Intangible rights protecting the products of human intelligence and creation, such as copyrightable works, patented inventions, trademarks, and trade secrets. Although largely governed by federal law, state law also governs some aspects of intellectual property.
Intellectual property describes a wide variety of property created by musicians, authors, artists, and inventors. The law of intellectual property typically encompasses the areas of copyright, patents, and trademark law. It is intended largely to encourage the development of art, science, and information by granting certain property rights to all artists, which include inventors in the arts and the sciences. These rights allow artists to protect themselves from infringement, or the unauthorized use and misuse of their creations. Trademarks and service marks protect distinguishing features (such as names or package designs) that are associated with particular products or services and that indicate commercial source.
Copyright laws have roots in eighteenth-century english law. Comprehensive patent laws can be traced to seventeenth-century England, and they have been a part of U.S. law since the colonial period. The copyright and patent concepts were both included in the U.S. Constitution. Under Article I, Section 8, Clause 8, of the Constitution, "The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The first trademark laws were passed by Congress in the late nineteenth century, and they derive their constitutional authority from the commerce clause.
The bulk of intellectual property law is contained in federal statutes. Copyrights are protected by the Copyright Act (17 U.S.C.A. §§ 101 et seq. ); patents are covered in the Patent Act (35 U.S.C.A. §§ 101 et seq. ), and trademark protection is provided by the lanham act (also known as the Trademark Act) (15 U.S.C.A. §§ 1501 et seq. ).
Napster and Intellectual Property
In early 1999, Shawn Fanning, who was only 18 at the time, began to develop an idea as he talked with friends about the difficulties of finding the kind of MP3 files they were interested in. He thought that there should be a way to create a program that combined three key functions into one. These functions included a search engine, file sharing (the ability to trade MP3 files directly, without having to use a centralized server for storage), and an Internet Relay Chat (IRC), which was a means of finding and chatting with other MP3 users while online. Fanning spent several months writing the code that would become the utility later known world-wide as Napster. Napster became a nonprofit on-line music-trading program which became especially popular among college students who typically have access to high-speed Internet connections.
In April 2000 the heavy metal rock group Metallica sued the on-line music-trading Website Napster for copyright infringement. Several universities were also named in this suit. Metallica claimed that these universities violated Metallica's music copyrights by permitting their students to access Napster and illegally trade songs using university servers. A number of universities had banned Napster prior to April 2000 because of concerns about potential copyright infringement and/or because traffic on the Internet was slowing down university servers. Yale University, which was named in the suit, immediately blocked student access to Napster.
Metallica argued that Napster facilitated illegal use of digital audio devices, which the group alleged was a violation of the Racketeering Influenced and Corrupt Organizations (RICO) act, 18 U.S.C. § 1961. Napster responded that the Fair Use Act allows owners of compact discs to use them as they wish. Therefore if an owner of the disc decides to copy it into a computer file, he or she should be allowed to do so. If this file happens to be accessible on the Internet, then others can also access or download it without being guilty of a crime. Napster further claimed that since it made no profit off the trades, it owed no money in royalties. The Ninth Circuit held that Napster's operation constituted copyright infringement.
Alderman, John. 2001. Sonic Boom: Napster, P2P, and the Battle for the Future of Music. New York: Perseus.
Merriden, Trevor. 2001. Irresistible Forces: The Business Legacy of Napster and the Growth of the Underground Internet. New York: John Wiley and Sons.
Intellectual property laws give owners the exclusive right to profit from a work for a particular limited period. For copyrighted material, the exclusive right lasts for 70 years beyond the death of the author. The length of the right can vary for patents, but in most cases it lasts for 20 years. Trademark rights are exclusive for ten years and can be continually renewed for subsequent ten-year periods.
Intellectual property laws do not fall in the category of criminal law, per se. Some copyright laws authorize criminal penalties, but by and large, the body of intellectual property law is concerned with prevention and compensation, both of which are civil matters. This means that the owner, not the government, is responsible for enforcement.
Intellectual property laws provide owners with the power to enforce their property rights in civil court. They provide for damages when unauthorized use or misuse has occurred. They also provide for injunctions, or court orders, to prevent unauthorized use or misuse.
The property protected by copyright laws must be fixed in a tangible form. For example, a musician may not claim copyright protection for a melody unless it has been written down or somehow actualized and affixed with a recognizable notation or recorded. A formula or device may not receive patent protection unless it has been presented in whole to the U.S. patent and trademark office; even then, it must satisfy several tests in order to qualify. A symbol may not receive trademark protection unless it has been placed on goods or used in connection with services.
Copyright laws grant to authors, artists, composers, and publishers the exclusive right to produce and distribute expressive and original work. Only expressive pieces, or writings, may receive copyright protection. A writing need not be words on paper: In copyright law, it could be a painting, sculpture, or other work of art. The writing element merely requires that a work of art, before receiving copyright protection, must be reduced to some tangible form. This may be on paper, on film, on audiotape, or on any other tangible medium that can be reproduced (i.e., copied).
The writing requirement ensures that copyrighted material is capable of being reproduced. Without this requirement, artists could not be expected to know whether they were infringing on the original work of another. The writing requirement also enforces the copyright rule that ideas cannot be copyrighted: Only the individualized expression of ideas can be protected.
Copyrighted material must be original. This means that there must be something sufficiently new about the work that sets it apart from previous similar works. If the variation is more than trivial, the work will merit copyright protection.
Functionality can be a factor in copyright law. The copyrights to architectural design, for example, are generally reserved for architectural works that are not functional. If the only purpose or function of a particular design is utilitarian, the work cannot be copyrighted. For instance, a person may not copyright a simple design for a water spigot. However, if a person creates a fancy water spigot, the design is more likely to be copyrightable.
Copyrighted material can receive varying degrees of protection. The scope of protection is generally limited to the original work that is in the writing. For example, assume that an artist has created a sculpture of the moon. The sculptor may not prevent others from making sculptures of the moon. However, the sculptor may prevent others from making sculptures of the moon that are exact replicas of his own sculpture.
Copyright protection gives the copyright holder the exclusive right to (1) reproduce the copyrighted work; (2) create derivative works from the work; (3) distribute copies of the work; (4) perform the work publicly; and (5) display the work. The first two rights are infringed whether they are violated in public or in private. The last three rights are infringed only if they are violated in public. Public showing is defined under the Copyright Act of 1976 as a performance or display to a "substantial number of persons" outside of friends and family (17 U.S.C.A. § 101).
Infringement of copyright occurs whenever someone exercises the exclusive rights of the copyright owner without the owner's permission. The infringement need not be intentional. Copyright owners usually prove infringement in court by showing that copying occurred and that the copying amounted to impermissible appropriation. These showings require an analysis and comparison of the copyrighted work and the disputed work. Many general rules also relate to infringement of certain works. For example, a character created in a particular copyrighted work may not receive copyright protection unless he or she is developed in great detail and a character in the disputed work closely resembles that character.
The most important exception to the exclusive rights of the copyright holder is the "fair use" doctrine. This doctrine allows the general public to use copyrighted material without permission in certain situations. To varying extents, these situations include some educational activities, some literary and social criticism, some parody, and news reporting. Whether a particular use is fair depends on a number of factors, including whether the use is for profit; what proportion of the copyrighted material is used; whether the work is fictional in nature; and what economic effect the use has on the copyright owner.
The rise in electronic publication in the late twentieth century, particularly the widespread use of the internet since the mid 1990s, caused new concerns in the area of copyright. A web site called Napster, which provided a file-sharing system whereby users could trade electronic music files, became one of the most popular sites on the Internet. The company had an estimated 16.9 million worldwide users, and the system accommodated about 65 million downloads. The Recording Industry Association of America sued Napster, eventually causing Napster to close down.
During the late 1990s, Congress enacted a series of laws that had significant impacts on the law of copyright. In 1998, Congress enacted the Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (17 U.S.C.A. §§ 101 et seq.), which extended the terms of existing and new copyrights by 20 years, against the protests of several lobbying groups. Also in 1998, Congress approved the Digital Millennium Copyright Act (DMCA), Pub. L. No. 105-304, 112 Stat. 2860 (17 U.S.C.A. §§ 101 et seq.), a broad-based piece of legislation that was designed to bring copyright law into the digital age.
Patent laws encourage private investment in new technologies by granting to artists the right to forbid all others to produce and distribute technological information that is new, useful, and non-obvious. The statutory requirements for patent protection are more stringent than those for copyright protection. Furthermore, because patent protection for commercial products or processes can give a tremendous market advantage to businesses, those seeking patents often find opposition to their applications. Patent protection can be obtained only through the U.S. Patent and Trademark Office.
