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Kauffman Founders School, Peter D. McDermott, Intellectual Property, Copyright


>> Copyright is the right to stop others from copying or performing or using or selling
your creative work. Copyright can exist in a lot of different work product. Certainly
in software, in your code, that can be copyrighted. Obviously music and movies, these are all
copyrighted, novels, works of art. To protect your copyrights you have the option of registering
it. Not essential, but it gives you advantages and we'll talk about those advantages.
Filing a registration does give you some advantages, some statutory advantages, in the area of
enforceability. You can't sue anyone for copyright infringement unless you have registered. In
addition, statutory damages don't begin to accrue unless and until you've registered
your copyright. So think about it, if it's a critical point of your technology you might
want to go to the trouble of registering your copyright.
It doesn't take much to be copyrightable. It has to be original and it has to be creative.
What isn't copyrightable is mere sweat of the brow. Simply compiling a list of everyone
who attended the Ohio State Fair on Tuesday is not copyrightable. How you present that
list might be. The term of copyright, the duration of copyright
is just amazingly long. And it's been lengthened by the Congress a couple of times over the
years. It lasts for the life of the author plus 70 years. That is a long time. It's more
important perhaps in some artistic works. Mickey and Minnie are very glad that the copyright
statute has extended the term of copyright protection a couple of times. They've been
primary beneficiaries of that. This is very hard to study and search in advance.
Probably it's going to come out of the blue. Someone will accuse you of having infringed
their copyright. Copyright infringement comes in a lot of different flavors. If it happens,
look at your development process for the copyrighted material, or the material that someone alleges
is copyrighted. Copyright infringement is not like patents. You can infringe a patent
if you knew nothing about it. Copyright is different. You only infringe a copyright if
you actually copy the work. So you put their design in front of you and you do their designs
from theirs and it looks the same. That's probably an infringement of their copyright.
But if you came up with the design on your own that's not copyright infringement. You
didn't copy. If, in fact, it turns out that you did copy their work, once again maybe
you just remove the work. Copyright only covers the expression, not the underlying idea. You
may need to rewrite some code. You may need to rewrite some literature.
Even if it does turn out that you're using someone else's copyrighted work you're not
done yet. There are defenses to copyright infringement. And one of the best known is
fair use. Fair use is a very amorphous defense to copyright infringement, but it can be brought
in the right circumstances. If you're making a minimal use of copyrighted work, it may
very well be fair use. If you're using it in parody, it be may very well be fair use.
Complicated area, just want you to understand that because somebody accuses you of copyright
infringement, and even if it turns out you've got their content in your work, stop, take
a breath, think about some of the defenses that are available, including especially fair
use. What you want to keep is drafts of works that
you created. Remember, the argument in a copyright infringement allegation is that you copied
somebody else's work. Well if you've got drafts going back over a period of time showing that
you developed the materials yourself, and showing perhaps what source materials you
did work from, this is going to be a very powerful defense against the allegation that
you copied their work. Remember, copying requires actual copying. It isn't sufficient that something
is similar. So if you can show that you developed your work from a different path and didn't
simply copy their work, that's a defense to the allegation that you've infringed their
copyright. Now an important point, open source code.
Code writers use it all the time. It's a major asset. It's a major tool. However, remember
open source code comes with its own licensing terms. And the most troublesome of these can
be that the incorporation of open source code into a larger piece of code can render that
entire larger product subject to the open source code licensing terms, which means that
anyone can copy it and use it. That's probably not what you want. So be very careful about
incorporating open source code into your code. And be aware that there are products out there
that will help people search code that is available in the market for open source code
to determine whether or not it is now subject to the open source code licensing terms.
So it's wonderful to have opportunities. And you have an opportunity to protect the intellectual
property that your company is creating.