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You May Own a Copyright and Not Know It!

Copyrights are rampant in the world of orthopaedics and are, most of the time, ignored or forgotten. Copyrights can be quite valuable intellectual property to both an individual and a company and, if used strategically, can provide an immensely competitive edge. Works that are protectable under copyrights in the orthopaedic marketplace include marketing and sales collateral (e.g., ads, brochures, surgical techniques), engineering drawings (e.g., implant designs, blueprints and CAD drawings), manufacturing processes (e.g., machine tool code) and packaging designs.

To Register or Not to Register

Copyright protection comes into existence the moment that the work is created in a fixed form (e.g., on paper, electronically, etc.). The copyright in the work immediately becomes the property of the author who created it, unless other circumstances arise. No publication, registration or any other action is required. Prior to 1976, the law did require that the work be published with a copyright notice and registered in the Copyright Office. Now, the decision on whether to register your copyright is totally voluntary; however, many benefits accompany registration with the U.S. Copyright Office. The purpose of registration is to make a public record of the basic facts of your copyright.

Registering your copyright has a variety of benefits.

  • It establishes a public record of your copyright claim.
  • It is a prerequisite for bringing an infringement lawsuit against anyone.
  • If registration occurs before or within five years of publication, a legal presumption is made that you own the copyright and that the copyright is valid
  • If registration occurs within three months of publication or prior to an infringement of the work, you may recover statutory damages and attorney’s fees.
  • It allows you to record the registration with the U.S. Customs Services to protect against the importation of infringing copies of your copyright.

To register a work, three elements must be provided to the Copyright Office, which is located at the Library of Congress. They are a properly completed application, a non-refundable fee and a non-returnable deposit of the work being registered. The effective date of a registration is the date when the Copyright Office receives all of these elements in acceptable form.

The Copyright Office is trying to incentivize people to use the electronic application process for registering works. The advantages are a lower filing fee of $35 per work, faster processing time, an earlier effective date of registration, online status tracking, secure payment and the ability to upload the deposit; however, only literary works, sound recordings and performing arts can be filed electronically. Non-electronic filed applications can still be used to register a copyright. The current filing fee is $50, and great care must be used to properly complete the online form and not alter it in any manner after you have printed it for mailing, or else risk an additional $65 charge for doing so.

The deposit differs for the particular type of work being registered. If your work was published after January 1, 1978, two complete copies of the best edition must be submitted. Special deposit requirements exist for motion pictures, works published only on a phonorecord and computer programs. One should always check the Copyright Office’s website or call the Office directly to ensure that you are providing the correct number and form of deposits for your copyright.

Copyright Notice Requirements

After January 1, 1978, the law changed to make the use of copyright notices optional on copies of work published on or after March 1, 1989. Although the notice is no longer legally required, it is still a best practice to use it with any of your creative works. This informs the public that the work is protected by copyright, identifies the owner and shows the year that the work was first published. Further, if the work is infringed upon and the notice appears on the published copy or copies of the work to which the defendant in the lawsuit had access, a court will then give no weight to the defendant’s claim of innocent infringement.

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