A primer in modern intellectual property law

By creating a system of IP law, the US government not only headed down a new, somewhat hairy, bureaucratic path, but itgave voice to a sense that there is a balance to be struck between the impossibility of restricting the circulation ofideas, and the need to find some way to reward individuals who spend their lives inventing, authoring, or otherwise creatingand improvig ideas.

Institutions of us ip law.

From this constitutional mandate, Congress has passed a number of federal laws, which both govern the legal and illegal aspects of IPand actually create institutions to manage and oversee the resulting issues. These three federal areas are copyright, patent and trademark(trademark actually derives from the constitution in Section 8, clause 3, the power to regulate interstate commerce). In addition to thesethree main areas, there is also law relating to "trade secrets" which is not federal, but state (in the US) and generally functions only toprotect commercial enterprises from the unfair appropriation of information it has taken steps to protect. (Compare this with thenotion of personal privacy; is there a version of a "trade secret" for individuals?)

In the case of copyright, the Library of Congress was designated as the body which would house copyrightedworks, maintain a registry, and publish circulars concerning the rules and regulations (Title 17). In the case of patents the congress created a new office, the Patent and Trademark Office.The USPTO oversees patent law (title 35) and trademark law (Section 22 of Title 15). In addition, this institution also publishes its ownelaborate Code of Federal Regulations that govern how the office will grant and review patents and trademarks--that is, how it will carryout the federal law.

Copyright

Us federal copyright law. points for discussion

• what's explicitly protected?
  • literary, musical works (+lyrics), dramatic works (+music), pantomime, dance, choreographic works, pictirial, graphicand sculptural works, motionpictures, audiovisual recordings, sound recordings, architectural workssoftware, "mask works" of semiconductors, music videos, designs
• What's explicitly not covered?
  • US Government works.
• How long are works covered for?
  • Currently, an author gets life + 70 years. A "work for hire" (where the author is different from the owner) gets 95 years frompublication (or 120 years from creation). The original duration was 14 years, renewable for another 14.

• I write this module today, and I live to the year 2066 (hallelujah!). When can you make use of it?

  It's a trick question, this text is available under a license that allows you to use it now. Nonethless, the copyright on thistext will last until Jan 20. 2136. That's 132 years from now.

• What's the test for copyrightability?
  • It must be original (a modicum of originality) and it must exist in a "tangible medium of expression."
• What about registration and notice?
  • Works prior to 1989 needed to be marked with a little c in a circle or "Copyright1988". Works after this date do not need to be marked to be considered copyrighted. No registration is necessary, untilyou want to sue someone, then you need to deposit a copy somewhere (such as the Library of Congress) in order toformally assert your ownership.
• Note that much of the law, as it has been extended incorporates the specifics of existing technologies-- rules about phonorecords, broadcasting, cable, and now digitaltransmission. Even Jukeboxes (17.1.116) have been covered at some point.

Other questions:

• Copyright is a "strict liability" statute. What does this mean?
• What constitutes infringement?
• What constitutes damages?
• What kinds of remedies can you pursue (injunction, impounding, damages, criminal penalities)?

Some specific aspects of copyright law

• From 17.1 concerning the subject matter:

  tangible expression 102(b): In no case does copyright protection for an original work of authorship extend to anyidea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form inwhich it is described, explained, illustrated, or embodied in such work.

Explicit exclusive rights: see section 106.

Fair Use and explicit limitations on rights: see section 107 on fair use (see also section 110, what kind of limitations doesthis create on the notion of creativity/originality in the classroom)?

Rights in intangible vs. tangible objects, implications of ownership.

• 17.2 Ownership in copyright is not ownership in the object.

The 1998 digital millenium copyright act.

Patent

Us federal patent law, points for discussion.

• Patents vs trade secrets? What kind of justification? general availablity of patents.
• What's patentable?
• What duration?
• 20 years + 5 years renewal for drugs, devices. 14 years on designs.
• What are the standards for patentability?
• What if a patent isn't original?
• are plants are patentable? organisms and genes? What does this mean?

Trademark

Trademark, points for discussion

• What can be a trademark?
  • symbols, logos, sounds, designs, or even distinctive nonfunctionalproduct configurations.
• Trademark's ostensible justification is not to reward inventors, but, believe it or not, to protect consumers from snake-oilsalesmen and other unscrupulous dealers.
• The function of trademark is to: indicate the source of goodsavoiding confusion, encouraging competition.
• Trademarks must be granted, and they do not expire, but they can become unprotectable (Xerox, kleenex, etc.)
• Since 1996, trademarks have been susceptible to "dilution."