The novelty requirement focuses on events that occur prior to the invention. Under Section
102 of the Patent Act, an invention is not novel if it is publicly used, sold, or patented by another inventor within 12 months of the patent application. This definition implements the public policy that favors quick disclosure of technological progress.
Often, two inventors apply for a patent for the same product or process within the same 12-month period. Three factors determine who wins the patent: the date and time that the product or process was conceived; the date and time that the product or process was reduced to practice; and the diligence that was used to pursue patent protection and to perfect the discovery. Generally, the first inventor to conceive the product or process has priority in the application process. However, if the second inventor is the first to reduce the product or process to practice, and the first inventor does not use diligence to obtain patent protection, the second inventor is given priority in the application process.
The utility requirement ensures that the product or process receiving patent protection will have some beneficial use. The inventor must specify in the application a specific utility for the invention. If the application is for a patent on a process, the process must be useful with respect to a product. A process that is new and non-obvious, yet useless, does not increase knowledge or confer any benefit on society.
Non-obviousness is not the same as novelty. Not everything that is novel is non-obvious. Anything that is non-obvious is novel, however, unless it already has been patented. The nonobviousness requirement focuses on existing technology, or "prior art." In determining whether an invention is non-obvious, the U.S. Patent and Trademark Office analyzes the prior art, examines the differences between the invention and the prior art, and determines the level of ordinary skill in the art. Generally, if an invention is obvious to a person of ordinary skill in the relevant art, it is not patentable.
When an inventor claims that his or her patent has been infringed, the court generally engages in a two-step process. First, it analyzes all of the relevant patent documents. It then reads the patent documents and compares them with the device or process that is accused of infringement. If each element of the accused device or process substantially duplicates an element in the patented device or process, the court may declare that the patent has been infringed. Infringement can occur only if another person uses, makes, or sells the patented device or process without the permission of the person who has received the patent.
When a patented device or process is infringed, the patent holder, or patentee, may recover in damages an amount equal to a reasonable royalty. If the infringement was willful, the infringing party may be forced to pay three times the reasonable royalty. If successful in court, the patent holder also may recover court costs and attorneys' fees. If the patent holder anticipates infringement, he or she may apply for an injunction, which would prohibit a certain party from infringing the patent. An injunction may also issue after a finding of infringement, to prevent repeat infringement.
Trademark laws allow businesses to protect the symbolic information that relates to their goods and services, by preventing the use of such features by competitors. To receive trademark protection, a mark usually must be distinctive. Distinctiveness generally applies to any coined or fanciful word or term that does not closely resemble an existing mark. A mark generally will not receive trademark protection if it is a common or descriptive term used in the marketplace.
To receive trademark protection, a mark must be used in commerce. If two or more marketers claim ownership of a certain mark, the first user of the mark will usually receive the protection. When the mark is known to consumers only in a limited geographic area, though, it may not receive protection in areas where it is unknown.
Infringement occurs if a mark is likely to cause confusion among consumers. In determining whether confusion is likely, the court examines a number of factors, including the similarity between the two marks in appearance, sound, connotation, and impression; the similarity of the goods or services that the respective marks represent; the similarity of the markets; whether the sale of the goods or services is inspired by impulse or only after careful consideration by the buyer; the level of public awareness of the mark; whether shoppers are actually confused; the number and nature of similar marks on similar goods or services; the length of time of concurrent use without actual confusion on the part of shoppers; and the variety of goods or services that the mark represents (In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 177 U.S.P.Q. 563 ).
Defenses to infringement include fair use and collateral use. Fair use occurs when the second user, or repossessor, uses a protected mark in a non-conspicuous way to identify a component of a good or service. For example, a restaurant may use a protected mark to advertise that it serves a particular brand of soft drink, without infringing the mark. However, the restaurant may not identify itself by the mark without infringing the mark.
Collateral use is use of the same mark in a different market. For example, assume that a tree surgeon has received trademark protection for the mark Tree Huggers. This protection might or might not prevent a business that sells logging boots from using the same mark. However, if the mark for the boots is written or otherwise appears with the same defining characteristics as the mark for the tree surgeon, it risks being denied trademark protection, depending on whether it can be confused by consumers.
Remedies for infringement of a protected trademark consist of damages for the profits lost owing to the infringement; recovery of the profits realized by the infringer owing to the infringement; and attorneys' fees. A trademark holder also may obtain injunctive relief to prevent infringement.
Other Forms of Intellectual Property
The body of intellectual property law also includes laws relating to trade secrets, unfair competition, and the right of publicity. trade secret laws protect any formula, pattern, device, or compilation of information that provides a business advantage over competitors who do not use or know of it. A strategy to increase worker productivity, for example, is a trade secret. Trade secrets do not receive patent protection because they are not inventive. Trade secret laws are included in intellectual property laws because, like other intellectual property laws, they prevent the unauthorized use of certain intangible subject matter.
The right of publicity is the right of a person to control the commercial value and exploitation of his or her name, voice, or likeness. Because right-of-publicity laws promote artistic and commercial pursuits, they are included among intellectual property law. These laws are usually reserved for celebrities and other public figures whose name and image are important to their career. By allowing celebrities the right to control the commercial use of their name, voice, and image, right-of-publicity laws protect the commercial potential of entertainers.
Artists face problems protecting their property in other countries because not all countries subscribe to international agreements regarding intellectual property. This has led to widespread unauthorized copying. In the 1990s, China and Mexico were identified as especially serious offenders. In both countries, music and films are copied and sold openly without compensation to the creators. The United States threatened to impose trade sanctions against China if it did not observe international copyright treaties. Such threats illustrate that the United States places a high priority on protecting the right of artists to profit from their work.
Burgunder, Lee B. 2002. "Reflections on Napster: The Ninth Circuit Takes a Walk on the Wild Side." American Business Law Journal 39 (summer): 683–707.
Byrne, John G. 1995."Changes on the Frontier of Intellectual Property Law: An Overview of the Changes Required by GATT." Duquesne Law Review 34 (fall): 121–37.
Goldstein, Paul. 2002. Copyright, Patent, Trademark, and Related State Doctrines: Cases and Materials on the Law of Intellectual Property. 5th ed. New York: Foundation Press.
Gray, Megan E., and Will Thomas DeVries. 2003. "The Legal Fallout from Digital Rights Management Technology." Computer and Internet Lawyer 20 (April): 20–35.
Letterman, G. Gregory. 2001. Basics of International Intellectual Property Law. Ardsley, N.Y.: Transnational Publishers.
McJohn, Stephen M., and Roger S. Haydock. 2003. Intellectual Property: Examples and Explanations. New York: Aspen.
Vaidhyanathan, Siva. 2001. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York Univ. Press.
"Intellectual Property." West's Encyclopedia of American Law. . Encyclopedia.com. (October 16, 2017). http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/intellectual-property
"Intellectual Property." West's Encyclopedia of American Law. . Retrieved October 16, 2017 from Encyclopedia.com: http://www.encyclopedia.com/law/encyclopedias-almanacs-transcripts-and-maps/intellectual-property
Intellectual Property Rights
INTELLECTUAL PROPERTY RIGHTS
Intellectual property law, once thought of as an arcane and unpopular area of law, came to the fore-front of legal disciplines in the 1990s, in large part due to the increased use of computers and the commercialization of the World Wide Web. Because of the widespread use of technology and computers to conduct research and teach, intellectual property law greatly impacts the educational enterprise in the early twenty-first century. The use of computer networks and the Web to create classrooms in cyber-space, communicate with students and faculty, write and publish scholarly material, and conduct research is considered the norm for many educational institutions. And each of these activities involves the use of copyrighted information. As a consequence educators and administrators need to have a basic understanding of copyright in order to avoid misusing copyrighted material.
Copyright Framework and Exclusive Rights
Intellectual property in the United States is a property right created by the law in intangible property. Specifically, copyright is a subset of intellectual property, which protects creative works such as literature and art. Other types of intellectual property are patents, which protect inventions and processes, and trademarks, which protect names and logos.
Copyrights and patent rights originate from the Patent and Copyright Clause of the United States Constitution, which states "The Congress shall have power to…promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (Art. 1, sec. 8, clause 8). The policy behind the copyright framework, embodied in this clause, is that economic incentive, in the form of monopoly rights in an author's work, is needed to generate new creative works in society and thus promote "the progress of science and useful arts."
