Proving an e-mail was read

Plenty of independent contractors and small businesses conduct most or all of their business communications by exchanging e-mails with other individuals. When business disputes arise, it is fairly common for unscrupulous individuals with whom someone has dealt with to simply deny receiving e-mails and claim that as a defence in a legal proceeding.

For example, a scammer might claim as a legal defence to a Plaintiff's Claim that they never received a demand for payment after having missing a contractually required payment deadline for services rendered. Even though it is unnecessary to prove that they received an e-mail, since missing the deadline is grounds enough to sue them, it is always nice to have that extra bit of evidence establishing that one of their defences, although not even a legal defence in itself, is still a lie. This helps to establish their lack of credibility in regards to other matters that they might testify to.

This is where proving that an e-mail was read comes into play. When you send an e-mail, you want to establish that it was sent and be able to prove it for a future court use. Here are a few ways of accomplishing this:

1) Many e-mail programs have a "Request read receipt" option. When you send the e-mail, the recipient is asked whether they wish to acknowledge receiving the e-mail. Sometimes this is considered rude as it can represent an intrusion on their privacy, but when dealing with contracts people might be more open to receiving these and acknowledging receipt. Sometimes these read receipts don't even ask the recipient to acknowledge receipt, and simply automatically tell you they have received it.

2) If you own a website, you can host a tiny .jpg file on the site, then embed it in an HTML-formatted e-mail when you conduct your business communications. Your server log should then show that the person accessed the e-mail from a certain IP address. The downside to this method is that you have to make a new file for each e-mail sent, but the upside is that it's far less obvious than many read receipt programs.

3) To establish the content of a business e-mail, particularly when you are making offers and acceptances regarding contracts, make sure to send yourself a blind carbon copy at the same time that you e-mail the person you are doing business with. This way you actually have a copy of the agreement which they responded to should you need to introduce it in court.

Recording a document with the United States Copyright Office

There are a number of agreements which may be entered into by two people over the issue of a copyright, such as licensing the use of the copyrighted material, or changing ownership of it. Often, this can be done through agreements other than written ones, however many people like to have their agreements in writing with the signatures of the involved parties on the document describing the agreement.

The United States Copyright Office allows individuals to submit originals or certified copies of these agreements to their office, which can be of importance during future legal disputes. This process is known as recording a document, and the rules for doing it vary greatly depending on who is submitting the document for recordation. The originals must bear a signature, or if they are copies, must be properly certified by as true by an appropriate entity, depending on where the copy is coming from. There is also a fee involved.

To get a more complete description of the process, you can read the U.S. Copyright Office's pamphlet on the subject here.

RELEVANT LINKS (Open in new window)

United States Copyright Office: Recordation of Transfers and Other Documents

When does a copyright expire?

A lot of people hoping to publish content they like once it is in the public domain are wondering when exactly copyright protection of an original work expires. The number of years varies by country, but below is a breakdown of a few national laws. Please note that the times can vary based on legislative changes, as well as there often being different protection periods for different forms of media (literary works, sound recordings, etc.).

Canada: Lifetime of the author plus 50 years after death.

New Zealand: Lifetime of the author plus 50 years after death. Different time periods apply to other non-written copyrighted works.

United Kingdom: The lifetime of the author plus 70 years after death for written works. Other time periods can apply to works other than the written variety.

United States: Usually the lifetime of the author plus 70 years after the death of the author for written works. It can be much more if the work is published anonymously.


SOURCES (Open in new window)

Canadian Intellectual Property Office: How long does copyright last?
New Zealand Ministry of Economic Development: How Long Does Protection Last?
United Kingdom Intellectual Property Office: How long copyright lasts
US Copyright Office: How Long Does Copyright Protection Last?

Be cautious when using Western Union

A lot of contractors promising services online might offer services if you pay them via Western Union. Some of these people are reputable, but many of them are simply scam artists who want to defraud you of your money.

The problem with Western Union is that although it requires identification documents from people picking up money being sent to them, the common fraudster usually just gets a counterfeit ID and the information on it cannot be used to track them by the time it is discovered they are not really going to provide the good or service they promised in exchange for the payment.

Additionally, the stolen money cannot be "charged back" like if you use a credit card, nor is it insured to a certain limit like if you use PayPal. Once the money is lost, the fraud victim has the personal responsibility to find and sue the fraudster if they wish to recover their money.

Therefore, unless you know the person who you are sending the money to well--for example, they are a friend or relative--it is best to refrain from using Western Union or any other payment service from which you cannot recover money if it turns out that it was obtained by fraud.

