The US Copyright Act protects original works of authorship. Copyright can protect:
- graphical displays in a computer program
- website content
- advertising communication
- audio-visual content
- other works of authorship.
For Australian business offering ICT products in the US, the biggest difference to know about the US is the copyright registration system.
Software developed in Australia does not need to be registered to obtain copyright protection under US law. The US and Australia are parties to the Berne Convention, an international treaty affecting the rights of copyright owners. An Australian business may benefit from the Berne Convention if software, for example, is considered to be a work that originated in Australia, and the Australian business that owns the work has complied with copyright formalities in Australia. In this case, the Australian copyright owner may not need to register the work with the US Copyright Office before starting litigation in a US court.
However, even for a foreign work, compliance with US registration formalities for copyright brings critical benefits. Statutory damages (up to $150,000 per work infringed), and an award of your attorneys’ fees to be paid by the other party are available only to parties who have complied with US registration formalities before starting infringement proceedings or within a short time of first publication of the work.
For this reason, a formalised US copyright registration for your software and other works will help you make the most of your copyright protection.
If you are a software owner concerned about publicly disclosing your proprietary information, the US Copyright Office provides procedures allowing trade secrets to be redacted so confidential material does not appear in the public record.
To ensure that your copyright registration is valid the author and claimant must be accurately identified. When two or more authors create a single work where their contributions have been inseparably mixed, the authors are considered joint authors and have an indivisible interest in the work as a whole.
‘Works made for hire’ are an important exception to the general rule for claiming copyright. When a work is ‘made for hire,’ the author is not the individual who actually created the work. Instead, the party or corporate entity that hired the individual is considered the author and thus the owner of the work.
This is different to Australian law, where independent contractors are considered to own copyright unless they agree to assign copyright to the company that hired them. A work created by employees within the scope of employment is also generally considered a ‘work made for hire.’
The US legislation lists certain other types of works where a hiring party can enter into a written agreement with an independent contractor to designate a work as a ‘work made for hire.’ However, computer software is not one of these categories. For this reason, as well as other state laws it is important to get written assignments of rights to the Australian owner where needed.
Safe harbour for online service providers
Another feature of US copyright law is the way Internet service providers and other intermediaries are exempt from liability for copyright infringement by users of their services.
Unlike in Australia, the safe harbour provisions under the Digital Millennium Copyright Act (DMCA) also apply to any kind of online service provider (OSPs).
- email providers
- news websites
- entertainment companies
- search engines
- e-commerce sites
- social media platforms
- banks and electronic payment providers.
To take advantage of the safe harbour provisions, OSPs must comply with prescribed conditions and promptly remove or block access to alleged infringing material when they receive a complaint.
Since many of the world's most popular online platforms are either US-based or have significant operations in the US, it is quite common for them to offer a DMCA compliant takedown procedure. these are a great avenue if you find your content being infringed online.
The DMCA safe harbour system also includes a counter-notification provision that allows users claim that the material isn’t infringing. This aims to prevent IP rights owners from abusing OSPs takedown procedures.