Policing and preventing copyright violations on the Internet

David Mink — Fri, 16 Jan 2009 20:20:47 +0000

Last night, DSM had the unfortunate experience of learning that an independent contractor we were using for content creation was allegedly pirating other writer’s work. This incident has caused me to spend some time training the DSM staff as to what they can do to both prevent copyright violations and to police intellectual property use on the Internet. I thought I would pass on some of the tips I have shared with them. Let’s start with a short and very incomplete copyright tutorial.

START OF TUTORIAL

What is a copyright? It is an intellectual property protection for certain “expressive” works, including: music, art, poetry, writing, movies, and much more. In order for the work to be copyrighted the following criteria must be met, the work must:
1. Be original
2. Result from a creative effort on behalf of the author, artist, or originator
3. Be in a physical form, or a “tangible medium of expression”

Some things cannot be copyright protected, including:
1. Anything that is fact, including history, science, current news, and other factual information
2. A person’s ideas or thoughts. Ideas must be expressed in tangible form in order to be protected

However, remember that the way in which these things are expressed – such as an editorial about a news event – can be protected.

Generally speaking the person who creates a work possesses the copyright (this is called the Creator Rule), unless:
1. The work is sold with the copyright
2. An employee created the work during employment
3. The work is created on a “made for hire” basis
4. The work was a collaboration between multiple people, in which case a joint copyright is held

The copyright owner maintains the following bundle of rights:
Distribution: The owner can sell or distribute copies of the work
Reproduction: The owner can make copies of the work
Derivative works: The owner can create new works that are adapted from or based on the original work
Performance rights: The owner can perform or display the work publicly

Copyrights last for quite a long time, in fact protected works created after 1977 are under copyright protection for the full life of the copyright owner plus 70 years. If the protected works were created as part of a “work for hire” contract the work is protected for 95 years from first publication or 120 years from creation.

If you have copyright in a work, you should register the copyright with the US Copyright Office. Here are several reasons to register a copyright:
1. When a copyright is registered and notice is posted on the work, the chance of winning a copyright infringement lawsuit is greatly increased.
2. A copyright infringement lawsuit can only be filed when the copyright is registered with the U.S. Copyright Office.
3. Timely registration of a copyright shows validity in the copyright, and allows copyright owners to recover up to $150,000 without showing monetary damages if a copyright infringement suit is successful.

To register a copyright, follow these steps:
1. Complete and submit the required form for your type of protected work. Different forms are used for different work types.
2. Submit one to two samples of your protected work with the U.S. Copyright Office.
3. Pay the registration fee, which is currently $45 per work.

Use a valid copyright notice. Displaying notice of copyright protection can help to keep potential infringers from illegally using the protected work. In many cases, it may also encourage the interesting party to contact the copyright own to seek permission for use of the work.

END OF TUTORIAL

Lastly, here are a few tips for preventing copyright violations and policing intellectual property use on the Internet:

If you hire an independent contractor to do any content creation for you, make sure they have signed an agreement which includes an indemnification clause. The purpose of an indemnification clause is to ensure that the party agrees to pay for any financial loss that you incur as a result of his/her intellectual property violations. Here is sample indemnification language from one of DSM’s contracts:

“You agree to indemnify, defend, and hold DSM harmless against any claims brought against DSM, which claims are brought against DSM upon allegations that the work you provided DSM violated another company or individual’s intellectual property…”

Before you publish any text based work it is a good practice to select several sentences from within that work for which you will do a Google search within quotation marks. An example would look like this (the text I am using was pulled from Andrew’s post earlier today):

“Choosing a great domain name can be difficult to do, especially when so many are taken already. This domain name will most likely be your company name so that adds to the importance of this name.”

As you know, a search strand within quotation marks will pull only results that feature the exact same search strand, thereby signaling that there is a decent chance that this text does not violate someone else’s copyright.

Finally, if you produce a lot of valuable content and would like to ensure that it is not being used without your permission, you may want to consider investing in a digital technology program designed to monitor the Internet usage of your content. For example, many of you have heard of “digital watermarking” programs, which allow intellectual property owners to track the online distribution and access to their intellectual property.

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Policing and preventing copyright violations on the Internet