Why Is Publication an Important Part of Copyright Law?

Notification symbol protects copyrights.

Since 1978, creative works have copyright protection from the moment of creation rather than from the date they are first published. Although unpublished work is protected by copyright, publication remains important in copyright law. Publication triggers certain rights and duties under U.S. copyright law and international agreements. Publication can also affect the way limitations on a copyright owner's exclusive rights are applied.

History

Before 1978, publication was required for a creative work to have copyright protection. This publication was not sufficient to obtain copyright protection unless the work complied with notification provisions requiring an official notice of copyright protection to be affixed to the work. While these strict requirements of publication and notice do not apply to works created after 1978, many works created earlier have fallen into the public domain for failure to comply with the technical requirements of the law. Such works remain in the public domain under the 1976 Copyright Act.

U.S. Law

The U.S. Library of Congress is a repository for copies of copyrighted works.

The 1976 Copyright Act grants copyright protection to authors from the moment of creation, defined as occurring when the work is fixed in a copy (any "tangible means of expression") for the first time. Publishing entails making copies of the work available to the public. Once a work is published, the author must comply with the deposit of copies requirements of the Library of Congress within 30 days or risk criminal fines. Additionally, every copy of a work published before March 1, 1989 must include a copyright notification.

Level of Protection

After publication, an author who fails to officially register for federal copyright protection will lose certain legal advantages if there is infringement. An author cannot file an infringement lawsuit unless the work is registered. If the work is registered before or within five years of first publication, however, the registration is prima facie evidence of the copyright's validity. A registered copyright also entitles the copyright holder to statutory damages and attorney's fees in any court action to defend the copyright against infringement.

Duration of Protection

For a work created after Jan. 1, 1978, copyright protection begins at creation and extends for the life of the author plus 70 years. The copyright of a work for hire, pseudonymous or anonymous work, however, extends 95 years from the date of first publication, or 120 years from the date of creation. For works created and published before 1978, copyright protection begins with the date of first publication. Still, if a work was created before 1978 but neither registered nor published, it is entitled to the same copyright duration as works created after 1978.

Limitations

Sections 107 through 121 of U.S. copyright law set forth limitations on the otherwise exclusive rights of copyright holders. For example, a court evaluating a defense of fair use will consider the nature of the copyrighted work. The copyright owner of an unpublished work is far more likely to prevail against a fair use defense because copyright law recognizes an author's right to control his expression's initial public appearance.

References

• United States Copyright Office: Copyright Basics
• United States Copyright Office: Copyright Law of the United States
• United States Copyright Office: Mandatory Deposit of Copies
• Stanford University Libraries: Copyright & Fair Use