The monopoly rights that authors possess are outlined in section 106 of the Copyright Act of 1976 (the Act). These rights include the right to make copies, create derivative works, and distribute, display, and perform works publicly. The copyright owner is entitled to exercise and authorize these rights, and prevent others from exercising these rights. Unless a use is exempted or considered fair, users must seek the permission of copyright owner and/or pay license fees to use a copyrighted work.
The digital environment implicates the exclusive rights of authors quite easily. For example, every time a person saves a work to a disk, the right to make copies is invoked. Scanning, digitizing, uploading, downloading, and file transfer all involve the right to make copies. A work is publicly displayed each time someone posts copyrighted information on a bulletin board, website, or online class. When a display or performance is done through a digital network transmission, temporary RAM copies are made in computers through which the material passes.
Copyright Protection and the Public Domain
In order to qualify for copyright protection, a work must meet the statutory requirements set out in section 102 (s) of the Act. The work must be an original work of authorship fixed in a tangible medium of expression. Copyright protection exists from the moment of fixation in a tangible medium. The protection is automatic and notice is not required; however, registration carries certain benefits and is required to bring a lawsuit. Section 102 of the Copyright Act of 1976 includes eight categories of subject matter that fall under copyright protection: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and audiovisual works; sound recordings; and architectural works. Examples of copyrighted expression also include computer programming, animations, video footage, java applets, web pages, and photographs.
An important aspect of the copyright framework is that facts, ideas, and government works are not protected. Those items are generally considered within the public domain and freely available for use without permission or payment of license fees. The logic behind this is clear. If facts and ideas in particular were considered copyrighted information, then the process of innovation, research, and scholarship would be considerably slowed due to the increased time and monetary costs of getting permission and paying fees. Moreover, the possibility of great constraint of academic freedom would be quite high under those circumstances because those who exercised control over controversial facts or ideas might be hesitant to grant access to those materials. Facts, ideas, government information, and items with expired terms of copyright are also within the public domain. To determine whether a copyright term has expired, one should consult Chapter 3 of the Copyright Act. Another helpful resource is a chart developed by Laura N. Gasaway of the University of North Carolina School of Law that helps determine when works pass into the public domain. The chart can be found online at <www.unc.edu/~unclng/public-d.htm>.
The exclusive rights in copyright are initially given to the owner of the copyrighted work. Although the author may transfer the copyright to someone else, any analysis of copyright ownership should begin with the principle that the author is the owner. Section 201 of the Act provides four types or categories for ownership: (1) author; (2) joint ownership; (3) collective works; and (4) works made for hire.
The primary exception to the author is owner approach is the work-for-hire category. When a work is made for hire, the employer, not an employee, is considered the owner/author of a work. Section 101 of the Act outlines two ways a work is made for hire:(1) the employee creates the work within the scope of his or her employment; or (2) the work meets the statutory criteria of being an independently contracted work made for hire.
The work-for-hire doctrine has always played a role in academic production. Many institutions have asserted ownership over research and other scholarly works by claiming the work is made for hire. However, an exception to this rule was developed in the common law for things such as syllabi, lectures, textbooks, and articles that professors write. There is no such explicit exception in the Copyright Act of 1976.
The factors to be considered in determining whether or not a person is an employee were outlined in the Supreme Court's decision in Community for Creative Non-Violence (CCNV) v. Reid (1989).
The CCNV factors applied by the U.S. Court of Appeals for the Second Circuit in Aymes v. Bonelli include: the right of the hiring party to control the manner and means of creation; employee benefits provided by the hiring party; whether the hiring party has the right to assign more projects to the hired party; tax treatment of the hired party; and skill required to complete the project.
If a creator is not an employee, but is hired to create something, and both parties sign a written contract before the work begins that states the work is a work made for hire, and if the work fits into one of the statutory categories, it will be considered a work made for hire and the hiring party will own the work. The statutory categories are: contribution to a collective work; part of a movie or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; an atlas.
The controversy over the availability of the academic exception under the 1976 act has been exacerbated by the onset of digital distance education. Many educators claim that distance-education courses delivered online are nothing less than lecture notes, and that these items have historically been the property of faculty. Institutions counter that online courses are not developed in isolation, but that various persons help to develop them, and the institution therefore has an ownership interest in such courses. Because of the lack of clarity in this area, it is very important that colleges and universities develop copyright policies. University copyright policies can affect the application of copyright law by designating certain activities as being outside the scope of employment and/or incorporating the traditional academic exception.
Copyright Limitations and Exemptions
Although copyright owners have exclusive rights in their creations, these exclusive rights are limited by certain statutory exemptions and defenses. The most used and notable of these for the education community are: fair use, library copying, first sale, and the educational performance and display exemptions. The primary limitation in copyright on the exclusive rights of copyright owners is fair use. The fair use privilege allows for the reasonable use of a copyrighted work without permission or payment of license fees if the use is fair pursuant to statutory factors. Section 107 of the Act includes four factors that must be weighed to determine whether or not a use is fair: (1) the purpose and character of the use;(2) nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the potential market for, or value of, the copyrighted work. All four factors are weighed or balanced, and no one factor ensures a finding of fair use. Fair use is critical to the teaching and research that takes place in educational institutions. If fair use did not exist, then the research process would be greatly frustrated, since many small and relatively inconsequential research uses copyrighted material that could be considered unlawful reproductions such as photocopying a page from a journal in order to write a research paper.
Exemptions that are directly applicable to the classroom and to distance education are located in Section 110 of the Copyright Act. The classroom exemption, 110 (1), allows for the performance and display rights to be used in the course of "face to face" teaching at a nonprofit educational institution. The use must be within a "classroom or similar place devoted to instruction." The right to public display may occur whenever a picture, graphic, text, or chart is shown directly or by means of a projecting mechanism. A performance may occur when a work is recited or acted, or when an audiovisual work, such as a videotape, is played. Thus, in the course of teaching students in the classroom one can read text out loud, sing a song, or play a movie.
The types of activities permitted in the course of face-to-face instruction under the act, as of May 2002, may not be permitted in an online class, pursuant to the distance education exemption. The distance education exemption, 110 (2), allows for the performance only of nondramatic literary or musical works or the display of a work if: (1) the use is part of "systematic instructional activities" of a nonprofit educational institution or governmental body; (2) the use is "directly related and of material assistance to the teaching content of the transmission;" and (3) the transmission must be "primarily" for "reception in classrooms or similar places normally devoted to instruction," or for persons whose disabilities or other special circumstances prevent their coming to classrooms.
The distance education provision was created in the 1970s and does not address the issues involved in transmitting content in the online classroom. This exemption does not provide for the use of audiovisual works such as educational videos, theatrical films, and film clips. The U.S. Copyright Office documented some of the limitations in 110 (2) in a report given in 1999. The copyright owner and user communities have attempted to negotiate an amendment to Copyright Act, known as the Technology Education and Copyright Harmonization Act (TEACH Act). As of May 2002, the TEACH Act had yet to be adopted by Congress.
Infringement and Liability
Use of a copyrighted work without permission, unless it is covered under an exemption, infringes on the exclusive rights of the author outlined in Section 106 of the Copyright Act. Infringement can be direct, vicarious, or contributory. Direct infringement occurs when someone violates any of the exclusive rights of the copyright owner. Vicarious infringement occurs when one has the right to control the infringement of another or profits from infringement. This type of liability is based on the relationship with the direct infringer. Contributory infringement occurs when a person has knowledge of infringing activity and/or induces, causes, or contributes to infringing conduct. Educational institutions and faculty may be liable under all three types of liability.
Digital Millennium Copyright Act
Educational institutions that are heavily networked with high student and faculty use of computers need to become well versed in the liability limits in the Digital Millennium Copyright Act (DMCA), a 1998 amendment to the Copyright Act. Specifically, the DMCA limits liability for Internet Service Providers (ISPs) and provides safe harbors from liability for conduit activities, system caching, hyperlinks, directories, and location tools and stored material on an ISP system. There are specific requirements that must be met in order to get statutory protection, however. Service providers qualifying for these limits in subsections (a)–(d) are shielded from damage awards. Section 512 (j) limits the availability of injunctive relief.
The DMCA has a specific provision for nonattribution of infringing conduct by graduate students and faculty of nonprofit educational institutions. This provision, 512 (e), applies to the conduct of graduate students and faculty involved in teaching and research if: (1) the activities do not involve online access to instructional materials that are required or recommended for a course taught at the institution within the preceding three-year period;(2) within that same three-year period, the institution received two or fewer DMCA notifications that a particular faculty member or graduate student engaged in infringement and no actionable misrepresentations were made in connection with such notifications; and (3) the institution provides information on copyright compliance.
