This information is a portion of my paper (GWR) from The University of Akron School of Law (Oct. 14, 2007)
TO “PRE” OR NOT TO “PRE”: “PRE”- EMPTION, ARTICLE 9 AND OTHER SPEED BUMPS ON THE ROAD TO CONTINUED ECONOMIC PROSPERITY (Copyright 2007)
Another valuable form of intellectual property in the U.S. is copyrights, which protect original works of authorship including literary works, dramatic works, musical works, and artistic works. The artistic works include poetry, novels, movies, songs, computer software, architectural drawings, and the like.[i] Between 1990 and 2005 approximately 600,000 copyrights were claimed with the U.S. Copyright Office each year, as can be seen below. [ii] The estimated value of all copyright industries in 2005 grew to $1,388 billion ($1.39 trillion) or 11% of U.S. gross domestic product (GDP) or the market value of all final goods and services produced within the U.S. in 2005.[iii]
The table shown below illustrates the number of copyrights that were filed each year between 1995 and 2005, over 600,000 per year for 13 of the 16 years shown.[iv]
A copyright is created automatically when a new work is created and fixed in a tangible medium of expression.[v] There is no requirement to follow formal procedures to obtain a copyright such as filing a copyright notice, registration of the work, or any other like procedure. A painting, a letter, a photograph, a software program, an article, a book and this paper are all copyrighted when they are fixed in a tangible medium of expression.[vi] The creator of a work is typically the copyright holder/owner and if two or more individuals jointly create a work, then they are joint holders/owners of the copyright, with equal rights in the work.[vii] A work created as a part of an individual’s employment, is classified as a “work for hire” and the copyright usually belongs to the employer, unless the employer had explicitly waived his rights to the copyrighted work.[viii] If the work was created by a contract programmer, an entrepreneur, an independent contractor, a freelance photographer, a self-employed author, and the like, then the ownership of the copyright depends on the nature of the work and the prior understanding of the parties.[ix] Frequently in publishing agreements, software development, music contracts, film rights, the copyright is transferred or assigned to another person or entity.[x] It is common for a copyright holder to be an individual or organization other than the individual or organization that created the copyrighted work.[xi]
Even though copyrights attach to any work that is fixed in a tangible medium, a party needs to register the copyright with the U.S. Copyright Office to enjoin an infringer and/or to recover actual damages.[xii] Statutory damages, as well as attorney fees, are available if works are promptly registered with the Copyright office.[xiii] The table in Appendix III illustrates how important and critical copyrights are to the U.S. economy.[xiv]
[i] See Lance C. McCardle, Despite Congress’s Good Intentions, The DMCA’s Anti-Circumvention Provisions Produce a Bad Result — A Means to Create Monopolies, 50 LYLR 997, 1000, (2004).
[iii] See Stephen E. Siwek, Copyright Industries in the U.S. Economy, The 2006 Report, (2006).
[iv] See Stephen E. Siwek, Copyright Industries in the U.S. Economy, The 2006 Report, (2006).
[v] 17 U.S.C. § 102 which states “Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
[vii] The Copyright Law in 17 U.S.C. §101 defines a “joint work” as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”
[viii] 17 U.S.C. 201 (b) “Works Made for Hire – In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”
[ix] 17 U.S.C. 201.
[xii] 17 U.S.C. § 501.
[xiii] 17 U.S.C. § 504(a) (2004) defines remedies for infringement: damages and profits.
[xiv] See Stephen Siwek, Copyright Industries in the U.S. Economy, Economists Incorporated, (2006).