Those are the main reasons to be cautious about using Western Union. If you happen to want to read some humor in which scammers attempting to defraud via Western Union or other irreversible payment methods are messed with, I recommend visiting http://www.scambuster419.co.uk/.

What is maritime law?

This is not so much a cyber law issue, but some people are curious about to what "maritime law" refers. This is a brief answer to their question.

Maritime law, or "admiralty law" as it is also commonly known, is a system of law governing marine commerce. Things such as who has the right to salvage and what their reward will be, proper care of sailors by shipowners, and liens on ships are all covered by maritime law.

Separate or national courts usually always have jurisdiction to hear maritime law cases, rather than them being heard along in the same courts that a traditional lawsuit might be brought. For example, in the United Kingdom, there are designated judges authorized to hear admiralty law cases in the High Court, Queen's Bench Division. In Canada, the Federal Court of Canada deals with maritime law cases, and in the United States, the U.S. Federal Court hears such cases.

For those interested in reading more on the subject of maritime law, I suggest visiting the Admiralty and Maritime Law Guide website. It contains an extensive database of information on the subject of admiralty law.

List of legal deposit libraries

Legal deposit is the requirement that individuals submit certain classes of published works to their national library. Below is a list of some legal deposit information websites by country. If you know the links to any other countries' legal deposit pages, please feel free to post them in the comments section of this blog entry.

Australia
Belize

Canada

Denmark

Finland
India
Ireland

Israel
Jamaica
New Zealand

Norway
Singapore
South Africa

Spain

Sweden

Switzerland
United Kingdom
United States

Christmas gifts for law students and lawyers

NOTE:  This article was so popular that I decided to publish a second article, which you can find here.

Christmas is right around the corner and you may be wondering what to buy a law student or lawyer you know. Here are a few lower-priced suggestions available from Amazon.com.





My rationale for these gifts is below. Note that I am a law student and I personally have purchased items 1 through 7 and enjoy owning them. I do not own items 8 through 10, but would be quite pleased if I did, and believe many other law students and lawyers would, as well.

1) Ok, so this first suggestion may be geographically biased against those who don't live in the USA, but the pocket-sized copy of the United States Constitution is something no lawyer should go without. Every member of the bar ought to always be able to have in their pocket a copy of the supreme law of the land to which all laws they enforce are subject, and from which all laws they enforce are derived. This shouldn't be the main gift you buy for your special law student or lawyer, but at a low price of $4.95, and with such a small size, this gift makes a perfect stocking stuffer.

2) A copy of Cicero's Defence Speeches. Rome's Cicero is considered one of the greatest orators of antiquity, and just happened to be a lawyer as well. The Oxford University Press has compiled his speeches into a single book, which any law student or lawyer who enjoys good courtroom rhetoric ought to like. It's not uncommon to see courts including the Supreme Court of the United States quoting Cicero, or referring back to "Cicero's time." This makes his speeches of considerable importance to anybody who wants to have a greater understanding of what the courts refer to when they talk about Cicero. This is an English translation, so there is no need for the reader to know Latin.

3) The Federalist Papers. Once again, a geographically biased suggestion. For those law students and lawyers within the United States, this book contains the argument by the Founding Fathers for the very existence of the modern US political and legal system as we know it, written before Americans could even agree on what the Constitution ought to say. The authors are Alexander Hamilton, James Madison, and John Jay. These essays are routinely cited in constitutional cases, so it's a good idea for a litigator to have a copy of them.

4) Witness for the Prosecution, because Sir Wilfred Robarts, barrister, is one of the most humorous lawyer characters the film world will ever see.

5) Inherit the Wind, a classic about one of the most significant trials in American history. It was listed in the American Bar Association Journal as one of the twelve best trial movies.

6) Anatomy of a Murder, because everyone loves Jimmy Stewart, and his use of small town charm to manipulate a jury is entertaining. Like Inherit the Wind, this film was also listed in the American Bar Association Journal as one of the twelve best trial movies.

7) Sum & Substance Torts Audiobook series, because these are some of the most popular audio law lectures in countries with an English legal heritage for first year law students, and because Stephen Finz, the lecturer who at one point sings a song about choking on a chicken bone to demonstrate when one is and is not liable for another's injuries, is hilarious. The law student who receives this as a Christmas gift will be better positioned to pass their exams than if they don't receive it. This is only really for law students as lawyers should already know the material in here (or if they don't, they really shouldn't be lawyers).

8) A rolling briefcase. Ever been around a courthouse? If so, you have probably noticed that briefcases with wheels are proliferating more and more in the legal world these days. The amount of cases and other forms that a lawyer or law student assisting a lawyer has to lug around from courtroom to courtroom makes one of these briefcases far more desirable than the average briefcase, and saves the user from a lot of back pain. If you're really in a generous mood, you might purchase your favorite law student or lawyer this gift, and fill it with some other items in this list like the books and DVDs to add a nice gift within a gift.