The DMCA also adds sections 1201–1205 to the Copyright Act, implementing the World Intellectual Property Organization treaty provisions prohibiting the circumvention of technological copyright protection measures and protecting the integrity of copyright management information. Section 1201 defines circumvention of technological measures and prohibits circumvention of technological measures that restrict access to a copyrighted work and trafficking in the means to circumvent protective measures restricting access to a copyrighted work. A technological measure that controls access is defined as one in which the authorized access to a copyrighted work requires either application of information (such as a password) or a process or treatment–with the authority of the copyright owner. Circumvention occurs whenever such technological measures are avoided, bypassed, deactivated, or impaired without the authority of the copyright owner.
Section 1201 (d) exempts nonprofit libraries, archives, or educational institutions that circumvent technological measures controlling access to a protected work that is not reasonably available in another form. Such conduct must be for the sole purpose of making a good faith determination of whether to acquire that work. This exemption does not apply to acts that fall under section 1201 (a)(2) or 1201 (b)(1), which prohibit trafficking in a product or service that is intended to circumvent technological copyright protection measures.
There is also a narrowly limited reverse-engineering exception, found in section 1201 (f), for circumvention of technological measures controlling access to a computer program. The exception exists for the sole purpose of identifying and analyzing those elements of a copyrighted work necessary to achieve interoperability with other independently created programs. Interoperability is defined as the ability of computer programs to exchange and share information. This section does not exempt acts of reverse engineering, but merely the circumvention of measures controlling access.
The issue of reverse engineering as copyright infringement was litigated before the Court of Appeals for the Ninth Circuit in Sega Enterprises Ltd. v. Accolade (1992). The court observed that "intermediate copying of computer object code may infringe the exclusive rights granted to the copyright owner in section 106 of the Copyright Act regardless of whether the end product of the copying also infringes those rights." The court held, however, that disassembly of copyrighted object code was a fair use, since it was a necessary step in the examination of unprotected ideas and functional concepts. The court recognized that there is no "settled standard" for identifying protected expression and unprotected ideas involved in determining copyright infringement of computer software.
See also: Faculty as Entrepreneurs; Faculty Consulting; Faculty Performance of Research and Scholarship; University-Industrial Research Collaboration.
Abernathy v. Hutchinson, 3 L.J. 209, 214–215 (1825).
American Geophysical Union v. Texaco Inc., 37 F.2d 881 (2d Cir. 1994).
Amyes v. Bonelli, 980 F.2d 857, 862 (2d Cir. 1992).
Campbell v. Acuff-Rose Music, Inc., 114 S.Ct. 1164 (1994).
Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
Gershwin Pub'g Corp. v. Columbia Artists Management, 443 F.2d 1159 (2d Cir. 1971).
Harper & Row Publishers, Inc. v. Nation Enterp., 471 U.S. 539 (1985).
Hays v. Sony Corp. of Am., 847 F.2d 412 (7th Cir. 1998).
Sega Enterprises v. Accolade, Inc., 977 F.2d 1510, 1519 (9th Cir. 1992).
Universal City Studios, Inc., 464 U.S. 417 (1984).
Weinstein v. University of Illinois, 811 F.2d 1091 (1987).
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United States Copyright Office. 1999a. Copyright Office Study on Distance Education. <www.loc.gov.copyright/docs/de_rprt.pdf>.
United States Copyright Office. 1999b. Factsheet <www.loc.gov/copyright/fls/fl102.pdf>.
United States Copyright Office. 2000. Copyright Law of the United States. Circular 92, April. <www.loc.gov.copyright/title17>.
United States Copyright Office. 2002. Background and Testimony Related to the Copyright Office Study on Distance Education. <www.loc.gov/copyright/disted>.
Kimberly M. Bonner
"Intellectual Property Rights." Encyclopedia of Education. . Encyclopedia.com. (October 16, 2017). http://www.encyclopedia.com/education/encyclopedias-almanacs-transcripts-and-maps/intellectual-property-rights
"Intellectual Property Rights." Encyclopedia of Education. . Retrieved October 16, 2017 from Encyclopedia.com: http://www.encyclopedia.com/education/encyclopedias-almanacs-transcripts-and-maps/intellectual-property-rights
Few fields of law faced more rapid transformation from the effects of Internet and e-commerce than the realm of intellectual property. Intellectual property (IP) is considered to be the intangible result of intellectual work, such as inventions, literary and artistic works, and commercial symbols, names, images, and designs. Advances in communication and information technology have dramatically affected intellectual property rights.
Intellectual property laws concern the rights and protections pertaining to copyright, patents, trademarks, and trade secrets. Copyright and patent law debates often bring society's desire for free access to information into conflict with creators' and inventors' wishes to profit from and protect their creations. Businesses have intellectual property interests in safeguarding their identities and competitiveness through trademark and trade-secret protections.
The resolution of intellectual property questions was generating large-scale transformations in many Internet-related industries, as well as in fundamental legal issues such as privacy and freedom of information and expression. Since many online transactions transcend national borders, some observers predict that the challenges created by the Internet will result in the wholesale revision of both U.S. and international intellectual property laws.
Copyright protects a creator's or copyright owner's rights to control the publication, performance, duplication, and profitability of created works. Such works include literature, musical compositions, choreography, graphic and fine arts, motion pictures, and sound recordings. U.S. copyright protects the expression of ideas, rather than ideas themselves; it arises automatically when a creative work is expressed (or "fixed") in a tangible medium. Though registration for copyright is optional, creators cannot file suit for infringement without having registered. Copyright owners can sue for damages and courts can issue injunctions to prevent further infringement.
Limitations on copyright protection include the unauthorized "fair use" of a work by others for noncommercial purposes such as criticism, comment, news reporting, teaching, or research. Under the "first sale doctrine," libraries and archives may generate one copy of a work for archival conservation and the owner of a copy of a work may sell, lend, or dispose of that copy. Finally, all works in the public domain may be freely duplicated, performed, and distributed.
U.S. copyright laws must maintain the difficult balance between protecting creators' rights to control and derive compensation for their works and society's right to free access and spread of information. That the Internet enables users anywhere to produce essentially identical copies of any digital content and disseminate them throughout the world at virtually no cost has significantly raised the stakes of copyright protection.
The Copyright Clause of the U.S. Constitution provides that: "Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Even unintentional or accidental violation of these rights may be prosecuted.
The basic provisions of American copyright law are set forth in the Copyright Act of 1976. In addition to traditionally recognized creative works, the Act also protects online text, image, and sound files. Copyright holders may bring civil suits or the federal government may prosecute the intentional infringement of copyright committed for commercial advantage or financial gain. Besides direct infringement, contributory infringement and vicarious liability, through which one person aids another in carrying out copyright infringement, can constitute criminal liability.
Several subsequent copyright laws affect copyright in cyberspace. In 1992, the Copyright Felony Act targeted computer software piracy; earlier, only unauthorized copying of sound recordings, motion pictures, or audiovisual works constituted federal copyright felonies. The Digital Performance Right Act of 1996 required that anyone wishing to use non-original music for public digital performance on a Web site obtain license from the copyright owner.
In 1997, the No Electronic Theft (NET) Act abandoned the requirement that intentional infringement be committed for financial gain in order to be prosecutable. This criminalized even infringement carried out simply to harm another. Some commentators suggested that henceforth, since online browsing involves copying in the statutory sense, anyone who browses copyrighted content without permission could be guilty of actionable copyright infringement.
Congress enacted the Digital Millennium Copyright Act (DMCA) of 1998 to further amend U.S. copyright law in light of Internet-related concerns. The Act aligned U.S. legislation more closely with international copyright legislation as embodied in the World Intellectual Property Organization's (WIPO) Copyright Treaty. In addition, it prohibited anyone from circumventing technology intended to block unauthorized access to copyrighted material on the Web, such as decrypting protected content. The DMCA does permit authorized institutions to make up to three digital copies for preservation and to electronically "loan" those copies to other institutions.
At the state level, the Uniform Computer Information Transactions Act (UCITA) has been under consideration by state legislatures since 1999. It limits fair use rights of copyrighted digital materials, and classifies software and software-related products as "licensed information." UCITA faced stiff opposition from many state Attorneys General, the American Intellectual Property Association, and advocacy groups representing consumers, publishers, newspapers, libraries, retail, and law professors, who warn that UCITA's insistence on widespread digital-content licensing could severely erode legitimate fair use exceptions of online content, since licenses can contain clauses regulating the manner and time period for which the content can be accessed, and limit who can use it.
