Sunday, March 29, 2009

How to Ensure Ownership of a Copyright Authored by Another by Brian A. Hall

Two scenarios occur most often when the question arises as to how to be sure you own the copyright rather than the employee or independent contractor who authored/created the particular work. The first situation arises when, as an employer, your employee creates a particular work for you. The second situation arises when you contract with a third party to create the work for you and whatever use you intend for that work. Both of these situations implicate what is known as the work made for hire doctrine under the United States Copyright Act.

If the work was prepared by an employee of the employer within the scope of that employee's employment, then the work is considered a work made for hire, and all rights are retained by the employer. These rights include not only the right of ownership, but the employer is also considered the author of the copyright. It is important to recognize that several factors will be considered when determining whether or not an individual is indeed an employee, and these considerations are consistent with the common laws of agency.

The more difficult situation arises when an individual contracts with a third party to create a particular work. In this situation, there are different options available to ensure that you, as the individual contracting with the third party, have rights in the work. In order to qualify as a work made for hire under the statute, the work must be specially ordered or commissioned by you, the work must come within one of the nine enumerated categories of works set forth in the Copyright Act, and there must be a written agreement in advance that notes the work is indeed a work made for hire (with those words used).

It is important to recognize that having an independent contractor merely execute a work for hire agreement may not be sufficient unless each of these factors is satisfied. For example, if the work does not fit within one of the nine enumerated categories of works, a work for hire agreement is essentially without legal effect. Finally, there is a down side to a work for hire agreement. In particular, the duration of ownership with a work for hire is 95 years from publication rather than the usual duration of life of the author plus 70 years.

Therefore, as an alternative, a copyright assignment agreement may be favorable. Such an agreement would assign rights and title to the work to you. That said, the original author maintains designation as author, but you become the owner of all other rights if the agreement is properly drafted. While the drafting of a copyright assignment agreement is specific to the particular situation, it is important that all moral rights to the work, including the right of attribution and the right of integrity, are severed so as to prevent the author requiring you to include his or her name among every distribution of the work. Like any other kind of contract, the agreement must also set forth all other terms including, but not limited to, consideration, any representations and warranties, and the critical dates and signatures.

Finally, in order to avail yourself of all benefits of a copyright registration with the Library of Congress, namely the U.S. Copyright Office, it is beneficial to file the work under the appropriate designation. Since the author of the work must be noted within a filing, it will be important to understand whether there was a work for hire agreement or an assignment agreement created to show which rights have indeed been transferred to you.

Ultimately, whether or not a particular work is indeed a work for hire, whether the copyright assignment agreement or a typical work for hire agreement is preferred, and the best way to proceed with registration depend on the specific facts of each situation. Therefore, it is important to think about these issues and address them early in order to ensure that you have copyright protection and are in a strong position to deal with any potential copyright infringement in the future.

Brian A. Hall is an attorney and partner of Traverse Legal, PLC, a law firm focused on complex litigation, intellectual property matters, internet law and trademark registration and prosecution. Speak with a copyright attorney today and learn more about the importance of understanding the intricacies of infringement of copyright and other copyright issues. Website:

Sunday, March 15, 2009

Authors, journal editors respond to possible cases of plagiarism

By bringing cases of potential plagiarism out into the open, researchers at UT Southwestern Medical Center have shed light on the peer-review process and scientific publication.

In the past two years, UT Southwestern researchers have used a computer-based text-searching tool they developed, called eTBLAST, to analyze millions of abstracts randomly selected from Medline, one of the largest databases of biomedical research articles. They turned up nearly 70,000 highly similar citations.

Their subsequent analysis of a small sampling of these, including human inspection of the articles in question, revealed 207 pairs of articles with signs of potential plagiarism.

Now, in a commentary appearing in the March 6 issue of Science, the UT Southwestern researchers outline the wide range of reactions they received when they followed up with both victims and perpetrators of possible misconduct, as well as responses from journal editors.

"Studying these reactions might help to illuminate the reasons for such misconduct and might provide a way for the scientific community to prevent such activity in the future," said Dr. Harold "Skip" Garner, professor of biochemistry and internal medicine at UT Southwestern and senior author of the Science article, which appears in the Policy Forum section of the journal.