9) A nice dress watch to keep time for those short breaks during trials. This kind of analog watch is ideal because it doesn't beep in court and won't make the wearer quickly lose favor with the judge. What's cool about the watch is that it's solar-powered, so the wearer doesn't ever have to worry about finding replacement batteries which fit it.

10) A relatively cheap Hewlett-Packard notebook computer for students and lawyers alike to work on their court files wherever they want instead of being chained to a desk all day. Many courts also allow the taking of notes on computers now if a lawyer asks permission, so if the recipient prefers typing on computers to writing on paper, this makes a great gift.

What is legal deposit?

What is legal deposit? That's a question which many people unfamiliar with their country's national library system may be wondering when they see the term referred to.

Many countries around the world have a law requiring copies of certain published material to be deposited in their national library. This requirement goes back centures in some countries, and is relatively modern in others. Though it originally applied to books, audio, video, CDs, and even websites are now often required to be submitted to a publisher's national library.

Legal deposit can serve as a useful tool for proving copyright ownership of a certain work, since by depositing it in a national library, the creator can prove that the work was created by a certain date during a court dispute. Like the Writers Guild of America script registration service, submitting a dated copy of your work to an independent third party provides valuable evidence during a trial. What's especially interesting is that depending on your country, you may be able to submit a website for archiving by your national library, meaning that even evidence of when a website was created can be created by working with your country's legal deposit program.

Some countries are more complicated in terms of legal deposit requirements than others. In the United Kingdom, for example, more than one library is entitled to your work when you publish it. Also, many countries require every differing version of a printed work to be published, regardless of the first version having already been submitted.

To make life easier, I have compiled a list of legal deposit libraries for readers to access. Each website listed should give more detailed instructions relevant to the specific country whose library it represents. You can view the list here. I hope this is of help to anybody wishing to learn more about how legal deposit works.


RELATED LINKS (Open in new window)

List of legal deposit libraries (Cyber Law Facts)

The Writers Guild of America script registration service

For those of you wondering how on Earth you can prove you created copyrighted content if the government doesn't actually register a physical copy of it, but only a certificate saying you created it (depending on where you live, you might not even get a certificate), one of the ways you can establish ownership of content is through the Writers Guild of America's script registration service.

The WGA registration system accepts files for registration and can confirm the date of registration, allowing you to prove that you were the original creator of content that another person claims to have created at a later date. Microsoft Word, ASCII, PDF files, as well as other formats, can be submitted online if they do not exceed ten megabytes in size. The cost of this service at the time of this blog entry for non-members of the WGA is $20 per submission.

For more information, including Frequently Asked Questions and submission links for both the online and the mail process, visit the WGAW Registry website.

Please note that despite the fact that it is the Writers Guild of "America," anybody around the world may use this service.

RELEVANT LINKS (Opens in new window)

WGAW Registry

What is the Berne Convention?

In the field of copyright law, people often see something called the "Berne Convention" written in guides regarding the law (including those posted on Cyber Law Facts), but don't know what it means. In case you were wondering, it's short for the Berne Convention for the Protection of Literary and Artistic Works.

The significance of the Berne Convention is that it's an international treaty, the parties to which have agreed to standardize their copyright laws to conform to some basic uniform standards. These standards include original works being copyrighted immediately upon creation, which eliminates the requirement for a person to register a copyright in order to protect their work.

They also include the lack of any requirement in member countries for copyright holders to mark their content with a warning that it is copyrighted in order for them to enforce that copyright.

Additionally, parties to the treaty agree that every foreign copyrighted work will be treated equally in the eyes of the law as a domestic copyrighted work, ensuring equality in the eyes of the law regardless of where someone originally copyrights their material.

The Berne Convention contains many more details, but these are some of the most important. If you have any questions, please feel to post them in the "Comments" section of this blog and I'll try to respond to them in a future post.

The Poor Man's copyright

This is pretty much a mandatory post for any blog that discusses copyright law: The Poor Man's copyright.

This is very straightforward. While all countries party to the Berne Convention have a legal system which recognizes works as copyrighted upon creation, not all countries have a copyright registration scheme in place to automatically recognize creators as having come up with a certain original piece of work.

In such countries, there are various alternative methods of registering copyrights (such as those mentioned in the Cyber Law Facts article Proving a website copyright), and one of them is a simple system known as the Poor Man's copyright.

