USE OF GOVERNMENT PUBLICATIONS

Any material published by or for the U.S. government, or any reprint in whole or in part thereof, is generally considered to be in the public domain and not subject to copyright laws. However, when copyrighted material is used (with permission) in a government publication, it cannot be reproduced by a private citizen or in another government publication without again requesting permission from the copyright owner. Copyrighted material in a government publication must have a statement identifying the copyright holder and indicating that permission has been granted for its use.

COPYRIGHT OWNERSHIP

Copyright protection exists from the time the work is created in fixed form; that is, it is an incident of the process of authorship. The copyright in the work of authorship immediately becomes the property of the author who created it. Only the author or those deriving their rights through the author can rightfully claim copyright.

In the case of works made for hire, as is the case when military personnel or civilian employees of the federal government author a "work" on government time, the employer and not the employee is presumptively considered the author. Section 101 of the copyright statute defines a "work made for hire" as the following:

1. A work prepared by an employee within the scope of his employment.

2. A work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

The authors of a joint work are co-owners of the copyright in the work unless there is an agreement to the contrary.

Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.

Mere ownership of a book, manuscript, painting or any other copy or phonorecord does not give the possessor the copyright. The law provides that transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright.

Minors may claim copyright, but state laws may regulate the business dealings involving copyrights owned by minors. For information on relevant state laws, you may wish to contact your local bar association.

COPYRIGHT AVAILABILITY

Copyright protection is available for all unpublished works regardless of the nationality or domicile of the author.

Published works are eligible for copyright protection in the United States if any one of the following conditions is met:

l On the date of first publication, one or more of the authors is a national or domiciliary of the United States or is a national, domiciliary or sovereign authority of a foreign nation that is a party to a copyright treaty to which the United States also is a party or is a stateless person wherever that person may be domiciled.

l The work is first published in the United States or in a foreign nation that, on the date of first publication, is a party to the Universal Copyright Convention; or the work comes within the scope of a presidential proclamation.

l The work is first published on or after March 1, 1989, in a foreign nation that on the date of first publication, is a party to the Berne Convention; or, if the work is not first published in a country party to the Berne Convention, it is published (on or after March 1, 1989) within 30 days of first publication in a country that is party to the Berne Convention.

l The work is first published on or after March 1, 1989, and is a pictorial, graphic, or sculptural work that is incorporated in a permanent structure located in the United States; or, if the work, first published on or after March 1, 1989, is a published audiovisual work and all the authors are legal entities with headquarters in the United States.

SECURING A COPYRIGHT

The way in which copyright protection is secured under the present law is frequently misunderstood. No publication or registration or any other action in the Copyright Office is required for copyright to be secured under the new law. This differs from the old law, which required either publication with the copyright notice or registration in the Copyright Office.

Before 1978, statutory copyright was generally secured by the act of publication with notice of copyright, assuming compliance with all other relevant statutory conditions. Works in the public domain on January 1,1978, (for example, works published without satisfying all conditions for securing statutory copyright under the Copyright Act of 1909) remain in the public domain under the current act.

Statutory copyright also could be secured before 1978 by the act of registration in the case of certain unpublished works and works eligible for ad interim copyright. The current act automatically extends to full-term copyright for all works in which ad interim copyright was existing or could be secured on December 31, 1977.

Under the new law 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. Generally, "copies" are material objects from which a work can be read or visually perceived either directly or with scripts, sheet music, film, videotape or microfilm. As mentioned earlier, phonorecords are material objects embodying fixations of sounds. 'his also applies to a work such as a song, fixed on sheet music ("copies"), CDs ("phonorecords") or both.

If a work is prepared over a period of time, the part of the work existing in fixed form on a particular date constitutes the created work as of that date.

PUBLICATION

Publication is no longer the key to obtaining statutory copyright as it was under the Copyright Act of 1909. However, publication remains important to copyright owners.

The 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."

Further coverage of the definition of "publication" is contained in the legislative history of the 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 or 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:

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. Works published before March 1, 1989, must bear the notice or risk loss of copyright protection

Works that are published in the United States are subject to mandatory deposit with the Library of Congress.

Publication of a work can affect the limitations on the exclusive rights of the copyright owner that are set forth in sections 107 through 120 of the law.

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.

Deposit requirements for registration of published works differ from those for registration of unpublished works.