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FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT
Copyright 1993 Terry Carroll
) 1993 Terry Carroll
DISCLAIMER
This article is Copyright 1993 by Terry Carroll. It may be freely
redistributed in its entirety provided that this copyright notice
is not removed. It may not be sold for profit or incorporated in
commercial documents without the written permission of the
copyright holder. Permission is expressly granted for this
document to be made available for file transfer from installations
offering unrestricted anonymous file transfer on the Internet.
Permission is further granted for this document to be made
available for file transfer in the Legal Forum and Desktop
Publishing Forum data libraries of Compuserve Information
Services. This article is provided as is without any express or
implied warranty. Nothing in this article represents the views of
Amdahl Corporation, Santa Clara University, or the Santa Clara
Computer and High Technology Law Journal.
While all information in this article is believed to be correct at
the time of writing, this article is for educational purposes only
and does not purport to provide legal advice. If you require
legal advice, you should consult with a legal practitioner
licensed to practice in your jurisdiction.
TABLE OF CONTENTS:
Introduction
Acknowledgments
Q1) What is a copyright?
Q2) What is "public domain?"
Q3) I just wrote a great program/novel/song/whatever. How can I
get a copyright on it?
Q4) How long does a copyright last? Does it need to be renewed?
Q5) What advantages are there to registering my work with the
Copyright Office?
Q6) How can I register a copyright with the U.S. Copyright Office?
Q7) What advantages are there to including a copyright notice on
my work?
Q8) Can I ever use a copyrighted work without permission of the
copyright holder, or "What is 'fair use?'"
Q9) [reserved]
Q10) Who owns the copyright to something I wrote at work, me or my
company?
Q11) [reserved]
Q12) Is copyright infringement a crime, or a civil matter?
Q13) What is the statute of limitation for copyright infringement?
Q14) Can the government be sued for copyright infringement?
Q15) Can the government copyright its works?
Q16) Can I legally make a cassette copy of a musical CD for my own
use, so I can play it in my car?
Q17) Are Usenet postings and email messages copyrighted?
Q18) Are fonts copyrighted?
Q19) What does "All Rights Reserved" mean?
Q20) What's the difference between a copyright and a patent?
Q21) Why is there so little in this FAQ about patents?
Q22-27) [reserved]
Q28) What international treaties exist governing copyright, or
"What is this Berne Convention I keep hearing about?"
Q29) Is Freedonia a signatory to either the Berne Convention or to
the Universal Copyright Convention?
Q30) Where can I get more information on copyright?
Q31) What materials related to copyright are available on the
Internet?
Q32) How can I get a current copy of the Copyright FAQ?
Appendix: A note about legal citation form, or, "What's all this
'17 U.S.C. 107' and '977 F.2d 1510' stuff?"
INTRODUCTION
This FAQ originally began as a general-purpose FAQ for the Usenet
misc.legal newsgroup. On misc.legal, it's very common, and indeed
preferred, for assertions of law to be accompanied by citations to
the relevant legal authorities. This serves as a check against
erroneous or misleading interpretations of the authorities. It
also allows the reader to verify the authorities, and provides an
enthusiastic reader with starting points for further research into
the subject. In trimming the former misc.legal FAQ to discuss
only copyright law, I've decided to retain these citations. This
is not only for the reasons stated above, but also because this
FAQ, like any other static document, is in danger of being made
out of date by future developments in the law. By providing
sources for the answers to the questions, an inquisitive reader
will be able to investigate the source and determine, for example,
if a particular appellate case has been overruled or has been
declined to be followed by other appellate courts. I have
included an appendix at the end of the FAQ to assist newcomers in
understanding the legal notation used in citing references.
Terry Carroll, the FAQ-maintainer, is a computer professional, and
is currently (7/93) a fourth-year (part-time) student at Santa
Clara University School of Law and Editor-in-Chief of the Santa
Clara Computer and High Technology Law Journal.
If you have any additions, corrections, or suggestions for
improvement to this FAQ, please send them to one of the following
addresses, in order of preference:
tjc50@juts.ccc.amdahl.com
tcarroll@scuacc.scu.edu
71550.133@compuserve.com
I will accept suggestions for questions to be added to the FAQ,
but please be aware that I will be more receptive to questions
that are accompanied by answers. :-)
ACKNOWLEDGMENTS
I'd like to acknowledge the following people who reviewed early
drafts of this FAQ and made valuable suggestions for
modifications, or otherwise contributed to the FAQ:
Thomas Deardorff <tdeardor@u.washington.edu>
Stuart P. Derby <sderby@crick.ssctr.bcm.tmc.edu>
Mary Jensen <cnicopy@charlie.usd.edu>
David Lassner <david@oit.hawaii.edu>
George Mitchell <gmitchel@library.unt.edu>
Ronald Naylor <rnaylor@umiami.ir.miami.edu>
Carol Odlum <carol@dreamer.rain.com>
Laura A. Pitta <lpitta@scuacc.scu.edu>
Hank Roth <odin@world.std.com>
Craig A. Summerhill <craig@cni.org>
Peter Stott <pstott@pearl.tufts.edu>
Glenn S. Tenney <tenney@netcom.com>
Marina ___ [full name unknown] <marlen@sovam.com>
Q1) What is a copyright?
A copyright is a right of intellectual property granted to authors
whereby they obtain, for a limited time, certain exclusive rights
to their works. In the United States, copyright is exclusively
federal law, and derives from the "copyright clause" of the
Constitution (Art. 1, sec. 8, cl. 8), which provides Congress with
the power "to promote science and the useful arts, by securing for
limited times to authors ... the exclusive right to their ...
writings."
Copyright protects only an author's original expression. It
doesn't extend to any ideas, system or factual information that is
conveyed in a copyrighted work, and it doesn't extend to any pre-
existing material that the author has incorporated into a work.
17 U.S.C. 102(b), 103.
The standard for originality is very low. "Original" in this
context means only that the work has its origin in the author.
There is no requirement that the work be different from everything
that has come before: it need only embody a minimum level of
creativity and owe its origin to the author claiming copyright.
To use an extreme example, if two poets, each working in total
isolation and unaware of one anotherUs work, were to compose
identical poems, both of the poems would meet the originality
requirement for purposes of the copyright statute. Feist
Publications, Inc. v. Rural Telephone Service Company, Inc., 111
S.Ct. 1282, 1287-88 (1991).
In the United States, these seven rights are recognized:
1) the reproductive right: the right to reproduce the work in
copies;
2) the adaptative right: the right to produce derivative works
based on the copyrighted work;
3) the distribution right: the right to distribute copies of
the work;
4) the performance right: the right to perform the copyrighted
work publicly;
5) the display right: the right to display the copyrighted work
publicly;
6) the attribution right (sometimes called the paternity
right): the right of the author to claim authorship of the
work and to prevent the use of his or her name as the author
of a work he or she did not create;
7) the integrity right: the right of an author to prevent the
use of his or her name as the author of a distorted version
of the work, to prevent intentional distortion of the work,
and to prevent destruction of the work.
17 U.S.C. 106, 106A.
Not all of these rights apply to all types of works. For example,
the display right applies to literary, musical, dramatic and
choreographic works, pantomimes, and motion pictures and other
audiovisual works. It does not apply to sound recordings and to
architectural works. The attribution right and the integrity
right apply only to works of visual art.
Also, not all rights have the same duration: in the U.S., rights
1-5 normally have a duration of the author's life plus 50 years,
while rights 6-7 endure only for the life of the author.
These rights are not unbounded, and in the U.S., sections 107
through 120 of the copyright law catalog a series of restrictions
on the rights. Some of these restrictions are discussed elsewhere
in the FAQ (see, e.g., Q8 and Q16).
And, by the way, many persons erroneously spell it "copywrite,"
apparently because of the association with written material. The
correct word is "copyright." It derives from an author or
publisher's right to the copy (copy here being used in the sense
that it is used in the newspaper trade: the text of an article).
Q2) What is "public domain?"
In contrast to copyright is "public domain." A work in the public
domain is one that can be freely used by anyone for any purpose.
It used to be that if a work was published without notice, it lost
all copyright, and entered the public domain. That's no longer
true, and now public domain is more the exception than the rule.
There are still a number of ways that a work may be public domain.
- The copyright may have expired (see Q4).
- The work might be a work of the U.S. Government; such works
can't be copyrighted (see Q15).
- The work might be one that can't be copyrighted. For example,
titles, names, short phrases and slogans can't be copyrighted
(37 C.F.R. 202.1(a)). Note, however, they can be trademarks.
As far as copyright law is concerned, they're public domain,
but as far as trademark law is concerned, they might be
protected.
- The copyright might have been forfeited. For example, the work
may have been published without notice prior to the change in
the law that eliminated the notice requirement (March 1, 1988,
the effective date of the Berne Convention Implementation Act,
PL 100-568, 102 Stat. 2853).
- The copyright might have been abandoned. This is pretty rare.
Abandonment requires that the copyright holder intend to
abandon the copyright, and generally requires an unambiguous
statement or overt act on the part of the copyright holder that
indicates his or her intent to dedicate the work to the public
domain. National Comics Pub. v. Fawcett Pub., 191 F.2d 594,
598 (2d Cir., 1951). A statement that anyone who wishes to may
reproduce, perform, or display the work without restrictions
might be sufficient. Simply posting it on a computer network
is not abandonment.
There is a common belief that if someone infringes a copyright,
and the copyright owner does not sue or otherwise put a stop to
the infringement, the copyright is lost and the work goes into the
public domain. There is some pre-1988 law on this (e.g., Stuff v.