Advocates of the Poor Man's copyright say that in order to record evidence of the earliest date of existence of your work, you can simply put a copy of it in an envelope, seal it, sign your name across the seal, and mail it to yourself. The result should be a sealed envelope containing your copyrighted material with an official postmark of your country's postal service on it.

This "evidence" can easily be faked through a number of methods, such as sending unsealed envelopes, steaming open envelopes, forging post marks, and so on. Because of this, it gives almost no evidentiary value in many courts of law. It should not be used as a reliable method of proving a copyright, particularly in a country where copyright registration is available, and it is best to rely on some form of private, respected document recording system to record copies of one's work, such as that provided by the Writers Guild of America.

Product Partners' P90X lawsuits

Edit: Someone named Kevin Morgan has posted in the comments for this article that the case is about trademark infringement under the Lanham Act, not copyright infringement.  It appears from going to the links about the cases that it is in fact the Lanham Act which is being cited in these cases.

Many individuals who sell P90X DVDs online through dropshipping are worried about recent lawsuits over the counterfeit material and would like to know more about the subject. This blog entry is written with those people in mind.

For those of you who don't know already, Product Partners, LLC produces some very popular exercise instruction DVDs known as P90X, and it seems that lately these DVDs have become very popular for eBay sellers, webmasters, and others to sell or give away as a promotional item.

The problem for these sellers is that P90X DVDs are usually somewhat pricey, and the incredibly cheap or free copies that independent retailers are selling are turning out to be counterfeit copies which infringe the intellectual property rights that Product Partners holds over the original production of the videos.

This isn't just an empty copyright registration which goes unenforced. This year, Product Partners has been pursuing copyright and trademark infringement claims against numerous offenders. People as low level as eBay dropshippers have been filed against, as well as there being a lawsuit against an entity as large as Costco. There are multiple filings by Product Partners listed at these pages from RFC Express:

Product Partners, LLC v. Linda Brun et al
Product Partners, LLC v. Aaron Watts et al
Product Partners LLC v. Dana Alton et al
Product Partners, LLC v. Evan Leisersohn et al
Product Partners LLC v. Danette Faulkner et al
Product Partners LLC v. Robert Aucoin et al

If you happen to be in the business of selling counterfeit goods in violation of others' intellectual property rights, you ought to stop immediately. These cases prove that copyrights are not just simply empty threats but enforceable property rights, the owners of which can and will aggressively defend.

If you are one of the people unethical enough to steal another's work, stupid enough to violate the copyright or trademark of a resourceful company like Product Partners, and unlucky enough to have been discovered and served by Product Partners' lawyers with a claim or request for payment, my only advice if that you immediately contact a local attorney skilled in intellectual property law and ask that attorney whether you would be wise to simply settle.
I hope this article has been of use to anybody interested in the Product Partners lawsuits. If you enjoyed this article, please feel free to leave a comment and submit it to your favorite social bookmarking site. Backlinks to my articles are always appreciated, as well. If you have any questions about cyber law topics, simply post them as a comment and I will do my best to respond.

Reporting inaccurate or false Whois data

Usually webmasters engaged in fraud use fake names, fake addresses, fake phone numbers, and so on, to associate with their website. The only real ID associated with their Whois record is their e-mail, so they can be contacted by their registrar--though sometimes that isn't even real.

This raises problems for people who are offered payment to produce content for a website, such as what happens when Internet forum owners offer paid posting programs, and are never paid for their work. How can one ensure that their work isn't used by a fraudster who has not paid them? The solution is simple: An ICANN Whois complaint.

ICANN is the Internet Corporation for Assigned Names and Numbers, and is responsible for administering various top level domain names such as .com, .net, etc. It requires that owners of domain names maintain accurate registration data regarding themselves in the system, or they can have their domain name revoked.

An ICANN Whois complaint can be lodged through InterNIC, which is ICANN's website for the public. To do this is simple. Simply visit the ICANN Whois Data Problem Report web page, enter the domain of the site you believe to have inaccurate contact information without any "www," (eg., "sgegtesgte.com"), your own name and e-mail address so that you can track the complaint, a security code to verify that you are not a robot, and click "Submit," and provide the information that the next page requests regarding which Whois entries are true and which are fake. (Before reporting the inaccurate information, you should ensure that it appears to be inaccurate by doing a Whois lookup on the domain name).

So what will this accomplish? If the domain name owner wishes to preserve their site, they will be forced to provide accurate contact information. With this, you can serve them with a law suit, report them to the police for fraud, or use any other legal strategy you can think of which required their previously unknown contact information. If they don't want to respond because they fear the reprisal, ICANN will probably disable their domain name and your content will no longer be making any revenue for a scammer.

