Some people eat, sleep and chew gum, I do genealogy and write...

Friday, March 23, 2012

Protecting your copyright interest

So now you have a copyright, what happens if someone uses your copyrighted work improperly? What do you have to do to protect your interests?

First of all, there is nothing in the copyright law that provides a way to give the copyright owner a notice of a copyright violation. There are no copyright police. It is entirely up to the owner of the copyright to enforce any of the rights claimed under the law. Despite the ominous notices we may have all seen when viewing rented movies about criminal penalties and huge fines for making copies, few of us have the resources of the movie industry to enforce their copyright claims through criminal action. Copyright, except in the larger corporate world, is almost entirely a civil, rather than a criminal matter.

In the U.S., original jurisdiction for copyright claims lies with the Federal District Courts. What this means is that you cannot run down to your local small claims court or state court and file an action based on a violation of the Federal Copyright Law. You must file your action in the Federal District Court. In addition, as a prerequisite to filing an action you must register your copyright with the U.S. Copyright Office. Here is the wording of the statute:
§ 411 · Registration and civil infringement actions11
(a) Except for an action brought for a violation of the rights of the author under
section 106A(a), and subject to the provisions of subsection (b), no civil action
for infringement of the copyright in any United States work shall be instituted
until preregistration or registration of the copyright claim has been made in accordance
with this title. In any case, however, where the deposit, application, and
fee required for registration have been delivered to the Copyright Office in proper
form and registration has been refused, the applicant is entitled to institute a civil
action for infringement if notice thereof, with a copy of the complaint, is served
on the Register of Copyrights. The Register may, at his or her option, become a
party to the action with respect to the issue of registrability of the copyright claim
by entering an appearance within sixty days after such service, but the Register’s
failure to become a party shall not deprive the court of jurisdiction to determine
that issue.
(b)(1) A certificate of registration satisfies the requirements of this section and
section 412, regardless of whether the certificate contains any inaccurate information,
(A) the inaccurate information was included on the application for
copyright registration with knowledge that it was inaccurate; and
(B) the inaccuracy of the information, if known, would have caused the
Register of Copyrights to refuse registration.
(2) In any case in which inaccurate information described under paragraph (1)
is alleged, the court shall request the Register of Copyrights to advise the court
Copyright Notice, Deposit, and Registration § 411
144 Copyright Law of the United States
whether the inaccurate information, if known, would have caused the Register
of Copyrights to refuse registration.
(3) Nothing in this subsection shall affect any rights, obligations, or requirements
of a person related to information contained in a registration certificate,
except for the institution of and remedies in infringement actions under this
section and section 412.
(c) In the case of a work consisting of sounds, images, or both, the first fixation
of which is made simultaneously with its transmission, the copyright owner may,
either before or after such fixation takes place, institute an action for infringement
under section 501, fully subject to the remedies provided by sections 502
through 505 and section 510, if, in accordance with requirements that the Register
of Copyrights shall prescribe by regulation, the copyright owner—
(1) serves notice upon the infringer, not less than 48 hours before such fixation,
identifying the work and the specific time and source of its first transmission,
and declaring an intention to secure copyright in the work; and
(2) makes registration for the work, if required by subsection (a), within
three months after its first transmission.
I reproduced this statute for a purpose. To illustrate the fact that initiating a copyright claim is not easy or simple. Let's suppose that you inadvertently violate someone's copyright. You get an angry letter threatening legal action. What is your response? Does the claimant have a "registered" copyright? How does the law affect copyright claims for works online? Suppose someone copies your blog post verbatim without attribution? What can you do about the copy?

There are several online resources that talk about enforcement of copyright claims. Most of these sources advise a system of letter writing and either polite requests or threats. But what happens if the requests and threats are ignored? Are you ready to dive into the complicated and expensive world of copyright enforcement? What do you think it costs to hire an intellectual property law attorney to file a lawsuit in the District Court? What do you think it costs to register your copyright? If you don't know the answer to these two questions (and I am not going to answer those questions) your threat of legal action will ring very hollow.

For example. John Doe spends years accumulating his family's genealogy. He writes an extensive book about his family and, under the law, his book is automatically protected by the copyright law. He finds that someone has copied his entire book and published it under their own name. Seems like a blatant case and ripe for a copyright infringement action. The basic question is this, does Doe have the resources to register his copyright, find an attorney, file an action in the District Court and pursue the action to completion? If not, what is his copyright claim worth?

My point is copyright claims are easy to make and hard and expensive to enforce. On the other hand, if you are the violator, how do you know that the person making a claim against you does not have the resources to pursue the claim? You don't. If a claim is filed, you will have to come up with the money to hire your own attorney and fight the matter in District Court. A major court case can easily take over your entire life. Do you want to run that risk?

The easiest way all this is resolved is to avoid infringing on others' copyrights. Don't make unauthorized copies. Oh, by the way. Writing letters does work a lot of the time. But if you threaten legal action, you had better be ready to pay the price.

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