Copyright
Secured Automatically upon Creation The way in which copyright
protection is secured is frequently misunderstood. No publication or
registration or other action in the Copyright Office is required to secure
copyright. (See following Note.) There are, however, certain definite
advantages to registration. See "Copyright Registration." Copyright is secured
automatically when the work is created, and a work is "created" when it is
fixed in a copy or phonorecord for the first time. "Copies" are material
objects from which a work can be read or visually perceived either directly or
with the aid of a machine or device, such as books, manuscripts, sheet music,
film, videotape, or microfilm. "Phonorecords" are material objects embodying
fixations of sounds (excluding, by statutory definition, motion picture
soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example, a song
(the "work") can be fixed in sheet music (" copies") or in phonograph disks ("
phonorecords"), or both.
If a work is prepared over a period of time,
the part of the work that is fixed on a particular date constitutes the created
work as of that date.
PUBLICATION Publication is no
longer the key to obtaining federal copyright as it was under the Copyright Act
of 1909. However, publication remains important to copyright owners.
The 1976 Copyright Act defines publication as follows:
"Publication" is the distribution of copies or phonorecords of a work to
the public by sale or other transfer of ownership, or by rental, lease, or
lending. The offering to distribute copies or phonorecords to a group of
persons for purposes of further distribution, public performance, or public
display constitutes publication. A public performance or display of a work does
not of itself constitute publication.
NOTE: Before 1978, federal
copyright was generally secured by the act of publication with notice of
copyright, assuming compliance with all other relevant statutory conditions. U.
S. works in the public domain on January 1, 1978, (for example, works published
without satisfying all conditions for securing federal copyright under the
Copyright Act of 1909) remain in the public domain under the 1976 Copyright
Act.
Certain foreign works originally published without notice had
their copyrights restored under the Uruguay Round Agreements Act (URAA).
Request Circular 38B [
http://www.loc.gov/copyright/circs/circ38b.pdf] and see the
"Notice of Copyright" section of this publication for further information.
Federal copyright could also be secured before 1978 by the act of
registration in the case of certain unpublished works and works eligible for ad
interim copyright. The 1976 Copyright Act automatically extends to full term
(Title 17, Chap. 3, Sec. 304 sets the term) copyright for all works, including
those subject to ad interim copyright if ad interim registration has been made
on or before June 30, 1978.
A further discussion of the definition of
"publication" can be found in the legislative history of the 1976 Copyright
Act. The legislative reports define "to the public" as distribution to persons
under no explicit or implicit restrictions with respect to disclosure of the
contents. The reports state that the definition makes it clear that the sale of
phonorecords constitutes publication of the underlying work, for example, the
musical, dramatic, or literary work embodied in a phonorecord. The reports also
state that it is clear that any form of dissemination in which the material
object does not change hands, for example, performances or displays on
television, is _*not*_ a publication no matter how many people are exposed to
the work. However, when copies or phonorecords are offered for sale or lease to
a group of wholesalers, broadcasters, or motion picture theaters, publication
does take place if the purpose is further distribution, public performance, or
public display.
Publication is an important concept in the copyright
law for several reasons:
1) Works that are published in the United
States are subject to mandatory deposit with the Library of Congress. See
discussion on "Mandatory Deposit for Works Published in the United States."
2) Publication of a work can affect the limitations on the exclusive
rights of the copyright owner that are set forth in Title 17, Chap 1of the law.
3) The year of publication may determine the duration of copyright
protection for anonymous and pseudonymous works (when the author's identity is
not revealed in the records of the Copyright Office) and for works made for
hire.
4) Deposit requirements for registration of published works
differ from those for registration of unpublished works. See discussion on
"Registration Procedures."
5) When a work is published, it may bear a
notice of copyright to identify the year of publication and the name of the
copyright owner and to inform the public that the work is protected by
copyright. Copies of works published before March 1, 1989, must bear the notice
or risk loss of copyright protection.
