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New copyright compendium provides some answers for website owners

Mark Sableman September 8, 2014

If you are looking for answers to copyright questions, the Copyright Office’s newly issued 1,222-page “Compendium of U.S. Copyright Office Practices” might seem like a good resource. The book, issued on August 19, 2014, to become effective in December 2014, is only the third edition ever of the copyright office’s complete administrative manual.

But don’t get too excited. This hefty manual lacks answers to many of the copyright questions foremost among Internet users. It mentions the top Internet copyright issue — fair use — only three times, and gives no fair use explanation or advice whatsoever. Another major copyright doctrine that affects practically every website, implied license, gets only one page of discussion. On these and many other issues, the compendium simply notes that many copyright issues depend on courts, and “it is important to consult court opinions on copyright-related issues.”

Despite its limitations, the manual, which focuses on issues that the copyright office handles in the course of processing applications for copyright registrations, is helpful on some Internet-related copyright concerns.

For example, what kind of works can be registered? The law requires some creative originality, but sets a relatively low standard for that creativity. Not surprisingly, applicants have tested the limits over the years, and in addressing those applications the copyright office has developed a number of standards:

  • A work must be created by a human being. Photos or art by animals don’t qualify. Neither do pure representations of nature — an actual animal skin, or a piece of driftwood, for example.

  • More relevant to computer users, works produced by machines or a “mere mechanical process” won’t qualify either. That includes analog-to-digital transformations, transposing a song from one key to another, and even mechanical weaving processes — even when random elements are programmed.

  • Typefaces, and variations of typographic ornamentation, are not copyrightable (on the theory that they are utilitarian) but computer programs that generate typefaces can be protected. Letters, punctuation, musical notes, and arrow symbols are similarly identified as excluded — presumably because someone, sometime, tried to register a copyright in each of them.

  • Exact copies of another work can’t be copyrighted — a position that puts into question the common but puzzling copyright claims often asserted for museum reproductions.

  • Minimal authorship contributions (labeled “de minimis” by the Latin-educated Compendium authors) don’t qualify. This includes changing pronouns from masculine to feminine, portraying a concept in Venn diagrams, and using standard contract language. Also, interestingly, “simple diamond stud earrings, simple hoop earrings, and other jewelry designs that contain only a trivial amount of authorship,” clock chimes, and “Mi do re sol, sol re mi do.”

Copyrighting websites

Internet users, and particularly those who create and publish content on the web, may find one section of the Compendium fairly helpful. Chapter 1000, titled “Websites and Website Content,” lays out the office’s policies for registering website content.

First, the chapter discusses the problem of identifying authorship of a website, and notes that when independent contractors (such as website design firms) contribute to it, they automatically own the copyright in their contributions, and the party that employed their services must obtain a written copyright transfer if it wishes to become the copyright owner. This conclusion is based on basic copyright ownership principles, which are too often overlooked by website operators.

Thus, website operators need to take special care to follow copyright formalities if they want to control and own the content on their website. They’ll automatically have rights to content created by their employees, under the work for hire doctrine. But for content created by third-party contractors, or users, they will need to obtain written copyright transfer agreements or enter into a proper work-for-hire contract before any work is created. (Another quick reminder for companies using third parties for website creation: Make sure you own your domain name.)

What about user generated content? The compendium notes that users, like third-party contractors, are authors of their own content, and hence automatically own the copyright to it. But often website operators seek to capture ownership of user generated content through website terms of service. The compendium states that for now, the copyright office accepts those terms as effective, so long as there is a written digitally-signed transfer agreement. But such transfers won’t work for anonymous, pseudonymous, or unidentified authors.

What’s protected, what’s not

Next, the compendium identifies three layers of potential copyrightable authorship on a website: (1) visually perceptible content, (2) compilation authorship, meaning authorship in the way the various content elements were selected, coordinated and arranged, and (3) the underlying markup language or style sheets that underlie and support the content and make it viewable through a browser. In this third category, standard HTML code, generated by design software, is unlikely to be recognized as the creative work of the website designer.

The compendium notes that websites are naturally dynamic, in that they “may change over time as often as and to the extent that the website owner wishes.” Because copyright only adheres in works “fixed in a tangible medium of expression” — as opposed to works like live performances — the office therefore registers website content “only as it exists as the time that the application is received.” 

The compendium also identifies those elements of websites that are not protectable under copyright law. Ideas, functional design elements, domain names, hypertext links, and the “look and feel” of a website all fall outside copyright protection.

Finally, the compendium gives practical guidance on how one should go about registering a copyrights in websites. Perhaps because websites didn’t fit in established pre-Internet categories of copyrighted works, and perhaps because of their dynamic nature, and questions about the proper specimen to submit with a copyright application, many website creators or owners have neglected to register their copyright interests in their websites. Those excuses no longer work.

The compendium provides 20 pages of tips for registering your website copyright. If you haven’t been protecting your website copyright interests, that’s the part of the compendium that you should turn to first. It begins on page 634.

Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. He is the editorial director of Internet Law Twists & Turns. You can find Mark on Twitter, and reach him at (314) 552-6103 or msableman@thompsoncoburn.com.