E.C. Publications, 432 F.2d 143 (2d Cir., 1965) and Transgo v.
Ajac Transmission Parts, 768 F.2d 1001 (9th Cir. 1985)), but it
seems to derive mostly from the fact that the copyright holder had
acquiesced in the publication of the work without notice back when
notice was a requirement. It was the publication without notice,
and not the lack of enforcement, that actually worked to put the
work in the public domain. This is forfeiture of copyright, not
abandonment. Because the notice requirement is now gone from
copyright law, these cases don't have much weight today.
I can't find anything that supports the idea that failure to
assert a copyright against an infringer can alone lead to placing
the work in the public domain (if you have any authoritative
information on this, please drop me a note at one of the addresses
listed in the introduction). Of course, circumstances may be such
that the ability to sue a particular infringer might be waived
(e.g., a statute of limitations may expire (see Q13), or if the
infringer has reasonably relied to his or her detriment on the
copyright holder's failure to sue, the doctrine of laches may bar
a suit), but that's only with respect to that particular
infringer, and does not affect the status of the copyright with
respect to others.
Sometimes you'll see a program on the network accompanied by a
statement like "This program is public domain. It may be freely
distributed, but you may not charge more for it than the cost of
the media." Statements like these are contradictory. If the
program is public domain, you can do whatever you want with it,
including charging whatever you want (although you might not get
it). In this example, what the programmer really wants to do is
to retain the copyright, but provide a non-exclusive license to
copy and distribute the work, with a condition on the license that
only the cost of the media may be charged for it. In this case,
where the programmer has, in two consecutive sentences, both
declared the work to be public domain and asserted a copyright in
the work, it's unpredictable whether a court would interpret this
as abandonment.
If there is any restriction upon the use of the work, even the
restriction that it cannot be sold, the work is not public domain.
Rather, it's copyrighted, and the restrictions are essentially
limitations on a licensee using one or more of the exclusive
rights described above. For example, the restriction that a work
may only be given away for free is a limitation using the
distribution right.
Once a work is in the public domain, whether by expiration of
copyright or by expressly being dedicated to the public domain by
its copyright holder, it can never again regain copyrighted
status.
Q3) I just wrote a great program/novel/song/whatever. How can I
get a copyright on it?
Good news. You already have. In the United States, as in most
nations, a work is copyrighted as soon as it is created:
Copyright protection subsists . . . in original works of
authorship fixed in any tangible medium of expression, now
known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with
the aid of a machine or device. 17 U.S.C. 102(a).
and,
A work is "fixed" in a tangible medium of expression when its
embodiment in a copy or phonorecord, by or under the authority
of the author, is sufficiently permanent or stable to permit it
to be perceived, reproduced, or otherwise communicated for a
period of more than transitory duration. 17 U.S.C. 101.
What this means in simple terms is that as soon as you've created
your original work, it's copyrighted. Because of the "either
directly or with the aid of a machine or device" provision, it
doesn't matter whether you've printed it out, or if it's only on
your hard drive or floppy disk.
You don't need any special formalities, such as registering the
work with the Copyright Office, or providing a copyright notice
(notice stopped being a requirement when the U.S. signed the Berne
Convention and enacted Berne Convention Implementation Act in
1988; see Q28 for more information).
That being said, you might want to register the work and provide a
copyright notice anyway. There are certain advantages to doing so
(see Q5 and Q7).
Q4) How long does a copyright last? Does it need to be renewed?
Generally, for works created after January 1, 1978, a copyright
lasts for fifty years beyond the life of the work's author, after
which it lapses into public domain. 17 U.S.C. 302(a). If the
work is prepared by two or more authors (a "joint work"), its
copyright lasts for fifty years after the last surviving author
dies. 17 U.S.C. 302(b). For anonymous and pseudonymous works,
and for works made for hire, copyright exists for 100 years from
the date of creation, or 75 years from the date of first
publication, whichever comes first. 17 U.S.C. 302(c). No renewal
is necessary or permitted.
For works to which the attribution right and integrity right apply
(see Q1), these rights endure only for the lifetime of the author.
17 U.S.C. 106A(d).
For works created between 1950 and 1978, copyright lasts for 75
years from date of publication. 17 U.S.C. 304(a). Formerly,
renewal was required after 28 years; renewal was made optional in
June 1992 by P.L. 102-307, 106 Stat. 264. If the work was created
but not published prior to 1978, its copyright duration is
calculated as if it had been created on January 1, 1978. 17
U.S.C. 303.
For works created between 1922 and 1950, the copyright lasted for
28 years, renewable for another 28 (a total term of 56 years). If
the copyright was not renewed, the work lapsed into public domain.
In practice, all copyrights granted prior to 1937 lapsed at the
latest in 1992 and are now in public domain. Copyrights granted
between 1937 and 1950 continue to exist only if they were renewed,
and expire between 1993 and 2006.
Q5) What advantages are there to registering my work with the
Copyright Office?
In order to sue for infringement, with some exceptions, your work
must be registered with the Copyright Office. However, you may
register after the infringement occurs, as long as it's before
filing your lawsuit.
The advantage to registering prior to infringement is that it
allows you some additional remedies that aren't available if you
registered after infringement: namely, statutory damages and
attorney's fees. 17 U.S.C. 412.
"Statutory damages" are damages specified in the statute, as
opposed to "actual damages," which are damages that you can
demonstrate in court that you actually suffered. If you
registered your work prior to infringement, you can skip showing
any actual damage, and just elect to receive statutory damages.
17 U.S.C. 504(a).
Statutory damages for copyright infringement are $500 - $20,000,
as determined by the judge. If the infringer proves that he or
she was not aware and had no reason to believe that his or her
acts constituted infringement, the court may lower damages to as
low as $200 per infringement. On the other hand, if the plaintiff
proves that the defendant's infringement was "committed
willfully," the judge may award damages to as high as $100,000 per
infringement. 17 U.S.C. 504(c).
In deciding whether to register your work, you must weigh the
probability of an infringement action (and the advantages of
attorney's fees and statutory damages in such an action) against
the $20 cost of registration.
CAVEAT: On February 16, 1993, the Copyright Reform Act of 1993
was introduced in both houses of the 102nd Congress (H.R. 897 in
the House of Representatives and S.373 in the Senate). If the
bill passes, much of the information in this entry will be
rendered incorrect. Specifically, the bill would, among other
things, remove the requirement for registration prior to bringing
suit, and would remove the restrictions on statutory damages that
are described above.
Q6) How can I register a copyright with the U.S. Copyright Office?
To register a copyright, file the appropriate form with the U.S.
Copyright Office, including the payment for registration costs
($20).
For most types of work being published in the United States, two
copies of the work being registered must be deposited with the
Copyright Office for the use of the Library of Congress. Strictly
speaking, the deposit is not a requirement for copyright.
However, failing to make the deposit at time of publication can
result in fines. Some works are exempt from the deposit
requirement.
Registration forms may be ordered by calling the Copyright Office
Hotline (see Q30). When the answering machine answers, leave a
message with your name and address, identifying the material you
are ordering. Ask for the form either by form number, or by
Copyright Office Information Package number. A Copyright Office
Information Package is a collection of information on registering
copyright for a particular type of work. It includes the
appropriate forms, instructions for completing them and other
useful information.
Here is a list of commonly requested forms and Copyright Office
Information Packages, arranged by type of copyrighted work:
- Books, manuscripts and speeches and other nondramatic literary
works: Form TX, Package 109
- Computer programs: Form TX, Package 113
- Music (sheet or lyrics): Form PA, Package 105
- Music (sound recording): Form SR, Package 121
- Cartoons and comic strips: Form VA, Package 111
- Photographs: Form VA, Package 107
- Drawings, prints, and other works of visual arts: Form VA,
Package 115
- Motion pictures and video recordings: Form PA, Package 110
- Dramatic scripts, plays, and screenplays: Form PA, Package 119
- Games: Form TX, Package 108
Q7) What advantages are there to including a copyright notice on
my work?
As noted in Q3, under U.S. law, a work is copyrighted as soon as
it is created. No notice is required to retain copyright. While
most of the world has operated this way for some time, this is a
comparatively recent change in U.S. copyright law, as of March 1,
1988, the effective date of the Berne Convention Implementation
Act, PL 100-568, 102 Stat. 2853 (See Q28 and Q29 for a discussion
of the Berne Convention).
Although notice is no longer a requirement, there are still some
sound reasons for using one anyway.
If you include a copyright notice on a published copy of your work
to which the defendant in an infringement suit had access, he or
she may not plead "innocent infringement" (i.e., that he or she
was not aware and had no reason to believe that his or her acts
constituted infringement, the so-called "innocent infringement"
defense) in mitigation of actual or statutory damages. 17 U.S.C.
401(d), 402(d).
Unlike the decision of whether to register your work, this is a
no-brainer, since it's simple and free: just include a notice on
every published copy of the work.
A proper copyright notice consists of three things: 1) the letter
"C" in a circle (called, logically enough, the "copyright
symbol"), or the word "Copyright," or the abbreviation "Copr."; 2)
the year of first publication; 3) the name of the copyright owner.
17 U.S.C. 401(b).
Using "(C)" in place of a copyright notice is not a good idea. To
the best of my knowledge, no court has expressly ruled one way or
another whether "(C)" is a sufficient substitute for a copyright
symbol. One case, Videotronics v. Bend Electronics, 586 F.Supp.
