Intellectual Property Copyright and Trademark The natural

Intellectual Property: Copyright and Trademark

The natural justice position on copyright: Private Property “Originality is the fundamental principle of copyright. It implies that the author or artist (emphasis added) created the work through his or her own skill, labor and judgment” (Vaidhyanathan, p. 20) And therefore “owns” the work as in the manner of property (from Blackstone’s Commentaries) Or in other words: “To every cow her calf” (old Irish saying)

The republican position on copyright: Commons Creativity is a process that depends on the “use criticism, supplementation, and consideration of previous works. Therefore, [the Framers] argued, authors should enjoy this monopoly just long enough to provide an incentive to create more, but the work should live afterward in the “public domain, ” as common property of the reading public. (Vaidhyanathan, p. 21) “…the Framers intended for copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas” Harper and Row Publishers, Inc. v. Nation Enters, 471 U. S. 539 (1985)

The Fundamental Conflicts Inherent in Copyright Law • Common Law or Statute? • Thick or Thin Copyright Protection? • The Idea/Expression Dichotomy “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated or embodied in such a work. ” • The Idea of Authorship in Postmodernism • Creative Commons (Formalizing the commons) http: //www. creativecommons. org Open Source software (Copyleft)

What Does Copyright Protect? 1. Expression 2. Originality Compilation (preexisting) Feist Collective works Derivative works 3. Fixation (tangible medium): 1976

What Does Copyright Protect? 1. Literary Works 2. Musical Works 3. Dramatic Works 4. Pantomimes and Choreographic Works 5. Pictorial, Graphic, and Sculptural 6. Motion Pictures (Audiovisual Works) 7. Sound Recordings

Ownership 1. Work made for Hire

Who Owns It? Community for Creative Non-Violence v. Reid 490 U. S. 730, 737 (1989) “…the person who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. ” “Common Law of Agency” Employee or Independent Contractor?

Ownership 1. Work made for Hire 2. Joint Ownership 3. Government Works 4. Public Domain (duration of ownership) Sonny Bono Copyright Term Extension Act (1998) 95 years from publication or life of the author plus 70 years. Also renews current copyrights for 20 more years 5. Moral Rights

Who Owns It? How to establish copyright 1. Register with Copyright Office (Library of Congress) 2. Include notice of copyright © 2005

Who Owns It? Copyright ownership “vests initially in the author or authors of the work. ” Copyright Act of 1976

What Does Copyright Protect? Copy Privileges 1. Right to reproduction 2. Right to prepare derivative works 3. Right to be the first to distribute 4. Right to perform the work publicly 5. Right to display work publicly 6. (1990) Control use of her/his name 7. (1990) Prevent distortortions, mutilations, or modifications that would be “Prejudicial to his or her honor or reputation. ” Digital Millennium Copyright Act (1998): Prohibits the circumvention of technological protections or removal of copy rights management information

Doctrine of Fair Use Purposes: Criticism, Comment, News Reporting, Teaching, Scholarship, or Research 1. Purpose and character of use (? For profit) 2. Nature of the copyrighted work 3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole 4. The effect of the use upon the potential market for or value of the copyrighted work Harper and Row v. Nation (1985)

HOW LONG COPYRIGHT PROTECTION ENDURES Works Originally Created and Published or Registered before January 1, 1978 Under the law in effect before 1978, copyright was secured either on the date a work was published with a copyright notice or on the date of registration if the work was registered in unpublished form. In either case, the copyright endured for a first term of 28 years from the date it was secured. During the last (28 th) year of the first term, the copyright was eligible for renewal. The Copyright Act of 1976 extended the renewal term from 28 to 47 years for copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights restored under the Uruguay Round Agreements Act (URAA), making these works eligible for a total term of protection of 75 years. Public Law 105 -298, enacted on October 27, 1998, further extended the renewal term of copyrights still subsisting on that date by an additional 20 years, providing for a renewal term of 67 years and a total term of protection of 95 years. Public Law 102 -307, enacted on June 26, 1992, amended the 1976 Copyright Act to provide for automatic renewal of the term of copyrights secured between January 1, 1964, and December 31, 1977. Although the renewal term is automatically provided, the Copyright Office does not issue a renewal certificate for these works unless a renewal application and fee are received and registered in the Copyright Office. Public Law 102 -307 makes renewal registration optional. Thus, filing for renewal registration is no longer required in order to extend the original 28 -year copyright term to the full 95 years. However, some benefits accrue from making a renewal registration during the 28 th year of the original term.

HOW LONG COPYRIGHT PROTECTION ENDURES Works Originally Created before January 1, 1978, But Not Published or Registered by That Date These works have been automatically brought under the statute and are now given federal copyright protection. The duration of copyright in these works will generally be computed in the same way as for works created on or after January 1, 1978: the life-plus-70 or 95/120 -year terms will apply to them as well. The law provides that in no case will the term of copyright for works in this category expire before December 31, 2002, and for works published on or before December 31, 2002, the term of copyright will not expire before December 31, 2047.

HOW LONG COPYRIGHT PROTECTION ENDURES Works Originally Created on or after January 1, 1978 A work that is created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author's life plus an additional 70 years after the author's death. In the case of "a joint work prepared by two or more authors who did not work for hire, " the term lasts for 70 years after the last surviving author's death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

Trademark Lanham Trademark Act of 1946 Any word, name, symbol or device used by merchant or manufacturer “to identify and distinguish [his/her] goods from those manufactured or sold by others and to indicate the source of the goods. Registered with the U. S. Patent and Trademark Office Service mark: symbol used in sale and advertising to identify service (not product)

What is a trademark or service mark? • A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. • A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Throughout this booklet, the terms "trademark" and "mark" refer to both trademarks and service marks.

Is registration of my mark required? No. You can establish rights in a mark based on legitimate use of the mark. However, owning a federal trademark registration on the Principal Register provides several advantages, e. g. , constructive notice to the public of the registrant's claim of ownership of the mark; a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration; the ability to bring an action concerning the mark in federal court; the use of the U. S registration as a basis to obtain registration in foreign countries; and the ability to file the U. S. registration with the U. S. Customs Service to prevent importation of infringing foreign goods. When can I use the trademark symbols TM, SM and ®? Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO. However, you may use the federal registration symbol "®" only after the USPTO actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.