Copyright Corner

The first myth we’re debunking is one of the most common:  If it doesn’t have a copyright symbol (©), then there’s no copyright protection, right?

How did this particular misconception start?  To answer that, we’re going to have to take a trip in the copyright time machine, back to 1909 [1].  That was the year Congress made its second major update to the copyright law of the United States (the first was in 1831 [2], when Congress granted copyright protection to musical compositions and extended the original copyright term for a protected work from 14 years to 28 years).  Under the 1909 Act, cleverly entitled “Copyright Act of 1909”, there were a couple of hoops that creators had to jump through before their works were protected by copyright.

The first hoop that creators had to jump through was publication.  In 1909, publication was usually required before a work was protected by copyright [3].  So before a work could be protected by copyright, there had to be “copies… reproduced for sale or distribution”. [4]  The second hoop was that, in addition to a work being published, it also had to include an appropriate notice of copyright:

[T]he notice of copyright required by [the 1909 Copyright Act] shall consist either of the word “Copyright” or the abbreviation “Copr.”, accompanied by the name of the copyright [proprietor], and if the work be a printed literary, musical, or dramatic work, the notice shall include also the year in which the copyright was secured by publication.  In the case, however, of copies of works specified in subsections (f) to (k), inclusive of section five of this Act, the notice may consist of the letter C [enclosed] within a circle, thus: ©, accompanied by the initials, monogram, mark, or symbol of the copyright proprietor: Provided, That on some accessible portion of such copies or of the margin, back, permanent base, or pedestal, or of the substance on which such copies shall be mounted, his name shall appear.” [5]

Basically, you had to have a conforming notice of copyright in or on your published work before it would receive copyright protection.  In 1909, the United States  expected certain formalities of rights holders in order to receive copyright protection.  This notion, that copyright protection wasn’t something you could just hand out to anyone, held on for decades and reappeared in the next major revision of U.S. copyright law.

Let’s jump back in the copyright time machine and fast forward to 1976, when the also creatively named “Copyright Act of 1976” was signed into law.  The 1976 Act superseded and replaced the 1909 Act, becoming the new statutory sheriff in the town of copyright.  When it was first enacted, the Copyright Act of 1976 also required that published works include a copyright notice before they could be granted copyright protection [6].  The language of the requirement had changed a bit, but it still required the word copyright, or an abbreviation like “Copr.” or “©”, the year of first publication, and the name of the copyright owner [7].  With some exceptions, works that did not contain a proper copyright notice were not protected works, and fell into the public domain.  Those requirements might have lasted into the distant future, if not for this pesky little thing called the rest of the world. The United States had to come into the fold of the rest of the world at some point.

Let’s jump back in the copyright time machine and head to March 1, 1989.  That was the date The Berne Convention Implementation Act of 1988 took effect [8] in the United States.  The Berne Convention for the Protection of Literary and Artistic works[9] (better known as the Berne Convention) is an international copyright agreement with 171 member parties (including the United States) [10].  The Berne Convention first came into effect in Berne, Switzerland, in 1886.  Originally a treaty between eight nations (Spain, Great Britain, France, Haiti, Liberia, Switzerland, Tunisia, and Germany), 22 years later the number of signatories had almost doubled.  Today, nearly every country in the world is a member party of the Berne Convention (171 countries out of 206(ish) total [11]).  Despite the trending popularity of the Berne Convention, the United States refused for over 200 years to sign on to the agreement.  This was in large part because becoming a member party would require rather substantial changes to the copyright law of the United States.  In particular, it would require that copyright law in the United States “not be subject to any formality” [12].  In effect, the Berne Convention forbids the United States from requiring any formalities – such as registration with the Copyright Office or publication with notice – before granting a creator copyright protection for their work.

Once The Berne Convention Implementation Act of 1988 took effect, copyright protection in the United States became automatic.  Gone was the requirement that a copyright notice be affixed to a work.  Gone was any requirement that a work be registered with the Copyright Office.  Current copyright law in the United States provides that copyright protection attaches instantly and automatically to “original works of authorship fixed in any tangible medium of expression” [13].

What does this mean?  For one thing, if you’re still reading this it means you have incredible staying power when it comes to muddling through somewhat dry information about the history of copyright in the United States!

It also means that all types of materials, even if they have no copyright notices on them, are protected by United States copyright law.  That, in turn, means that your use of content without either permission from the creator or an appropriate exception to copyright protection would be copyright infringement.

At this point, I know what you’re thinking.  “Well if we don’t need to follow any formalities to be protected by copyright, then why do we have a Copyright Office at all?”

That may not be exactly what you were thinking, but just play along.

While copyright protection requires neither registration nor notice, there are some benefits to both.  If a copyright owner does want to sue someone for copyright infringement, they may not do so in federal court unless their copyright is registered.  And if a work does include a copyright notice, it prevents mischievous copyright infringers from claiming that their infringement was innocent, meaning that they didn’t know the work was copyrighted.

Speaking of which, we invite you to read the other post in our series – The Myth of the Innocent Infringer.

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Please leave a comment telling us about your experiences with this copyright myth!

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By Marley C. Nelson, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

 

 

[1] Copyright Act of 1909, 17 U.S.C. §1 (1909).  Accessible at http://www.copyright.gov/history/1909act.pdf.

[2] Copyright Act of 1831, 17 U.S.C. §1 (1831).  Accessible at http://www.copyrighthistory.org/cam/tools/request/showRepresentation?id=representation_us_1831.

[3] Copyright Act of 1909, 17 U.S.C. §1 (1909).

[4] Copyright Act of 1909, 17 U.S.C. §62 (1909).

[5] Copyright Act of 1909, 17 U.S.C. §18 (1909).

[6] Copyright Act of 1976, 17 U.S.C. §401 (1976).

[7] Copyright Act of 1976, 17 U.S.C. §§401-406 (1976).

[8] The Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853.  Accessible at http://uscode.house.gov/statutes/pl/100/568.pdf.

[9] The Berne Convention for the Protection of Literary and Artistic Works, opened for signature 9 September 1886, 1161 UNTS 30 (entered into force 5 December 1887).  Accessible at http://www.wipo.int/treaties/en/text.jsp?file_id=283698.

[10] See Copyright Office Circular 38a. (38A.0416), page 8.  Accessible at http://www.copyright.gov/circs/circ38a.pdf.

[11] See https://en.wikipedia.org/wiki/List_of_sovereign_states, or https://www.cia.gov/library/publications/the-world-factbook/index.html.

[12] Article 5(1) of the Berne Convention. Accessible at http://www.wipo.int/treaties/en/text.jsp?file_id=283698#P109_16834.

[13] 17 U.S.C. §102(a).