Kauffman Founders School, Peter D. McDermott,
Intellectual Property, Copyright >>Copyright is the right to stop others from
copying or performing or using or selling your creative work. Copyright can exist in
a lot of different work product. Certainly in software, in your code, that can be copyrighted.
Obviously music and movies, these are all copyrighted, novels, works of art. To protect
your copyrights you have the option of registering it. Not essential, but it gives you advantages
and we’ll talk about those advantages. Filing a registration does give you some advantages,
some statutory advantages, in the area of enforceability. You can’t sue anyone for copyright
infringement unless you have registered. In addition, statutory damages don’t begin to
accrue unless and until you’ve registered your copyright. So think about it, if it’s
a critical point of your technology you might want to go to the trouble of registering your
copyright. It doesn’t take much to be copyrightable.
It has to be original and it has to be creative. What isn’t copyrightable is mere sweat of
the brow. Simply compiling a list of everyone who attended the Ohio State Fair on Tuesday
is not copyrightable. How you present that list might be.
The term of copyright, the duration of copyright is just amazingly long. And it’s been lengthened
by the Congress a couple of times over the years. It lasts for the life of the author
plus 70 years. That is a long time. It’s more important perhaps in some artistic works.
Mickey and Minnie are very glad that the copyright statute has extended the term of copyright
protection a couple of times. They’ve been primary beneficiaries of that.
This is very hard to study and search in advance. Probably it’s going to come out of the blue.
Someone will accuse you of having infringed their copyright. Copyright infringement comes
in a lot of different flavors. If it happens, look at your development process for the copyrighted
material, or the material that someone alleges is copyrighted. Copyright infringement is
not like patents. You can infringe a patent if you knew nothing about it. Copyright is
different. You only infringe a copyright if you actually copy the work. So you put their
design in front of you and you do their designs from theirs and it looks the same. That’s
probably an infringement of their copyright. But if you came up with the design on your
own that’s not copyright infringement. You didn’t copy. If, in fact, it turns out that
you did copy their work, once again maybe you just remove the work. Copyright only covers
the expression, not the underlying idea. You may need to rewrite some code. You may need
to rewrite some literature. Even if it does turn out that you’re using
someone else’s copyrighted work you’re not done yet. There are defenses to copyright
infringement. And one of the best known is fair use. Fair use is a very amorphous defense
to copyright infringement, but it can be brought in the right circumstances. If you’re making
a minimal use of copyrighted work, it may very well be fair use. If you’re using it
in parody, it be may very well be fair use. Complicated area, just want you to understand
that because somebody accuses you of copyright infringement, and even if it turns out you’ve
got their content in your work, stop, take a breath, think about some of the defenses
that are available, including especially fair use.
What you want to keep is drafts of works that you created. Remember, the argument in a copyright
infringement allegation is that you copied somebody else’s work. Well if you’ve got drafts
going back over a period of time showing that you developed the materials yourself, and
showing perhaps what source materials you did work from, this is going to be a very
powerful defense against the allegation that you copied their work. Remember, copying requires
actual copying. It isn’t sufficient that something is similar. So if you can show that you developed
your work from a different path and didn’t simply copy their work, that’s a defense to
the allegation that you’ve infringed their copyright.
Now an important point, open source code. Code writers use it all the time. It’s a major
asset. It’s a major tool. However, remember open source code comes with its own licensing
terms. And the most troublesome of these can be that the incorporation of open source code
into a larger piece of code can render that entire larger product subject to the open
source code licensing terms, which means that anyone can copy it and use it. That’s probably
not what you want. So be very careful about incorporating open source code into your code.
And be aware that there are products out there that will help people search code that is
available in the market for open source code to determine whether or not it is now subject
to the open source code licensing terms. So it’s wonderful to have opportunities. And
you have an opportunity to protect the intellectual property that your company is creating.