In simple terms, intellectual property is a product of the human intellect that has
commercial value. Intellectual property encompasses a wide range of creations—from fiction, poetry, songs, designs, and artwork to ads, product names, mechanical inventions, processes, chemical formulas, machines, and software.
The commercial value of intellectual property comes from the ability of its owner to control its use. If the owner could not legally require payment in exchange for use, ownership of the intellectual property would have intellectual worth but no commercial value.
EXAMPLE 1: Jenice writes a novel about romance in cyberspace. As the author/owner, she has the legal right to prevent others from reprinting the book, making a movie, or creating a television miniseries based on the novel. It is this right that can produce revenue for Jenice: She can sell publishing rights to a publisher, movie rights to a movie producer, and television rights to a network in exchange for royalties based on book, movie, and TV proceeds.
EXAMPLE 2: Tony invents a process for inserting modified genes into cancer cells. He applies for and receives a patent, a monopoly awarded by the federal government that allows Tony to require anyone who wants to use the process to pay him a negotiated license fee. If no one wants to use the process, Tony won’t make any money (unless he uses it in his own gene
therapy clinic).
Intellectual property law is an umbrella term for all the statutes, government regulations, and court decisions that together determine who owns intellectual property and what rights go along with that ownership. In addition, intellectual property law specifies:
• the conditions under which intellectual property rights may be sold or
loaned (licensed) to others for specific purposes
• how to settle contract disputes that arise from marketing intellectual
property, and
• how to take advantage of government procedures and programs that
establish or enhance protection of intellectual property rights.
Intellectual property law primarily offers protection to the owner of intellectual property by giving the owner the right to file a lawsuit asking a court to enforce whatever rights are being transgressed. As a result, some experts describe intellectual property laws as “affirmative rights” rather than as “protection.” Noted patent attorney and author David Pressman suggests thinking of intellectual property laws as tools that can be used when needed, but not as any kind of defensive shield. In other words, intellectual property laws won’t prevent someone from stepping on the owner’s rights. But the laws do give an owner the ammunition to take a trespasser to court. For example, upon request of the copyright owner, a court will halt unauthorized copying of material protected by the copyright. But if the copyright owner does not sue the copier, no action will be taken and the copier will get away with this illegal behavior.
Showing posts with label rights. Show all posts
Showing posts with label rights. Show all posts
International copyright laws
Under a variety of treaties, most countries in the world offer protection to U.S.intellectual property used abroad. And, under these same treaties, the U.S. protectsintellectual property created in these other countries. Several major internationaltreaties—the Berne Convention is the most important—govern rights in copyrights in most countries. International patent rights are broadly recognized under the ParisConvention and the Patent Cooperation Treaty. Trademark owners also have someinternational rights and obligations under the Paris Convention and Madrid Protocol.And trade secrets receive international protection under GATT (General Agreementon Tariffs and Trade).
Legal Basis of Intellectual Property Laws
The sources of intellectual property laws vary according to the subjectmatter. Trade secret law derives both from federal and state legislation andfrom court cases that have developed their own set of principles used todecide new trade secret cases that come before them (termed the “commonlaw”). Trademark and unfair competition laws originate primarily in bothfederal and state statutes, but also, especially in the area of unfair competition,come from court decisions that apply principles developed by earlier courtsas part of the common law. Copyright and patent laws originate in the U.S.Constitution and are specifically and exclusively implemented by federalstatutes. In all these intellectual property areas, court decisions interpretingand enforcing applicable statutes also provide an important source ofintellectual property law.
Legal Basis of Intellectual Property Laws
The sources of intellectual property laws vary according to the subjectmatter. Trade secret law derives both from federal and state legislation andfrom court cases that have developed their own set of principles used todecide new trade secret cases that come before them (termed the “commonlaw”). Trademark and unfair competition laws originate primarily in bothfederal and state statutes, but also, especially in the area of unfair competition,come from court decisions that apply principles developed by earlier courtsas part of the common law. Copyright and patent laws originate in the U.S.Constitution and are specifically and exclusively implemented by federalstatutes. In all these intellectual property areas, court decisions interpretingand enforcing applicable statutes also provide an important source ofintellectual property law.
What legal rights apply to your creative work?
If you are concerned with a creation of your own, you’ll first need to know what
form (or forms) of intellectual property applies to it in order to get to the right part
of this book. These basic rules should point you in the right direction:
• Trade secrets consist of designs, devices, processes, compositions, techniques,
formulas, information, or recipes that are kept secret by their owner
and which give their owner a competitive business advantage.
• Copyrights protect original and tangible forms of expressing creative ideas,
but not the ideas themselves. A creative nonfunctional design may be
copyrightable.
• Utility patents apply to new processes, machines, manufactures, or compositions
of matter, or new uses of any of the above if they are novel,
nonobvious, and useful.
• Design patents apply to nonfunctional, ornamental, or aesthetic design elements
of an invention or product.
• Plant patents may be issued for any asexually or sexually reproducible
plants (such as flowers) that are both novel and unobvious.