Still, the law on the Internet and copyright remains unclear. Several areas of particular confusion are:
- Whether a specific online work is original enough to merit copyright protection—articles, essays, and many graphic or sound works usually are, but factual content and databases may not be.
- Which specific Internet-related activities constitute copyright violations. Does uploading hard copies to the Internet, forwarding online content to a listserv, or linking to another Web site constitute infringement or fair use?
- Does an author's consent to having his or her creation put onto the Web imply tacit agreement to users browsing, downloading, and forwarding copies of their work?
- What is the liability of internet service providers (ISPs) and bulletin board operators for possible copyright infringements committed by their subscribers? Can they be sued for unintentional, vicarious liability?
Intellectual property rights in higher education was an area of particular concern, raising questions about who owns rights to online course content, lectures, and e-publications. In cyberspace, traditional fair-use exceptions regarding copyrighted materials may not protect free access to online materials for academic purposes. Libraries may not enjoy the right of "first sale"—which traditionally permits them to purchase works and then lend them to borrowers—when it comes to e-materials.
The Clinton administration's Information Infrastructure Task Force Working Group on Intellectual Property Rights encapsulated a series of sweeping policy recommendations in a 1995 report, "Intellectual Property and the National Information Infrastructure." The report detailed emerging trends and proved highly influential in shaping U.S. domestic and foreign intellectual property initiatives. Among its conclusions, the report argued that browsing and distributing content without the creator's explicit permission violates the Copyright Act. It also called for the creation of copyright holders' exclusive rights to control the transmission of their copyrighted digital content. The report spurred controversy, with opponents claiming that these copyright extensions harmed the public interest in the free flow of information. Proponents, however, noted that creators and copyright holders have much more precarious control over their works in cyberspace than they do in the real world.
A trademark protects a company's name and logos and distinguishes them from competing products or services sold by others. Registering trademarks permits the owner to enjoy exclusive use of the trademarks in the U.S. or a state, and to sue others for infringement in federal or state court. Registration is not granted if the mark is identical to an existing mark or resembles one closely enough to cause "confusion" or "to deceive."
Trademark law affects Internet-related issues in two particular areas. Domain names can function almost like trademarks and help to identify a business online. Trademarks and domain names have become the targets of cyber-squatters, who illegally register them in the hopes of later reselling them to the original owner for a profit. A particularly noted form of domain-name dispute involved Hollywood celebrities who pursued arbitration via WIPO's Uniform Dispute Resolution Policy channels to combat cyber-squatters for "bad faith" registration of domain names similar to their own. The other major problem concerns how trademark law is implicated in the use of URLs in hyperlinks.
PATENTS AND TRADE SECRETS
The federal Patent and Trademark Office (PTO) can issue patents to anyone who invents or discovers a process, machine, or method of manufacture that is "novel," "useful," and "nonobvious." The patent grants exclusive rights to control the production, use, and sale of the invention within all U.S. jurisdictions. The patent holder can sue even for inadvertent infringement.
A trade secret is any information used in the operation of a business that provides the business an advantage, including scientific, technical, or commercial information, and even customer lists. The owner must protect the trade secret from becoming widely known. Wrongful disclosure or use of a trade secret may be enforced in court against anyone who has a duty to maintain secrecy.
Among recent legislation was the Economic Espionage Act (EEA) of 1996, which made the theft of trade secrets a federal crime. It broadened the definition of property to include the phrase, "tangible or intangible, and whether or how stored," which facilitates prosecution for trade secrets taken in electronic form.
Economic globalization and international e-commerce have had profound effects on the status of intellectual property in the global arena. Complications are acute for copyright, and encompass problems of legal jurisdiction, difficulties of enforcement, and countries with widely divergent levels of intellectual property protection. The most widely reported international IP infringement was piracy. Many observers remark that globalization will force the increasing standardization and convergence of intellectual property laws internationally.
Numerous bilateral and multilateral treaties govern international copyright. The fundamental treaty for copyright protection remains the Berne Convention for the Protection of Literary and Artistic Works. Dating from 1886, the Convention grants authors exclusive rights to control the reproduction, public performance, broadcast, and adaptation of their works. The U.S. did not join the Berne Convention until 1988.
Many European countries extend stronger copyright protection than does the U.S. These include the recognition of authors' "moral rights" in a work, which are separate from economic rights. Moral rights include the rights to be recognized as a work's creator, to shield a work from distortion, to retract or amend content, and to decide whether a work should be published at all.
The leading international authority on intellectual property law is the World Intellectual Property Organization (WIPO), which administers relevant international treaties and helps settle international disputes. WIPO unveiled two major intellectual property treaties in 1996: the Performances and Phonograms Treaty and, more importantly, the Copyright Treaty. The latter extended Berne Convention protection to digital works, classifying computer programs as literary works. It expanded the basic notion of copyright to embrace the "right of communication," including online transmission. It also contained the earliest regulations prohibiting the circumvention of measures designed to protect copyrighted works, such as encryption and digital-rights management systems.
The most wide-ranging international legislation was the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement. It sets forth comprehensive, minimum standards of international intellectual property protection that largely favor protection over the free flow of information. TRIPs contains mandatory enforcement procedures and sanctions for the failure to implement them. TRIPs prohibits preferential measures for developing countries, which were held to full compliance after a five-year transitional period. Critics argue that such provisions will place developing countries, which often lack even rudimentary intellectual property protection regimes, at an even greater disadvantage in the global e-commerce arena.
"Digital Rights and Wrongs." Economist, July 17, 1999.
Dinwoodie, Graeme. "A New Copyright Order: Why National Courts Should Create Global Norms." University of Pennsylvania Law Review, December, 2000.
Ellis, Davis. "Cyberlaw and Computer Technology: A Primer on the Law of Intellectual Property Protection." Florida Bar Journal, January, 1998.
Gladney, Henry. "Digital Intellectual Property: Controversial and International Aspects." Columbia-VLA Journal of Law & the Arts, Fall, 2000.
Hsieh, Lilli, McCarthy, Jennifer, and Elizabeth Monkus. "Intellectual Property Crimes." American Criminal Law Review, Spring 1998.
Mutchler, John. &lquo;Will the Digital Millennium Copyright Act Stunt Global Electronic Commerce?" Intellectual Property Today, October, 2000.
Panchak, Patricia. "Old Rules for the New Economy." Industry Week, March 5, 2001.
Reichman, J.H. "The TRIPs Agreement Comes of Age: Conflict or Cooperation with the Developing Countries?" Case Western Reserve Journal of International Law, Summer, 2000.
Samuelson, Pamela. "The Digital Rights War." Wilson Quarterly, Autumn, 1998.
Tennant, Roy. "Copyright and Intellectual Property Rights." Library Journal, August, 1999.
SEE ALSO: Cybersquatting; Higher Education and the Internet; Intellectual Capital; Legal Issues; World Intellectual Property Organization (WIPO)
"Intellectual Property." Gale Encyclopedia of E-Commerce. . Encyclopedia.com. (October 16, 2017). http://www.encyclopedia.com/economics/encyclopedias-almanacs-transcripts-and-maps/intellectual-property
"Intellectual Property." Gale Encyclopedia of E-Commerce. . Retrieved October 16, 2017 from Encyclopedia.com: http://www.encyclopedia.com/economics/encyclopedias-almanacs-transcripts-and-maps/intellectual-property
Intellectual Property Rights
Intellectual Property Rights
Intellectual property is a term used to cover goods and services protected under the laws governing patents, trademarks, copyrights, and trade secrets. Although the legal rights concerning different kinds of intellectual property are similar in a general sense, they differ specifically in what they protect and in how the particular rights are established. Patents protect an inventor's right to exclude others from making, manufacturing, using, or selling an inventor's invention. Trademarks protect words, phrases, symbols, and designs. Copyrights protect original artistic, musical, and literary works, including software. Intellectual property rights can also encompass state trade secrets laws, which protect a company's proprietary and confidential information, such as methods of manufacturing, customer lists, supplier information, and the materials used during the manufacturing process.