Keep in mind that they could transfer your content to another website, but this will cost them the price of a new domain name, and you can always follow the same process with the new web address that you find your content on. You should save your content and search for it on Google every couple weeks after the original site is blocked so that you can determine whether it has been reposted elsewhere in violation of your rights as the copyright holder.

You might also consider filing a DMCA takedown notice with the host of the website if it is located in the United States and you want to claim copyright infringement.

RELATED LINKS (Open in new window)

ICANN Whois Data Problem Report page
What is a DMCA takedown notice? (Cyber Law Facts)
Whois Lookup Service

Why you should show up for court

Some copyright or trademark infringers who are served with court documents from a court system other than that of their own country of residence like to ignore the documents because they figure they cannot be affected by any contempt orders from that country. This strategy of ignorance is not quite as bad as the ignorance used in the Ostrich Defence since at least it does not involve pretending there is no such thing as a law suit, but it is just as stupid for practical reasons.

Many countries allow for a defendant to be found against in their absence with a summary judgement if they decide not to file a defence. In their silence, they are convicted and the court then proceeds to an examination hearing to determine their assets, issuing a summons for them to appear. When the defendant is served with the summons and fails to appear in court on the specified day, the court can issue a warrant for their arrest.

Now, a defendant might not be phased by this, since they figure they just won't ever visit the country where there might have been an arrest warrant issued for them for failing to appear in court, or be convicted of and sentenced in their absence to contempt of court. It is stupid to become a fugitive, though, for a few reasons.

Warrants tend to stay in a nation's criminal system indefinitely. This means that even if a defendant doesn't care that they are threatened with arrest now, if their plans in the future change and they have to go live in or visit that country, they risk being arrested on arrival.

Additionally, even if someone does not want to visit a foreign country ever in their lifetime, they might still be subject to arrest while travelling to other countries. For example, the European Union has a shared criminal information system. This means that if the United Kingdom issues a warrant for an Australian who subsequently visits France, that person might be arrested in France and deported to the United Kingdom.

There is also the issue of your own government enforcing foreign judgements. It is not uncommon for two or more countries to enter a treaty to enforce each others' judgements in their respective courts. For example, a Canadian who ignores an American court resulting in a summary judgement in the plaintiff's favour might suddenly find that an enforcement order has been filed in a local Canadian court to seize their assets. Failing to attend a local hearing makes for much more imminent arrest warrants than a foreign one, and the plaintiff ends up getting more money than if the defendant had simply settled for a lower number of damages.

For a variety of reasons, ignoring a law suit simply because it's in another country is not a wise choice to make. It is better to consult with a qualified legal professional and have them make a good defence or negotiate favourable settlement terms than it is to thumb one's nose at a foreign judicial system.

The Peter Pan copyright

Usually a copyright expires after X amount of years beyond the date of the owner's death. However, in the case of the play, "Peter Pan," by Sir James Matthew Barrie, who decided while still living that he wished for the Great Ormond Street Hospital for Sick Children to receive the royalties from his play, Parliament has decided to extend the royalties period indefinitely. The legislation regarding the royalties plan can be found here.

What to do when served with legal documents? Don't use the Ostrich Defence

People served with DMCA takedown notices, trademark infringement notices, demands for payment for copyright infringement with a threat of a law suit attached, or other legally threatening documents often want to know what the next step they should take should be.

Some will take--and I have actually seen armchair quarterbacks on websites advise them to do this--no action whatsoever. Their plan is simple: throw out the document they have been served with, then just deny if contacted again by the company that they ever received it. They then claim to have not known that they were infringing someone's copyright, like an ostrich with its head in the sand.

I'm not sure exactly what people intend to accomplish with this; the fact that somebody claims they did not know they were infringing a copyright does not let them off the hook for doing so. The statutory damages for copyright infringement in the United States are usually $750 minimum, and $30,000 maximum. Under US copyright law, mitigation of the penalty goes something like this:

In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. (Remedies for infringement: Damages and profits, s. 504 (c)(2))

It can be seen from this law that even if a person claims ignorance, the minimum penalty for infringement is $200. But note that the law does not just say an infringer can't have known that they were infringing, but that they "had no reason to believe that his or her acts constitued an infringement of copyright." In other words, burying one's head in the sand and republishing what any reasonable person might consider to be copyrighted--and many things could be considered copyrighted these days, for an example, an article about home computing which clearly would not have been around long enough for copyright to lapse--does not remove copyright liability.

The correct response when being served with any form of communication informing someone that they are infringing a copyright is not to ignore it, but to immediately contact a licensed legal professional in the alleged infringer's particular jurisdiction. To simply ignore letters threatening legal action and claim ignorance is incredibly stupid and nobody who values keeping their house should attempt this move.

