Publication Date: May 9, 1997

Related article: Taming the Wild, Wild Web

Copyright Protection in Cyberspace

By Sue Mellen

It's easy to claim ownership of material from the Internet. A simple download and the article or graphic is a file on your PC. But legal experts point out that, despite the Internet's reputation as open prairie, copyright law still offers protection for intellectual property in cyberspace.

"Copyright law applies to all media. Any well-drafted recitation of rights says a copyright will apply to 'all media now and hereafter developed,' " explains Neal Friedman, an attorney with Pepper & Corazzini, LLP, of Washington, DC. Friedman represents several companies, including Web page designers and content developers, whose creative works appear on the Internet.

Friedman says the phrase "all media now and hereafter developed" became part of the Copyright Act after the makers of silent films--who failed to anticipate the development of a more advanced version of their craft--faced the unpleasant realization that they couldn't protect their masterpieces from being reproduced as "talkies."

Copyright law applies to any "expression" (creation) as soon as it takes tangible form. The moment a painting is on canvas or a Web page design complete, all rights belong to the creator. According to the Copyright Act of 1976, items of expression can include literary, dramatic and musical works; pantomimes and choreography; pictorial, graphic and sculptural works; audio-visual works; sound recordings; and architectural works. Items not eligible for copyright include ideas, facts, titles, names, short phrases and blank forms.

The Copyright Act affords automatic protection, but Friedman says that it is often a good idea to take the extra precaution of registering a copyright with the U.S. Copyright Office. For $20, you can protect a given creation, along with a whole body of unpublished work.

"If you register a copyright within three months of publication, you have the right to collect statutory damages of up to $100,00 and attorney's fees if the copyright is violated," Friedman says. Otherwise, he explains, an original creator is required to prove and can only collect "actual damages," such as lost income resulting from copyright infringement. It can be especially difficult to prove actual damages in the case of publication on a Web site that may not be a direct source of income; for example, a corporate informational or image site.

It's important for corporations to know that employees, consultants and contractors who sign "work for hire" agreements are considered in the Copyright Act to be creating the work in the name of their employer. The copyright therefore belongs to the employer or entity that has contracted the work.

Copyrights, Trademarks and National Boundaries

Friedman notes that copyright law "becomes a bit muddled" on the Internet because of the global nature of the medium. Most developed nations are signatories to the Berne Convention, an international agreement regarding copyright and intellectual property issues, but enforcement of the accord is less than perfect.

"The problem is in determining where to go to enforce your rights under Berne," Friedman says.

The international character of the Internet can also make it difficult--and expensive--to protect corporate trademarks, including names. Unlike copyrights, trademarks must be registered in individual countries. As a start, a trademark should be registered with the U.S. Patent and Trademark Office, resulting in domestic protection under the Lanham Act. Then registration should be secured in any other country where trademark infringement might be at risk. [Note: A single registration can now be obtained to protect trademarks in all member countries of the European Union.]

To illustrate the costs often associated with trademark registration, Friedman points to a name that has become a household word for avid moviegoers. "Steven Spielberg spent $500,000 to be sure his 'Dreamworks' name was clear around the world," he says.

Although most trademarks don't require that kind of armor-plated protection, Friedman says that corporations should do all they can to "protect a mark" published on any medium, including the Internet. Otherwise, he says, a trademark that now defines your corporation or product may disappear into the ethos of generic usage.

Consider some of the trademarks that have been lost that way--aspirin, escalator, cellophane--plus those like Jell-O and Xerox that are subject to improper use. "You never say, 'Make me a copy of that,' " Friedman says. "You say, 'Make me a Xerox of that.' You don't want your corporate trademark to be lost that way," he advises.

Sue Mellen writes from Tyngsboro, Mass.

Related article: Taming the Wild, Wild Web

Neal Friedman is a featured speaker at DCI's Internet Expo. Please see our online brochure for program dates and details.

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