4. Legal Guidelines





Technical publications professionals need to follow legal guidelines that cover the proper usage and marking of trademarks and the protection of intellectual property. Trademarks and materials that can be copyrighted are among a company's most valuable assets. Everyone who is involved in the preparation of materials that use trademarks or who creates materials subject to copyright has a responsibility for securing and protecting the copyrights and trademarks.

Topics

Note - This chapter sometimes advises you to check with the legal department in your company. If you do not have a legal department, check with counsel specializing in trademark and copyright law.

Copyrights

Copyright is a type of legal protection, actually a set of distinct rights, granted by federal law for most literary, musical, dramatic, and other types of intellectual works, including computer programs. A 1978 law established a single system of protection for all published and unpublished "original works of authorship fixed in any tangible medium of expression from which they can be perceived, reproduced or otherwise communicated." With limited exceptions, no one may copy or reproduce, display, prepare derivative works, or distribute copies to the public by sale, rental, lease, lending, or other transfer of ownership of copyrighted works without permission of the copyright owner.

Copyrights do not protect the ideas and concepts contained in a work, but only the expression of such ideas and concepts. For this reason, copyright is not always the best single means of protection for materials containing valuable information that may be exploited. Confidential business information is usually best protected as a trade secret. It should also include a proprietary label (see "Proprietary Information") and should not be disclosed to third parties.

What Should You Copyright?

The following types of materials intended for external distribution should contain a copyright notice:

Check with your legal department if you don't know whether you should copyright a particular type of work.

Copyrighting Your Work

Note - This section and the one that follows, "Registering Your Copyright," necessarily discuss copyright law in the United States. If you are in a different country, check your local requirements.

Work is considered created both in part and in entirety when it is prepared over a reasonable period of time and fixed in a copy by the author for the first time. At this stage, the work is sufficiently stable that it can be communicated to and understood by others. For example, a chapter that you write becomes protected by copyright law the moment you save it to a disk file. Copyright protection is automatically granted under federal law for work created and published after March 1, 1989. However, affixing a copyright notice to each copy of a published work is an important step in preserving the copyright. For this reason, works suitable for copyright protection should always contain a proper copyright notice.

A copyright notice comprises:

Your legal department may have approved specific copyright statements. The copyright portion of these statements should not be modified (except for the date) without consulting your legal department.

An example of a copyright statement follows:

    © 1995 Kaytram, Inc., 2550 Regis Avenue, Mountain View, California 94043-1100 U.S.A.

    All rights reserved. This product and related documentation are protected by copyright and are distributed under licenses restricting their use, copying, distribution, and decompilation. No part of this product or related documentation may be reproduced in any form by any means without prior written authorization of Kaytram, Inc., and its licensors, if any.

Copyrights for Revised Documents

A previously copyrighted document that is recast, transformed, or adapted is considered a derivative work for purposes of copyright. For example, your manual would be considered a derivative work if you added a new section, chapter, or appendix. On the other hand, your manual would not be considered a derivative work if you merely fixed some spelling or style errors, changed the order of the chapters, or applied new templates.

If your document is a derivative work, you need to change the date in the copyright notice to the date that applies to the created derivative work. You also may need to include the earlier dates in a copyright notice for a derivative work. Check with counsel.

If your document is not a derivative work, use only the original copyright date. Do not change the copyright date or add other dates to it.

Duration of Copyright Protection

Copyrights, unlike trademarks or patents, subsist from the time a work is created. Copyrights exist for a finite number of years, generally the life of the author plus 50 years or, if done as a work made for hire for an employer, for 75 years from the date of publication, after which time the work becomes part of the public domain.

Copyright Ownership

Generally speaking, if materials are written by an employee in the course of his or her job, the employer is the owner of the copyright. For example, if you were a technical writer who wrote software installation guides for Spacely Software, Spacely would own the copyright. If you wrote short stories on your lunch hour, you would retain the copyright.

Copyrights in works created by independent contractors are owned by the independent contractors. However, this ownership is usually transferred to the employer if the contractor has signed a standard Personal Services Agreement or otherwise assigned his or her rights to the employer in writing. Departments that use independent contractors should make sure that one of these assignment documents exists for each contractor.

In some situations, especially when you are marketing software products licensed by third parties, the copyright may be held by someone else. Check with your legal department if you have questions about copyright ownership.

Registering Your Copyright

To take full advantage of the legal protection afforded a copyrighted work, you may also have to register the work with the United States Copyright Office. Registration is a relatively straightforward process: It requires completing a one-page application and including either a copy of the work or, in the case of software, a portion of the source code (usually the first and last 25 pages with portions blocked out to protect trade secret information) as deposit or other identifying material.

Registration is almost always a prerequisite for:

A federally registered copyright also gives the registrant various procedural advantages should it elect to take action against an infringer. There is no universal international copyright protection, but works copyrighted in the United States may be protected in foreign countries under various treaties and conventions.




(Continued...)