478, 481 (D. Nev. 1984), implies that it is not sufficient;
another, Forry v. Neundorfer, 837 F.2d 259, 266 (6th Cir., 1988),
implies that it might be. While courts are generally lenient in
allowing for what makes up a valid notice, it's best to be
squarely within the statute. If you can't make a copyright
symbol, either spell the word out, or use the "Copr."
abbreviation.
As a side note with regard to international protection, the
Universal Copyright Convention requires that, at a minimum, all
signatory nations that require notice must accept the C-in-a-
circle variant; it does not provide a provision for a spelled out
variant. On the other hand, most nations that have signed a
copyright treaty are signatories to the Berne Convention, which
forbids requiring a notice as a condition to copyright. See Q28
for details.
For a sound recording, the notice requirement is similar, except
that it uses the letter "P" (for "Phonorecord") in a circle, plus
the year and owner name. 17 U.S.C. 402(b). The statute does not
provide a spelled out alternative to the P-in-a-circle.
Q8) Can I ever use a copyrighted work without permission of the
copyright holder, or "What is 'fair use?'"
In any analysis of copyright, it's important to remember the law's
constitutional purpose: to promote science and the useful arts.
"Fair use" is a doctrine that permits courts to avoid rigid
application of the copyright statute when to do otherwise would
stifle the very creativity that copyright law is designed to
foster. The doctrine of fair use recognizes that the exclusive
rights inherent in a copyright are not absolute, and that non-
holders of the copyright are entitled to make use of a copyrighted
work that technically would otherwise infringe upon one or more of
the exclusive rights. Although fair use originated "for purposes
such as criticism, comment, news reporting, teaching, ...
scholarship, or research," it also applies in other areas, as some
of the examples below illustrate. However, courts seem more
willing to accept an assertion of fair use when the use falls into
one of the above categories.
Perhaps more than any other area of copyright, fair use is a
highly fact-specific determination. Copyright Office document
FL102 puts it this way: "The distinction between 'fair use' and
infringement may be unclear and not easily defined. There is no
specific number of words, lines, or notes that may safely be taken
without permission. Acknowledging the source of the copyrighted
material does not substitute for obtaining permission."
The document then quotes from the 1961 Report of the Register of
Copyrights on the General Revision of the U.S. Copyright Law.,
providing the following examples of activities that courts have
held to be fair use:
- Quotation of excerpts in a review or criticism for purposes of
illustration or comment;
- Quotation of short passages in a scholarly or technical work
for illustration or clarification of the author's observations;
- Use in a parody of some of the content of the work parodied;
- Summary of an address or article with brief quotations, in a
news report;
- Reproduction by a library of a portion of a work to replace
part of a damaged copy;
- Reproduction by a teacher or student of a small part of a work
to illustrate a lesson;
- Reproduction of a work in legislative or judicial proceedings
or reports;
- Incidental and fortuitous reproduction in a newsreel or
broadcast, of a work located in the scene of an event being
reported.
Document FL102 is included in Copyright Office information kit 102
("Fair Use"), which can be ordered from the Copyright Office (see
Q30).
Carol Odlum <carol@dreamer.rain.com>, a free-lance editor, has
provided a set of guidelines used by one publisher as rules of
thumb. These certainly have no legal force, but it's instructive
to note at least one publisher's interpretation of what "fair use"
means in the real world. The publisher uses the following
criteria for determining when permission of the copyright holder
must be sought in order for the work to be used:
- Prose quotations of more than 300 words from a scholarly book.
(If a source is quoted several times for a total of 300 words
or more, permission must be obtained.);
- Prose quotations of more than 150 words from a popular,
general-market book;
- Prose quotations of more than 50 words from a scholarly
journal;
- Quotations of more than 2 lines of poetry or lyrics;
- Quotations of more than 1 sentence from a popular magazine or
newspaper;
- Quotations of any length from letters or other personal
communications, interviews, questionnaires, speeches,
unpublished dissertations, and radio or television broadcasts.
- Illustrations -- including drawings, graphs, diagrams, charts,
maps, artwork, and photographs -- created by someone else;
- Music examples of more than 4 measures;
- Tables compiled by someone else.
The above, in a nutshell, describes fair use. The remainder of
this entry provides a more detailed description of the doctrine
for those interested in the nuts and bolts..
There are four factors used to decide whether a particular use of
a copyrighted work is a fair use:
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or
value of the copyrighted work.
17 U.S.C. 107.
The remainder of this answer discusses how each of these factors
has been interpreted.
(1) The purpose and character of the use: In considering the
purpose and character of the use, courts have looked to two
characteristics of the use: whether the use is commercial and,
somewhat less frequently, whether the use is a "productive" one.
If the copyrighted work is being used commercially, e.g., all or
part of a copyrighted drawing being used in a commercially
published book on drawing techniques, that's a strike against it
being fair use. On the other hand, if the same drawing were used
in a non-profit school to teach children to draw, then this factor
would be in favor of finding a fair use. Most situations are
somewhere in between. That is, a use might not be commercial, but
it's not necessarily non-profit educational, either.
Note, though, that the statute does not command this
"commercial/non-profit educational" balance, and not all courts
use it, at least not by itself. Commercial use might be forgiven
if the use is characterized as a "productive" or "transformative"
use, i.e., a use of the material that interprets or otherwise adds
value to the material taken from the copyrighted work. See
Consumers Union v. General Signal Corp., 724 F.2d 1044, 1047 (2nd
Cir. 1983) (noting that the use of one of Consumer Report
magazine's reviews of a vacuum cleaner in an advertisement was a
fair use, in part because the purpose and character of the
advertisement was in part to educate consumers). The Supreme
Court has noted that the distinction between "productive" and
"unproductive" uses is not wholly determinative, but is helpful in
balancing the interests. Sony Corp. v. Universal City Studios,
464 U.S. 417, 451 n.40 (1983).
(2) The nature of the copyrighted work: If the work being used is
one that is factual or functional in nature, then that's a point
in favor of use of that work being a fair use. That's because
copyright isn't available for facts themselves, and the courts
recognize that it's kind of dumb to force someone with a newspaper
clipping to completely rewrite it to avoid infringement (besides,
a paraphrase is still an infringement, because it qualifies as
creating a derivative work, even if it's not a direct copy). If
the work is a fictional or artistic one, though, taking the work
is taking much more than any underlying facts. A fictional or
artistic work is more expressive than a factual one, so the
copyright (which is designed to protect expression) is stronger.
Even in factual works, however, where the portion used includes
subjective descriptions whose power lies in the author's
individualized expression, this factor might go against a finding
of fair use, if the use exceeds that necessary to disseminate the
facts. See Harper and Row v. Nation Enterprises, 471 U.S. 539
(1985) (finding no fair use for infringement of former U.S.
President Ford's memoirs despite its factual content).
Another point that's often examined in looking at the nature of
the copyrighted work is whether the work has been published.
Courts will generally consider a use of an unpublished work as
more likely to infringe than a similar use of a published work.
Harper and Row v. Nation Enterprises, 471 U.S. 539, 564 (1985).
This is for two reasons. First, the first publication is often
the most valuable to the copyright holder. Second, it affects the
copyright holder's ability to choose not to publish the work at
all. See Salinger v. Random House, 811 F.2d 90, 97 (2nd Cir.
1987).
As with the first factor, while the "fact/fiction" balance and
"published/unpublished" balance are two of the most common, they
are not commanded by the statute, which only requires considering
the "nature of the copyrighted work." For example, in Sega v.
Accolade, 977 F.2d 1510, 1525 (9th Cir., 1993), the Court of
Appeals noted that the nature of most computer programs
distributed in object code is that the functional (and therefore
unprotected) elements cannot be discerned without disassembly.
This supported the court's opinion that, in certain limited
instances, disassembling of a competitor's product to find
interface information that cannot be obtained in any other way is
a fair use of the work, despite the fact that code disassembly
necessarily involves making a copy of the copyrighted program.
(3) The amount and substantiality of the portion used in relation
to the copyrighted work as a whole: This appears simpler than it
really is. On the face of it, it means that if you incorporate
95% of a copyrighted work into another work, it's a lot less
likely to be a fair use than if you take only a small portion,
say, 5%. And that's true. However, assessing this factor is a
bit more complex than that simple statement. Even if only a small
portion of the work is used, if that portion is "qualitatively
substantial," e.g., if the portion used is essentially the heart
of the work, that use will be deemed to have been "substantial,"
and could go against a finding of fair use. See Harper and Row v.
Nation Enterprises, 471 U.S. 539 (1985) (finding no fair use for
infringement of former U.S. President Ford's memoirs, where the
portion used (which described Ford's decision to pardon former
President Nixon) included "the most interesting and moving parts
of the entire manuscript"), and Roy Export Co. v. Columbia
Broadcasting System, 503 F.Supp. 1137 (S.D.N.Y. 1980) (taking of
55 seconds out of 89-minute film deemed "qualitatively
substantial").
To confuse matters further, some courts have (probably
erroneously) interpreted this factor by looking at what percentage
of the work _using_ the material is composed of material from the
copyrighted work, rather than what percentage of the copyrighted
work was used. See, e.g., Association of American Medical
Colleges v. Mikaelian, 571 F.Supp. 144 (E.D. Pa, 1983), aff'd 734
F.2d 3 (3rd Cir., 1984), aff'd 734 F.2d 6 (3rd Cir., 1984). While
this interpretation is probably erroneous, it's worth bearing in
mind that, at least in one judge's courtroom in the Eastern
District of Pennsylvania, that's how the statute will be
interpreted.
