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Ch. 14: Intellectual Property Rights (Copyright Law (Protected Expression,…
Ch. 14: Intellectual Property Rights
Introduction
DEF: Intellectual Property is the work of the human mind which consists of the products that result from intellectual and creative processes
"...by securing for limited times to Authors and Inventors the exclusive right to their perspective Writings and Discoveries"
TYPES:
Copyrights
Trademarks
Patents
Trade Secrets
Examples:
Video Game: Prootect source code, logo, name, game cover
Restaurant: Secret recipes, name, logo, motif (layout), menu design
Copyright Law
DEF: An author's exclusive right to publish, print, or sell a product of her intellect for a certain period of time
Copyright Act of 1976 and Term Extension Act of 1998
Works created after 1/1/1978: For the life of the author plus 70 years
Works owned by publishing company: 95 years from the date of publication -OR- 120 years from the date of creation (whichever comes first)
Works by more than one author: The life of the last surviving author plus 70 years
Registration
Can be registered with the US Copyright Office
You do NOT have to register something for it to be protected against infringement
Protected Expression
To be protected, a work must be "fixed in a durable medium" form which it can be perceived, reproduced or communicated
To be protected under the Copyright Act it must fall under one of the following categories:
literary, musical, or dramatic work
pantomime or choreographic work
pictorial, graphic, or sculptural work
film, other audiovisual, or sound recording
-OR- architectural work
It is NOT possible to copyright an "
idea :!!:
," what can be copyrighted is the particular way in which an idea and an expression is expressed
If someone other than the copyright owner wishes to use the copyrighted material, a royalty must be paid to the owner
Copyright Infringement
DEF: using copyrighted material even with slight variation WITHOUT permission
Damages: Actual, statutory, criminal proceedings
Injunction: Stop infringement from continuing
The "Fair Use" Exception
Gives permission to use copyrighted material without owners' permission or paying royalties for:
(1) Criticism
(2) Commentary
(3) News reporting
(4) Teaching
(5) Scholarship
(6) -OR- Research
Copyrights in Digital Information
Digital Millennium Copyright Act
MP3 and File Sharing and Peer-to-Peer (P2P) Networking
Public Domain
When copyrights expire, protected works return to the public domain; law can NOT control what you do with the material
Walt Disney's use of the Brother's Grim Fairytales
Trademarks
DEF: a distinctive mark, motto, device, or implement that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they can be identified on the market and their origins made known
Trademark Registration
Can be registered with the state or federal (US Patent and Trademark Office) government
Can be registered if:
It is currently in commerce -OR-
the applicant intends to put it in commerce within 6 months
Trademark Infringement
Whenever a trademark is copied to a substantial degree or used in its entirety by another, intentionally or unintentionally
Distinctiveness of Mark
DEF: A trademark must be sufficiently distinct to enable consumers to identify the manufacturer of the goods easily and to distinguish between those goods and competing products
Strong Marks (1 year to get approved)
Fanciful Trademark - include invented work (Google)
Arbitrary Trademarks - those that use common words in an uncommon way that is non-descriptive (English Leather)
Suggestive Trademarks - Imply something about a product without describing the product (Dairy Queen)
Secondary Meaning
Descriptive terms, geographic terms, and personal names are not inherently distinctive and do NOT receive protection under the law until they acquire a second meaning (Holiday Inn)
Patents
DEF: a grant from the government that gives an inventor the right to exclude others from making, using, and selling an invention for a period of 20 years from the date of filing the application for a patent -OR- 14 years for a patent design
Proof for a Patent must demonstrate to the US Patent and Trademark Office that the invention, discovery, process, or design is novel, useful, and not obvious in light of current technology
What is Patentable?
Anything that is novel and not obvious
NOT Patentable = the laws of nature, natural phenomena, abstract ideas, or algorithms
Patent Infringement
If a firm makes, uses, or sells another's patented design, product, or process withOUT permission of patent owner
REMEDIES:
Injunction
Damages for royalties and lost profits
Attorney's fees
Treble Damages
Trade Secrets
Anything that gives your company a competitive advantage and canNOT be patented, copyrighted, or trademarked
EX: Customer lists, research and development, marketing methods, recipes, motif
This extends to both IDEAS and their EXPRESSION
No registration or filing requirements
State and Federal Law on Trade Secrets
State: One who uses or discloses another's trade secret without privilege to do so is liable if:
He discovered the secret by improper means
-OR- his disclosure or use constitutes a breach of confidence reposed in him by the other by disclosing the secret to him
Uniform Trade Secrets Act of 1979
Most trade secret laws are based on this act
Economic Espionage Act of 1996
Makes the theft of trade secrets a federal crime
Confidentiality Agreements
Trade secrets must be disclosed to some persons, particularly key employees. They protect contractually by making employees agree in their employment contract to never divulge