Works That Cannot be Copyrighted

Works that do not warrant copyrights are as follows:

• Works are not protected if they are not "fixed" on a sufficiently permanent medium. This requirement is lax enough to include handwritten or typed documents as "fixed" forms of authorship.

• Only original works are protected. The "originality" requirement is also fairly flexible. Unlike patents, works dealing with the same subject or idea can be copyrighted as long as each work has a minimum degree of originality.

• When works incorporate preexisting material, only the original portion is covered by the copyright. If a journal contains articles copyrighted by individual authors, the act of collection is copyrighted as the original work.

• Facts cannot be copyrighted. Therefore, compilations of names and addresses publicly available, such as the telephone book, cannot be copyrighted. To copyright such material and databases, copyright law requires a certain originality in selection, organization, and arrangement of the data. Even then, only the original aspects are protected; the facts still are not protected. Alphabetic ordering is not considered original. Similarly, expressions that have become standard techniques for creating a particular type of work are in the public domain.

Works in the public domain are not protected. Works can enter the public domain when their copyright expires. Due to changing copyright laws, however, a careful evaluation is needed to determine whether a work is in the public domain. Previously a failure to renew or to give proper copyright notice resulted in the loss of a copyright, for example. New laws, however, do not require copyright renewal. Also, works created after March 1, 1989, do not need to include copyright notice, registration, or deposit to be protected under copyright law. Current U.S. law still provides, however, that registration and deposit of the work with the Copyright Office is a prerequisite to the filing of an infringement suit in federal court (see fig. 5.2). Moreover, certain advantageous remedies are only available for infringements that occur after registration and deposit. Because of the Berne Convention, these

Page formalities are not applicable to foreign nationals, and probably will have to be removed entirely from U.S. law before it is in full compliance with the Convention.

• If a work is created by the U.S. government, it is automatically in the public domain because government works cannot be copyrighted. This only applies to the federal government. State governments can copyright their documents. Laws and legislation of both federal and state governments may not be copyrighted. The only statutory exception is for data produced by the U.S. Secretary of Commerce, which are copyrighted under the Standard Reference Data Act (15 U.S.C. 290e). A gray area is when the U.S. government provides funding for independent contractors. Such works are copyrighted by contractors, but the copyright can be transferred to the government.

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Figure 5.2 U.S. Copyright Office home page. Unlike patents and trademarks which are administered by U.S. Patent and Trademark Office (http://www.uspto.gov), U.S. Copyright Office is a branch of the Library of Congress (http:// lcweb.loc.gov/copyright/resces.html).

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