(4) The effect of the use upon the potential market for or value
of the copyrighted work: The U.S. Supreme Court has stated that
this factor is "undoubtedly the single most important element of
fair use." Harper and Row v. Nation Enterprises, 471 U.S. 539
(1985). The late Professor Melvin Nimmer, in his treatise on
copyright law, paraphrased it, "Fair use, when properly applied,
is limited to copying by others which does not materially impair
the marketability of the work which is copied." Nimmer on
Copyright, section 1.10[D]. If the use impacts the market for the
work, the use is less likely to be held to be a fair use.
Note also that the weighing is of the impact on the potential
market, not on the actual market. For example, although Playboy
magazine does not distribute its pictures in machine-readable
form, it may choose to do so in the future. One might argue that
digitizing a picture and posting it on the net does not impact the
current market for the magazine originals. However, it impacts
the potential (but currently non-existent) market for machine-
readable copies. Because there is an impact on the potential
market, an analysis of this factor in such a situation would not
support a finding of fair use.
If all this sounds like hopeless confusion, you're not too far
off. Often, whether a use is a fair use is a very subjective
conclusion. In the Harper and Row case cited above, for example,
the Supreme Court was split 6-3. In the famous "Betamax case,"
Sony v. Universal City Studios, 464 U.S. 417 (1984) (in which the
Supreme Court found that off-air non-archival videotaping of
broadcast television was a fair use), the split was 5-4. In both
of these cases, the District Court ruled one way (no fair use in
Harper and Row, fair use in Sony) and was reversed by the Court of
Appeals, which was then itself reversed by the Supreme Court.
This goes to show that even well-educated jurists are capable of
disagreeing on the application of this doctrine.
Q9) [reserved]
Q10) Who owns the copyright to something I wrote at work, me or my
company?
That depends on a lot of things. Normally, you are the author of
the work and own the copyright. There are two broad mechanisms by
which your company may own the copyright, though: assignment and
the work-made-for-hire doctrine.
ASSIGNMENT: Even if you are the author, and therefore the
copyright is initially yours, it may now belong to your company if
you assigned the copyright to them. A full assignment of
copyright must be in writing, and signed; it can't be implied. 17
U.S.C. 204. Therefore, if you're the author in a copyright sense,
and did not assign the copyright to your company in writing, you
still own it. Please note, however, that some companies make it a
practice to acquire a blanket assignment of copyright in any works
created on the job at time of hiring.
Note, though, that even in the absence of a written contract, your
actions might have been sufficient to grant the company an implied
license to the work. For example, in the case of Effects
Associates v. Cohen, 908 F.2d 555 (9th Cir., 1990), a film
producer (Cohen) claimed that he owned copyright in special
effects film footage depicting "great gobs of alien yogurt oozing
out of a defunct factory." The footage was produced by Effects
Associates, a special effects company, and there was no written
assignment of copyright. The court ruled that Effects retained
ownership of the copyright, but that Cohen had an implied license
to use it in his horror film, "The Stuff," because Effects had
"created the work at [Cohen's] request and handed it over,
intending that [Cohen] copy and distribute it." Because the
license was non-exclusive, it wasn't a complete transfer of
copyright, and did not need to be in writing. Effects was free to
sell the same footage to other moviemakers.
WORK MADE FOR HIRE: If a work qualifies as a work made for hire,
the company is the author for purposes of copyright, and copyright
initially vests in the company. A work is a work made for hire
under either of two circumstances. First, if it is a work
prepared by an employee within the scope of employment. Second,
if the work was specially commissioned, is one of a short list of
relatively esoteric types (a contribution to a collective work, a
part of a motion picture or other audiovisual work, a translation,
a supplementary work, as a compilation, as an instructional text,
a test, answer material for a test, or an atlas), and the parties
agreed in writing that it was to be considered a work for hire.
17 U.S.C. 101.
To determine if a work is one prepared by an employee within the
scope of employment, there are two important considerations.
First, was the work prepared by an employee, or by an independent
contractor? Several facts, such as whether taxes were withheld,
who supervised the work, artistic control, setting of working
hours, etc., will be examined to determine this factor. A good
case discussing these factors is CCNV v. Reid, 490 U.S. 730
(1989).
The second consideration is whether the work was within the scope
of the employment.
Unless these two considerations are met, the work will not be
considered one made for hire under the employee test, and the
"employee" will retain copyright. Of course, the same
considerations discussed above regarding an implied license might
exist, even in cases where the work-made-for-hire doctrine does
not apply.
Q11) [reserved]
Q12) Is copyright infringement a crime, or a civil matter?
It's always at least a civil matter (a tort). 17 U.S.C. 501(b)
details the mechanisms by which an owner of a copyright may file a
civil suit, and 28 U.S.C. 1338 expressly refers to civil actions
arising under the copyright act.
However, under certain circumstances, it may also be a federal
crime. A copyright infringement is subject to criminal
prosecution if infringement is willful and for purposes of
commercial advantage or private financial gain. 17 U.S.C. 506(a).
If the offense consists of the reproduction or distribution,
during any 180-day period, of 10 or more copies having a retail
value of more than $2,500, the offense is a felony; otherwise, the
offense is a misdemeanor. 18 U.S.C. 2319.
As a side note, although 18 U.S.C. 2319 purports to prescribe the
penalties for criminal infringement, all crimes covered by Title
18 have their penalties determined by the U.S. Sentencing
Guidelines, another part of Title 18.
Q13) What is the statute of limitation for copyright infringement?
For both civil suits and criminal prosecutions, the statute of
limitations for copyright infringement is three years. 17 U.S.C.
507.
Q14) Can the government be sued for copyright infringement?
Yes. The United States has expressly waived its immunity to suit
for copyright infringement. 28 U.S.C. 1498.
For some time, it was unclear whether the Eleventh Amendment of
the U.S. Constitution operated to make a state immune from suit
for copyright infringement. In BV Engineering v. University of
California at Los Angeles, 858 F.2d 1394 (9th Cir., 1988), UCLA
successfully defended a copyright infringement suit on the ground
that it had such immunity. Although UCLA won that suit, Congress
responded by passing the Copyright Remedy Clarification Act, PL
101-553, in 1990. This law added section 511 to the Copyright
Act, which had the effect of removing the immunity defense. It
became effective June 1, 1991.
Today the law is very clear: the United States government and the
governments of each state may be sued for copyright infringement,
and may not plead immunity as a defense.
Q15) Can the government copyright its works?
This one has to be taken slowly, and we'll look at federal and
state governments separately, because the rules are different.
With one exception, works of the United States government are
public domain. 17 U.S.C. 105. The only exception is for standard
reference data produced by the U.S. Secretary of Commerce under
the Standard Reference Data Act, 15 U.S.C. 290e.
However, there's a big loophole here: while the U.S government
can't get copyright for its own works, it can have an existing
copyright assigned to it. So if the U.S. government produces a
work, it's not copyrighted. But if an independent contractor
working for the government produces a work, it is copyrighted, and
nothing prevents that contractor from assigning the copyright back
to the government. This reconciles the fact that the U.S.
government can't copyright its works with the fact that if you
stay up late on weekends, you'll see Public Service Announcements
against drunk driving that say "Copyright U.S. Department of
Transportation."
Also, there are some entities that might seem to be part of the
U.S. government, but are not. For example, the U.S. Postal
Service is no longer a branch of the U.S. government. In
addition, while under U.S. control, the District of Columbia,
Puerto Rico, and organized territories of the U.S. are not
considered to be part of the U.S. government for purposes of
copyright law.
Whether a state can copyright its works is a different matter.
Unlike the U.S. government, a state government's works are subject
to copyright. It is up to each state to decide whether to retain
the copyright or whether such works are to be automatically made
public domain.
A related question that sometimes comes up is whether a government
may copyright its laws. In the case of the federal government,
because of the factors discussed above, the answer is clearly that
it cannot. With state governments, it's a little less clear.
There is no statute, case, or regulation that indicates that a
state cannot copyright its laws. However, it is the position of
the U.S. Copyright Office that a state's laws may not be
copyrighted. The Compendium of Copyright Office Practices
(Compendium II) section 206.01 states, "Edicts of government, such
as judicial opinions, administrative rulings, legislative
enactments, public ordinances, and similar official legal
documents are not copyrightable for reasons of public policy.
This apples to such works whether they are Federal, State, or
local as well as to those of foreign governments."
Now, the Compendium II does not have force of law. But this does
indicate that any state trying to register a copyright in its laws
would be refused registration by the Copyright Office. As a
result, it would either have to successfully sue the Office to
force registration, or it would bear the burden of establishing
that its work was indeed copyrighted in the event of an
infringement suit (normally, a registration fulfills that burden).
It's a safe bet that any state or city trying to assert a
copyright in its laws would have an uphill battle ahead of it.
Q16) Can I legally make a cassette copy of a musical CD for my own
use, so I can play it in my car?
This issue has been argued back and forth for many years, with
consumers groups arguing that this was a fair use (see Q8), and
the recording industry arguing that it was not. The issue was
finally settled by Congress when the Audio Home Recording Act
(AHRA) (P.L. 102-563, 106 Stat. 4237, codified at 17 U.S.C. 1001 -
1010) was passed in October 1992. This Act added a ten sections
to Title 17, one of which provided an alternative to the fair use
analysis for musical recordings. The new section states:
No action may be brought under this title alleging infringement
of copyright based on the manufacture, importation, or
distribution of a digital audio recording device, a digital
audio recording medium, an analog recording device, or an
analog recording medium, or based on the noncommercial use by a
consumer of such a device or medium for making digital musical
recordings or analog musical recordings.