A patent is a grant of a property right by the United States government, through the Patent and Trademark Office (PTO), to the inventor of an invention. In 1995 U.S. patent law was changed so that it would conform to the World Trade Organization's Agreement on Trade-Related Aspects of International Property Rights as decided in the Uruguay Round. Applications filed on or before June 8, 1995 have a term of twenty years from the earliest filing date. Applications pending on June 8, 1995 and patents that were in force on this date have the longer term of either seventeen years from the issue date or twenty years from the earliest filing date. Design patents, as opposed to utility patents, have fourteen-year terms. Some patents require the payment of patent fees. A patent is not a grant of the right to make, manufacture, use, or sell the invention, but rather the right to exclude others from making, manufacturing, using, or selling the invention.
The power to grant rights in patents arises from Article I, section 8 of the U.S. Constitution. The first patent law was passed in 1790, and the current law governing patents took effect in 1953. Since the first statute, over 6.5 million patents have been granted. The current statute set forth the subject matters for which patents may be granted and the conditions under which a patent will be issued. It also established the Patent and Trademark Office (PTO).
Under the law, anyone who “invents or discovers any new and useful process, machine, manufacture or composition of matter, or any new and useful improvements thereof, may obtain a patent.” Courts have interpreted this language to include nearly anything that could be fabricated. One cannot, however, patent literary works, compilations of data, compositions of music, legal documents, or forms of energy. An invention must meet the test of being “new” under the standards in the law before a patent will be granted. The subject matter of an invention must be sufficiently different from what has been described before in a printed publication of some sort anywhere in the world, or on sale in the United States before the date of the application for the patent. In addition, the invention must not be obvious to a person who has ordinary skill in the relevant technical or scientific area at the time the inventor applies for the patent. Finally, an invention must be determined “useful” before obtaining a patent, although this requirement is interpreted very broadly.
The legal status of business method patents varies from country to country. It is difficult to obtain a patent for methods of doing business in China, India, Mexico, Israel and most of Europe. Under U.S. patent law, business methods are judged according to the same requirements as any other application. Before the 1980s and 1990s, the PTO stated that business methods were not patentable, but it became difficult to differentiate between technological inventions and business methods when judging applications for computer-implemented methods of doing business. Therefore, the PTO decided that business methods were patentable if they used the “technological arts,” but this position was overturned in 2005. Currently, the PTO requires that a process produce a useful and concrete result to be eligible for a patent.
Only the inventor may apply for a patent, unless he has died or has been declared insane. An inventor applies for a patent by sending to the Commissioner of Patents and Trademarks a written specification, which is a description of the invention and of the process by which the
invention is made and how it is used. The specification must contain one or more claims about the subject matter that the applicant believes pertains to the invention, and include necessary drawings. The specification must be accompanied by a sworn oath or declaration by the inventor that he or she is the original and first inventor of the subject matter of the application, and the necessary filing fees.
A trademark is a word, name, phrase, symbol, or design, or a combination of these elements, which identifies and distinguishes the source of goods or services. The term trademark also encompasses service marks, which identify and distinguish the source of a service rather than a product. Trademark rights are used to prevent others from making, promoting, or selling goods or services which have a name, symbol, or design that is confusingly similar to that of an established trademark. It does not, however, prevent others from making or selling the same goods or services, as long as it is under a different, non-confusing mark.
There are two distinct types of rights in a trademark or service mark: the right to use the mark and the right to register the mark. These rights arise from either using the mark in actual commerce, or filing an application for registration of the mark with the PTO.
The Trademark Act of 1946, 15 U.S.C. Section 1051 et seq.; the Trademark Rules, 37 C.F.R. Part 2; and the Trademark Manual of Examining Procedure (2nd ed. 1993) control the registration of marks. The first party who either uses a mark in the course of commerce or business or files an application for registration with the PTO usually has the right to register that mark. A party can use a mark, or establish rights in it, without filing an application for registration. The registration, however, creates a presumption that the party who has registered the mark is the owner of the mark for the goods and services set forth in the registration application, and therefore has the right to use the mark anywhere in the country. This presumption can become important when two parties unintentionally begin using similar marks and become involved in a lawsuit over who has the right solely to use the mark. This is not determined by the PTO, but by a federal court, which has the power to issue an injunction to stop a party from using a mark, and to award damages for a party's improper use of another's mark.
Similarly, the owner of a mark may use the trademark (™) or service mark (SM) designation with the mark to make it clear that the owner is claiming rights in the product or service so designated. The trademark or service mark designation may be used without the owner having registered the mark with the Patent and Trademark Office. If it is registered, however, the owner may use the registration symbol (®) with the mark.
Rights in a trademark, unlike rights in a copyright or a patent, can last for an indefinite period if the owner of the mark continuously uses the mark for its products or services. Federal registrations last for ten years, but between the fifth and sixth year after the date of the initial registration, the person who registered the mark must file an affidavit with information about the mark and ownership. If the registrant does not file this affidavit, the registration is cancelled. After the initial registration period, the mark can be renewed for successive ten-year terms. Registration of a mark with the PTO provides protection from others using the mark in the United States and its territories, but does not extend to its use in other countries.
A copyright gives an owner of “original works of authorship” the exclusive right to reproduce the work; prepare derivative works based on the copyrighted work; and distribute, perform, or display the work. Copyrights are registered with the Library of Congress Copyright Office. The first Copyright Act was passed in 1790, and it has been revised many times, most recently in 1976. This act sets forth eight categories of works that can be copyrighted. These are as follows:
- Literary works
- Musical works, including lyrics
- Dramatic works, including music
- Pantomimes and choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
These categories are interpreted broadly, so that, for example, software is considered copyrightable as a literary work. However, the act does not protect an “idea, procedure, process, system, method of operation, concept, principal or discovery regardless of the form in which it is described, explained, illustrated or embodied in such work.”
The term of a copyright is for the period of the life of the owner, plus fifty years. An entity or person can become the owner of a copyright in two ways, either by creating the work personally, or through owning a work for hire. Works for hire cover situations where an employee creates a work at the request of an employer (and the employer thereby owns the copyright), or where someone commissions the creation of a work, and the party commissioning the work and the creator have agreed in writing that the commissioning party shall be the owner and that the work shall be a work for hire.
In 1988, the United States became a signatory to the Berne Convention, by enacting the Berne Convention Implementation Act. The Berne Convention provides copyright protection for a copyright owner simultaneously in most countries in the world. To become a signatory country, the United States had to amend the Copyright Act to create a copyright in a work automatically upon completion of the creation. Now, as soon as a composer finishes a work or an author writes the last words of an article, there exists a copyright. However, if an owner wishes to sue for copyright infringement, the owner must register the copyright with the United States Copyright Office by completing an application, and sending it with two copies of the “best edition” of the work and the filing fee.
INTELLECTUAL PROPERTY IN THE INTERNET AGE
Efforts to protect intellectual property became vastly more complicated with the growth of Internet technology in the late 1990s and early 2000s. The global computer network gave people greater access to all kinds of creative works, and in many cases enabled them to copy such works without regard to legal protection. “Virtually all creative content can be digitized, even if it was not initially created on a computer, and the Internet has become the primary distribution channel for every kind of digital material,” Jonathan Cohen explained in his article “Copyright and Intellectual Property in the Age of the Internet.”
Since the Internet has an international reach, the digital age has also brought to light discrepancies in intellectual property laws between nations. Several attempts have been made to bring the protection granted by developed and developing nations in line. In 2002, for example, the World Intellectual Property Organization Copyright Treaty (WCT) was ratified by the United States, Japan, and the European Union. The WCT updated the Berne Convention to apply to the Internet age, setting international standards for the protection of literary and artistic works in digital form.
Simultaneously, major content providers have taken steps to protect their own intellectual property from unauthorized reproduction through digital rights management (DRM) technology. DRM systems involve anti-piracy measures that are built into software, video, and music files sold over the Internet to ensure that the owners of intellectual property are compensated for its use. DRM has proved cumbersome to consumers, however, because different content providers have established their own, usually incompatible, DRM systems—making it difficult for users to access content packaged and distributed with one DRM technology using a device that supports a different technology.
Some legal experts have also expressed concern that content providers will use DRM technology to erode the rights previously granted to the public under the “fair use” doctrine of copyright law. Whether a specific use of copyrighted material is determined to be fair depends on four factors: the purpose and character of the use; the nature of the work; the portion of the work used; and the effect of the use on the market for the work. Fair use protects such activities as videotaping a television program for later viewing, posting a newspaper cartoon on an office bulletin board, and quoting from a book in a report. In view of the rapidly evolving nature of intellectual property protection in the Internet age, business managers should seek legal advice in order to protect their own creative works as well as to avoid infringing on the rights of others.
