Patent Group at Berkeley Lab



	Patent Group Home

	Information for Inventors

	Forms

	Patents

	Confidential Information

	Copyright

	Trademark

	Computer Software

	Patent Publication Review (For LBNL Authors)

	Export Control

	Humor

	Patent Group Staff

	LBNL Report /Publication Approvals (Patent Counsel only)

	Intellectual Property Law Web Links

	Copyright Notice & Disclaimers

	Tech-Transfer


	Webmaster

	SEARCH


	Patent Group
	Copyright Law and Policy

	What is a Copyright? The term "Copyright" describes a bundle of rights granted by the U.S. Constitution to the authors of "writings." These exclusive rights were codified in the Copyright Act, and include the rights to: Reproduce the copyrighted work in copies or phonorecords; Prepare derivative works based upon the copyrighted work; Distribute copies of the copyrighted work to the public by sale, rental, lease or lending; In the case of literary, musical, dramatic, choreographic, and audiovisual works, to perform the copyrighted work publicly; and In the case of literary, musical, dramatic, choreographic, and pictorial, graphic, or sculptural works, to display the copyrighted work publicly. How Long Does it Last? Generally, a copyright will last 70 years beyond the death of the author. For works made for hire, the copyright expires 95 years after publication, or 120 years after creation, whichever comes first. What Does Copyright Protect? The Copyright Act states that copyright protection exists only "in original works of authorship fixed in any tangible medium of expression . . . from which they can be perceived . . . either directly or with the aid of a machine or device." The key terms here are "original" and "fixed." The Work Must Be Original Though the term "original" has been subject to interpretation by the US Copyright Office and by the courts, it generally means that the work must be original to the author and more than a trivial variation of a preceding work. The Work Must Be Fixed Fixation requires that a work be embodied in a tangible medium of expression, which is sufficiently permanent to permit it to be perceived for more than a transitory period. Ideas Are Not Protected Ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries are not protected under copyright law. Some of these items may be protectable under patent law. No matter how many different material objects embody the work, there is only one copyright. The "work of authorship" is the program itself, not the material objects that embody it. These are, not surprisingly, called "copies." The program that is perceived from each embodiment represents the same work of authorship in all embodiments. Determining Copyright Ownership Ownership of copyright depends on (a) the source of funding of the publication, and (b) the type of document to be published. LBNL is subject to the University of California policy on copyright ownership due to its status as a Department of Energy laboratory operated by the U.C. Regents. That policy's provisions, and Contract 31's rules regarding copyright, are summarized in this table. Works Made for Hire Generally, works made by LBNL employees during the course and scope of their employment are owned by the U.C. Regents unless there is a written agreement to the contrary. The U.S. Supreme Court has established a method of determining who is an "employee" by applying a number of factors, including the skill required; the source of the instrumentalities and tools; the location of the work; the method of payment; the provision of employee benefits; and the tax treatment of the hired party. (See C.C.N.V. v. Reid, 490 U.S. 730 (1989)). To determine whether a work was made during the course and scope of employment, courts inquire whether the work is of a kind the employee was employed to perform, occurs substantially within the authorized time and space limits of the employment, and is actuated, at least in part, by an "appreciable" purpose to serve the employer. (See Avtec Systems, Inc. v. Peiffer, 21 F.3d 568 (4th Cir. 1994)). An individual's classification as an employee or an independent contractor of LBNL will impact that individual's intellectual property rights. Such classifications must be done on a case-by-case basis, examining the factors listed above, plus any contracts or agreements that exist between LBNL and the individual. An excellent site to check out is 10 Big Myths on Copyright Explained by Brad Templeton. LBNL Book Writing and Publishing Policy Q: If I am an author of a book or chapter of a book which I wrote while employed at LBNL, what legal and procedural obligations to LBNL and DOE do I have to fulfill before signing a contract with a publisher? A: First, contact the Licensing Group of the LBNL Technology Transfer and Intellectual Property Management department to determine the appropriate form to submit. Generally, the type of form depends on the extent to which writing and preparation was done independently of LBNL. Then, if necessary, a royalty and honorarium assignment agreement will be drawn up and signed by you and a representative of the U.C. Regents. Q: If a royalty and honorarium assignment agreement is necessary, what kind of royalty distribution is made between LBNL and me? A: The distribution of royalties from the sale of the book will be in accordance with the royalty sharing formula in the UC Patent Policy.

What is a Copyright?

How Long Does it Last?

What Does Copyright Protect?

The Work Must Be Original

The Work Must Be Fixed

Ideas Are Not Protected

Determining Copyright Ownership

Works Made for Hire

LBNL Book Writing and Publishing Policy