17 U.S.C. 1008.
As the legislative history to this statute noted, "In short, the
reported legislation would clearly establish that consumers cannot
be sued for making analog or digital audio copies for private
noncommercial use." H.R. Rep. 102-780(I).
Does this mean you can make copies for your family and friends, as
long as it's not "commercial?" A strict reading of the words in
the statute would seem to say that you may. This is not as
outrageous as it sounds. Part of the impetus behind the AHRA was
the perception that blank tapes were being used mostly to copy
commercial musical sound recordings. As a result, the AHRA
provided that a royalty payment (referred to as a "DAT tax" by its
detractors) be paid for each sale of digital audio tape to
compensate authors of musical works and sound recordings for the
profits lost due to these copies. See 17 U.S.C. 1003, 1004.
Arguably, the AHRA anticipates and allows exactly this type of
copying, and a literal reading of section 1008 would tend to
support this position. But the AHRA is still sufficiently new
this hasn't been tested in court yet.
Note, also, that this section applies only to musical recordings;
it clearly does not include spoken word recordings. Of course, it
is still possible that such a use of a spoken word recording might
still be considered a section 107 fair use, even if section 1008
does not apply to provide a clear exemption.
Q17) Are Usenet postings and email messages copyrighted?
Almost certainly. They meet the requirement of being original
works of authorship fixed in a tangible medium of expression (see
Q3). They haven't been put in the public domain; generally, only
an expiration of copyright or an unambiguous declaration by an
author is sufficient to place a work into public domain.
However, at least with Usenet postings, there are two doctrines
which probably allow at least some copying: fair use (see Q8) and
implied license.
Whether a particular use of a Usenet posting is a fair use is, as
always, a very fact-specific determination. However, it's
probably safe to say that it's a fair use if the use was not
commercial in nature, the posting was not an artistic or dramatic
work (e.g.,, it was the writer's opinion, or a declaration of
facts, and not something like a poem or short story), only as much
of the posting was copied as was necessary (e.g., a short
quotation for purposes of criticism and comment), and there was
little or no impact on any market for the posting.
A similar argument can be made for quoting of private email
messages. Of course, revealing the contents of a private email
message could run afoul of any of a number of non-copyright laws:
defamation, invasion of privacy, and trade secrecy, to name a few.
So even if you won't be violating any copyright laws, you should
consider other factors that may expose you to legal liability
before revealing a private message's contents.
Proponents of the implied license idea point out that Usenet
postings are routinely copied and quoted, and anyone posting to
Usenet is granting an implied license for others to similarly copy
or quote that posting, too. It's not clear whether such implied
license extends beyond Usenet, or indeed, what "Usenet" really
means (does it include, for example, Internet mailing lists? Does
it include netnews on CD-ROM?). If a posting includes an express
limitation on the right to copy or quote, it's not at all certain
whether the express limitation or the implied license will
control. No doubt it depends on the specific facts. For example,
was the limitation clearly visible to the person who did the
copying? Was the limitation placed such that it would be visible
only after the person who did the copying to invested time and
money to get the posting, believing it to be without any
limitation?
With private email messages, a copier who relies solely on the
implied license argument will probably lose, since it's hard to
argue that by sending the private message to a limited audience,
the sender intended for it to be copied and quoted. For email
messages to a public mailing list, the implied license argument
may still be sound.
These theories are largely speculative, because there has been
little litigation to test them in the courts. As a practical
matter, most postings, with a small number of notable exceptions,
are not registered with the Copyright Office. As such, to prevail
in court, the copyright holder would need to show actual damages
(see Q5). Since most of these cases will result in little or no
actual damage, no cases have been be brought; it's simply too
expensive to sue for negligible damages.
Q18) Are fonts copyrighted?
First, let's distinguish between a font and a typeface. A
typeface is the scheme of letterforms (which is really what you're
probably talking about), and the font is the computer file or
program (or for that matter, a chunk of metal) which physically
embodies the typeface.
A font may be the proper subject of copyright, but the generally
accepted rule is that a typeface embodied in the font is not (see
Eltra Corp. v. Ringer, 579 F.2d 294, 208 U.S.P.Q. 1 (4th Cir.,
1978), and the House of Representatives Report on the Copyright
Law Revision, 94-1476, 94th Congress, 2d Session at 55 (1976),
reprinted in 1978 U.S. Cong. and Admin. News 5659, 5668).
The letterforms themselves are not copyrightable under U.S. law as
a typeface. 37 CFR 202.1(e). A font is copyrightable if it adds
some level of protectable expression to the typeface, but that
protection does not extend to the underlying uncopyrightable
typeface itself (see 17 U.S.C. 102(b)).
In essence, a font will be protectable only if it rises to the
level of a computer program. Truetype and other scalable fonts
will therefore be protected as computer programs, a particular
species of literary works. Bitmapped fonts are not copyrightable,
because in the opinion of the Copyright Office, the bitmap does
not add the requisite level of originality to satisfy the
requirement for copyright.
So, to summarize this point, a typeface is not copyrightable.
While a scalable font might be copyrightable as a program, merely
copied the uncopyrightable typeface, and creating your own font,
either scalable or bitmapped, is probably not an infringement,
assuming you did not copy any of the scalable font's code.
Two warnings:
First, even if typefaces can't be copyrighted, they can be
patented under existing design patent laws. 35 U.S.C. 171.
Copying a typeface and distributing such a font, while not a
violation of copyright, might be an infringement of the patent.
Second, Congress has been considering design protection
legislation for many years (most recently, the 102nd Congress'
H.R. 1790) which, if passed, would protect typeface design. If
such a bill is enacted, the above opinion will be obsolete and
incorrect.
Q19) What does "All Rights Reserved" mean?
One of the earliest international copyright treaties to which the
U.S. was a member was the 1911 Buenos Aires Convention on Literary
and Artistic Copyrights (see Q28 for more information). This
treaty provided that, once copyright was obtained for a work in
one signatory country, all other signatories accorded protection
as well without requiring any further formalities (i.e., notice or
registration), provided that the work contained a notice reserving
these rights. The typical notice complying with Buenos Aires was
"All Rights Reserved."
As noted in Q28, the Buenos Aires Convention is essentially dead
today, and the "All Rights Reserved" notice no longer serves much
useful purpose. It lives on mostly as a testament to inertia on
the part of U.S. publishers.
Q20) What's the difference between a copyright and a patent?
This answer is included in both the Copyright and Patents FAQs.
There are basically five major legal differences between a
copyright and a patent in the United States: subject matter
protected, requirement for protection, when protection begins,
duration, and infringement. There's also a sixth practical one:
cost.
Subject matter: A copyright covers "works of authorship," which
essentially means literary, dramatic, and musical works,
pictorial, graphic, and sculptural works, audio-visual works,
sound recordings, pantomimes and choreography. A patent covers an
invention, which essentially means a new and non-obvious useful
and functional feature of a product or process.
Requirement for protection: In order for a work to be copyrighted,
it must be original and fixed in a tangible medium of expression;
no formalities are required (see Q3). In order for an invention
to be patented, it must be novel (i.e., new), non-obvious, and
useful and a patent must be issued by the United States Patent and
Trademark Office.
Start of protection: Copyright protection begins as soon as a work
is created. Patent protection does not begin until the patent is
issued.
Duration: A copyright generally lasts for the life of the author,
plus 50 years (see Q4). In the U.S., a patent lasts for 17 years
from the date granted (in some nations, particularly Japan and
most European nations, the duration is 20 years, and is measured
from date of application).
Infringement: For a copyright to be infringed, the work itself
must have actually been copied from (either wholly or to create a
derivative work), distributed, performed, or displayed. If a
person other than the copyright owner independently comes up with
the same or a similar work, there is no infringement. In
contrast, a patent confers a statutory monopoly that prevents
anyone other than the patent holder from making, using, or selling
the patented invention. This is true even if that person
independently invents the patented invention.
Cost: A copyright is essentially free. Even if you want to
register the copyright, the cost is only $20, and the paperwork is
much less complicated than the 1040A short form for filing your
income tax, well within the capabilities of the person registering
the copyright. A patent, on the other hand, is much more costly;
there are fees to the Patent and Trademark Office, and the patent
application process is much more complex, usually requiring the
services of a registered patent agent (and perhaps a lawyer) to
draft and prosecute the application, adding to the cost.
Philosophically, you can look at a copyright as protecting the
author's rights that are inherent in the work; in contrast, a
patent is a reward of a statutory monopoly to an inventor in
exchange for providing the details of the invention to the public.
Q21) Why is there so little in this FAQ about patents?
Peter Treloar, the moderator of comp.patents, currently maintains
a FAQ devoted exclusively to patents, and duplicating his effort
here would be needlessly redundant.
The comp.patents FAQ is periodically posted to the Usenet
comp.patents newsgroup. A current copy is available by anonymous
FTP from rtfm.mit.edu, in the /pub/usenet/comp.patents/ directory,
in the file "[ADMIN]_Comp.patents_FAQ." If you do not have access
to anonymous FTP, you may obtain it via the MIT mail server by
sending an electronic mail message to mail-server@rtfm.mit.edu,
consisting of a single line reading:
send usenet/comp.patents/[ADMIN]_Comp.patents_FAQ
in the body of the message. The subject of the message is
immaterial.
Q22-27) [reserved]
Q28) What international treaties exist governing copyright, or
"What is this Berne Convention I keep hearing about?"
The two major treaties governing copyright are the Berne
Convention (U.S. Senate Treaty Doc. 99-27, KAV 2245, 1 B.D.I.E.L.