Dr. Garner and his colleagues sent 162 sets of questionnaires to the authors of original articles and to the authors of highly similar articles published later. Surveys also were sent to the editors of each journal in which the similar papers appeared. They received a reply in 143 cases. All respondents were guaranteed anonymity.

"Although our goal was merely to solicit information, our questionnaire triggered 83 internal investigations by editors, 46 of which have led to retraction," Dr. Garner said.

On the other hand, Dr. Garner said, nearly half of the duplications brought to light have received no action. In addition, on 12 separate occasions, editors specifically indicated that cases involving their journal would not be reviewed.

This variation in feedback reveals a great deal about the attitudes and motivation of scientists around the globe, including why some journal editors do not pursue obvious cases of duplication, Dr. Garner and his colleagues note. They speculate that some editors may not want to deal with the added stress of conducting a thorough investigation, while others might feel it would bring bad publicity or reflect poorly on their journal's review process.

The Science article and supplemental material available on the journal's Web site also include excerpts from statements made by authors and editors. The comments reveal many perspectives in response to being presented with evidence of possible plagiarism.

For example, before receiving the questionnaire, 93 percent of the original authors were not aware of the duplicate's existence. The responses from duplicate authors were more varied, however. Of the 60 replies, 28 percent denied any wrongdoing; 35 percent admitted to having borrowed previously published material; and 22 percent were from co-authors claiming no involvement in the writing of the manuscript. An additional 17 percent said they were unaware their names appeared on the article in question.

Of the 174 journal editors who responded, 11 admitted they had never personally dealt with a potentially plagiarized manuscript and were unaware how to proceed.

"The majority of these editors showed deep concern and were open to any helpful suggestions or recommendations we could offer," said Dr. Garner, who is a faculty member in the Eugene McDermott Center for Human Growth and Development at UT Southwestern.

"Our objective is to make a significant impact on how scientific publications may be handled in the future," Dr. Garner said. "As it becomes more widely known that there are tools such as eTBLAST available, and that journal editors and others can use it to look at papers during the submission process, we hope to see the numbers of potentially unethical duplications diminish considerably."

Songwriters Rights Violated on The Internet

Songwriters and composers know that their material is at risk on the Internet. What they don't know is that many of the sites where their songs are seen have potentiually-dangerous 'Terms and Conditions' that place their songs in jeopardy., a new, independent facility for Songwriters, allows users to auto-copyright their songs before releasing them on-line.

A new songwriters' website,, aims to help Songwriters, Composers and Authors of 'Intellectual Property' to prevent misuse and the blatant theft of their copyright materials on the World Wide Web.

Controversial 'End User Licence Agreements' used by many websites are causing concern by potentially infringing upon Songwriters' copyrights by simply clicking the 'Accept' box when joining a website, Email service or loading a song onto the 'net.

Scots musician and songwriter, Norman MacLeod, has launched a new Internet site for songwriters. allows songwriters, composers and musicians to copyright their music and songs instantly, on-line and establish full ownership of their material before subjecting it to the contentious T&Cs of most websites and rearch engines.

"We've all done it. We're all guilty," says Norman. "We open a webpage, or join an on-line community, or download a program. At the bottom, it says 'I Accept the Terms and Conditions', or we have to click a box '... to accept the Terms and Conditions.' But who takes the time to wade through pages of boring legalese of the 'T&Cs'? We just want to get to the next page, download the program or 'join the club.

"These very 'T&Cs' very often contain clauses and 'Conditions of Use' that only a fool would agree to - conditions that actually, potentially breach the user's copyrights. Most songwriters, composers and authors are blissfully unaware of the risks they're taking on their own PC or Laptop when they 'automatically' accept 'Terms and Conditions' ".

Taking Facebook as an example out of hundreds, if not thousands of these websites where songwriters and authors post their work; by using this site, the writer agrees to grant to Facebook - ' irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide licence (with the right to sublicence) to use, copy, publicly perform, publicly display, reformat... and to grant and authorise sublicences of the foregoing.'

