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The growth of the Internet has brought to the forefront three relatively obscure areas of the law - copyright, trademark and patent. The three are commonly grouped together under the title "Intellectual Property." As the Napster case demonstrates, despite the ease with which original works may be digitized and copied, the guiding principles of intellectual property law remain. In this column, I’ll focus on copyright law, leaving trademark and patent law to the next.

What is copyright?

Copyright is the protection extended to original works of authorship that are fixed in a tangible medium of expression. U. S. Copyright Law protects the form of the expression of ideas but not the underlying ideas.

For what may copyright protection be obtained?

Among other things:
a. literary works including computer software and databases;
b. musical works, including any accompanying words;
c. pictorial, graphic and sculpturalworks (including photographs);
d. websites; and
e. sound recordings.
This list is not intended to be exhaustive.

What is not protected?

Copyright protection does not extend to any idea, procedure, process system, method of operation, concept, principle or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such work. For example, the writing in which Albert Einstein first expressed his Theory of General Relativity would be protected by copyright, but not the Theory itself. Facts are not protected.

How does one obtain a copyright?

The answer is deceptively simple. A copyright exists in the original work from the moment of creation. No registration is required to create a copyright. In order, however, to bring an action for infringement, the copyright must be registered with the U. S. Copyright Office, part of the Library of Congress (www.loc.gov). This is an excellent resource for forms and explanatory materials.

What are the rights of the copyright owner?

The copyright owner has the exclusive right to do and authorize any of the following:
a. reproduce the copyrighted work.
b. prepare derivative works based upon the copyrighted work;
c. distribute copies of the work to the public by sale, mental??, lease, etc.; and
d. perform the copyrighted work publicly.
There are other exclusive rights as well.

How does one enforce a copyright?

Copyright infringement actions are brought in Federal Court. The key to enforcement is to first register the copyright office and then commence the action.

Who is the owner of the copyright?

Generally, the person who creates the work is the owner of the copyright. For instance, if I hire a photographer to take my picture, absent any agreement to the contrary, the photographer owns the copyright in the photograph. I am entitled to the picture I buy, but I do not have the right to reproduce it absent an agreement with the photographer. Further, a photographer who agrees that a photograph may be used in print still has the exclusive right to publish it on the web.
The exception to this rule is the "Work for Hire" doctrine. An employee who is paid to take the photograph does not own the copyright in it. His employer does. Similarly, if pursuant to a written contract, an independent contractor agrees that the copyright belongs to the person hiring her, that person owns the copyright.

Copyright violations and infringements are rampant on the Internet. The Napster case is but the tip of the iceberg. New models have to be developed to compensate the creators of original works, or there will be little incentive for them to produce.

Francis G. Pennarola is a member of the law firm of Chipman, Mazzucco, Land & Pennarola, LLC in Danbury. He regularly represents clients in the IT, website development and advertising fields.