Final word on copyright?

["Michael Lewis" <mlewis@xxxxxxxxxxxxxx>]

Those who were kind enough to contribute to the discussion in December might
be interested in the outcome. This is a slightly edited (and generalised)
version of my recommendation to my client.

> I've now had discussions with the compilers of the Chicago Manual of Style
> (CMOS), and I've had input from the US Copyright Office (USCO), the
> Australian Copyright Law Review Committee (CLRC), and the IP Section of
the
> Aust Attorney-General's Dept (AGD). [I'm now going to exclude alphabet
soup
> from my diet for a few days.] Based on those sources plus the Berne
> Convention (BC) and Universal Copyright Convention (UCC), I'd be willing
to
> go to court on the basis of the following:
>
> 1. BC does not contemplate any formal copyright notice; copyright is
> automatic. US, Australia, and all EU countries are signatories to BC, and
> their legislation reflects this. Therefore, inclusion or exclusion of a
> copyright notice does not affect the validity of copyright itself.
However,
> it does affect the remedies available in the US courts. (In particular,
> inclusion of a notice prevents use of the "innocent infringement" defence,
> and increases the damages that might be awarded.)
>
> 2. USCO appears to prefer the sequence (C) <date> <owner>, whereas UCC and
> AGD appear to favour the sequence (C) <owner> <date>. In no case is there
> anything explicit about the elements having to be in that order, and I've
> seen plenty of examples of both. USCO and UCC simply say the notice must
> include the three elements, and list them in different sequence; USCO and
> AGD give examples, with the elements in different sequence.
>
> 3. In the notice, "owner" can be anything allowing clear identification of
> the copyright owner; it doesn't have to be the full name of the person or
> company.
>
> 4. AGD also recommend the use of a more extensive statement along the
lines
> of "This work is copyright. Apart from any use permitted under the
> Copyright Act, no part may be reproduced by any process, or any other
> exclusive right exercised, without the permission of (name and address of
> copyright owner and the year in which the work was made)." This is clearly
> not required, as its effect (simply a "Trespassers will be prosecuted"
> sign) is achieved by the copyright notice itself; neither BC nor UCC
> contemplates such extended notices. I'm also uncomfortable about the term
> "exclusive right" just after the second comma; that seems to leave some
> doors open. While an extended notice is more explicit and therefore might
> have implications for damages in courts outside the US, its effect in that
> respect is apparently untested. (USCO doesn't seem interested in anything
> more than the basic notice, so it appears that such an extended notice
> would not even have this limited effect in US courts.) Footnote: The
> recommended extended notice includes "the year...", in a decidedly
> ungrammatical way ["...without the permission of Charlie Brown 2002"?
Nah.]
> That suggests that the recommendation was cobbled in by a well-intentioned
> amateur -- I think it's safely ignored.
>
> 5. Having more than one date in the copyright notice has no effect -- in
> fact, for works published outside the US, and for works published in the
US
> since 1/1/1978, it has no meaning (see 6 below). When a publication is a
> derivative work based on an earlier publication, it acquires its own
> copyright and should bear the date of its own issue; the date of the
> original work is irrelevant. However, we need to be careful about the
> distinction between a new (albeit derivative) work and a reissue with
> corrections. There's no doubt that a reissue with corrections to
> typographical errors (spelling, punctuation, etc) is not a derivative
work,
> whereas a new edition with an extra chapter is. I'm unable to work out
> exactly where the dividing line is -- for example, I don't know what
> happens when a reissue includes technical (content) corrections.
>
> 6. For client's purposes, there is no such thing as "renewal of
copyright".
> Before 1/1/1978, US copyright law afforded two separate periods of
> protection, and each required formal application. Getting protection for
> the second period was "renewal". That's no longer relevant, and was never
> relevant outside the US.
>
> In consequence, I recommend the following as a standard for all client
> manuals:
>
> a. Include a copyright notice of the form (C) <owner> <year>,
> with no other attempt to be formal about "rights". (Not even "All rights
> reserved".)
>
> b. Include a clear statement of claim to the effect that the product
> itself is also covered by copyright or patent.
>
> c. Include  careful acknowledgment of copyright held by others (e.g.,
> embedded software products).

Michael Lewis

Brandle Pty Limited, Sydney, Australia
PO Box 1373, Macquarie Centre, NSW 2113
67/35-39 Fontenoy Road, Macquarie Park, NSW 2113
http://www.brandle.com.au
Tel +61-2-9889-3677 ... Fax +61-2-9889-3688


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