Literary Work

“Copyright” literally means the right to copy.  Copyright is a form of protection given to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other works.  This protection is available “automatically” to both published and unpublished works.

For the purpose of copyright, the term “literary works” is not confined to works of literature in the commonly understood sense, but is taken to include all works expressed in writing, regardless of whether they have literary merit or not.  Thus, the definition is defined as works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards, in which they are embodied.  For example, computer databases and computer programs are considered to be “literary work” to the extent that they reflect the programmer’s expression of original ideas. Computer software is also considered a “literary work” and is thus given all of the protections of the copyright law.

Under U.S. law, the author of a literary work is automatically the owner of the copyright in the work.  However, if an employee creates a literary work as part of his employment, the employer is considered to be the “author” for copyright purposes.  The author acquires a copyright in a work as soon as it is “fixed in a tangible medium of expression”  For example, in the case of a computer program as soon as it is written down on paper or electronically on the computer in some readable form.  Copyrights last for the life of the author plus 50 years if the author is a natural person, or for 150 years if the author is a corporation.

Copyright law protects the author of the literary work in several ways.  The owner of the copyright of a literary work has the exclusive right to make and distribute copies and to create derivative works.  In addition, the law not only gives the author of the literary work the ability to prevent others from making exact copies of the work, but it also gives him/her the right to prevent others from creating and selling works that are “substantially similar” to the copyrighted work.  Though there is no ready-made yardstick as to what constitutes a “substantially similar” work, the basic test to determine whether a work is “substantially similar” to another is to see whether a person looking at the two works would believe the two works to be the same.  This protects the author of a literary work from another person changing a few words here or there in a work and claiming it to be his own.

However, if a person independently creates a literary work that is substantially similar to a copyrighted work, then that independently copyrighted work is not an infringement and there is no recourse.  In addition, copyright protects only “expression.”  It does not protect facts and mathematical formulas.

Copyright law was designed to protect the creativity of the author, his/her unique way of expressing himself or herself. In the case of complicated software, which might have millions of lines of code, there are many ways of approaching problems and finding a solution.   In cases of software, copyright protects the author’s approach, the creativity put into the coding to make the software perform the required tasks.  Another programmer, approaching the same problem, may use a different approach to the problem and reach a different solution.  In such cases, each of those different approaches would be entitled to copyright protection and the respective programmers would not infringe on the rights of the other.

In order for a U.S. author of a literary work to bring a suit for copyright infringement, it is necessary for the author to have registered the work with the U.S. Copyright Office.  It is not necessary for non-U.S. authors to have registered their work with the Copyright Office in order to file an infringement suit, but there are still advantages for non-U.S. authors to register their works.  First, the registration is prima facie evidence as to the ownership of the copyrighted work.  In addition, U.S. copyright law gives persons who register their works the option of recovering “statutory damages” for infringements which occur after the registration of the work, and not just the actual damages the copyright owner can prove he has suffered.  Statutory damages are damages which the court can award without regard to the amount of damages which the copyright holder has suffered, or could prove he has suffered.  In addition to an award of damages, a successful copyright infringement plaintiff may also obtain an injunction against further infringement by the defendant and, in appropriate circumstances, obtain the destruction of infringing copies of the copyrighted work.


Inside Literary Work