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Copyright Registration for Faculty Authored Works
Works created by faculty may belong exclusively to them or may be the property of the University, depending upon the circumstances of their creation, as set forth in the Regents' Rules Series 90101: General Rules for Intellectual Property .1 If the University owns the work, it will determine whether to register the copyright and be responsible for enforcement. If the faculty member owns the work, he or she will make such decisions and take such steps to protect the work as desired. The following materials describe the mechanics of copyright registration and enforcement for faculty who wish to register their copyrights.
1. The basics of copyright protection.
Copyright covers original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. (From 17 U.S.C. Section 102.) This means that, without the author's doing any more than simply creating the work, the work is protected by the copyright law.
There are several special benefits of registering a copyright, but there are legislative proposals to remove these benefits. It is not clear at this time whether these proposals will become law; however, at this time, it is advisable to register copyrights if you wish to be able to take advantage of the special remedies (ie., if you would sue someone to enforce your copyrights). For example, for a work that is registered, the author may receive statutory damages of up to $100,000 for each willful infringement, without having to actually prove what her damages were; that is the meaning of statutory damages - those damages provided by statute regardless of actual damages, which are hard to prove in most cases.
2. Registration and deposit.
The Copyright Office maintains an extensive collection of Circulars and Forms to help authors register their works.
These are the documents that I use to prepare applications for registration of literary works and software:
3. Enforcement.
If an author discovers that her work is being infringed, her response should be quick and explicit: direct the infringer to stop the infringement by a date certain or risk a lawsuit. The law provides fairly severe penalties for infringement; infringement can be shown by way of circumstantial evidence since direct evidence is rarely available; and the state of mind of the infringer is irrelevant except in narrow circumstances where he might reasonably believe that the copying or other use would have been a fair use. This means that an infringer does not have to know that what he is doing is against the law; if he copies, he is liable regardless of what he thought about it.
Thus, a simple letter will often terminate many infringements, especially if the alleged infringer confers with counsel. For cases where the infringement is not so clear, as where the copying may be de minimus, or where the taking is more correctly characterized as the borrowing of ideas rather than expression, further communications may be required.
1 System's Intellectual Property Policy ("Policy") permits faculty members to own copyright in scholarly works in their fields of expertise. Faculty members thus hold copyright in materials they create on their own initiative in the course of the performance of their teaching responsibilities. System's Policy allocates ownership of copyright in works created under contract as works for hire to the Board of Regents. Thus, materials will belong to the Board if created as a result of a specific contractual arrangement or other special relationship. For example, the Board would own copyright in telecourse materials created by faculty members who were hired to create the materials. The owner of the copyright should secure copyright registration and bear responsibility for enforcement of the copyright.
In accordance with System Policy, faculty members shall receive all royalties that may accrue from the commercialization of materials they create on their own initiative. On the other hand, Board shall retain all royalties that may accrue from the commercialization of works created pursuant to contract as a work for hire, including instructional materials created by employees who were hired to create them. Other circumstances may require review on a case-by-case basis (such as a faculty member creating a Telecourse on his or her own initiative but using extraordinary amounts or kinds of University facilities to create or distribute the materials).