Or by using Yahoo! '... you grant Yahoo! the following worldwide, royalty-free and non-exclusive license(s), as applicable: audio or video... the license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the Yahoo! services...'

Everybody's favourite aunt, the all-powerful Google insists that 'By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services.'

If a songwriter or author was to be presented with such an unevenly biased - if not totally biased -contract, would he or she sign it without question? Unless he or she was nuts - and most aren't - it's highly unlikely.

While it may be argued that Internet Websites and Social Networking sites are used 'at the user's risk' or that these sites have no intention of breaching the Songwriter/Author's copyrights, one fact remains: 21st Century, Internet-empowered Songwriters and Authors may well be riisking a lot by effectively 'publishing' their work on websites - in what is now the Public Domain, before having established their own, definitive copyright.

"The Internet can be a dangerous place for songwriters and composers. Most don't realise that these one-sided 'Terms and Conditions of Use' are legally-binding Contracts. They can be absurdly abusive to the user. Any Lawyer or Attorney would strenuously advise a client against foolishly and naïvely agreeing to such preposterous - and potentially dangerous - legal agreements," adds Norman.

"Yet Songwriters and Authors blithely publish their material on these sites every day in the mistaken belief that adding the words 'Copyright by...' or the now-defunct '©' sign is their protection - while for some years past, it has been of no value at all except in the USA. On the Internet, it's now defunct and of no value legally. Creative people need to take more care than ever before when they use the 'net."

The latest figures available prove that copyright theft ran to a staggering 58 Billion dollars in the USA alone - over 6.6 million per hour - in 2007, and the trend is on the increase, as 2008 figures are going to show.

Modern songwriters and authors are increasingly becoming aware of the need to make sure that they hold definitive, common law, 'prima facie' proof at the very least, something to demonstrate conclusively that they published and thereby copyrighted their work correctly before posting their work on these public websites, whether for profit or glory.

"The Internet is a risky place to leave songs lying about," Norman observes. "Social Networking sites and Search Engines are there for everyone's convenience and enjoyment - and they're there to make billions in profits for their owners or shareholders, which they do. What would be no more than a cheeseburger and a Coke to Google would be ten years' income to the average songwriter. And those shareholders like cheeseburgers and Coke like anybody else..."

As the availability to copyright material becomes more and more wide open, through iPods, downloads, File-sharing, Websites, Ringtones, mp3s and other media still to be invented, it seems reasonable to assume that copyright material will continue to be on the 'At Risk' register for a long time to come.

'Songs at Stake: A Report on Tunes at Threat on the Net' is available free to read or as a free download at

Sunday, March 8, 2009

Two Economists Recommend Abolishing Patent and Copyright Laws

Abolishing patent and copyright law sounds radical, but two economists at Washington University in St. Louis say it's an idea whose time has come. Michele Boldrin and David K. Levine see innovation as a key to reviving the economy. They believe the current patent/copyright system discourages and prevents inventions from entering the marketplace. The two professors have published their views in a new book, Against Intellectual Monopoly, from Cambridge University Press.

"From a public policy view, we'd ideally like to eliminate patent and copyright laws altogether," says Levine, John H. Biggs Distinguished Professor of Economics. "There's plenty of protection for inventors and plenty of protection and opportunities to make money for creators. It's not that we see this as some sort of charitable act that people are going to invent and create things without earning money. Evidence shows very strongly there are lots of ways to make money without patents and copyright."

Levine and Boldrin point to students being sued for 'pirating' music on the internet and AIDS patients in Africa dying because they cannot afford expensive drugs produced by patent holders as examples of the failure of the current system. Boldrin, the Joseph Gibson Hoyt Distinguished Professor in Arts & Sciences and Chair of the economics department says, "Intellectual property is in fact an intellectual monopoly that hinders rather than helps the competitive free market regime that has delivered wealth and innovation to our doorsteps."

The authors argue that license fees, regulations and patents are now so misused that they drive up the cost of creation and slow down the rate of diffusion of new ideas. Levine explains, "Most patents are not acquired by innovators hoping to protect their innovations from competitors in order to get a short term edge over the rest of the market. Most patents are obtained by large corporations who have built portfolios of patents for defense purposes, to prevent other people from suing them over patent violations."

