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Copyright Basics

According to the Berne Convention (the international source for copyright law), an original expression is protected by copyright as soon as it's fixed in tangible form. In other words, the moment the words leave your brain and land on paper or the computer screen, you're protected, and no further action--including registration--is required on your part. The Berne term of copyright is the lifetime of the creator plus 50 years.

Specific copyright laws vary among the more than 90 countries that are signatory to Berne. In the USA, for instance, copyright applies to economic rights only, and the moral rights provisions enacted in other nations, intended to help protect the personality and reputation of the author, don't exist. Many countries have also extended the term of copyright--in the US and much of Europe, the term is the creator's lifetime plus 70 years.

To Register or Not?

Berne ensures copyright protection without requiring any formalities (such as copyright registration) as a prerequisite to bringing an infringement suit. As a result, most countries have no formal copyright registration process.

However, Berne doesn't prevent countries from attaching evidentiary benefits to registration if they wish (though most choose not to do so). In Canada, for example, registering your copyright in a timely manner provides prima facie legal evidence of copyright ownership. This is also true in the United States. Additionally in the US, you must previously have registered copyright in order have standing to sue in court if your work is infringed. You may sue for actual damages (the monetary loss caused by the infringement), the infringer's additional profits on the use of your work, statutory damages (up to a limit of $150,000), and attorneys' fees.

If you're a US or Canadian writer, do you need to register? If you're submitting book-length work to literary agents or publishers, the answer is no. Registration confers no additional copyright protection; all it does is give you legal standing to sue for infringement. But infringement is not something you need to worry about at the submission stage. Theft of unpublished work is so rare as to be functionally nonexistent.

I'll repeat that, with emphasis: Your work will not be stolen.

Theft is a huge concern among new writers. Among the most frequent questions Writer Beware receives is how to guard against theft, and we get many, many anxious letters from writers who fear the agent who just asked for their manuscript is planning to steal it and sell it under someone else's name.

Trust me--this isn't going to happen. If your book is wonderful, an agent or editor is going to want to make money by getting it published, and it's a whole lot more trouble to steal your manuscript and pretend someone else wrote it than just to work with you. If your book is terrible, an agent or editor isn't going to want it at all. A good agency or publisher would never risk its reputation by stealing; a bad agency or publisher won't steal because it has no interest in your writing, only in the fees it can extract from you. Not until your writing is exposed to a wide audience--i.e., published--do you need to worry about infringement, and at that point your publisher should register copyright for you, at its own expense.

For short fiction writers and journalists, the considerations are different, largely because of the explosion of electronic republishing options (databases, CD-Roms, online versions of print magazines). Magazine and newspaper publishers are increasingly making print pieces available for electronic reuse, sometimes without compensation to the authors. Also, recent legal decisions suggest that publishers' collective copyrights (which protect compilations of writings, such as magazines or newspapers) may not protect individual articles or stories. Both the National Writers Union and the Authors Guild recommend that writers register their published articles and stories, if they live in a country where registration is available.

However, there's no need to register before you sell a piece. If you register within three months of first publication and prior to infringement, you're entitled to sue for the full range of damages noted above. If you register later, you may sue only for actual damages plus the infringer's profits--but you can do so, even if registration postdates the infringement. (Note that for legal purposes, registration serves as prima facie evidence of the copyright's validity only if it occurs before or within 5 years of first publication.)

Another reason not to register unpublished work: it may make you a target for solicitation. Many vanity publishers and questionable literary agents contact writers who register copyright for their books.

Registration Services

In the US, there are a number of online services that will register copyright for you, for a fee. You can even purchase software that provides you with addresses and copyright forms. Don't waste your money--it isn't difficult to register copyright yourself, and it will cost you a good deal less than the services (note: the cost of registration in the US rose from $30 to $45 on July 1, 2006). For freelancers and others wanting to register more than one piece, the US Copyright Office offers a low-cost multiple-registration option.

