Jarmal Richard, CEO, jdrlegal pty. ltd.
3 April 2006
The ability to download useful content (including music, other audio content, movies, games, photographs or paper based content) on to a useful medium for personal use, storage and dissemination to others is one of the greatest innovations and evolutions of the modern distribution channel. With such a quantum leap in information push, accumulation and digestion at our finger tips, no matter where we are in the world, it posses one of the greatest opportunities and challenges to modern day copyright protection.
What happens when you innocently discover that you have downloaded 20 songs onto your ipod, which happen to be unlicensed downloads? What happens when you select excerpts from published research or power point presentations on a seminar or conference website, with the intent of using it for more than just general educational reference, as permitted under most freed of information legislation? What happens when a competitor of yours plagiarizes your web content and product offerings?
What mechanisms exist to prevent this type of behavior? Who regulates this behavior and the mechanisms for preventing such behavior?
Or, let’s say you find a directory website, or a search engine, where you can download movies and games, through ‘deep links’ or website streaming. Which part(s) of the supply chain, connecting the customer to the content, is/are responsible if the content is not properly licensed under an agreed digital service distribution structure? What are the penalties? Is it enough that a directory site does not actually post the works which users are downloading illegally? How can the content owner protect itself from unwarranted and unapproved access and usage to its intellectual property in the ‘download’ economy?
What should a copyright owner do to protect its vital intellectual property asset(s)?
Copyright exists at common law when an author reduces his or her idea to writing. The US recognizes common law copyrights, as does Australia , however, the US also as a system for registering copyright interests through the US Library of Congress, and is protected by US federal law and enforced by US federal courts.
In addition to registering with the US Library of Congress, copyright owners may consider registering their copyrighted material with appropriate industry associations. Although registrations of copyright with industry associations does not confer any additional formal legal status of commercial rights, such registration activity can be produced as objective evidence to show ownership in a dispute over copyright ownership or infringement claims involving the copyrighted information.
In addition to registering copyright interest, it is critical that a copyright owner routinely take appropriate measures to protect this valuable intellectual property, including:
The goodwill developed in copyrighted material is usually of some commercial value to a company, and, therefore, should be protected.
If an Australian company is presently trading in the US (eg. advertising and selling products and services to US customers), either through subsidiary offices based in the US, US distributors, resellers and/or agents, as well as over the Internet, its copyrighted material will likely be used in relation to this business activity in the US market. Where this is the case, it makes sense for the copyright owner to consider whether it should register its copyright interest(s) in the US , and who has access to the asset.
Even if a copyright owner defers registering its copyright interest(s) in a body of work, the copyright owner should adopt standards and business practices for claiming its common law copyright interests in relation to that work.
In deciding whether to register copyright interest(s) in the US , every Australian copyright owner should:
Although a copyright owner can claim common law copyright, it can only defend its copyright interest in US federal court if the copyright interest(s) is registered with the Library of Congress.
Applying for a registered copyright interest costs considerably less than applying for a registered patent, trademark or design.
Common law copyright interests do not require a registration process, and may be claimed from the moment the copyrighted material is created. However, common law copyright interests do not carry with them the same presumption of validity in US courts, as do registered copyright interests.
Once registration of copyright has been considered and dealt with, as a general rule, copyright owners should establish policies for displaying their copyright interest(s) on the mediums and in the markets in which they sell products and services, as well as implementing internal procedures for verifying compliance with appropriate policies.
Appropriate copyright disclaimers should be considered for the following:
Owners of copyrighted material should commit to a consistent approach to documenting and disclaiming copyright interest(s), both, within the company and when dealing with the external market, including customers, business partners and the general public.
Copyright owners should also closely monitor, on a regular and ongoing basis, the use and access to their copyrighted material on the Internet, which will provide for a greater opportunity to locate any unwarranted, unlicensed and/or illegal use of the copyrighted material by third parties.