Boldrin and Levine promote a drastic reform of the patent system in their book. They propose the law should be restored to match the intent of the U.S. Constitution which states: Congress may "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writing and discoveries."

They call on Congress to reverse the burden of the proof on patent seekers by granting patents only to those capable of proving that:

• their invention has social value

• a patent is not likely to block even more valuable innovations

• the innovation would not be cost-effective absent a patent

The authors acknowledge that such drastic reform is unlikely and outline an incremental approach for Congress to gradually reduce the scope of patents, regulation and licensing.

Nevertheless, their call for changing the system is urgent. The economists compare intellectual monopoly ( patents ) to medieval trade monopolies which were proven to be economically detrimental. They write, "For centuries, the cause of economic progress has identified with that of free trade. In the decades to come, sustaining economic progress will depend, more and more, on our ability to progressively reduce and eventually eliminate intellectual monopoly."

Professors Boldrin and Levine maintain a blog on this topic:

Sunday, March 1, 2009

Domain name registration and copyright infringement by Stanley Spencer

A very important question arises in the early stages of development of a web site - what would be the most appropriate domain name? Domain names are representative of the address for a web site, and there is a rising trend of incidents of disputes over domain name registration with increased usage of Internet.

There are numerous factors that have led to a crisis of domain registration disputes and this, in turn, has led to a rapid increase in the reported cases of infringement of domain names. Several companies have taken legal action against other companies or individuals over alleged copyright violation on the domain names.

There are some basics that you should understand before choosing a domain name registration:

1. Use of two similar trademarks should not confuse customers about the products or services.

2. If there is a legal conflict over use of similar trademarks, the first user is likely to win the case.

3. The later user would to give up his claim if he cannot proves his point and may have to pay the first owner damages.

You should apply these principles to your domain registration selection process:

1. The best method to avoid conflict of trademarks is to search the trademark database of the U.S. Patent and Trademark Office at It provides you with all registered and pending trademarks. Try to search for your proposed trademark as well as other similar names and variant spellings. 2. You must be able to justify your reason for using the name. Your domain registration should principally consist of a name you are using as a trade name, trademark or corporate name.

3. It is better to select more than one name since you are not sure about the availability of the required domain name.

If on searching for the desired domain name, you find that the name has already been registered but there is no content being displayed at the domain, try to find out the details of the owner of the domain registration. It is possible that he/she may be genuine and have yet not published any content.

But it is equally possible that the owner does not plan to develop a web site and is willing to give you the domain at the original price. You must confirm that the seller has ownership rights for that particular domain name registration.

The regulations governing copyright issues for domain names are governed by Internet Corporation for Assigned Names and Numbers (ICANN).

It is very likely that you would lose right of your domain name registration if you have intentionally chosen a name similar to another domain name so as to confuse potential visitors to the site. For example, if your site deals in consumer electronics goods made by a Samsung competitor, do not choose the name "" since a court is most likely to pass a verdict that you selected this name to divert attention of Samsung customers.

There could be others reasons of losing a domain registration:

1. You have never carried out any business under that name 2. There is no person in your company similar to that name 3. You are planning to sell that domain name to your competitor for financial gain.

If your domain name is same as your name then you may be allowed to continue to use it, despite of the fact that it is similar to someone else's domain name. But the usage of such a name is governed by certain condition set by court. For example, Mr. Suki Nokia, who runs a cosmetics business, may be allowed to use the domain name "" but he would barred from using his site to demonstrate any electronics-related information or advertising.

A very useful tip to buy all three of the top level domains -, .net and .org. You should buy all possible misspellings of your domain name before anybody else takes advantage of this fact.

If on searching, you find similar names, ask yourself the following questions:

1. Will the products/services on your site compete with the products/services on similar domain names?

2. Will your distribution channels for products be same for products being sold under the similar domain names?

3. Will your site distract business away from the site with the similar name?

4. Is the other name quite famous?

If you get negative answers to all these questions, you can feel confident to go ahead with your domain name registration without any worry of a legal hassle.