Copyright Notices and the Importance of Year

Introduction

One thing I’ve recently noticed (especially with web developers) is they leave off the copyright year entirely.

Now realize I AM NOT A LAWYER! This is my layman’s understanding based on reading the relevant sections of US copyright law. None of what I have to say is legal advice and should be taken with skepticism. Again I’m not a lawyer so I cannot provide legal advise nor can my writing be taken as an actual (court case usable) interpretation of the law. Again, this is my own interpretation based on what I’ve read.

Now that the disclaimer that I may have no idea what I’m talking about and you can’t hold my liable if what I say isn’t correct is out of the way. I’ve noticed a recent trend where copyright notices are put on written works but the year is left off. I think this is wrong and can lead to a bad situation. Specifically defense of innocent infringement by an party infringing the copyright of the work.

I’m pulling all information from Chapter 4 of “Copyright Law of the United States of America and Related Laws Contained in Title 17 of the United States Code Circular 92”.

Visually perceptible copies

The first thing we need to look at is § 401. Notice of copyright: Visually perceptible copies. First of all section (a) states that a notice may be placed. Just because you never put a copyright notice (in the USA) doesn’t mean the work is not protected under copyright. It still is considered to have copyright and most (I’ll get to this later) provisions still apply if you do not pace a notice.

Section (b) is the crux of the issue. The statute states, “(b) Form of Notice. — If a notice appears on the copies, it shall consist of the following three elements:” Now I’mg going to simplify here: (you should read the section for yourself).

  1. “(1) the symbol © (the letter C in a circle), or the word “Copyright”, or the abbreviation “Copr.”; and”
  2. “(2) the year of first publication of the work; …”
  3. “(3) the name of the owner of copyright in the work …”

Basically what we have is the “shall consist of the following three elements” (emphasis my own). This means that the year is necessary.

I should also mention that section “(c) Position of Notice” is also important and that covers how / when / where the notice needs to be. It doesn’t actually go into detail but basically says there are rules for where you need to put the notice. Just having it isn’t necessarily enough on it’s own.

What Happens if There is No Year

This also plays into section (c) by the way. Not to mention if you decide not to place a notice at all.

This goes into section “(d) Evidentiary Weight of Notice”. Basically, my interpretation of this is if you mess up your copyright notice the infringer may have “a defense based on innocent infringement in mitigation of actual or statutory damages”. Meaning they can claim they didn’t know the work was still under copyright and though it was okay to use the work.

So if you were to bring a copyright law suit against an infringer you’ve given them a defense. You don’t want to give them any advantage or anything they can use against you when it comes to a law suit. Also, realize that (again my own understanding) a registered versus a non-registered work get the same treatment in court. However, damages are considered differently. See § 412 . Registration as prerequisite to certain remedies for infringement for some information about this.

My understanding is a non-registered work can only be awarded actual damages while a registered work can be awarded, actual, statutory damages or of attorney’s fees. Again this is my understanding based on the above parts of the law as I’ve read them and I could be way off base here. Oh, and time of registration, and time of known infringement before taking action all play a part too. So keep that in mind.

Registration and the details of filing of a copyright infringement law suit are not really the point I want to make in regard to stating the year of copyright. I just wanted to bring it up because it does play into this topic. However, I’m off topic at this point and registration and filing really should be articles of their own. So lets get back on topic of stating the copyright year.

Now I said earlier that you don’t need to put a notice (nor do you have to register a work with the US copyright office (or whatever government agency handles this)). If you never place a notice that doesn’t mean the work isn’t under copyright. If you don’t want the work under copyright (sent straight to the public domain for example) you need to specifically state this. However, realize that copyright is not perpetual or eternal. Copyright is temporary and eventually a work will fall into the public domain meaning anyone can use the work for any purpose.

Without the year there is a chance that an infringer can claim that they thought the work was old enough to be in the public domain. There are probably a large number of claims they can use as a defense as well in regard to an improperly stated copyright that (again me not being a lawyer) I don’t know about.

Conclusion

If you’re going to put a copyright notice on a work then follow the statute and put all three elements that it calls for. Including the year. There is no reason to open yourself up to a potential situation where you could be disadvantaged because you didn’t do something as simple as putting four characters in your notice.

Finally, I highly recommend reading the statute yourself because it goes into greater detail and covers things like § 404 . Notice of copyright: Contributions to collective works. This can be very important to say an open source project.

3 thoughts on “Copyright Notices and the Importance of Year

  1. One question I’ve had, specifically related to open source code. If you modify a piece of code (say just a single file in a large project) what should you do about the copyright notices? Should you update the year of the notice in just that one file? Or should you update the year of notice for every file in that project? To me, it seems like the entire project is the ‘work’ that’s copyright, but I really don’t know. Then again, what would it mean if you bring one file into your project from another open source project?

    Probably all questions for a lawyer but I don’t think I’ve ever worked on an open source project that could afford a lawyer.

    One, somewhat snarky comment…

    Copyright is temporary…

    While this may be theoretically true, I wouldn’t bet on any copyrighted material ever falling into the public domain, ever again. Admittedly, the details get complicated (see this for example), but most works published (with notice and renewal) in 1923 or later are still under copyright and will be until 2018. I’d put the odds of another copyright extension being passed before then at around 99.9%.

  2. > One question I’ve had, specifically related to open source code. If you modify a piece of code (say just a single file in a large project) what should you do about the copyright notices?

    This is a gray area that I really can’t answer. Typically if it’s a small 1 or two line change or something obvious then you don’t really have copyright over the change. The size, scope and complexity play into it. For example with books an editor doesn’t typically (unless you’re in academia and you have unscrupulous people around you) get any copyright ownership over the work they’ve edited. So this question really comes down to the change itself.

    > Should you update the year of the notice in just that one file?

    The law says only the year of pbulication needs to be in place but on an on going project you are essentially constantly creating a new publication. I’m going to use the book example again. Edition 2 will typically have the copyright years for both the original edition and the new edition. This continues with each edition. Basically, if we use books as an example every time a major change is released the year should be added (not changed).

    > Or should you update the year of notice for every file in that project? To me, it seems like the entire project is the ‘work’ that’s copyright…

    Copyright makes a distinction between a work and a collection. You should only update the year on the file itself that changed.

    Crypto++ is a good example. It’s licensed under the Boost Software License 1.0 as a complication. But each file within are in the public domain. If you were to take a single or more files from the project they are public domain and you can use them as you want. However, if you want to include the entire project you need to follow the Boost license it’s using. So, so the work as a whole can have it’s own copyright separate from the individual files.

    > Then again, what would it mean if you bring one file into your project from another open source project?

    You need to follow the license of that entire file. This is why the Free Software Foundation wants GPL notices on every file not just the work as a whole. So there is no question.

    >One, somewhat snarky comment… Copyright is temporary…

    Yes. But it does expire and there is no guarantee that it will renewed again. There is also no guarantee that all works will end up with the same time period of coverage if renewed. Even if renewed the point still stands that there is a limit. It may be a long limit but there is a limit.

  3. Thanks!

    When I even remember to do it, I update the year when I change some code. I guess I’ll have to try to change my behavior.

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