Crash course on copyrights: Requirements for copyright protection

For a work to be protected by copyright, it must be original. What that means is that the work must have been developed independently by its author, and there must have been some creativity involved in the creation. A derived work is based in part on another work, but can still qualify for separate copyright protection.

Formalities, such as a copyright notice, are not allowed to be required to get copyright protection.

Originality

For a work to be protected by copyright, it must be original. What that means is that the work must have been developed independently by its author, and there must have been some creativity involved in the creation. Merely collecting a number of facts and putting them on paper is not sufficient. If the author used his personal taste in deciding which facts to include, then he has created an original work.

Works derived from other works

A work can be based, in whole or in part, on another work. In copyright law, it is then called a derivative work. Whether it is protected by copyright then, and whether it infringes on the copyright of the other work, depends on how much of the work was taken from the other work upon which it is based.

For example, a parody of a work often includes elements from the original work, together with new elements, which together produces a comical effect. Although the parody is based on another work, there is generally some creativity involved in creating the comical effect, which makes the parody protected. However, if the parody includes large portions of text from the original, then it infringes on the copyright of that original.

Independently created similar works

Original does not mean that nothing like this work was ever created before, or that there may be no similarity at all between two works. It is entirely possible for two people to write respective articles on the same event. These two articles will have some similarity, for example in the facts they mention, in the format used to discuss the event, in the description of particular activities or in the choice of words. As long as the authors each wrote their respective article without copying from the other, they both receive copyright protection.

It may happen, although this is unlikely, that two people independently create the same work. One possible situation in which this could occur is photography. If two photographers take a photo from the same point of view, using the same exposure time and the same lens, the photos will be almost indistinguishable. In such a case, they both hold the copyright on their respective photos. Usually however, such a situation will result in a lawsuit in which one of the parties accuses the other of stealing his copyrighted work. The courts then have to decide whether the accused infringer did indeed base his own work on the work by the other party, or whether he independently came up with the same idea.

To avoid such conflicts, it is advisable to keep a record of the works you create and any sketches, draft versions and so on. By showing drafts and sketches to a judge, you can establish that you indeed came up with the idea yourself and did not copy it from somebody else.

Formalities for obtaining copyright protection

Article 5(2) of the Berne Convention explicitly states that the enjoyment and the exercise of copyright shall not be subject to any formality. The granting of copyright on a work is automatic upon creation of that work. Some countries did -or still do- require some formalities. The most famous formalities are:

Recording a work on a tangible medium

One exception to the prohibition of formalities is that a country may require that a work is fixed in a tangible medium or in some material form, before it is granted copyright protection. This is the case, for example, in the United States.

For most works, this distinction is not very important. When writing a book, creating a statue or creating a computer program, the result of the creative activity already is fixed in a tangible medium, and so immediately receives copyright protection.

However, in music or visual arts, the creation of a work can be intangible. If somebody steps on a stage and improvises a song, he has created a work (the song), but the work is not fixed in a tangible medium. In countries where this is a requirement, the singer would have to record his song into a tape recorder to get copyright protection on it.

Registering the work with a copyright office

Until it joined the Berne Convention, the United States required that authors and other creators submitted a copy of their work to the copyright office for registration. Without registration, the author did not have any copyright. This is one of the reasons why "copyright" is a verb in the English language. This requirement has now been abandoned.

However, registration is still required to enjoy additional remedies against infringers. For one thing, registration offers the possibility to obtain statutory damages, rather than only the actual damages from the infringer. The Berne Convention does not contain any provisions on formalities for starting a copyright lawsuit, and so this is no problem.

Using a copyright notice

The copyright symbol (C in a circle or ) is probably one of the most famous symbols in the world. Everybody knows that the on a work means that the work is protected by copyright and may not be copied without the author's permission. Strictly speaking, having to add the copyright symbol is a formality. In countries that are member to the Berne Convention this requirement for copyright protection is forbidden.

The copyright symbol has its origin in US copyright law. It was later included in the Universal Copyright Convention. This is a treaty similar to the Berne Convention, with the important difference that some formalities could be required by national copyright laws. The presence of a copyright notice (in the form copyright year author) is sufficient to meet any such requirement (article 3 UCC).

Since there are now very few countries left that are members to the UCC and not the Berne Convention, there is little legal advantage in including a copyright notice on a work. It does have a practical purpose though. By including a copyright notice, the author indicates that he claims his copyright on the work, and so warns others that they may not use the work without his permission. No one can then claim that he did not know that the work was protected, or that he did not know who to contact to obtain permission.

The same holds true for the phrase All Rights Reserved that is often used in conjunction with copyright notices. The phrase has no legal significance but serves as a warning that the author does not want others to do anything with his work without permission.

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