• Trademarks apply to marketing devices: the name of a product or service
or the symbols, logos, shapes, designs, sounds, or smells used to identify it.
They must be distinctive or have become well known through long use or
advertising.
• Unfair competition is a legal theory that extends protection to certain kinds
of intellectual property when trademark, copyright, and patent law don’t
apply. It applies when one business represents its products or services in a
way that confuses customers and stops them from buying from another
business.
form (or forms) of intellectual property applies to it in order to get to the right part
of this book. These basic rules should point you in the right direction:
• Trade secrets consist of designs, devices, processes, compositions, techniques,
formulas, information, or recipes that are kept secret by their owner
and which give their owner a competitive business advantage.
• Copyrights protect original and tangible forms of expressing creative ideas,
but not the ideas themselves. A creative nonfunctional design may be
copyrightable.
• Utility patents apply to new processes, machines, manufactures, or compositions
of matter, or new uses of any of the above if they are novel,
nonobvious, and useful.
• Design patents apply to nonfunctional, ornamental, or aesthetic design elements
of an invention or product.
• Plant patents may be issued for any asexually or sexually reproducible
plants (such as flowers) that are both novel and unobvious.
• Trademarks apply to marketing devices: the name of a product or service
or the symbols, logos, shapes, designs, sounds, or smells used to identify it.
They must be distinctive or have become well known through long use or
advertising.
• Unfair competition is a legal theory that extends protection to certain kinds
of intellectual property when trademark, copyright, and patent law don’t
apply. It applies when one business represents its products or services in a
way that confuses customers and stops them from buying from another
business.
What is a copyright?
Probably the best known of intellectual property categories, copyright
automatically applies to all types of original expression, including art, sculpture,
literature, music, songs, choreography, crafts, poetry, flow charts, software,
photography, movies, CD-ROMs, video games, videos, websites, and graphic
designs. The automatic protection can be enhanced by registering the work with
the U.S. Copyright Office for a nominal fee.
Copyright lasts for many years. Most often it lasts for the life of the work’s
creator (its author) plus 70 years. In cases where the creator is a business, the
copyright lasts between 95 and 120 years. Although copyright protection is longlived,
it only applies to the literal expression, not to the ideas and concepts underlying
that expression.
Most nations of the world offer copyright protection to works by U.S. citizens
and nationals, and the U.S. offers its copyright protection to the citizens and
nationals of these same nations.
A copyright gives the owner of a creative work the right to keep others from using
the work without the owner’s permission. The key to understanding copyright law
is to understand the difference between an idea and the expression of the idea.
Copyright applies only to a particular expression, not to the ideas or facts underlying
the expression. For instance, copyright may protect a particular song, novel,
or computer game about a romance in space, but it cannot protect the underlying
idea of having a love affair among the stars.
More specifically, a creative work (often referred to as a “work of authorship”)
must meet all of these three criteria to be protected by copyright:
• It must be original. In other words, the author must have created rather
than copied it.
• It must be fixed in a tangible (concrete) medium of expression. For
example, it might be expressed on paper, audio or video tape, computer
disk, clay, or canvas.
• It must have at least some creativity—that is, it must be produced by an
exercise of human intellect. There is no hard and fast rule as to how much
creativity is enough. To give an example, it must go beyond the creativity
found in the telephone white pages, which involve a nondiscretionary
alphabetic listing of telephone numbers rather than a creative selection of
listings.
automatically applies to all types of original expression, including art, sculpture,
literature, music, songs, choreography, crafts, poetry, flow charts, software,
photography, movies, CD-ROMs, video games, videos, websites, and graphic
designs. The automatic protection can be enhanced by registering the work with
the U.S. Copyright Office for a nominal fee.
Copyright lasts for many years. Most often it lasts for the life of the work’s
creator (its author) plus 70 years. In cases where the creator is a business, the
copyright lasts between 95 and 120 years. Although copyright protection is longlived,
it only applies to the literal expression, not to the ideas and concepts underlying
that expression.
Most nations of the world offer copyright protection to works by U.S. citizens
and nationals, and the U.S. offers its copyright protection to the citizens and
nationals of these same nations.
A copyright gives the owner of a creative work the right to keep others from using
the work without the owner’s permission. The key to understanding copyright law
is to understand the difference between an idea and the expression of the idea.
Copyright applies only to a particular expression, not to the ideas or facts underlying
the expression. For instance, copyright may protect a particular song, novel,
or computer game about a romance in space, but it cannot protect the underlying
idea of having a love affair among the stars.
More specifically, a creative work (often referred to as a “work of authorship”)
must meet all of these three criteria to be protected by copyright:
• It must be original. In other words, the author must have created rather
than copied it.
• It must be fixed in a tangible (concrete) medium of expression. For
example, it might be expressed on paper, audio or video tape, computer
disk, clay, or canvas.
• It must have at least some creativity—that is, it must be produced by an
exercise of human intellect. There is no hard and fast rule as to how much
creativity is enough. To give an example, it must go beyond the creativity
found in the telephone white pages, which involve a nondiscretionary
alphabetic listing of telephone numbers rather than a creative selection of
listings.
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