Protecting your copyright
By J. Paul Dyson
Managing Editor, firstwriter.com
firstwriter.com – Wednesday December 27, 2006
Here at firstwriter.com one of the most common questions we get asked by writers is if they need to register their copyright. This is a perfectly reasonable question – after all, for other intellectual properties like patents and trade marks there are usually a mountain of forms to fill out and numerous hoops to jump through (not to mention registration fees to be paid) before you can claim proper protection over your ideas. It's only natural, therefore, for writers to assume that there's a similar process for copyright, but the situation is not quite that straightforward. The answer to the question "do I need to do register my copyright?" is both no, and yes.
This automatic copyright is a double-edged sword, however. While it means that you don't have to register your work in order to have theoretical rights over it, it also means that – because registration is not compulsory – there is no complete record of who owns the copyright to what. So, while it's easier for you to claim copyright over your work, it's also easier for someone else to falsely claim copyright over your work – and the only way to settle the dispute is through the expense and hassle of court proceedings, where each party will have to try and prove that they were in possession of the work before the other party. If you don't have adequate evidence of when you created your work, you could find it hard to prove your case – particularly if the other party had obtained your work and taken out an optional registration prior to the dispute.The answer – in terms of actually owning copyright over your work – is no. While in many countries it used to be the case that applications would have to be made, forms would have to be filled in, and work would have to be deposited with official bodies, copyright is now an automatic right in most cases, and registration is optional. As soon as a work has been recorded in some way (whether by writing it down, making a tape recording of it, or creating a fixed record of it in some other way) the author of that work owns the copyright to it. This applies to novels, stories, poems, and even letters, emails, or essays written at school. Unlike the registered trade mark symbol (®) you don't need to go through any application process to be able to display the copyright symbol (©) on your work. You are free to apply it to any work you create, and should put it (followed by your name or business name and year) on any work you don't want anyone to copy without your consent.
Your theoretical copyright is, therefore, only as good as your ability to prove your authorship. If someone steals your work without you knowing and then publishes it, they will be assumed to be the rightful owner of the copyright unless you can prove otherwise. It will be up to you to prove that you created it before them, and this is where we get to the yes part of the question "do I need to register my copyright?". In order to be able to protect your rights effectively you need to be able to prove when you created your work, and to this end you may wish to consider optional registration through the Copyright Registration Service provided by the Intellectual Property Rights Office. Unlike the state-specific registration systems operated in some countries, the scope of the Intellectual Property Rights Office is international, meaning that citizens from any of the nations signed up to the Berne Convention (the main international treaty governing copyright law) are able to use it. This includes the United States, the United Kingdom, Australia, New Zealand, Ireland, Canada, South Africa, and most other nations: around 160 of the 180 nations in the world. A full list of signatory nations can be found at www.copyrightregistrationservice.com/register.
Of course registration is not the only way to prove your ownership of copyright. It is possible to prove your authorship without it, but there are many myths to beware of. For instance, some advice claims that the computer files containing your drafts and final manuscripts will provide adequate evidence of the date you created your work. Unfortunately this is not correct and you should never rely on this. Anyone can manually change the time, date, and year on their computer and set it to a time in the past. Any files created will then show the new, manually entered time. As an experiment I tried changing the date on my computer to December 2005 (rather than 2006) and successfully created brand new files which appeared to have been created over a year ago. It took me less than 5 minutes to do so. If I wanted, I could set my computer back to 1980, copy out all of the first Harry Potter book into a word processing package, and then save the file so it appeared I had written it 26 years ago – long before Hogwarts was even a gleam in J.K. Rowling's eye. I could then try to sue her for copyright infringement.
Of course, I wouldn't win – because this kind of "evidence" is so easy to fabricate that it wouldn't stand up for a moment in court. It's really no better than copying the book by hand then scribbling the copyright symbol and the year 1980 at the bottom – it doesn't prove for an instant that it was actually written at that time. If you expect to be able to walk into court and defend your copyright based on the records on your computer, you will find yourself sorely disappointed.
Nor is having drafts of your manuscript evidence in itself of your authorship. This is another piece of shaky advice which is often given, claiming that if you can show the development of your ideas you will be able to prove you wrote the piece in question, but if I were trying to claim authorship of the Harry Potter books and had gone to the lengths of typing the first book out by hand then it would be no great task to "reverse engineer" the book and produce a number of artificial "preliminary drafts" by altering the final version. Keeping your drafts is always useful as part of a body of evidence to support your claim to copyright, but is never in itself going to prove your case. Always keep your drafts, but never rely on them solely.
