Placing Copyright Notices In Documentation

Question: I have a client who is considering putting a copyright notice on every page of their technical documentation because they are concerned about people in the field faxing individual pages to their customers. I said that it was not necessary because the way the copyright law is written, the whole document is protected. I further reasoned that if we followed their suggestion, they would need to put the notice on every page of their Web site and every PowerPoint presentation that they send out to the field.

There’s no legal reason not to include a copyright notice on every page of a printed manual, every slide of a PowerPoint presentation, or every page of a Web site. But, of course, too many copyright notices can become unruly and unattractive, so the practical question is whether there is a legal reason why copyright notices should be printed on every page of a document.

To begin, it’s important to note that you need not include even a single copyright notice with your document. Under an earlier version of the U.S. Copyright Act, the law required that a proper copyright notice be affixed to each copy of a work upon publication. If a work was published without this notice, then the work would not be entitled to copyright protection–a very serious consequence.

This requirement was eliminated in 1989, when the United States signed onto a worldwide copyright treaty known as the Berne Convention Implementation Act. As a result, using a copyright notice is now purely optional, and a copyright owner (such as the author of a technical manual or the creator of PowerPoint slides) does not forfeit this important intellectual property protection if he fails to include the notice.

However, U.S. copyright law includes an incentive to include a proper notice, so there are good reasons why typing a few extra characters is a very good idea indeed. In oversimplified terms, here’s the incentive: If you include a copyright notice on your work, someone who infringes your rights (such as by copying your work) cannot in many instances claim the defense of “innocent infringement.” However, if you fail to include a copyright notice, then a defendant can invoke this defense–essentially arguing that he was unaware that your work was subject to copyright protection–and potentially decrease the size of the monetary damages award that he would otherwise face.

So, returning to the question at hand, where should this copyright notice be placed? Interestingly, the U.S. Copyright Act provides only limited guidance. Here’s what it says:

The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation, and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive.

The key here is that the notice must provide those who view the work with a reasonable opportunity to see it. So, including a copyright notice in six-point type only on page 25 of a 100-page manual would not be a very good idea–because it probably would not “give reasonable notice of the claim of copyright.”

So why doesn’t the Copyright Act say more specifically what is required? One reason could be that there are simply too many types of copyrightable works to list them all in the law–books, manuals in binders, PowerPoint slides, Web sites, computer software, songs, paintings, statues, etc. (The U.S. Copyright Office has issued some special guidelines for audiovisual, pictorial, graphic, and sculptural works, but, because this is a discussion about technical writing, I won’t discuss those here!)

As the section from the U.S. Copyright Act quoted above indicates, the Register of Copyrights can issue regulations about the proper form of a notice. For works published in book form, the U.S. Copyright Office suggests the following locations for the notice:

  • Title page
  • Page immediately following the title page
  • Either side of the front or back cover
  • First or last page of the main body of the work

So, is including a prominent copyright notice on a single page of your product sufficient? It may depend on how your product is going to be distributed. If it’s a loose-leaf binder that could easily lose pages or where individual pages may be faxed (with your permission) to someone else, then the audience may never see the copyright notice. As a result, including the notice on every page might not be a bad idea. As discussed above, you won’t lose your copyright protection if you don’t, but there is an incentive to include the notice on every page if someone is likely to see only a single page (or a few pages) of the entire document.

What about Web sites? Interestingly, you may have observed that the Web sites of many sophisticated companies include a copyright notice on every page. (Fortunately, this can be accomplished rather simply through the use of templates and server-side includes.) This makes sense: If you only include the notice on your home page, for example, and a visitor browses your site without ever accessing the home page, then the visitor has no notice that you are claiming copyright protection–and he could claim “innocent infringement” if he copied some content from your site.

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Note: The material in this column addresses a general legal issue only; is not legal advice and should not be relied on as such; and may or may not be appropriate to a specific situation. Laws and procedures change frequently and are subject to differing interpretations. This column is not intended to substitute for obtaining legal advice from competent, independent, legal counsel in the relevant jurisdiction. If you want legal advice, please consult a lawyer. This column is not intended to create, and does not create, a lawyer-client relationship. You should not act upon anything in this column without seeking professional counsel.

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