Copyrights coming out of the drawer

Copyrights coming out of the drawer

Adi Marcus, Adv.
February 1, 2021

The process of getting a creative work our of the drawer and published is a very important part of realizing its potential. However, along with the understandable desire of the creator to maximize the work’s potential (after all, what good is an idea for a script or an app if such remain known only to the creator) comes the constant fear of copyright theft and every creator is more than familiar with the various "horror stories" on the subject.

Every starting creator who has worked around the clock to perfect his creation - whether it be an outline for a book or screenplay, an idea for a television format or an initial development for an innovative software or system, strives for his work to find its way to publishers, agents, TV producers, advanced software companies or investors. While the Bern Convention for the Protection of Literary and Artistic Works places no requirement that a work be registered in any way in order to grant it protection, life shows that in the absence of documentation of the work's existence and the date of creation, material issues can arise.

In the past, creators used the postal services and sent their work to themselves by registered mail, so that the date on the envelope could be used as evidence of the date of formation of the rights in the work. However, in modern age this action may not be enough to establish evidence of ownership. Similarly, many authors rely on confidentiality agreements, which are an important first step in protecting rights, but unfortunately do not provide full protection for the creator. This, due to the fact that section 5 of the Israeli Copyright Law does not provide protection for an idea, and therefore, in the event that the author's work is not fully developed, copying may be perceived as merely imitating the idea and not the way it is expressed, rendering the work unprotected. Thus, in order to be protected under law, the work must be a fully realized and implemented idea which contains unique elements and ways of application and not simply a raw concept. In addition, if the documents do not accurately define the work and its scope, it will be relatively easy to contend that a competing work was created independently.

Sometimes, a way to grant a work protection is to deposit it with a notary, thus providing a notarized certificate for the date of deposit and in case of dispute, the certificate and affidavit accompanying it, will constitute evidence regarding the identity of the creator and the nature of the work. Additionally, when conducting contacts with international bodies it is sometimes fitting to record the work with an international repository of works, such as the US Federal Copyright Repository or the US Library of Congress. While in Israel there is no official copyright database (there are several unofficial online databases but the effectiveness of the recording with such has not been proven sufficient in legal cases), the registration procedure in the US databases is relatively simple and allows for registration of a work provided it is a film, recording, composition, literary work, software or Computer code, which can not be published at the time and is in the process of being prepared for commercial distribution. Upon recording with the database, a certificate of ownership of the work is issued, which has been previously recognized as having significant evidential weight in both the United States and Israel, and which may deter potential infringers and improve the author's status in negotiations as evidence for the existence of a real intellectual property asset.

In any event, it is important to remember that copyright protection is not a trivial matter, it is important to consult a commercial lawyer with experience in the field and not to rely on standard document templates, as these will not always provide protection and can sometimes create a false sense of security which may jeopardize the author’s copyright protection.