Contributory copyright infringement

Many webmasters seem to think it's O.K. to post links to copyright infringing files as long as the files are not hosted on the webmaster's own website, and that no culpability for infringing a copyright can be applied to them since they did not actually provide the material themselves. This is sort of like thinking a person can provide directions to a murderer on how to find their victim, knowing exactly what the murder's intent is, but that the person would not in any way be liable for the resulting crime.

There is a term often applied to assisting or encouraging others to engage in copyright infringement, and that term is "contributory copyright infringement," or simply, "contributory infringement." A description of what contributory infringement is and how it applies is available on a webpage from Chilling Effects.

In every country I know of, knowingly posting links to copyright infringing material, whether the material is hosted on a webmaster's own website or not, is an act of copyright infringement. Because of this, webmasters should not think that it is acceptable to start pirate websites as long as they are linking to off-site servers. If caught, at the very best you or your web host might receive a DMCA takedown notice, or your country's equivalent if you are not in the United States. At the worst, you can be sued or possibly imprisoned depending on your country's laws.

If you run a pirate website, shut it down and use your skills for something more legitimate. Your bank account will thank you for not having to drain it during an expensive lawsuit.

Parental liability for copyright infringement

Many states in the United States of America impose what is known as vicarious parental liability on parents for the intentional wrongful act of their children, requiring the parents to assume responsibility for damages incurred by their children's tortious behavior, particularly in relation to destruction of property.

Many parents might want to know what kind of liability they have for copyright infringement by their children if their children engage in online piracy of music, movies, games, and so on. The Electronic Freedom Foundation has posted a general bulletin to defense counsel in relevant copyright cases here.

The two main methods the EFF expects copyright holders might use to hold parents liable are vicarious liability or contributory infringement, which means the parents had a role to play as one of the infringers, or the use of state liability laws which impose minors' liability for certain damages on their parents.

I recommend anybody interested in the subject of parental liability for copyright infringement read the memo, as it contains a lot of useful arguments.

RELEVANT LINKS (Open in new window)

EFF Memo Re: Parental Liability for Copyright Infringement by Minor Children

How to enforce a copyright in New Zealand

As is stated in my entry about how to register a copyright in New Zealand, copyrights cannot be registered in New Zealand, but they do exist and can be enforced.

While many countries use general court systems which also address other civil disputes to hear copyright infringement complaints, New Zealand uses what is specifically called the Copyright Tribunal to decide on copyright infringement complaints.

Based on the Ministry of Justice's website, the enforcement process seems fairly simple. It involves sending an application for a hearing in writing to The Secretary of the Copyright Tribunal and then attending the hearing. There is no application fee involved, and a hearing need not be held if both parties and the Copyright Tribunal agree to decide the hearing based on written submissions.

RELEVANT LINKS (Open in new window)

Copyright Tribunal - Ministry of Justice - New Zealand
New Zealand's Copyright Act 1994

What is a DMCA takedown notice?

If you have ever taken a look at the "Legal" page of a major American website, you have probably seen they information for where to send "DMCA takedown notices" relating to the website. A DMCA takedown notice is a method under the U.S. Digital Millennium Copyright Act of serving individuals who host electronic copyrighted content with a notice that they are infringing on the rights of the rightful content owner, and requiring them to take action.

Depending on your situation, if an American website violates your copyright, you may want to send a DMCA notice. The text of some of the relevant law on DMCA notices is located here.

Some of the specific requirements of the contents of a DMCA takedown notice are listed in Section 512(c)(3)(A), and include the necessity of:

(i) A physical or electronic signature of a person authorized to act on
behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be
disabled, and information reasonably sufficient to permit the service provider to locate the material.

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an
electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

There are some automatic tools that can help you format your takedown notices, such as the unaesthetic but useful DMCA Generator, but keep in mind these are only formatters and that copyright holders or their agents must determine for themselves that the notice they are sending is valid. If you do not know what you are doing, it is best to contact a licensed legal professional authorized to give advice on DMCA notices.

