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In the USA, a document is subject to copyright when it is "fixed in a tangible medium". What counts as "fixing in a tangible medium" for a digital document? Is it enough to save a copy of the file to a local, private disk, or must said file be made available to another person (e.g. via publication on the internet)?

To make this concrete, let's suppose Alice has a version control repository (such as Git), which is initially private and is later made public. In the USA, at what point does the contents of the repository become subject to copyright? (Assuming that the contents are of a type of material eligible for copyright.)

Consider the following hypothetical timeline:

  • 2010: Alice initializes a Git repository. It is initially empty and is stored only on Alice's local computer.
  • 2011: Alice creates and adds file A to the repository. (The repository is still private.)
  • 2012: Alice creates and adds file B to the repository. (Again private.)
  • 2013: Alice makes the repository publicly available.
  • 2014: Alice adds file C to the repository (which is now public, so the file is published immediately).

Now, what is the correct copyright year to apply to each file in the repository? (Let's assume the files are not modified after they are added. Let's also suppose that the version control system metadata, including timestamps, is correct and hasn't been altered.)

For file C, the answer is fairly obvious: the file was created, added, and published in 2014, so the copyright date has to be 2014.

For A and B, the answer isn't so obvious. I used to think the answer was 2013, since that was the time at which the files were made publicly available. However, I recently talked to a laywer about the case of a physical document which is later published, and said laywer (though not providing legal advice) said the copyright date would be the time at which that physical document was created, rather than published (since at the time of creation, it is already fixed in a tangible medium, even if it hasn't yet been published). If that is true, the copyright dates for A and B would have to be 2011 and 2012, respectively, since that is when those files are authored and created.

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U.S. Law requires that the fixation be stable and permanent enough to be “perceived, reproduced or communicated for a period of more than transitory duration.” 1

A Git repository meets this criteria.

Note that in many countries, fixation is not required - in those countries, a speech has copyright even if no one records or writes it down and a computer file has copyright even if it only ever exists on the screen (no copying over my shoulder!).

what is the correct copyright year to apply to each file in the repository?

Copyright exists from the moment that this fixation occurs; publication is not required, nor do you need to put a copyright symbol on it or a date. The file exists: therefore it has copyright protection.

Given that the expiration of copyright in the US is 70 years after the author's death, the year they wrote it is irrelevant (except for determining what copyright law applied, for your examples, this is all under current law).

  • Just a side note for the OP: publication can affect the length of a copyright term (for works for hire only). Works made for hire have a copyright term that is the shorter of 95 years after publication or 120 years after creation, so a work for hire that is published less than 25 years after creation will have a shorter copyright term than one published after 25 years. Of course, as this answer already says, publication doesn't in any way affect whether copyright applies or when copyright begins to apply (only when it ends, potentially, for works for hire). – apsillers Sep 21 '16 at 20:01

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