715; also reprinted at 17 U.S.C.A. 104). and the Universal
Copyright Convention (U.C.C.), (25 U.S.T. 1341, T.I.A.S. 7868, 1
B.D.I.E.L. 813 (1971 Paris text); and 6 U.S.T. 2731, T.I.A.S.
3324, 216 U.N.T.S. 132 (1952 Geneva text)). (Note: the
abbreviation U.C.C. to denote the Universal Copyright Convention
should not be confused with the same abbreviation to denote the
Uniform Commercial Code.)
The Berne Convention for the Protection of Literary and Artistic
Works was established in 1886 in Berne, Switzerland. The text has
been revised, and the current edition (and the one to which the
United States and most other nations are a signatory) is the 1971
Paris text. The treaty is administered by the World Intellectual
Property Organization (WIPO), an international organization
headquartered in Geneva, Switzerland.
The Berne Convention has four main points: National treatment,
preclusion of formalities, minimum terms of protection, and
minimum exclusive rights.
National treatment: Under Berne, an author's rights are respected
in another country as though the author were a national (citizen)
of that country (Art. 5(1)). For example, works by U.S. authors
are protected by French copyright in France, and vice versa,
because both the U.S. and France are signatories to Berne.
Preclusion of formalities: Under Berne, copyright cannot be
dependent on formalities such as registration or copyright notice
(Art. 5(2)). However, as noted in Q5 and Q7, this provision
apparently does not prevent a member nation from taking adherence
to formalities into account when determining what remedies apply.
Minimum terms of protection: Under Berne, the minimum duration
for copyright protection is the life of the author plus 50 years
(Art. 7(1)). Signatory nations may have provide longer durations
if they so choose.
Minimum exclusive rights: Under Berne, a nation must provide for
protection of six rights: translation (Art. 8(1)), reproduction
(Art. 9(1)), public performance (Art. 11(1), and Art. 11ter),
adaptation (Art. 12), paternity (Art. 6bis(1)) and integrity (Art.
6bis(1)). In certain of these areas, U.S. copyright law does not
quite align with Berne. For example, Berne requires that the
paternity and integrity rights endure for the same term as the
other rights (Art. 6bis(2)), while in the U.S., those rights
terminate at the death of the author (17 U.S.C. 116A(e)). The two
have been reconciled by the premise that other sources of federal
law, such as trademark, combined with the trademark, unfair
competition, and defamation laws of the individual states, satisfy
these requirements.
The Universal Copyright Convention was originally written in 1952
in Geneva. It became effective in 1955. Like the Berne
Convention, the text has been revised. As with the Berne
Convention, the most recent revision was in Paris in 1971. The
United States is party to both the 1952 Geneva text and the 1971
Paris text. The U.C.C. is administered by UNESCO, a United
Nations agency.
Like Berne, the UCC requires national treatment for authors.
However, the UCC differs from Berne in four material ways. First,
the UCC permits (but does not require) member states to require
formalities such as copyright notice and registration as a
condition of copyright (Art. III). Second, copyright duration
must be until least 25 years after the author's death or after the
first publication, depending on whether a nation calculates
duration based on the author's life or on publication (Art. IV).
Third, the UCC's provisions on minimum rights are considerably
less demanding than Berne's; the UCC demands recognition only of
the rights to reproduce, adapt, and to publicly perform or
broadcast the work. Furthermore, the UCC expressly permits a
nation to make exceptions to these rights, as long as the
exceptions do not conflict with the spirit of the treaty (Art.
IVbis). Fourth and finally, the UCC recognizes the Berne
Convention, and includes language so that, between two nations
which are signatories to both Berne and the UCC, the Berne
Convention controls and the UCC does not apply. Furthermore, if a
nation is a signatory to both conventions, and withdraws from
Berne, it will not be protected by the UCC (Art. XVII and
Appendix). These provisions were added by nations fearing that
creation of the UCC in 1955 would undermine the already existing
Berne Convention.
The United States was the primary mover behind the creation of the
U.C.C., because the formalities that existed in U.S. copyright law
at that time did not permit adherence to Berne. With the U.S.
joining Berne, and consequently abandoning the formalities that
were the driving force behind the U.C.C., the significance of the
U.C.C. is waning.
In addition to Berne and the UCC, other copyright treaties include
the 1971 Geneva Convention for the Protection of Producers of
Phonograms Against Unauthorized Duplication of Their Phonograms
(25 U.S.T. 309, T.I.A.S. 7808, 888 U.N.T.S. 67), the 1984 Brussels
Convention Relating to the Distribution of Programme-Carrying
Signals Transmitted by Satellite (T.I.A.S. 11078), and the 1911
Buenos Aires Convention on Literary and Artistic Copyrights (38
Stat. 1785, T.S. 593, 1 Bevans 758), which regulated copyright in
the Americas. The U.S. did not sign the Buenos Aires Convention
when it was revised in 1948, and all of its signatories are now
also signatories to either or both of Berne or the UCC. The
Buenos Aires Convention is now essentially a dead letter in
international copyright law.
The texts of both versions of the U.C.C., the Buenos Aires
Convention, and the Geneva Convention, are in Circular 38c,
"International Copyright Conventions," available from the
Copyright Office (see Q30). Texts of the Berne Convention and the
U.C.C. are available by anonymous FTP from the Multilaterals
Project (see Q31).
Q29) Is Freedonia a signatory to either the Berne Convention or to
the Universal Copyright Convention?
The answer to Q28 is generally almost always followed by a query
as to whether a specific country has signed one or more of the
conventions, so the following lists provide that information.
This data comes from the January 1992 edition (the most current)
of Treaties In Force, with some supplemental information as noted.
The lists only cover whether the nation listed signed the
convention, as opposed to one or more of the optional protocols
associated with the convention. For example, Protocol 1 of the
U.C.C. establishes that stateless persons are to be considered
nationals of the nation within which they reside for purposes of
the convention; a number of nations have signed the U.C.C., but
have not signed that protocol. If you really want to get down to
that level of detail, consult a current edition of Treaties In
Force.
If you're interested in knowing more detail about what copyright
treaties are in effect between the U.S. and a particular nation,
there is a table in the back of Treaties In Force containing an
alphabetical list of countries, listing the copyright treaties
(both unilateral and multilateral) to which it is a party with the
U.S., including the dates on which each treaty entered into force.
This table is also reproduced in the Copyright Office's Circular
38a, "International Copyright Relations of the United States,"
contains You can order it from the Copyright Office (see Q30).
This circular is also included in Copyright Office information kit
100. A similar table is included as an appendix in the Nimmer
treatise (see Q30).
Note that, while the U.S.S.R. is listed as a signatory to the 1952
Geneva text of the U.C.C., the status of the former soviet states
is unclear at this time. IUve been told that Russia and some of
the other newly independent states have announced that they will
honor nearly all of the treaties of the former Soviet Union.
Other states, for example, Estonia, Latvia, and Lithuania, take
the position that they were never legally part of the Soviet
Union, and that treaties entered into by the Soviet Union are
totally irrelevant to their international obligations.
In addition, IUve been cited to an article entitled "Post-Soviet
Law: The Case of Intellectual Property Law," by Peter Maggs (an
attorney and professor at University of Illinois at Urbana-
Champaign) in the Harriman Institute Forum, Vol. 5, No. 3 (Nov.
1991), pp. 3-9. Professor Maggs reportedly concludes that, under
international law, all newly independent states that were
previously legitimate parts of the USSR (i.e., all except Estonia,
Latvia, and Lithuania), remain bound by the UCC, although whether
they actually have functional copyright protection is another
matter altogether.
Thank you to <marlen@sovam.com> for contacting Professor Maggs and
providing me with most of the information in the preceding two
paragraphs.
In addition, in May 1993, the TASS news agency reported that
Russia has enacted a new copyright law that is Berne-compliant, in
preparation for an anticipated signing of the Berne Convention.
The following nations are signatories to the Berne Convention
(1971 Paris text): Argentina, Australia, Austria, the Bahamas,
Barbados, Belgium, Benin (formerly Dahomey), Brazil, Bulgaria,
Burkina Faso (formerly Upper Volta), Cameroon, Canada, the Central
African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Cote
d'Ivoire (Ivory Coast), Cyprus, Czechoslovakia, Denmark, Ecuador,
Egypt, Fiji, Finland, France, Gabon, Germany, Ghana, Greece,
Guinea, Holy See (Vatican City), Honduras, Hungary, Iceland,
India, Ireland, Israel, Italy, Japan, Lebanon, Lesotho, Liberia,
Libya, Liechtenstein, Luxembourg, Madagascar (Malagasy Republic),
Malawi, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico,
Monaco, Morocco, the Netherlands, New Zealand, Niger, Norway,
Pakistan, Peru, Philippines, Poland, Portugal, Romania, Rwanda,
Senegal, South Africa, Spain, Sri Lanka (formerly Ceylon),
Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and
Tobago, Tunisia, Turkey, the United Kingdom, the United States,
Uruguay, Venezuela, Yugoslavia, Zaire, and Zimbabwe. According to
U.S. State Department Dispatches published since January 1992,
additional nations to sign Berne include Gambia (Dec. 12, 1992),
China (July 10, 1992) and Kenya (March 11, 1993).
