Who Owns Your Writing?
By Ann Sweeney
In this country we enjoy being able to speak our minds, write our opinions, invent new contraptions, and be compensated or rewarded for our ideas and creativity. When, however, do our creations become the property of others? Does a publisher own our new revolutionary theory if they published the book that communicated that theory to the world? Does a newspaper or news service own the weekly editorial column we write and get paid for? What about the directions we write for a medical devices company using their products and equipment as paid employees? Wouldn’t our writing still be subjective, interpretive, and considered our “intellectual property?” Or, does our written work stop being our property, and subsequent issues negated, when it is “work product?” These questions are especially important to writers of technical documents and communications, as most of the work is created at the request of a second party. Such writing is usually bought and paid for, contracted or assigned, and done in the context of employment or trade.
Tharon W. Howard, in the article “Who ‘Owns’ Electronic Texts,” confirms the confusion many writers feel about the ownership of their text, “For most people, including a large number of practicing professional writers….the issue of intellectual property isn’t problematic. Most writers today….tend to subscribe to the view that authors ‘own’ their texts. We tend to believe (as is implied by….the Constitution) that we have the right to expect remuneration for ‘our’ writing and, furthermore, that we ought to be able to have some control over how our texts will be used” (398). The ability to copyright our writing, to establish authorship as ownership, was originally intended to further this cause. Under the protection of the 1976 Copyright Act, an author owns his or her work as soon as it is written down. There is, however one huge exception: authorship versus ownership if the author was paid to do the writing.
Copyright law is complicated and exists in a seemingly constant state of change and flux. Exceptions exist, but there are a few universal absolutes in terms of ownership and copyright. The U.S Copyright Office defines copyright as “….a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of ‘original works of authorship,’ including literary, dramatic, musical, artistic, and certain other intellectual works,” declaring authorship and ownership (www.copyright.gov/circs/circl.html/2). Immediately presumed is that the author is the piece in question’s creator. Taking this one step farther, Section 106 of the 1976 Copyright Act gives the owner the right to reproduce their original; to create “offshoots,” sequels, or works that are based on the original; to sell and profit from their work; and to perform the work publicly (United States Copyright Office, Circular 9 pp. 1). In almost all instances, the Copyright Act assumes the author and the owner are one and the same.
One of the exceptions to the Copyright Act is especially germane to technical writers and writers who write content copy for periodicals. “Write for hire,” meaning written material that may be proposed and/or created, and paid for by an employer or contractor. “Write for Hire” is understandably very controversial, as a writer interprets the ultimate product via their own intellect. In write for hire cases, the employer, not the writer/employee, is considered the author. Write for hire product is not considered “intellectual property.” Instead, it is a “work product” that is bought and paid for.
“Work for hire” is defined as any work that is prepared and/or written by an employee within the scope of his or her job (wwwcopyright.gov/circs/circl.html). In addition, there are specific works where the purpose of the work may not always be employee-generated but is specially requested or commissioned for use as in: a contribution to a collective piece or compilation; translations; any instructional text; a test and the test answers; any supplemental work (www.copyright.gov/circs/circl.htm).
Technical and professional writers have a legitimate reason for concern and confusion as it is a category of material that does not benefit the author with copyright protection, even though there is the argument that copyright was originally designed for that purpose. Ultimately, copyright law has had to create a compromise, encouraging industry to pay for writing as a product by paying writers to write it (Howard 402). Particular to technical writers, “…writing mainly composed of “ideas, procedures, methods, systems, processes, concepts, principles, discoveries, explanation, or illustration, and done in the context of free trade (www.copyright.gov/circs/circl.html), is exempt, supposedly, from federal protection. In addition, writing that takes its source material from public documents is not federally protected under copyright law.
According to the Library of Congress’ website, obtaining copyright on written work has changed in the last one hundred years, most dramatically in the last 30 years. Publication no longer assures copyright ownership; and concurrently, unpublished works can qualify for copyright protection. Ultimately, what usually constitutes copyright is no more than what is called a “notice of copyright,” a little note on a work. Even this is no longer mandatory, but is beneficial in case of dispute.
Once the copyright notice is displayed on the work, registration takes place by submission to the copyright office at the Library of Congress. In the case of work done for hire, the company or the person contracting the work will register and own the copyright. However, copyright registration is just intended as public notification, not a requirement for copyright protection, with one caveat: a work must be registered before an infringement suit can be filed.
Copyright buys an owner time: writing, in general, qualifies its owner/author lifetime plus seventy years of ownership. Write for hire, on the other hand, qualifies for copyright protection for 95 years from the publication date, or 120 years from creation, whichever expires first (United States Copyright Office, Circular 9 pp. 2). Ultimately, it would seem as though work for hire product has the edge in copyright benefits, and is made more complicated as more and more of it is being found as electronic media. While a writer may or may not be able to own their own work under copyright, knowledge of the laws and their scope may help writers in industry applications understand how to avoid copyright infringements, especially as research becomes more and more a bedrock of technical communication. In other words, professional writers must now know what functions as “fair use” intellectual property, and what constitutes ownership, as copyright and ownership issues will start to become not only part of a writer’s everyday work world, but a more confusing and dynamic concept of ownership and property.
United States Copyright Office, Circular 9; 1-22. www.copyright.gov/circs/circl.html
Howard, T.W. Who “owns” electronic texts? in Johnson-Eilolo, J., & Selber, S.A. (Eds.). (2004). Central Works in Technical Communication. New York: Oxford University Press.