List of WTO member countries

Most if not all countries which protect international copyrights extend their copyright privileges to various treaty members. One of the organizations that member countries are often listed by intellectual property authorities as being eligible for receiving copyright protection for their citizens, subject, or residents is the World Trade Organization. Here is a list of member countries of the WTO as of the time of writing this blog:

Albania
Angola
Antigua and Barbuda
Argentina
Armenia
Australia
Austria
Bahrain
Bangladesh
Barbados
Belgium
Belize
Benin
Bolivia
Botswana
Brazil
Brunei Darussalam
Bulgaria
Burkina Faso
Burundi
Cambodia
Cameroon
Canada
Cape Verde
Central African Republic
Chad
Chile
China
Colombia
Congo
Costa Rica
Côte d'Ivoire
Croatia
Cuba
Cyprus
Czech Republic
Democratic Republic of the Congo
Denmark
Djibouti
Dominica
Dominican Republic
Ecuador
Egypt
El Salvador
Estonia
European Communities¹
Fiji
Finland
Former Yugoslav Republic of Macedonia (FYROM)²
France
Gabon
Gambia
Georgia
Germany
Ghana
Greece
Grenada
Guatemala
Guinea
Guinea Bissau
Guyana
Haiti
Honduras
Hong Kong³
Hungary
Iceland
India
Indonesia
Ireland
Israel
Italy
Jamaica
Japan
Jordan
Kenya
Korea, Republic of⁴
Kuwait
Kyrgyz Republic
Latvia
Lesotho
Liechtenstein
Lithuania
Luxembourg
Macao, China⁵
Madagascar
Malawi
Malaysia
Maldives
Mali
Malta
Mauritania
Mauritius
Mexico
Moldova
Mongolia
Morocco
Mozambique
Myanmar
Namibia
Nepal
Netherlands and Netherlands Antilles
New Zealand
Nicaragua
Niger
Nigeria
Norway
Oman
Pakistan
Panama
Papua New Guinea
Paraguay
Peru
Philippines
Poland
Portugal
Qatar
Romania
Rwanda
Saint Kitts and Nevis
Saint Lucia
Saint Vincent & the Grenadines
Saudi Arabia
Senegal
Sierra Leone
Singapore
Slovak Republic
Slovenia
Solomon Islands
South Africa
Spain
Sri Lanka
Suriname
Swaziland
Sweden
Switzerland
Chinese Taipei⁶
Tanzania
Thailand
Togo
Tonga
Trinidad and Tobago
Tunisia
Turkey
Uganda
Ukraine
United Arab Emirates
United Kingdom
United States of America
Uruguay
Venezuela
Viet Nam
Zambia
Zimbabwe

¹What is listed by the WTO as European Communities is actually now known as the European Union.
²Also commonly known as the Republic of Macedonia or simply Macedonia.
³Hong Kong is a part of China, but entered the WTO when it was still under the control of the United Kingdom. It continues to have a largely separate governance structure from mainland China.
⁴Not to be confused with the Democratic People's Republic of Korea, which is also commonly known as North Korea. The Korea which is a part of the WTO is the one commonly known as South Korea.
⁵Like Hong Kong, Macao is a part of China but has a more independent administrative regime.
⁶Chinese Taipei is not controlled by the People's Republic of China, but instead refers to the Republic of China, or as it is more commonly known, Taiwan.

What is and is not copyrighted

Generally a copyright exists once a unique performance, work of art, or literary work comes into existence. However, not all content is considered to be copyrighted.

Writing methods of doing something, for example, is usually not considered copyrighted. Recipes and chemical preparation instructions are not copyrighted upon creation. However, certain content in relation to them might be copyrighted.

For example, writing, "Stir for 5 minutes and then add half a cup of widgets" would probably not be copyrighted because it's a basic set of universal technical instructions.

However, writing, "I stirred this for 6 minutes and then added half a cup of widgets, which reminds me of this one time I ate bad widgets and ended up annihilating my toilet the next day," might be considered copyrighted because it's actually a unique story trailing off into something other than a basic formula.

In addition, one might write their recipe in the form of a poem, or a song, or an audio-visual performance. In all of these cases the formula becomes only a part of a larger creative performance, and you will find that many cooking shows are protected by copyright law for this reason.

Facts can not be copyrighted, either. You cannot state that George Washington was the first President of the United States and expect to sue someone for repeating that fact. However, like the methods example above, if you made a creative performance based around the fact, such as a movie about his life, or a poem about Washington, that would be copyrighted.

There are other things that might be protected by some form of intellectual property law, but are not protected by copyright law. For example, many people often lump patents and trademarks into the same category as copyrights. You cannot register a trademark or a patent as a copyright. Trademarks are, as the name implies, marks used in the course of commerce. Though the artistic aspects of a graphic trademark might be copyrighted separately, many marks are just single words which cannot be copyrighted.

Erroneously registering trademarks as copyrights might sometimes not be too big of a deal, though, since trademarks are often protected automatically after they become established as being associated with a product.

The same does not hold true for patents. Patents are the right to exclude others from reproducing an invention for a period of time, and must be registered using a country's (usually intensive) patent registration process. Do not invent a flying car and expect that your invention will be protected by registering a copyright!