Another common suggestion given for DIY copyright evidence is to print out your manuscript and then post it to yourself, then keep the envelope unopened. The franking mark stamped on the envelope will give the date of postage and act as evidence of when you created the work. This method has advantages over computer records and drafts in that it does involve an independent third party (the postal system), but has drawbacks in other ways. Your entire claim to copyright comes to rest in that one single envelope, and is only as strong as the gum that seals it. If the envelope is ever opened, it becomes useless. It's a one-trick pony. If you open it to prove your authorship to one person, you can never open it again to prove it to anyone else.
Furthermore, if anything happens to the envelope then you lose your evidence of authorship. If it is lost when you move house, gets damaged in a flood, burned in a fire, chewed by the dog, or accidentally opened by an unwitting spouse, then your evidence is gone, and cannot be recovered. Likewise, if the postmark fades, or the seal becomes unstuck, or coffee gets spilt on it, or one side of the envelope splits after 20 years of being carried from pillar to post, then the whole thing will have been a waste of time. Your evidence of having written your work when you did will be lost forever.
To try and cover yourself against mishap you would probably want to send yourself multiple copies of the manuscript – but by the time you've gone to the expense and trouble of printing and posting your manuscript several times you may find that it might have been better to simply pay the registration fee for the work, which is only $35 / £20 / €30. I've also never heard of this method of self-posting ever having been successfully used to prove a copyright case, so even if your envelope(s) did survive intact for however many decades you needed it to, there's no guarantee it would actually carry weight in court.
To really effectively prove your ownership of a work you need to have an independent third party who can vouch for the date you had the work in your possession. Showing it to friends and family will help as part of your body of evidence, but these people will never be judged to be impartial in court. Registration of your work through the Copyright Registration Service provides not only an independent third party, but a financial record for your payment of the registration fee, which provides solid proof that you made your registration on the date that you claim.
Of course the usual victims of copyright infringement are those people that already have successful published works. It is very rare for unpublished works to be stolen, however it isn't unheard of for amateur writers to have their unpublished ideas copied by others. A notorious alleged instance of this relates to Jeffrey Archer's short story "Just Good Friends". This is a story which is told in the first-person through the voice of a household pet – however it is not till the end that the reader discovers that the narrator is an animal, rather than a human. An amateur writer called Kathleen Burnett complained that the idea for this story had been stolen from a short story of her own which had won a competition several years earlier – a competition that had been judged by none other than Jeffrey Archer himself. Amongst other similarities, the tale is also told through from the perspective of a household pet, and (just as in the Archer story) this fact is not revealed until the end of the story. When she complained to the publishers she was told that her idea was not protected by copyright, and there was therefore no action she could take.
Whether or not you decide to go down the route of registration ultimately depends on your attitude to risk. Registering your work to protect your copyright is like an insurance policy for your writing: like insurance against fires, floods, and tornadoes, it's unlikely that you'll ever need it, but the consequences can be dire if you don't have it. What you need to consider is how much your work is worth to you, and how upset you would be if it was stolen by someone else, versus the cost of registration and how unlikely it is that your work actually would be stolen. On the one hand you have a small fee that you would definitely have to pay; on the other hand you have a very small chance of very substantial losses. The biggest variable is, of course, how big you think those financial losses could be. Do you think your work could be a big financial success? If you don't intend to ever make any money out of your work then it may not be worth registering it (unless you would be particularly upset to see it misappropriated), but if you think it might be the next Harry Potter then it's probably worth taking out whatever protection you can.
If you do decide to take out protection and are already a paying subscriber to firstwriter.com you can now get 10% off your registration fees by subscribing through our site at www.firstwriter.com/subscriber/copyright. If you're not already a paying subscriber but would like to benefit from this discount, as well as all the other resources offered by firstwriter.com to help you try and get published, you can subscribe now at www.firstwriter.com/subscribe. If you would like to register your work for copyright protection without subscribing to firstwriter.com go to www.copyrightregistrationservice.com/register.
This article has been written for an international audience and refers to principles of copyright which are generally internationally applicable. It does not take into account national variations and should not be relied upon for legal purposes. If you need information relating to copyright law and the protection of copyright always consult a qualified intellectual property rights lawyer in your own country.