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17 U.S.C. §§ 101 et seq (1988 ed. and Supp. 1993)
How to File
a Copyright Registration
You have your "Work", the product of your blood, sweat and tears, and now you want to register for a copyright. How hard could it be?
Well, lets start with the easiest example. You have a website consisting of one paragraph of text:
This is my Website. My entire Website consists solely of this Webpage. Although it may not seems like much to you, let me assure you that it has the requisite originality to qualify it for copyright protection under USC § 204. Copy at your peril!
Copyright © 2000 Benedict OMahoney
How hard can this be? After all, I am the sole author, I dont have all sort of graphics and multimedia. Just some plain vanilla text on a Webpage. Well, lets do the drill and see where the gotchas are hiding.
The first thing we need to do is figure out which form to use. There are seven classifications of works of authorship as defined in the Copyright Act, and the classification can help you figure out which form to use.
First of all, even though this is an on-line work, it consists primarily of text. Hence, I can safely presume that this will be completed on Form TX.
Next, we'll look at each space on the Form TX.
This is not a book with a title on the spine. However, there is a <title> tag which in my html code which as follows: <title>Benedict OMahoneys Concise Web Page</title> I'll use this for my title. The title is used by the Copyright Office to index your your in their database. If your work does not have a title, you may use "untitled".
If you are registering a work that has been known to other people by a different title, then you will want to list that previous title here. If someone does a copyright search under the previous title, your copyright will still show up. Additionally, if you are reregistering a work under a different title, you will want to list the old title here.
If the work you are registering is an individual part of a larger work, then state the name of the larger work here. For instance, if I re-edited this Web page as an article for a magazine, I would put the name Esquire here, along with the issue number and date.
Now this is where it gets a little tricky, even for a simple Website like this one. The first thing we need to figure out is the year in which I completed Benedicts Concise Web Page.
Completion refers back to the date that the work was reduced to tangible form. For most other types of works, this is generally completely independent from the date of publication. However, as we will see, with Webpages, this can be virtually simultaneous.
In this case, I remember clearly that I created Benedicts Concise Web Page as a birthday present to myself. I spent about two hours crafting the language to my satisfaction before clicking on the Save button. At that point, the word processing program transferred the 0s and 1s from RAM to my harddisk, where they became persistent enough for me to be satisfied that I had in fact reduced the Webpage to tangible form. Just to be sure, I check the harddisk for the time stamp: Concise.HTML 2/9/2000 2:15 PM 2 KB. About a year later, I submitted my work of conciseness to the search engines.
It is at this point that I can denote the Year of Completion as 2000 with complete confidence.
The next item is significantly more difficult, almost to the point of being gray. Section 3(b) of the form demands that I either give an exact date (not just the year) and country of publication, or leave the section blank and thereby acknowledge that the work is unpublished.
The Copyright Office guidelines acknowledge that U.S. copyright law does not specifically address the issue of publication for online works, and consequently leaves it to the discretion of the applicant to determine in the total context whether the work was published or not. To the extent that this has been commented on at all, commentators have defaulted to if it on the Internet, its probably published, but if it is on a private network, its not. From an obsessive-compulsive standpoint, this gray short-cut leaves much to be desired.Thats a thin thread for a person trying to make a decision between being a published author and an unpublished wannabe. Lets be more rigorous, shall we?
So, first off, I need to determine whether or not Benedicts Concise Website has been published. Publication is defined as the distribution of copies or phonorecords of work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group or persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display or a work does not of itself constitute publication.17 U.S.C. § 101.
As you can clearly see, this does not provide much clarification for me.An initial parsing of this provision would seem to say that my Website is published if I distributed copies of the site to the public for sale, rental, lease or lending.Two concepts implicit in this clause are that 1) there is a transactional element to the distribution; and 2) There is something tangible being distributed.And therein we need to reason by analogy (the Copyright Office wont do it for us).
So what is the current state of Benedicts Concise Website? Let's say that after lunch on my birthday in the year 2000, I saved the Website to my workstation harddisk, and then uploaded a copy to my server. I previously indicated that saving the Website to my harddisk probably constituted a reduction to tangible form, but does uploading the Website to my server, which is connected to the Internet and available for all the world to see, constitute a publication?Probably not.Simply making a Website available on the Internet lacks the transactional quality conveyed in the §101 provision.It is more analogous to leaving a stack of leaflets on a bus stop bench. People may randomly walk by and see the leaflets, and some may even take one home, but there has been no transaction effecting a pro-active distribution. In the case of the uploaded Website, spiders and bots may randomly crawl by, and some may even cache the site elsewhere on the net, but there has been no transaction effecting a pro-active distribution.
In both cases, the uploaded Website and bus stop leaflets are probably more properly characterized as public displays, which §101 tells us does not by itself constitute a publication.
What about the following year, when despondent about the lack of traffic on what I happen to think is a mighty fine site, I submit my Website to Yahoo! and Google in the hopes that searchers of the concise will more easily be able to find my Website. Whats the analogy here? This is more like a magazine or television broadcast.By submitting the Website to the search engines, I have pro-actively made my Website available to the general public. In 101 terms, the distribution of copies or phonorecords of work to the public by sale or other transfer of ownership, or by rental, lease, or lending. Viewers may be said to be renting the page in that they are paying their ISP in order to view the page. I am getting some renumeration in that I wanted the page to be viewed. I may place advertising on it (like a magazine or television broadcast), and there is a commercial distribution intermediary.
