Copyright Registration for Websites

by Robert W. Clarida

The Copyright Office has recently issued a guide to registration of copyright in websites and other on-line works.  This column will summarize the policies and procedures set forth in that document, Circular 66, available from the Copyright Office website at http://www.loc.gov/copyright.

Even when stored exclusively as computer code, websites are not usually considered “computer programs” for registration purposes.  Rather, website registration will generally be made to protect the textual, graphic and audio content of a site, not the underlying code. Accordingly, the registration should be filed according to the type of conventional authorship the site contains, using the standard Copyright Office forms:

• TX for literary works;
• VA for pictorial and graphic works;
• PA for audiovisual material (including sounds); and
• SR for sound recordings.

If a site contains more than one type of authorship, as many do, the Copyright Office asks that the registration be filed using the form which corresponds to the “predominant material.” Questions about what the “predominant material” is for a given site are left to the author’s best judgment.

The filing process is the same as for a conventional hard copy work, and costs the same, i.e., currently $20.00, increasing to $30.00 after June 30.  There are certain difficulties unique to the digital medium, however, which require particular care when filling out the application form:

• Nature of Authorship — Do not use common web-related terms such as “user interface” or “site design.”  Instead, specific terms such as “artwork,” “text,” “audiovisual material and accompanying sounds,” or “computer program” should be used.
• Publication status –  As noted in the December 1998 edition of this column, the Copyright Office has decided to leave the matter to the author, and will not question the author’s determination as to “publication” unless it is facially unreasonable.  If the site is accessible without restriction, it should be considered published, but if it is only available in a very limited way, such as over a private network, a claim of unpublished status would be accepted.
• Nation of first publication — the Copyright Office suggests that this “may be” the country from which the work was uploaded, not location of the file server on which it resides. If the work has been published in both hard copy and digital transmission form, and the two “publications” were not simultaneous, the earlier of the two should govern, both as to place and date of publication.

DEPOSIT REQUIREMENTS

As with conventional hard-copy works, the scope of the registration extends no further than the content of the work as identified in the application and contained in the deposit copy.  Thus, it is important that a complete deposit of the entire copyrightable content of the site be deposited in the following form:

• For all works transmitted on-line except computer programs, databases, and works fixed in CD-ROM form, the author has two deposit options:(a) one computer disk containing the entire work, plus a copy of all or part of the work in a conventional format.
  • (1) If the work is relatively short, consisting of three minutes of sound or audiovisual material, or five pages of text or graphics, the entire work should be deposited in conventional format.
  • (2) For more extensive works, the conventional-format deposit should include five representative pages or three representative minutes.
    or
    (b) one copy of the entire work, regardless of length, in conventional format only.

Neither of these deposit options applies if the on-line work has also been published in a conventional format.  In that case, the usual deposit requirements for conventional works still apply.

Computer programs, databases, and works fixed in CD-ROM form are governed by the deposit requirements of 37 C.F.R. 202.20(c)(vii) and 202.20(c)(xix), whether made available in hard copies or by on-line transmission.

UPDATES

Each update of a website or other on-line work must be separately registered, to the extent that the newly added material constitutes separately copyrightable authorship.  Given the nominal cost of registration, a periodic registration of updates would seem to be advisable if possible infringement of newly added material is of serious concern.

WHY BOTHER?

As with any work, the chief benefit of early registration is that if a work is registered before an infringement commences, the author may receive statutory damages and attorney’s fees.   A possible fee award always increases a plaintiff’s bargaining power, and the availability of statutory damages may be particularly useful with websites, where actual damages may be negligible or difficult to prove.

Disclaimer:

This the information provided in this article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult with a lawyer concerning your own situation and any specific legal questions you may have.

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