright claim.
• If done before or within 5 years after the first publication of a work, registration will constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate of registration. 17 USC §410(c).
• If a work is registered within 3 months after first publication or in any event before an infringement occurs, statutory damages under 17 USC §504(c) and attorney fees may be recovered by the copyright owner. Otherwise, only actual damages would be recoverable by the copyright owner. 17 USC §412.
• Registration may allow the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.
From a practical point of view, the first advantage noted above is the most beneficial. If you wish to protect your copyrighted material, you are going to need to register for protection before filing a lawsuit against a party that has stolen the content. Considering the registration process can take some time, it is best to register as soon as possible.
Under the Digital Millennium Copyright Act [“DMCA”], you have the right to file a copyright infringement notice with the DMCA agent for the host of a site that has republished your content without permission. There is a catch, however. If the owner of the site challenges your claim, you have 14 days to file a lawsuit against the party in federal court. Before filing the lawsuit, you must have registered the copyright for the content in question. In short, it pays to do so well ahead of time.
The registration process for a copyright is fairly straightforward, if a bit slow. You must first determine the classification of the item before filing a sample of the work and paying a non-refundable fee. The nature of the sample depends on the type of work being submitted. For example, a software program need only include certain portions of the software, not the entire program given the fact it would typically be rather long.
The copyright is considered be registered on the date it is filed with the Copyright Office regardless of how long it takes for the Copyright Office to approve the filing. There is, however, a split in the courts as to whether an infringement lawsuit can proceed during the period between the initial filing and ultimate approval by the Copyright Office.
When to Register
The rather obvious answer would be to file as quickly as possible. However, this is rarely done with most web-based programs. The lack of a quick filing comes down to a couple of reasons.
The first reason is websites and programs are no longer static. Most continually change through the addition of new content, comments and other materials. From a copyright perspective, this is an issue because copyrights apply to static works. If you change the front page of your site every day by rotating user comments or some other change, you would technically need to file a copyright for each variation. Doing so would be expensive and time-consuming, to say the least.
The second issue concerns trade secrets. Copyright registrations are public documents. Your competitors can look them up and read the specifics of your filing. Given this, the risk of exposure versus the benefits of a formal copyright registration must be evaluated with each filing.
Given these concerns, it isn’t a surprise most businesses hold off on filing copyrights for their copyrightable works. Once an event arises requiring the perfection of the right, they then move ahead and do it because there is a tangible reason for taking action.
Should you file a copyright for your work today? It depends on your particular situation. Contact me for a consultation.
Richard A. Chapo, Esq.