Copyright and Technology Primer

Copyright laws protect original works of authorship which are fixed in a tangible medium of expression. Works that may be copyright protected include

• computer programs,
• Ph.D. dissertations or theses,
• online works,
• reference works,
• sound recordings,
• catalogs,
• photographs,
• movies,
• directories,
• advertising copy,
• user manuals,
• games and
• databases.

However, copyright only protects how the work is expressed, and not the ideas, processes, systems, concepts or principles underlying the work. Businesses may protect formulas, methods or processes under patent or trade secret laws.

The Impact of Copyright Laws on Technology Companies

Copyright laws touch a broad range of technology companies. For copyright holders, these laws grant them the exclusive right to reproduce, prepare derivative works of, distribute and publicly perform the copyrighted work. For example, the following actions may constitute copyright infringement:

• downloading an unauthorized copy of a CD from a peer-to-peer computer network,
• selling a pirated copy of Microsoft Office on eBay, and
• using unlicensed stock photos on a web site.

As a technology company, you need to ensure that you are not infringing on someone else's copyrighted content. And, as your organization expands, you need to establish the necessary checks and safeguards to ensure that your organization is complying with applicable intellectual property laws.

One potential area of abuse is the installation of unlicensed software on company computers. To avoid any unwelcome surprises, you should consider filing purchase orders, receipts, invoices, and original CDs or DVDs from any computer programs your company procures. You may also consider appointing an individual to be responsible for software management issues.

Web 2.0 companies that create online communities and services face a unique problem. By opening their website to user-generated content, these companies also risk having their site being flooded with copyright infringing content. Such companies should be aware of their obligations under the Digital Millennium Copyright Act (DMCA) and determine whether their activities fall within the safe harbor provisions of the Online Copyright Infringement Liability Limitation Act.

Fair Use

The law permits the fair use of a copyrighted work if done for criticism, comment, news reprting, teaching, scholarship or research. To determine whether a use constitutes fair use, a court will weigh four factors:

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.

An experienced copyright lawyer can counsel your company on whether potentially infringing copyright content on your website may constitute fair use.