Manual 12686023

Manual 12686023
L E G I S L AT I V E
News from the Hill
B Y
J A S O N
D I C K S T E I N
A E A
W A S H I N G T O N
C O U N S E L
Copyright Law for Avionics Shops
s there a copyright symbol on the
component repair manuals in your
library? Could you be violating the
copyright law when you rely on them
to perform an installation?
In last month’s article, we examined
patent issues that could face the avionics community. This month, we examine copyright issues that crop up during field approvals, STCs and other
functions common to the avionics
repair station industry.
I
What is a Copyright?
A copyright is a form of intellectual
property. It relates to a “work,” such
as a story, a book, or a piece of music.
The copyright is an indication that the
owner of the copyright owns certain
rights to the work. As an owner of
intellectual property, the copyright
holder is permitted to control the
reproduction, distribution, and display
of the work. The copyright holder
exercises exclusive rights to the usage
of the original work as well as derivative works.
Someone who writes a book on
wiring may have a copyright in the
book. This means that others are generally prohibited from copying the
book without the copyright holder’s
permission. If AEAwanted to publish
one chapter of the book in Avionics
News, then AEAwould be required to
secure the author’s permission—the
chapter would be considered to be pro-
tected by copyright even though it was
not the whole book—it is still a derivative work. There are exceptions to
the general rule about reproduction
that we will address later in this article.
contract establishing the boundaries of
work made for hire. It is not uncommon for employees under contract to
have clauses establishing that all intellectual property developed by the
employee during employment belongs
to the employer.
Who Owns the Copyright?
By default, the owner of a copyright
is the author of the work. The author
may sell his rights to another, in which
case the copyright belongs to that
buyer.
When a company (or other person)
hires someone to create intellectual
property, the intellectual property may
be considered as a work made for hire.
How Do I Acquire a Copyright?
A copyright is automatically
acquired whenever you create any
work that may be copyrighted. This is
called a “common-law copyright.”
Common law copyrights give you a
property interest but in order to
enforce the copyright in an American
court you will need to register it.
Current FAA policy dictates that a repair station that
wants a design approval usually must either create its
own instructions for continued airworthiness or indicate
that the maintenance instructions remain unchanged
from the manufacturers published instructions.
A work made for hire is generally considered to belong to the hiring party.
For example, if a manufacturer hires a
technical writer to draft installation
instructions, then the copyright on the
installation instructions belongs to the
manufacturer (who hired the work)
and not the author. In order to keep
clear whether a work is a work made
for hire, it is often a good idea for
companies to have a clear statement or
The owner of a copyright can register it with the federal government –
copyrights are registered with the
Library of Congress. Such registration permits the owner to use the
courts to bring an infringement action
(enforce the copyright). If registration
is accomplished before or within 5
years of publication, it will establish a
presuimption of validity in court.
Finally, if registration is made within 3
AVIONICS NEWS • JUNE 2003
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NEWS FROM THE HILL
Continued from page 23
months after publication of the work
or prior to an infringement of the
work, statutory damages and attorney’s fees will be available to the
copyright owner in court actions.
Otherwise, only an award of actual
damages and profits is available to the
copyright owner.
The use of a copyright notice is no
longer required under U. S. law,
although it is often beneficial. Use of
a copyright notice informs the public
that the work is protected by copyright, identifies the copyright owner,
and shows the year of first publication.
Furthermore, in the event that a work
is infringed, if a proper notice of copyright appears on the published copy or
copies to which a defendant in a copyright infringement suit had access,
then the defendant cannot claim innocent infringement.
What Are the Limits of
Copyright Protection
The most important limit on copyright protection is that only the specific expression is protected. Another
way of saying this is that copyright
protects the text but it does not protect
the ideas behind the text. This means
that if you copyright a proprietary
repair process, then someone who
photocopied that text (including drawings, etc.) for the purpose of selling it
to others might be in violation of the
law but someone who performed the
actual repair described by the text
would not be in violation of the copyright laws (although other laws might
protect the repair, like trade secret
laws—a subject for a future article).
Another important limitation is that
copyrights do not last forever. Under
current law, a copyright lasts for the
life of the author plus an additional 70
years. This was recently extended
from the earlier “life plus 50 years”
rule based on lobbying by organizatios
24
AVIONICS NEWS • JUNE 2003
like The Disney Corporation (who still
own a lucrative copyright on the
image of Mickey Mouse).
For works made for hire, and for
anonymous and pseudonymous works
(unless the author’s identity is
revealed in Copyright Office records),
the duration of copyright will be 95
years from publication or 120 years
from creation, whichever is shorter
Copyright Exceptions
The best known exception to the
copyright rules is known as the fair
use exception. This is the broad
exception that allows people to use
someone else’s copyright for noncommercial reasons. The law imposes
a balancing test that measure and
weighs four questions: 1) What is the
purpose and character of the use (is it
commercial in nature)? 2) What is the
nature of the copyrighted work? 3)
What proportion of the copyrighted
work was taken? 4) What is the economic impact of the taking?
Let’s say that manufacturer “X”
publishes component repair instructions. An A&P school wants to circulate some pages from the manual to
show their students what a typical
manual looks like. This is a fair use
because the purpose is to teach, which
is not a commercial use in competition
with the use made of the text by manufacturer “X,” the amount taken was a
small portion and there is no appreciable economic impact on the manufacturer who published the manual. On
the other hand, if a publisher publishes a textbook on avionics designed for
use and study by A&P students, it
would not be a fair use for an A&P
school to photocopy the entire book
and hand out copies to each student,
because there is a distinct economic
impact to the taking (it is in competition with the sale of the books to the
intended target audience), the proportion taken is the entire book, and the
nature of the book is such that it was
intended to be sold for a profit to students.
What Does this Mean to a
Repair Station?
Many in the aviation maintenance
community miss the legal nuances of
copyright and this can lead to trouble.
Many repair stations rely on manufacturers data for performing their
work. They may copy portions of the
manuals onto the approval for return to
service document, in order to make
sure that the description of work performed is accurate. This appears to be
a fair use because the nature of repair
manuals is that they are intended to be
used for repair, the phrases taken
would be only a small portion of the
whole manual, and the economic
impact to the manufacturer would likely be negligible.
Some repair stations put together
data to support the application for a
STC, a field approval or some other
design approval. Current FAA policy
dictates that a repair station that wants
a design approval usually must either
create its own instructions for continued airworthiness or indicate that the
maintenance instructions remain
unchanged from the manufacturers
published instructions. When creating
maintenance instructions to support an
application for data approval, it is
important to avoid copying the manufacturer’s entire copyrighted text,
word-for-word. While some field
approval applicants may have successfully received approval after copying
the manufacturer’s instructions outright, this practice can lead to legal
jeopardy. The passing off of copyrighted text as your own work may in
fact be a copyright violation. It is
much better to either 1) write the maintenance instructions in your own
words, or 2) simply indicate that the
maintenance instructions remain
unchanged from the original manufacturer’s published instructions (assum-
ing of course this is a true statement).
Ultimately, it is best to rely on your
own text when you prepare maintenance instructions related to STCs or
field approvals. Similarly, you should
be careful about reproducing and/or
distributing material copyrighted by
another – unless it falls squarely with
the fair use exception or another legal
pigeonhole, you should generally
secure permission from the copyright
holder before reproducing or distributing his or her copyrighted text. ❑
AVIONICS NEWS • JUNE 2003
25
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