As far as nation of publication is concerned, the location of upload is used.
Depending on the circumstances, one could see how adding a link to the Website from another page that has been registered with a search engine could also constitute publication.
In every copyright registration, there are three sets of people that need to be accounted for and reconciled:
Applicants come in four different flavors:
- Work for Hire
- Transferee of some exclusive copyrights
- Transferee of all exclusive copyrights
Authors come in three different flavors:
- A Person
- A Person who owns a Work for Hire
- A Company who owns a Work for Hire
Authors can also be categorized as:
- A Sole Author
- One of the Co-Authors (for Joint Authorship)
- Owner of a Work for Hire
A Claimant can be any one of the following:
- A Sole Author
- One of the Co-Authors (for Joint Authorship)
- Owner of a Work for Hire
- A Tranferee of all exclusive copyrights
The first step is to determine whether or not we are talking about a sole author, a single person who has created the work and not created it as a work-for-hire.If that is the case, we will note his name, determine nationality or domicile, and check whether it was done anonymously or pseudonymously. We will also inquire as to the nature of the authorship. This will be determined by datatype.
Name of Author is pretty straightforward since I know my name, I am the sole author, and no other co-author contributed anything on their own account or as a work for hire.
The birth date of the author is used by the Copyright Office for identification purposes and is optional. However, if the author has died, inclusion of the date of death is mandatory as this pertains to the duration of the copyright.
Regarding nationality or domiciliary, keep in mind that your nationality and domicile are not necessarily the same. Your domicile is where your heart is and where you live for most of the year; your nationality is the country that issues your passport.
Regarding anonymity or pseudonymity, check yes if no name was used, or if a pen name was used, to indicate the authorship of the work. Do not complete this section if the work in question was a work made for hire.
Check yes for Work for Hire if the work in question was a work made for hire. A work made for hire is usually a work made for an employer pursuant to an employment agreement or a work made independently as a contractor with a written agreement indicating that the work done would be considered a work made for hire.
Nature of Authorship is also straightforward. In my case, I put "Entire text".I put that because I wrote the whole thing, every last word.
This area tends to confuse people because of the conflation of author and employers of works for hire in the Author section. Remember, an employer of a work for hire is the author as far as the copyright form is concerned. You only need to be concerned about Claimaints when you transfer all of your rights to a third party.
Copyright consists of a bundle of several exclusive rights. Generally, the original author is the owner of all the different exclusive rights in the bundle. The author may transfer ownership of any or all of the different rights to third parties. If the author transfers some of the rights to a third party, but retains ownership of a right or two, then the author will still be considered the claimant for the purposes of this form. However, if the author transfers his whole bundle of rights to the same third party, then that third party will be considered the claimant, and information about that third party should be included here.
If the Claimant as stated in Section 3 is not the same as the Author as stated in Section 1, then you need to describe how the claimant acquired the Copyright bundle of rights from the author. Generally, this will be through operation of a contract, will or other instrument of conveyance.
Indicate whether or not the work has been registered before with the Copyright Office. If it has, indicate the circumstances by checking the appropriate box and inserting the registration number and year of registration.
This section only needs to be completed if you are registering a derivative work or compilation. If you are registering a compilation, you only need to complete section 6(b).
For a derivative work, identify the work upon which you are basing your derivation in section 6(a). Also indicate the status of the other work (i.e.; previously registered, in the public domain, etc.). In section 6(b), describe the protectable material that you wish to register. In many cases, this may be an aspect of the material disclosed in Nature of Authorship on Side 1 of the this form.
For a compilation work, you only need to complete section 6(b). You should have described the nature of the compilation under Nature of Authorship, and that description can be reused here.
If you do substantial business with the Copyright Office, you can set up a deposit account. By sending them a big check to open your deposit account, you get credit with the Copyright Office. You can simply note that information here and they'll make sure that your account is debited. That way, you don't have to keep making out those pesky checks each time you register a copyright.
Insert the name, address and phone number of the person that the Copyright Office can contact in case they have any questions about your application. This may be the author, the intellectual property administrator within a company, or the author's attorney.
Check the box that most accurately states your status with regard to the subject work.
If you are the author of the subject work and your are one of the authors listed under Section 2, then check the box marked "author".
If you are not an author listed in Section 2, but you have somehow acquired the whole bundle of Copyright rights through a transfer and thereby qualify as a copyright claimant, then check the box marked "other copyright claimant".
If you have acquired some, but not all, of the bundle of Copyright rights, then check the box marked "owner of exclusive right(s)".
If you are signing on behalf of someone, or something, other than yourself, then check the box marked "authorized agent of". This would include circumstances where you are a personally authorized agent of the author, or where you are signing on behalf of a corporation, partnership, or other organization.
Enter the name and address of the person to whom you want the Copyright Office to mail the copyright registration certificate.