Intellectual Property

Definition => Property or products of investment, creativity or work which includes patents, copyrights, trademarks, rights against unfair competition, trade secrets, undeveloped ideas, publicity value and an individual's identity.

Rationale=> Intellectual property law exists to ensure a rich, diverse competitive market.

1. Protects creators investment

2. Promotes competition and allows public access

*** Must balance rights of the author against the right to copy or will either limit access or create a price monopoly

Authority=> The U.S. Constitution gives congress the right to grant patents and copyrights. Copyrights are issued by the U.S. Copyright Office after review although works are protected even without registration.

Copyright Law

Purpose=> To promote literacy and artistic creativity by protecting for a limited time, what the US Constitution calls the "works of authorship."

* Ideas, facts, processes, concepts, methods of operation are not copyrightable -> Only the method of expression

(Patent law governs ideas & concepts etc. but is more restrictive)

"Works of Authorship" => These must be original and creative. Works include; literary works, musical works including words, dramatic works including music, pantomimes and choreographic works, pictorial, graphical and sculptural works, motion pictures and other audiovisual works, sound recordings, some architectural works and complilations. This does not include; facts, untaped speeches unless noted, limited subject matter with few ways to express, forms or anything with common words, phrases, slogans, cliches, etc. In fact an entire work may not be copyrightable.


How to Obtain a Copyright => As soon as work is in a stable reproducible form it is protected whether or not it is published or registered. Stable reproducible forms include; computer disks, stone slabs, precious metals, fabric, paper, records, tapes, CDs, video tape, posters, photographs, etc. No notice of copyright is required for unpublished although the author may include notice by including three elements. 1) the symbol , the word "Copyright" or the abbreviation "Copr." 2) the year of publication and 3)the name of the owner of the copyright. Copies created before 1978 which lacked these three elements became public domain. After 1989 copyright notice is no longer mandatory however without giving notice others may infringe until notice is given and may be allowed to continue to infringe if he/she pays a license fee. Within 3 months after you work is finished, you are required to deposit two copies of the work into the Copyright Office who will then evaluate you request and give the work to the Library or Congress. Works may be submitted at anytime however, prompt registration will protect your rights as the owner. Registration is required for any infringement action.

Ownership=> The author or authors of a work retains rights to ownership. Ownership may be transfered, sold, leased, rented, loaned, traded etc. just as any property.


1) work is "made for hire." I f the "hire" is an employee, and the work is done the scope of employment, then the employer retains rights to the copyright. If the "hire" is an independent contractor then the work must fit into 9 categories of copyrightable work AND/OR the parties must make a written agreement that the work is "made for hire." When a work is" made for hire" the person or commissioning party who actually conceives the work and took economic risk is the owner.

2) Joint persons who intend their tangible works (not idea) to be complied retain equal copyright interest in the finished product. But if, the joint persons do not intend or do not complete substantial work then the author with more interest retain rights of ownership.

A copyright is divisible, any owner can sell or grant licenses to others. Registration of those transfers should be registered with the copyright office but is not required.

Rights of Author =>

1) to reproduce the copyrighted work -> Others may not make copies of part of or entire work w/o permission (exceptions; computer programs may be copied for archive)

2) to adapt the work ->Others may not adapt and sell similar (copied) work however can create "plug ins" and adapters. Purchaser can modify own copy but cannot sell/distribute to others w/o permission

3) to distribute copies to public -> sell, lease, rental, or loan. The author controls first sale etc. of the work only (and can prohibit or requireroyalties for rentals of computer programs and audio tapes)

4) to perform, display the work -> One image at a time within reason

5) to authorize others to do the same-> These others may then sell, rent, lease, loan, perform or display or that copy to public.


Length of Copyright => Length will depend on when the work was first published and whether the work was registered.

1964-1977 copyrights last 75 years

After Jan. 1st 1978 copyrights last 50 years after the author or authors die

"Work made for hire" copyrights last 75 years from publication or 100 years from creation whichever is shorter.


Copyright Infringement => Copyright infringement is the unauthorized use or copying of the work. Since infringement is often difficult to prove the owner normally needs to prove that the infringer had access to the work and the subsequent work is "substantially similar" to a ordinary observer. Unauthorized rental of a phonorecord or computer program are also considered copyright infringement as well as importation of a copy even if the copy was legally made abroad. Some acts which do not constitute copyright infringement include: 1) use of the basic idea of the work 2) independent creation of identical work with out copying 3) sale or limited public display of a phonorecord by someone who owns the copy 4) "fair use" for teaching, scholarship, research, comment, criticism, or news reporting 5) use under one of the "compulsory licenses."


Remedies for Copyright Infringement => Willful copyright infringement for profit is a crime. Penalties depend on number of copies made or distributed in a given time or whether it is a first of second offense. Criminal penalties range from $25,000 dollar fine and/ or up to one year in prison for first infringement. For second infringement or subsequent infringements up to $250,000 and/or ten years imprison for individuals ($500,000 for organizations) Courts may also seize and or destroy all infringements and equipment use in infringing. Civil remedies may also be available including; injunctions against future infringements, seizure and or destruction of all infringements and or equipment, actual damages, additional profits owed, statutory damages of $200 - $100,000, attorneys fees. "Bootleg" recordings of live video or audio are also considered infringements and subject to the same remedies.


International Copyright Protection = > The U.S. and approximately 100 other countries are members of the Berne Convention which grants copyright protection for works which meet minimum standards without formalities. Aprroximately 20 countries including the U.S. have also ratified the Universal Copyright Convention which gives foreign works equal protection as domestic works. According to the UCC works must have the symbol , the name of the author (or proprietor), and the date of first publication in order to be internationally protected. Sound recordings must be imprinted with the symbol . The Buenos Aires Convention also requires use of "All Rights Reserved."


Special Computer Program Copyright Issues =>

1) Computer programs are included in literary works and include both the source code and object code (these are protected in any medium disk, CD, chip etc)

2) The user interface IS NOT copyrightable. The courts compare this to VCR buttons; stop, play, rewind etc.

3) Software licenses included in packages DO NOT hold up in most courts. Since the license contains no opportunity to bargin for terms.


Return to ED626 Class Presentations

Prepared by Kris DeAngelo for ED626 Class Presentation on November 18, 1996