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April 22, 2013

Product Manuals and Copyright

Equipment manufacturers can gain a measure of control over distributors and repair shops by registering and enforcing copyrights in their product manuals. Notwithstanding their highly factual and utilitarian purpose, courts typically hold that manuals involve enough creativity to be copyrightable. Such creativity may be comprised of the wording of the text, the creative elements of photographs of the machine’s parts, or the selection, coordination or arrangement of the material in the manual. The Copyright Office willingly allows copyright registration of manuals, and by registering the manufacturer not only positions itself to sue competitors or unauthorized repair shops who copy the manual, the manufacturer gains the added advantage of a presumption that the manual is in fact copyrightable. Court challenges to the copyrightability of manuals generally have failed, even where the manufacturer is engaged in a regulated industry, such as the aircraft industry, and certain aspects of its manuals are required by government regulations.

Although the copyright in a manual does not prevent third parties from disseminating the facts contained in the manual, by gaining control over dissemination of the manual itself, the manufacturer makes it difficult for unauthorized personnel to access those facts. Manufacturers can strengthen their control by licensing their manuals to authorized distributors and repair shops only, and including in those licenses prohibitions on further copying or dissemination, or even limiting access to password protected Web sites, typically without running afoul of antitrust laws. Manufacturers can go even further by identifying information necessary for repair as trade secrets, and even further restricting its dissemination. Whatever degree of control the manufacturer chooses, exercising such control makes it difficult for unauthorized repair shops to compete with authorized ones, because the unauthorized cannot access the information needed to make the repairs without reverse engineering the product. That, in turn, may make licensed franchises more valuable, although it may ultimately harm sales because consumers will want to purchase products that can readily be fixed by numerous repair shops.

Manufacturers must make economic choices concerning the appropriate control to exercise over information necessary to repair their products. Copyright registration offers a cheap and easy way to enable reliable enforcement of that control. Manufacturers should consider sharply delineating versions of their manuals and securing copyright registration for each version.