Cohen, Jonathan. “Copyright and Intellectual Property in the Age of the Internet.” Jonathan Cohen and Associates. Available from: http://www.jcarchitects.com/IntellectualProperty.html.
Dutfield, Graham. “Does One Size Fit All? The International Patent Regime.” Harvard International Review Summer 2004.
———.“Guarding Intellectual Property on the Internet.” PC World 7 December 2001.
Noble, Steve. “The Internet and Digital Copyright Issues.” Photo Marketing January 2005.
———.“Tide Turns in DRM Wars with Creation of Coral Consortium.” Online Reporter 9 October 2004.
———.U.S. Code Collection.35 U.S.C. 154.
USPTO white paper. “Automated Financial or Management Data Processing Methods.” Available from: http://www.law.cornell.edu/uscode/35/154(a).html
Von Lohmann, Fred. “Fair Use and Digital Rights Management.” Electronic Frontier Foundation. Available from: http://www.eff.org/IP/DRM/fair_use_and_drm.html.
"Intellectual Property Rights." Encyclopedia of Management. . Encyclopedia.com. (October 16, 2017). http://www.encyclopedia.com/management/encyclopedias-almanacs-transcripts-and-maps/intellectual-property-rights
"Intellectual Property Rights." Encyclopedia of Management. . Retrieved October 16, 2017 from Encyclopedia.com: http://www.encyclopedia.com/management/encyclopedias-almanacs-transcripts-and-maps/intellectual-property-rights
Intellectual property (IP) is an intangible creation of the human mind, usually expressed or translated into a tangible form, that is assigned certain rights of property. Examples of intellectual property include an author's copyright on a book or article, a distinctive logo design representing a soft drink company and its products, unique design elements of a web site, or a patent on a particular process to, for example, manufacture chewing gum. Intellectual property law covers the protection of copyrights, patents, trademarks, and trade secrets, as well as other legal areas, such as unfair competition. In effect, intellectual property laws give the creator of a new and unique product or idea a temporary monopoly on its use. The value of intellectual property to an individual or company is not based on physical properties, such as size and structure. Instead, intellectual property is valuable because it represents ownership and an exclusive right to use, manufacture, reproduce, or promote a unique creation or idea. In this way, it has the potential to be one of the most valuable assets a person or small business can own.
In an era of globalization, IP rights must be protected and regulated at an international level. The U.S. Department of State explains why countries protect inventions; literary and artistic works; and symbols, images, names, and designs used in commerce on a Web site it dedicates to this subject. Countries protect IP "because they know safeguarding these property rights fosters economic growth, provides incentives for technological innovation, and attracts investment that will create new jobs and opportunities for all their citizens…. In the United States alone, for example, studies in the past decade have estimated that over 50 percent of U.S. exports now depend on some form of intellectual property protection, compared to less then 10 percent 50 years ago."
DEVELOPMENT OF INTELLECTUAL PROPERTY LAWS
The laws protecting intellectual property in the United States exist at both the state and federal levels. State laws cover a broad spectrum of intellectual property fields, from trade secrets to the right of publicity. The laws differ somewhat from state to state. At the federal level, the Constitution and legislation authorized under the Constitution deal exclusively with patents and copyrights, and partially with trademarks and related areas of unfair competition.
Intellectual property protection first became an important issue at an international level during trade and tariff negotiations in the nineteenth century, and has remained so ever since. One of the first international treaties relating to intellectual property in the broadest sense was the International Convention for the Protection of Industrial Property, or the Paris Convention. Written in 1883, the treaty created under the Paris Convention provided protection for such properties as patents, industrial models and designs, trademarks, and trade names. Over 100 countries have signed the Paris Convention treaty, and it has been modified several times. Two of the most important provisions of the treaty relate to the rights of national treatment and priority.
The right of national treatment ensures that those individuals seeking a patent or trademark in a foreign country will not be discriminated against and will receive the same rights as a citizen of that country. The right of priority provides an inventor one year from the date of filing a patent application in his or her home country (six months for a trademark or design application) to file an application in a foreign country. The legal, effective date of application in the foreign country is then retroactively the legal, effective filing date in the home country, provided the application is made within the protection period. If the invention is made public prior to filing the home country application, however, the right of priority in a foreign country is no longer applicable.
Enforcement and protection of IP at the international level has historically been extremely complex. Laws have varied significantly from country to country, and the political climate within each country has influenced the extent of protection available. Separate legislation and treaties specifically addressed relevant procedures, conventions, and standards for each area within the scope of intellectual property, such as copyright or trade secrets.
Many U.S. and international laws relating to intellectual property were significantly altered with the 1994 passage of the General Agreement on Tariffs and Trade (GATT). In fact, the member nations that signed the GATT committed themselves to a higher degree of intellectual property protection than had been provided under any earlier multinational treaties. Under the guidance of the World Trade Organization (WTO), all member nations were required to adopt specific provisions for the enforcement of rights and settlement of disputes relating to intellectual property. Under these provisions, trademark counterfeiting and commercial copyright piracy are subject to criminal penalties.
Today, the strong protections of intellectual property are recognized as one of the cornerstones of the formation and growth of small businesses in the United States, especially since the advent of the Internet and other new technologies have placed a premium on new ideas and innovations. Intellectual property allows individuals who come up with a new idea to enjoy the exclusive use of that idea for a certain period of time, which can be a significant monetary incentive for entrepreneurs. But intellectual property law is extraordinarily complex, so small business owners interested in IP issues should consult a legal expert in order to protect themselves to the full extent of the law. "The law on intellectual property … is everywhere both comparatively new and in flux," observed The Economist (US). The rapid and worldwide spread of access to the Internet as well as the ease with which electronic data may be copied and manipulated pose new challenges to the existing network of IP regulations. Laws surrounding IP rights will likely see many changes in the coming years as we adjust them to the new demands created by the information age.
see also Inventions and Patents; Work for Hire
Epstein, Eve. "What Is Intellectual Property?" InfoWorld. 19 June 2000.
Foster, Frank H., and Robert L. Shook. Patents, Copyrights & Trademarks. Wiley, 1993.
Gartman, John, and Kevin McNeely. "A Summary Checklist for Dealing with Intellectual Property." Providence Business News. 26 June 2000.
Lickson, Charles P. A Legal Guide for Small Business. Crisp Publications, 1994.
"Markets for Ideas: Rights in Intellectual Property." The Economist (US). 14 April 2001.
Prencipe, Loretta W. "Intellectual Property Due Diligence." InfoWorld. 30 October 2000.
"Protecting Intellectual Property: An Introductory Guide for U.S. Businesses on Protecting Intellectual Property Abroad." Business America. July 1991.
Spinello, Richar A., and Herman T. Tavani. Intellectual Property Rights in a Networked World. Idea Group, Inc. (IGI), 2004.
Tabalujan, Benny. "Keeping the Fruits of Your Intellectual Pursuit to Yourself." Business Times. July 1993.
U.S. Department of State. International Information Programs. Field, Thomas G. Jr. "What is Intellectual Property." Available from http://usinfo.state.gov/products/pubs/intelprp/ January 2006.
World Trade Commission. "Intellectual Property: Protection and Enforcement." Available from http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm Retrieved on 16 March 2006.
Hillstrom, Northern Lights
updated by Magee, ECDI
"Intellectual Property." Encyclopedia of Small Business. . Encyclopedia.com. (October 16, 2017). http://www.encyclopedia.com/entrepreneurs/encyclopedias-almanacs-transcripts-and-maps/intellectual-property
"Intellectual Property." Encyclopedia of Small Business. . Retrieved October 16, 2017 from Encyclopedia.com: http://www.encyclopedia.com/entrepreneurs/encyclopedias-almanacs-transcripts-and-maps/intellectual-property
Property Rights, Intellectual
Property Rights, Intellectual
Intellectual property rights (IPR, or IPRs) are the rights of artists and inventors to get legal protection against unauthorized copying of their work. There are three main subtypes of IPRs: copyrights, trademarks, and patents. Copyrights apply to literary and artistic works, such as books, music, and computer programs; trademarks cover brand names, such as Coca-Cola®; and patents are awarded for new and useful inventions, such as the active ingredient of the molecule of a new antihypertension drug. In advanced industrial countries, IPRs account for an increasingly larger proportion of gross domestic product (GDP). In less developed countries, however, very little indigenous copyright-, trademark-, and patent-protected goods are produced.