The following nations are signatories to the Universal Copyright
Convention (1971 Paris text): Algeria, Australia, Austria, the
Bahamas, Bangladesh, Barbados, Bolivia, Brazil, Bulgaria,
Cameroon, Colombia, Costa Rica, Cyprus, Czechoslovakia, Denmark,
the Dominican Republic, Ecuador, El Salvador, France, Germany,
Grenada, Guinea, Hungary, Italy, Japan, Kenya, Korea, Mexico,
Monaco, Morocco, the Netherlands, Norway, Panama, Poland,
Portugal, St. Lucia, St, Vincent and the Grenadines, Senegal,
Seychelles, Spain, Sri Lanka (formerly Ceylon), Sweden, Trinidad
and Tobago, the United Kingdom, the United States, Vatican City,
and Yugoslavia.
The following nations are signatories to the Universal Copyright
Convention (1952 Geneva text): Algeria, Andorra, Argentina,
Australia, Austria, the Bahamas, Bangladesh, Barbados, Belgium,
Belize, Bolivia, Brazil, Bulgaria, Cambodia, Cameroon, Canada,
Chile, Colombia, Costa Rica, Cuba, Cyprus, Czechoslovakia,
Denmark, the Dominican Republic, Ecuador, El Salvador, Fiji,
Finland, France, Germany, Ghana, Greece, Grenada, Guatemala,
Guinea, Guyana, Haiti, Holy See, Hungary, Iceland, India, Ireland,
Israel, Italy, Japan, Kenya, Korea, Laos, Lebanon, Liberia,
Liechtenstein, Luxembourg, Malawi, Malta, Mauritius, Mexico,
Monaco, Morocco, the Netherlands, New Zealand, Nicaragua, Nigeria,
Norway, Pakistan, Panama, Paraguay, Peru, Poland, Portugal, St.
Lucia, St, Vincent and the Grenadines, Senegal, Seychelles, Spain,
Sri Lanka (formerly Ceylon), Sweden, Switzerland, Tunisia, the
Union of the Soviet Socialist Republics, the United Kingdom, the
United States, Venezuela, Yugoslavia, and Zambia.
Q30) Where can I get more information on copyright?
The U.S. Copyright Office General Information Package 118 provides
general information on copyright law. Copyright Office Circular
2, "Publications on Copyright," provides a complete list of
publications relating to copyright which are available from the
Copyright Office.
These materials and many others may be ordered (generally free of
charge) by calling the Copyright Office Hotline at 202-707-9100
and leaving a voice mail message. Call the Hotline only if you
already know the number of the publication you want. If you don't
know the publication number, the Copyright Office maintains a
prerecorded information line at 202-707-3000. This line provides
an automatic voice mail attendant that provides information
according to responses presented from a touch-tone keypad. Much
of the information in Q6 was obtained from this information line.
The book "Intellectual Property in a Nutshell," by Arthur R.
Miller of Harvard Law School and Michael H. Davis of Cleveland-
Marshall College of Law (West Publishing, 1990, ISBN 0-314-75738-
4), provides a fine introduction not only to copyright law, but
also to patent and trademark law. It's typically available from
college or law school bookstores for about $15.
The authoritative secondary source for information on copyright is
the five-volume loose-leaf opus, "Nimmer on Copyright."
Originally written and maintained by the late Professor Melvin
Nimmer and now maintained by his son, David Nimmer, this is the
most respected source of copyright information, short of the texts
of the statutes, regulations, and cases themselves. Nimmer is
frequently cited by courts, including the U.S. Supreme Court, as
an authority to justify their opinions. I've been surprised to
find short essays on even the most obscure copyright questions
(e.g., whether a food recipe is subject to copyright). I heartily
recommend it as an initial source for research. It is, however, a
bit dense for casual reading.
Several readers have recommended L. Ray Patterson & Stanley W.
Lindberg, "The Nature Of Copyright" (1991), ISBNs 0-8203-1362-9
(paperback) and 0-8203-1347-5 (hardback). Patterson and Stanley
reportedly argue for a broad interpretation of a user's rights in
a work, and a more narrow interpretation of the right of the
copyright holder. Be aware that this interpretation may or may
not match the law of your jurisdiction.
In preparing this FAQ, I consulted the casebook that was used in
my Copyright class in Fall of 1991 at Santa Clara University
School of Law: Joyce, Patry, Leaffer and Jaszi, "Copyright Law,
Second Edition" (1991), ISBN 0-8205-0115-8. Like most casebooks,
it contains edited versions of most of the landmark decisions in
the law, including most of the cases that are cited in this FAQ.
It's not for beginners, but it's well-written, and often contains
illustrations of the works being discussed in the cases (a very
useful feature, since copyright questions often turn on questions
of similarity or originality that can only be determined by seeing
the work). The book's best features are a good review of the
history of copyright, an excellent description of the
international treaties covering copyright, and a detailed
bibliography at the end of each chapter. An unfortunate feature
is the index, which is not the best organized, and often provides
incorrect page numbers (perhaps because of the editors' hurry to
include the Feist case that had been decided only a few months
before the book was in stores).
Nolo Press publishes two books on copyright for the lay reader:
"The Copyright Handbook: How to Protect and Use Written Works," by
Stephen Fishman, ISBN 0-87337-130-5 ($24.95) and "How to Copyright
Software," by M.J. Salone, ISBN 0-87337-102-X ($39.95). My
knowledge of these books is limited to the entries in the catalog,
but Nolo Press generally enjoys an excellent reputation for
publishing accurate and understandable books on law. Nolo's
telephone number is (510) 549-1976.
Q31) What materials related to copyright are available on the
Internet?
The following is a list of materials relating to copyright that I
have been able to verify are available on the Internet.
STATUTES:
- FATTY.LAW.CORNELL.EDU -
Most portions of the current copyright law have been made
available by Cornell University. To review the statute, enter the
command
telnet fatty.law.cornell.edu 8210
and sign on with a user ID of "www." No password is necessary.
This will allow you to use the World Wide Web software to navigate
the copyright law. It also includes access to the Berne
Convention.
TREATIES:
- THE MULTILATERALS PROJECT -
The Fletcher School of Law and Diplomacy maintains the
Multilaterals Project, an anonymous ftp site with a number of
multilateral treaties, at jade.tufts.edu. This archive includes
versions of both the Berne Convention and the Universal Copyright
Convention. The treaties are in directory /pub/diplomacy. The
following files are of particular interest:
README - A one-page description of the Multilaterals Project, by
Peter Stott, its director.
INDEX - An index of all the treaties and other documents
available from the project.
BH006-1971.txt - The 1971 Paris text of the Berne Convention for
the Protection of Literary and Artistic Works.
UNTS11850.txt - The 1967 Stockholm text of the Berne Convention
for the Protection of Literary and Artistic Works. The United
States is not a party to the this text.
UNTS13444.txt - The 1971 Paris text of the Universal Copyright
Convention.
In addition, The Berne Convention may also be viewed via telnet to
fatty.law.cornell.edu as noted above, under "STATUTES."
OTHER RESOURCES:
- THE CNI-COPYRIGHT MAILING LIST -
The Coalition for Networked Information (CNI) sponsors CNI-
Copyright, an Internet mailing list devoted to copyright issues.
To join, send a message to LISTSERV@CNI.ORG with a single line of
text in the body that says:
SUBSCRIBE CNI-COPYRIGHT your name
If that doesn't work, send a message to CRAIG@CNI.ORG (Craig
Summerhill) and ask him to manually add you to the list. After
joining, messages may be sent to the list at CNI-
COPYRIGHT@CNI.ORG.
Archives of the CNI-COPYRIGHT list are available and may be
searched online via telnet. To access them, telnet to a.cni.org,
login with the ID "brsuser" (no password is required), and follow
the instructions presented. CNI-COPYRIGHT archives are in the
COPY database.
CNI is a not for profit corporation and is a joint project of the
Association of Research Libraries (ARL), CAUSE, and EDUCOM. It
promotes the creation of and access to information resources in
networked environments in order to enrich scholarship and to
enhance intellectual productivity.
- COPYRIGHT GUIDE FOR PHOTOGRAPHERS -
FTP site moink.nmsu.edu (128.123.4.58) has a repository,
/pub/rec.photo, for files related to photography. Among the files
contained in this directory is the Copyright Guide For
Photographers, produced by the American Society of Media
Photographers, Inc. While the Guide is particularly oriented
towards photographers, much of the information it provides will be
of use to anyone interested in copyright. The file
asmp-copyright-guide is an ASCII version of this document. A TeX
version is also available, in asmp-copyright-TeX.tar.z.
- USENET NEWSGROUPS -
There are several newsgroups that from time to time discuss
copyright issues.
misc.int-property: Discussions of intellectual property;
copyright, patent, trademark and trade secrecy, and their
alternatives.
misc.legal.computing: Legal issues related to computers.
Copyright and patent issues predominate.
misc.legal: the main newsgroup covering legal issues, including
copyright law.
comp.patents: Moderated newsgroup discussing issues related to
computers and patents, including software patents. The newsgroup
is moderated by patents-request@cs.su.oz.au (Peter Treloar).
Please note that the focus of this group is more on patent law
than copyright law.
comp.software.licensing: Trends, practices, and techniques in
software licensing.
gnu.misc.discuss: Discussions in this group frequently include
issues of software patents, copyright, and "copyleft."
Q32) How can I get a current copy of the Copyright FAQ?
This FAQ is posted periodically to the Usenet newsgroups
misc.legal, misc.legal.computing, and misc.int-property. I am
currently looking into complying with the requirements for posting
it in the news.answers and related newsgroups, at which time it
will be available via the standard FTP resources.
APPENDIX: A note about legal citation form, or, "What's all this
'17 U.S.C. 107' and.'977 F.2d 1510' stuff?"