Also in the US, the Writers Guild of America (WGA) offers its own registration service. For various reasons, WGA registration is the norm for unproduced screenplays, but it's not useful for book manuscripts--partly because it's not necessary to register unpublished manuscripts, but also because WGA registration isn't a legal substitute for official copyright registration. If a literary agent recommends that you register your book manuscript with the WGA, be wary: this agent doesn't know much about copyright (something with which a good agent should be familiar).

In countries that don't have an official registration process, such as the UK, there are many services that offer a sort of faux registration--really just a time-stamping or date verification service, supposedly designed to prove ownership of a work. But you can easily prove ownership yourself, by keeping draft copies, computer records, and the like; there's no reason to pay someone else to do it. Such services, which provide neither legal advantage nor additional protection, are a waste of cash.

There's a more detailed discussion of why such services aren't helpful at Writer Beware's blog.

Copyright Myths

Like any complex and arcane subject, copyright has spawned a number of persistent myths.

Myth #1: Copyright protection isn't invoked unless a copyright notice or the copyright symbol (the little "c" in a circle) is present. Until 1989, works had to contain a valid copyright notice to receive protection under copyright laws. But this requirement is no longer in force in Berne countries.You're automatically protected by copyright from the moment you fix a work in tangible form, and no further action on your part is required. Nowadays, if you're submitting to agents and/or publishers within a Berne country, there's no need to place a notice or a symbol on your work.

Myth #2: Even if you don't need the copyright symbol or notice, it's a good idea to include it. Nope. First of all, agents and editors know about copyright, so there's no need to remind them you're protected. Second, a copyright notice or symbol confers no additional protection, so it makes no difference whether it's there or not. Third, agents and editors assume that a writer with professional aspirations is aware of these things. Including a notice may suggest to them that you're either ignorant or paranoid. This is not exactly putting your best foot forward.

Unfortunately, this is an issue that generates a good deal of argument. For reasons I don't quite understand, many writers are resistant to the notion that they don't need to plaster their work with copyright notices. Adding to the confusion are the many how-to-get-published books that recommend the practice. All I can say is that every writer, book or magazine editor, or agent I've ever spoken with agrees that a copyright notice tends to produce an unfavorable impression. Since you don't need the notice--again, it provides no additional protection--why take the risk?

One situation in which it is advisable to include a copyright notice is for work displayed online. This isn't because the notice gives you extra protection (it doesn't), but because it may provide some deterrent to the many people who believe the Internet is a copyright-free zone.

Myth #3: In the USA, you don't have copyright protection unless you register with the U.S. Copyright Office. Wrong. Registration is a prerequisite for filing a copyright infringement suit, but it is not required for copyright protection. By law, you have that the moment your work is fixed in tangible form.

Myth #4: Registering copyright increases your protection. This isn't true either. In a country that offers official registration, registering expands your rights, but does not confer additional protection.

Myth #5: Material on the Internet isn't protected by copyright. This is an amazingly common assumption, but it's incorrect. Copyright is as protected on the Internet as anywhere else. Never use material from someone else's website without first asking permission.

Myth #6: "Poor man's copyright" is an acceptable alternative to U.S. copyright registration. Writers are often told that sealing a copy of their work in an envelope, mailing it to themselves, and retaining the envelope unopened (a.k.a. poor man's copyright) is a reasonable alternative to official copyright registration, since it proves both ownership and the date of creation.

However, while this might possibly be useful in a court case (though more likely not, since poor man's copyright is so easy to fake: you could have mailed the envelope empty, and filled and sealed it later), it does not provide legal protection in countries where official registration is a prerequisite for filing an infringement suit. Where registration is an option, there is no substitute. Don't waste your time with poor man's copyright.

Myth #7: Registering with the Writers Guild of America is an acceptable alternative to U.S. copyright registration. See above. WGA registration is not a legal substitute for official copyright registration.

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Except for graphics, and where specifically indicated, all Writer Beware contents copyright © 1998-2008 Victoria Strauss

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