International Copyright Basics for Online Businesses

If you own an online business, you bump up against copyright law on a daily basis. In one way or another, international copyright laws impact virtually all aspects of social media, content marketing, and online commerce. Companies that are proactive about protecting their intangible assets and managing their risk of infringement liability can gain a competitive edge while also building value for when it comes time to sell.

Copyrights, Trademarks, Patents – What’s the Difference?

To kick off our discussion, let’s briefly define what we mean (or, more accurately, what the law means) by the term copyright. Copyrights are one of the primary forms of intellectual property (IP), along with patents, trademarks, and, in some countries, industrial designs:

• Copyrights – Copyright law protects “original works of authorship fixed in any tangible medium.” As a result, it does not protect ideas themselves, but rather creative expressions of those ideas reduced to written, recorded, photographic, or electronic form. Photos, marketing copy, songs, and videos are all examples of copyrightable materials that get posted and shared online.
• Patents – Patent law protects inventions, which must have some level of novelty and functionality. It is possible for a product to be subject to both patent and copyright protection, but not everything subject to copyright protection is patentable (and vice versa).
• Trademarks – Trademark law protects brands, logos, company names, and other “indicia of origin.” While copyright law protects the interests of creators, trademark law is, at least theoretically, designed to protect consumers from confusion as to the source of products and services in the marketplace.
• Industrial Designs – In many countries (though not in the United States), there is a fourth category of IP known as the industrial design, or simply “designs.” Broadly speaking, design protection falls roughly somewhere between copyright and patent, applying to “ornamental or aesthetic aspect” of a unique product.

Six Key Facts: What Online Business Owners Need to Know About Copyright Law

Keeping the scope of copyright protection in mind, it is easy to see how domestic and international copyright laws can quickly take on a central role for virtually any company that sells online. This is true with regard to both: (i) protecting the company’s own IP assets, and (ii) respecting other companies’ and creators’ exclusive rights. For companies doing business online – whether they currently sell in multiple countries or have plans to expand overseas in the future – here are seven key international copyright-related considerations to keep in mind.

1. Copyright Laws Vary by Country

First, it is important to note that the copyright definition we quoted above is based on United States federal law. Each country has its own copyright laws, and each country has its own system for protecting and registering copyrights. As a result, understanding your company’s rights (and other companies’ rights) in locations around the globe requires a critical assessment of the local laws that apply.

It is important to note, however, that many developed countries are parties to copyright treaties and conventions that are designed to unify the law and streamline the copyright registration process. One such arrangement is the WIPO Copyright Treaty (WCT), signed under the Berne Convention, which specifically addresses copyright issues in the online environment.

2. Copyright Protection is Country-Specific

Not only are each country’s copyright laws unique, but this also means that copyright protection is country-specific. In other words, the fact that you register your copyrights with the US Copyright Office does not afford you any protection in Europe, Asia, or elsewhere overseas. In fact, it is entirely possible that another company has a registered copyright in a country where you have expansion plans – and its registration could derail those plans unless you address it accordingly (for example, by challenging the registration or negotiating a license).

Depending upon the countries in which you need to seek copyright protection, you may be able to rely upon a multi-jurisdictional filing procedure established under one of the treaties or conventions we mentioned above. However, it is important to take a measured approach to multi-jurisdictional filings, as there are certain publication, cost, and other considerations involved.

3. Copyright Registration is Worth the Investment

Copyright registration is far less expensive than trademark and patent registration, and it is well worth the investment. As a rule of thumb, you should seek to register your copyrights in any countries where you have or might have a business presence before you post the relevant content online.

While there are numerous benefits to copyright registration, two of the primary benefits are:

• In certain countries (including the United States), registered copyright owners are entitled to seek statutory damages from infringers. This means that infringers face substantial financial liability without you having to go through the time (and incur the expense) of proving the effect that the infringement had on your business.
• Registration puts other companies and creators on “constructive notice” of your exclusive copyrights. Ignorance is a defense to copyright infringement in the US and certain other international jurisdictions; but, once your copyrights are registered, since infringers could uncover your rights if they did a little bit of research, registration eliminates this potential defense.

Of course, in many cases it will not be worthwhile to pursue an infringement lawsuit through trial. However, if an infringer knows that it is exposed to statutory damages and lacks a critical defense, this will often provide at least enough leverage to terminate the unauthorized use of your copyrighted materials.

4. You Can (and Should) Research Copyrights Online

Given what we just discussed, it is important that you do your online research as well. You do not want to find yourself in a position where you are facing infringement liability because you “should have known” that you were violating someone else’s exclusive rights.

5. The “Public Domain” Isn’t What Most People Think It Is

Sticking with the topic of infringement, it is important that online business owners have an accurate understanding of what constitutes the “public domain.” The public domain has very little to do with what is publicly available in the sense that you can download it or copy it on the Internet – and, to be clear, you cannot use a photo or video simply because it is “available” online.

The concept of public domain applies to works whose copyrights have expired. In the US, for works created after 1977, the general rule is that copyright protection applies for the life of the author plus 70 years. As a result, unless the author has expressly disclaimed its copyrights, nothing that has ever been created specifically for the Internet currently falls within the public domain.

The public domain is also different from the creative commons license. Creative commons licenses commonly require attribution and are subject to other conditions (such as restrictions on commercial use), and they of course apply to content that remains to copyright.

6. Being Proactive is the Best Way to Protect Your Company’s IP and Limit Its Exposure to Infringement Claims

All of this means that online business owners need to take an active approach to addressing copyright issues in their day-to-day operations. New works should be evaluated for international registrations, licenses should be obtained when necessary, and avoiding infringement should be a top priority. When working with freelancers and independent contractors, online businesses should take extreme care to ensure that they own the copyrights for all work products, as well. While addressing international copyright concerns may be complex, it does not have to be a burden. With a systematic approach and knowledgeable guidance, online businesses can extract maximum value from their copyrighted properties.

Speak with an International Copyright Lawyer at Jiah Kim & Associates

If you own an online business and would like more information about protecting your copyrights and avoiding infringement liability, contact Jiah Kim & Associates to arrange an initial consultation. You can call us from anywhere in the world at (646) 389-5065, or contact us online and we will be happy to work with you on your schedule.

This blog post is written for educational and general information purposes only, and does not constitute specific legal advice. You understand that there is no attorney-client relationship between you and the blog publisher. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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