To summarize, most unique creative performances such as art, music, video, and literary works are considered copyrighted, while patents, trademarks, and basic formulae are not.

Proving a website copyright

As mentioned earlier, websites are copyrighted as soon as you create them, and you can register the copyright with the appropriate intellectual property office. However, if other people dispute your copyright, then you will want to have evidence to prove that you are the real creator of the disputed material.

This is where that "Copyright [Insert creator's name here] 2009" phrase printed on so many items, though legally unnecessary for material to be copyrighted, comes in handy. The reason it is on books, CDs, DVDs, etc., is so that when a first edition is published, the fact that so many people can testify they had a copy of it with the copyright holder's name and year of creation on it creates good evidence of that person's ownership of copyright.

On a website, however, the copyright phrase by itself is insufficient because it can be readily modified at any time. Both the copyright phrase and an archiving service should be used. To have a website archived for a free, a webmaster can submit their website to the "WayBackMachine" at http://www.archive.org/. Archive.org will crawl the website within a few weeks, and add it to its archive. If there's ever a dispute over copyrighted content, a person might boost their case by showing that their website was archived as existing first.

If you are a copyright holder, keep in mind that you do not need to put your name on a website as the copyright holder if you do not want to give up your privacy. There are ways to still establish that the archived website belongs to you, such as getting a registered business name in your jurisdiction linked to your real name, and posting the registered business name as the copyright holder. If you are running a website with your own top-level domain name, use your real name but buy a WHOIS privacy feature, and if it should become necessary you can prove you owned the archived website in court by showing your domain registration documents.


RELATED LINKS (Open in new window)

Internet Archive: Wayback Machine

How to register a copyright in New Zealand

If you live in New Zealand or publish content there, you might be wondering how to register a copyright in that particular country. The answer is: you don't.

Unlike many English-speaking countries, New Zealand lacks any official copyright registration process. This does not mean that original content is not copyrighted in New Zealand; it means that one must find more unique ways to establish the ownership of a copyright. (Visit Cyber Law Facts' article on proving a website copyright for more information on ways to establish copyright, particularly as it relates to online content.)

For more information, please see the New Zealand government's information page on their country's copyright law, entitled, Copyright Protection in New Zealand.

How to register a copyright in Canada

Registering a copyright in Canada is pretty straightforward. All you have to do is create your content, give it a name, determine whether it is considered copyrighted material, and then register it with the Canadian Intellectual Property Office (CIPO). As a helpful guide to determining whether your material can be registered, Section 5 of Canada's Copyright Act lists the kind of content in which copyright subsists.

As of the writing of this blog entry, registering a copyright online with the CIPO costs $50, and registering it with them by mail costs $65. These prices are, of course, in Canadian dollars.

The following are the detailed steps involved in the registration process:

1) Create protected content. The Copyright Act states that original literary, dramatic, musical, and artistic work is copyrighted if created by a citizen, subject of, or person ordinarily resident in a Berne convention country, a country party to the Universal Copyright Convention, or a country which is a member of the World Trade Organization. This covers most countries around the world.

2) Give your content a title. This is important so that you can properly name it when you register the copyright.

3) Visit the CIPO's copyright site and register your copyright. If you want to register it online, which is faster and $15 cheaper than doing it by mail, visit the online copyright application page and follow the instructions. You will have to register for a free account before you can submit the registration application. If you want to submit the application by mail, visit the offline copyright application page and follow those instructions, instead.

4) If your application appears to be valid, the CIPO will often mail you a registration certificate in a matter of days. If it does not, you may be asked to modify your application and send it in again. Good luck!


RELEVANT LINKS (Open in new window)

Canadian Intellectual Property Office: Copyrights
List of World Treaty Organization member countries

How to copyright a website

With the amount of plagiarism on the Internet by people looking to make revenue from a website without putting any effort into it, plenty of webmasters and bloggers are rightfully interested in knowing how to give their blog copyright protection, and how to enforce that copyright.

Many people believe that they need to file a copyright registration or write "Copyright [insert webmaster's name] 2009" somewhere on the page in order to have an enforceable copyright over their content, but in reality a person who wants to have copyright protection over something they write must simply, well, write it.

Writing "Copyright ____ 2009" is often done with creative works not because it's necessary to establish a copyright, but because it's helpful in proving who created a certain work first, in the event that one person plagiarizes another. Registering a copyright with the government is similarly unnecessary, but, depending on the country, usually creates a presumption of ownership over the copyrighted material that must be disproven in court.

In short, if you are worried about how to copyright something, just write it!


RELATED LINKS (Open in new window)

Proving a website copyright
What is and is not copyrighted