Citations to legal materials can be intimidating when first
encountered. The purpose of this entry is to provide a short
description of the legal citations used in this article to reduce
that intimidation. It's not intended as a be-all and end-all to
legal research, but just a way of letting you find the sources
that are cited in this FAQ if you head to a law library. If you
don't care about looking up any of the legal materials cited in
this FAQ, skip this entry.
CASES: Cases are reported in books called "reporters." A
reporter generally consists of a series of bound volumes. Often
when the volume number becomes too high, the reporter publisher
starts over with volume 1, designating the new set as a "second
series," "third series," etc., as appropriate.
Because copyright is almost entirely a matter of federal law, most
(if not all) cases referenced in this FAQ are federal cases. The
most common reporters (with their abbreviations shown in
parentheses) are:
United States Reports (U.S.) - This is the official reporter for
cases from the United States Supreme Court. This is the standard
reporter reference provided when referencing a Supreme Court case.
If a case is especially recent, it may not yet be published in the
U.S. Reports, in which case, the proper reference is to one of the
unofficial reporters (either the Supreme Court Reporter or the
Lawyers' Edition).
The unofficial reporters are also cross-indexed by the U.S.
Report's volume and page numbers, so that given a citation to a
case in the U.S. Reports, you should be able to also find it in
either of the unofficial reporters. The converse is not true: if,
for example, you have a citation to the Supreme Court Reporter,
you will not be able to find the case in the U.S. Reports. All
law libraries carry a set of books called Shepard's Citations,
which will permit you to cross-reference this way. See your law
librarian for help using these intimidating-looking books.
Supreme Court Reporter (S.Ct.) - This is an unofficial reporter
published by West Publishing. It too reports cases from the
United States Supreme Court. The advantages of this reporter is
that it comes out more quickly than the official reporter, and
also includes West's headnotes and case summaries.
United States Supreme Court Reporter, Lawyers' Edition (L.Ed.) -
This is another unofficial reporter, similar to the Supreme Court
Reporter, but published by the Lawyers Cooperative Publishing Co.
In addition to the advantages offered by the Supreme Court
Reporter, it often includes short essays (called annotations) on
points of law dealt with in a case.
Federal Reporter (F.) - This is an unofficial reporter, published
by West, that reports cases from the various United States Courts
of Appeal. There is no official reporter for these cases, and the
Federal Reporter de facto fills that role.
Federal Supplement (F.Supp) - This is an unofficial reporter,
published by West, that reports cases from the various United
States District Courts (that is, from the courts of "original
jurisdiction," where trials are originally held and often appealed
to the higher courts). There is no official reporter for these
cases, and the Federal Supplement de facto fills that role.
United States Patent Quarterly (U.S.P.Q.) - This is a topical
reporting service from the Bureau of National Affairs (BNA). It
reports cases from various courts, but because it's a "topical
reporter," it only reports cases dealing with a certain topic, in
this case, intellectual property (despite its name, it's not
limited to patent cases).
This is only a very small subset of the reporters and services
that report cases. For a more complete list, see "The Bluebook: A
Uniform System of Citation, 15th Edition," in particular, tables
T.1 (United States Jurisdictions), T.2 (Foreign Jurisdictions) and
T.16 (Services).
The standard way of referencing a case is in the format:
case-name volume-number reporter [series, if applicable] page-
number (jurisdiction, date)
"Jurisdiction" is omitted for U.S. Supreme Court cases; the fact
that the reporter is U.S., S.Ct., or L.Ed. is enough to show that
it's a U.S. Supreme Court case. If two page numbers are included,
the first page number is the page on which the case begins, and
the second is the page that contains the particular point being
referenced (called a "pinpoint cite" or "jump cite").
Here is an example of a case citation:
Sega v. Accolade, 977 F.2d 1510, 1520 (9th Cir., 1993).
From this citation, we know that the parties in the case are Sega
and Accolade; the case is reported in volume 977 (second series)
of the Federal Reporter; the case begins on page 1510, but the
particular point being referenced is on page 1520; the case was
decided in the 9th Circuit Court of Appeals, in 1993.
STATUTES: A federal statute is generally enacted as a "public
law," and is assigned a P.L. number. This number indicates the
Congress in which it was enacted, and the law number within the
Congress. For example, the Copyright Act of 1976 was the 553rd
law enacted by the 94th Congress, and so is officially catalogued
as P.L. 94-553. If you know the P.L. number of a law, you can
generally find it in the United States Code Congressional and
Administrative News (U.S.C.C.A.N.), or in Statutes at Large (see
below) easily.
Once enacted, Public Laws are catalogued in a official statute
list called "Statutes At Large." Citations to Statutes at Large
("Stat.") are similar to that for cases: volume, service
identifier, and page number. For example, the Copyright Act of
1976 may be cited as 90 Stat 2541, meaning that it is in Statutes
At Large, volume 90, page 2541.
However, most statutes, as enacted, are not very useful to read.
They're generally written in a style saying that a prior act is
amended by adding certain words or phrases, and deleting others.
Without seeing the context of the modified portion, you really
can't see what the statute actually does.
This problem is handled by statutory codifications. In
particular, most U.S. laws are organized into "titles" of the U.S.
Code (U.S.C.). Each title governs a particular area of law. For
example, Title 17 deals with copyright law. These codifications
are periodically updated by taking the original laws and applying
the modifications made by subsequent laws so that the result is
the text of the law as it is in effect today. In practice, almost
every citation to law (including the majority of those in this
FAQ) are to the U.S.C., not to the individual public laws.
A typical citation to the U.S.C. looks like this: 17 U.S.C. 107.
This is a reference to U.S. Code, Title 17, section 107 (which
happens to be the fair use provisions of copyright).
While there is an official U.S. Code published by the U.S.
government, there are two commercially published versions of the
code, too. These are West Publishing's U.S. Code Annotated
(U.S.C.A.) and Lawyers Cooperative Publishing Co.'s U.S. Code
Service (U.S.C.S.). In practice, because of the private versions
are frequently updated, and contain extras such as cross-
references to other statutes, cases, law review articles and other
resources, they are used far more frequently than the official
U.S.C.
REGULATIONS: In addition to statutes passed by Congress, law also
comes in the form of regulations promulgated by the various
federal agencies. In the case of copyright, the regulations we're
most interested in are those promulgated by the Copyright Office.
Regulations become effective by publication of the regulation in
the Federal Register (Fed. Reg.). Like statutes, they are then
periodically codified, in this case in the Code of Federal
Regulations (C.F.R.). Usually, regulations are cited to the
C.F.R. for the same reason that statutes are usually cited to the
U.S.C. However, the promulgation documents as published in the
Federal Register include not only the regulation itself, but
usually information justifying or explaining the regulation, so
occasionally the Fed. Reg. citation is used.
Here are some examples of citations to a regulation, in this case,
to a regulation preventing registration of a copyright in a blank
form:
45 Fed. Reg. 63297, 63299 (Sep. 24, 1980). (Federal Register
volume 45, beginning on page 63297, with a pinpoint cite to page
63299.)
37 C.F.R. 202.1(c) (1992). (the same regulation, as codified in
the C.F.R.)
TREATIES: Treaties are compiled in several treaty sources. If
the U.S. is a party, the treaty will generally be found in United
States Treaties and Other International Agreements (U.S.T.) or
Treaties and Other International Acts Series (T.I.A.S.). In some
cases (especially with older treaties signed before the State
Department took on their publication), they'll be in Statutes at
Large; in some case (especially with important newer treaties not
yet published by the State Department), they'll be in the private
versions of the U.S. Code.
If the U.S. is not a party, the treaty won't be in the above
sources. It might be found the United Nations Treaty Series
(U.N.T.S.) (or the League of Nations Treaty Series (L.N.T.S.) for
older treaties), the Pan-American Treaty Series (Pan-Am. T.S.) or
European Treaty Series (Europ. T.S.).
In addition, treaties may be found in many unofficial
compilations, e.g., International Legal Materials (I.L.M.), Basic
Documents of International Economic Law (B.D.I.E.L.), Bevans, and
Kavass (KAV).
This is only a small list of treaty sources. For more sources,
see "The Bluebook: A Uniform System of Citation, 15th Edition," in
particular, table T.4 (Treaty Sources).
Generally, treaties are cited in the standard way: volume number,
reporter, and page number (e.g., the Berne Convention is 1
B.D.I.E.L. 715). A few series (e.g., T.I.A.S. and Europ. T.S.)
are cited by treaty number within the series, with no volume
number specified.
The document "Treaties In Force" lists all the treaties to which
the U.S. is a party, and it lists all the other nations that are
also a party. This is a good source to find out if a particular
nation is a signatory to a particular treaty.
One final note on treaties: In Q28, many citations to treaties
look like typographical errors: "Art. 6bis" and "Art. 11ter," for
example. Well, these aren't typos. "bis," "ter, and "quater" are
suffixes derived from the French words for "second," "third," and
"fourth," respectively These suffixes are used when a treaty has
already been written, and a revision will insert a new article
between already existing articles. This avoids the need to
renumber the treaty articles, and so provides a consistency
between multiple revisions of the treaties. For example, Article
6bis of the Berne Convention is an article that was inserted
between Article 6 and Article 7 when the convention text was
revised. (This is also the reason why some 9600 baud modems are
advertised as supporting the V.32 protocol, while others support
V.32bis, in case you've ever wondered.)
--
The above is my thoughts, not Amdahl's; | Terry Carroll 408/992-2152
The above is not legal advice; | Senior Computer Architect
Contents sold by weight, not by volume; | Amdahl Corporation
Your mileage may vary. | tjc50@juts.ccc.amdahl.com