Genuine IPR goods are often prohibitively expensive for citizens of the developing world. For example, in many countries in Asia and Africa, the cost of a computer software program is equal to the average per capita income. Thus, global income inequalities have given rise to a situation in which developing countries produce and consume illegitimate copies of IPR-protected goods. Usually, these goods are referred to as either pirated goods (for copyright-protected goods, such as software, books, and music) or counterfeit goods (for trademark- and patent-protected goods). The severity of piracy and counterfeiting varies, depending on the type of goods, the historical period, and the geographical location of goods. For example, the United States was notorious for not protecting foreign copyrights well into the twentieth century. Similarly, many African and Asian countries do not provide patent protection for pharmaceuticals. At the turn of the twenty-first century, software piracy and trademark counterfeiting are the best-known examples. According to estimates of the Business Software Alliance (BSA), in 2005 alone, $34 billion worth of business software was pirated worldwide. While copyright piracy poses no threat to consumers, some trademark and patent counterfeiting can have harmful effects on consumer health and safety. For example, fake (counterfeit) foods and medicines can lead to human death, while fake automobile parts have been linked to traffic deaths (Phillips 2005). One example of a counterfeit food is the “Sars” candy bar appearing in 2003, which is a counterfeit of the Mars candy bar.
How can IPR counterfeiting be eliminated? IPRs are protected both by national legislation and by various types of international treaties. In the United States, the 1976 Copyright Act, the 1946 Trademark Act (“Lanham Act”), and the 1985 Patent Act provide guarantees for the holders of IPRs. Most countries around the world have national laws protecting at least some types of IPRs. In addition, there are several dozen international IPR treaties. The main IPR treaties are the 1886 Berne Convention for the Protection of Literary and Artistic Works (for copyrights) and the 1883 Paris Convention for the Protection of Industrial Property (for trademarks and patents). The World Intellectual Property Organization (WIPO) in Geneva administers the Berne and Paris Convention, in addition to twenty-two other treaties covering the entire panoply of IPRs. Currently, WIPO has 183 member countries. Separately from WIPO, the World Trade Organization (WTO) administers the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which has been ratified by 149 countries. Despite the wealth of international agreements, however, there have not been radical improvements in the protection of IPRs in individual countries, and piracy and counterfeiting continue to exist around the world. This situation exists because international agreements are not self-enforcing and cannot be implemented without the will of individual national governments.
There are two mechanisms through which developed countries can compel developing countries to enforce international IPR agreements. The first one is the threat of trade sanctions. In the United States, the Omnibus Trade and Competitiveness Act of 1988 allows the U.S. Trade Representative to impose trade sanctions against countries that do not provide adequate IPR protection. Although virtually never imposed, the threat of trade sanctions can help sensitize some countries about the need to enforce IPR laws. This is a particularly powerful instrument against small states (e.g., Thailand) that are heavily dependent on trade with the United States. For bigger states, however, the threat of trade sanctions is not an effective mechanism for bringing about meaningful improvements in IPR enforcement. In such countries, the threat of withdrawing foreign direct investment (FDI) has proven to be a more successful strategy. For example, in China, the Quality Brands Protection Council (QBPC), representing more than 100 foreign companies with over $20 billion of investment in China, has been remarkably successful in lobbying the Chinese government to enhance IPR enforcement (Dimitrov 2004). Developing countries that invest in IPR, especially the development of indigenous patented technology, can be more competitive in the global economy.
In conclusion, IPRs protect valuable, yet often pirated products. Although multiple international IPR treaties exist, good enforcement depends on the will of domestic governments to implement them. When properly applied, foreign pressure can help sensitize the governments of developing countries to the benefits of providing stronger IPR protection.
SEE ALSO European Union; World Trade Organization
Business Software Alliance. 2006. Third Annual BSA and IDC Global Software Piracy Study. http://www.bsa.org/globalstudy/upload/2005-2006%20Global%20Piracy%20Study.pdf.
Dimitrov, Martin. 2004. Administrative Decentralization, Legal Fragmentation, and the Rule of Law in Transitional Economies: The Enforcement of Intellectual Property Rights Laws in China, Russia, Taiwan, and the Czech Republic. PhD diss., Stanford University.
Phillips, Tim. 2005. Knockoff: The Deadly Trade in Counterfeit Goods: The True Story of the World’s Fastest Growing Crime Wave. London: Kogan Page.
Sell, Susan. 2003. Private Power, Public Law: The Globalization of Intellectual Property Rights. New York: Cambridge University Press.
"Property Rights, Intellectual." International Encyclopedia of the Social Sciences. . Encyclopedia.com. (October 16, 2017). http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/property-rights-intellectual
"Property Rights, Intellectual." International Encyclopedia of the Social Sciences. . Retrieved October 16, 2017 from Encyclopedia.com: http://www.encyclopedia.com/social-sciences/applied-and-social-sciences-magazines/property-rights-intellectual
INTELLECTUAL PROPERTY describes the interests protected by the laws of patents, copyrights, trademarks, and trade secrets. It is a phrase of convenience rather than a term of art; its precise boundaries are not agreed upon, or crucial. Patents, copyrights, and trademarks all predate the term "intellectual property," which, though known in the nineteenth century, was not widely used until the 1960s. Historically, property was divided into two classes, real and personal. Real property consisted of interests in land; personal property consisted of everything else. Personal property included not only tangibles, such as goods, but intangibles such as shares of stock, rights to receive payment, and copyrights and patents. It was understood by the eighteenth century that patents and copyrights were socially desirable because potential inventors and authors, unless rewarded, would underinvest in inventing and writing. Patents and copyrights provide rewards proportional to the value of the work. By exploiting monopolies over patentable and copyrightable subject matter, creators can charge amounts sufficient to recapture their capital investment plus make a profit; this is comparable to granting farmers the exclusive rights to harvest crops that have required labor to plant and tend.
Patents are granted after examination by the Patent Office and confer twenty (previously seventeen) years of monopoly rights in works that have the characteristics of utility, novelty, and nonobviousness. Copyrights arise upon embodiment of works of authorship in a tangible medium and now last for much longer than previously; today, in most cases, they endure for the life of the author plus seventy years. Registration, though desirable, is not essential.
Trademarks are usually counted as intellectual property but have quite a different rationale and arise differently from either patents or copyrights. The reason for protecting trademarks is not to promote investment in their creation but to protect consumers from being deceived as to the origin of goods bearing them. Trademark rights develop as consumers associate the marks on the goods with a single source. Courts have often said trademark rights are not property rights but are part of tort law (though recent developments arguably render trademarks more property like).Whatever the theory, the practice persists of calling trademarks a species of intellectual property, if only because the same lawyers who do patent and copyright work also advise on trademark questions.
Trade secret law confers on those who manage to keep valuable information to themselves the competitive advantage of exclusive access to that information. It is arguably tort law, rather than property law, but since the subject matter of the secret is often identical to the subject matter of the patent or copyright, its designation as intellectual property is not surprising.
Chisum, Donald S., and Michael A. Jacobs. Understanding Intellectual Property Law. New York: Matthew Bender, 1992.
Halpern, Sheldon W., Craig Allen Nard, and Kenneth L. Port. Fundamentals of United States Intellectual Property Law: Copyright, Patent, and Trademark. The Hague, Netherlands: Kluwer Law International, 1999.
"Intellectual Property." Dictionary of American History. . Encyclopedia.com. (October 16, 2017). http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/intellectual-property
"Intellectual Property." Dictionary of American History. . Retrieved October 16, 2017 from Encyclopedia.com: http://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/intellectual-property
"intellectual property." A Dictionary of Computing. . Encyclopedia.com. (October 16, 2017). http://www.encyclopedia.com/computing/dictionaries-thesauruses-pictures-and-press-releases/intellectual-property
"intellectual property." A Dictionary of Computing. . Retrieved October 16, 2017 from Encyclopedia.com: http://www.encyclopedia.com/computing/dictionaries-thesauruses-pictures-and-press-releases/intellectual-property
Intellectual property is something that the law recognizes as existing and capable of ownership, but which is not physical in its nature. The four common intellectual properties are patents, copyrights, trademarks, and trade secrets. Depending upon its purpose, function, and use, a computer software product can be or contain any combination of the four intellectual properties.
"Intellectual Property." Computer Sciences. . Encyclopedia.com. (October 16, 2017). http://www.encyclopedia.com/computing/news-wires-white-papers-and-books/intellectual-property
"Intellectual Property." Computer Sciences. . Retrieved October 16, 2017 from Encyclopedia.com: http://www.encyclopedia.com/computing/news-wires-white-papers-and-books/intellectual-property