28- Intellectual Property

Section 101 of U.S. Copyright law defines a work made for hire as _______

"a work prepared by an employee within the scope of his or her employment; or a work specially ordered as a contribution to a collective work, as a part of a motion picture, as a compilation, as an instructional text, as a test, or if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire"

Intellectual Property is divided into two categories

1. Industrial Property (inventions, patents, trademarks, and industrial designs) 2. Copyright (literary and artistic works such as novels, plays, and films, musical works, artistic works such as drawings, paintings, photographs, sculptures, and architectural designs)

To prove copyright infringement, the copyright holder must prove the work was original, plus:

1. The infringer actually copied the work 2. The infringer had access to the original work, and the two works are substantially similar

the court looks at four factors in determining whether a use meets the fair use exception:

1. The purpose and character of the use, including whether the use is of commercial nature or is for nonprofit, educational purposes 2. The nature of the copyrighted work 3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole 4. The effect of the use on the potential market for or value of the copyrighted work

The law protects 3 types of intellectual property

1. patent 2. copyright 3. trademark

Trademark Infringement

An owner protects its trademark rights through registration, maintenance, watching to make sure no one uses similar or the same mark, and enforcement nothing that closely resembles an owner's mark should be permitted infringement requires only likely consumer confusion

What is intellectual property?

Property that has been created by someone's mind , such as inventions, music, literary and artistic works, symbols, names, images, and designs used in commerce

Copyright Duration

Works created on or after January 1, 1978, are automatically protected from the moment of their creation, and copyright protection lasts for the author's life plus an additional 70 years after the author's death

Patent

a government grant that permits an inventor the exclusive use of their invention for 20 years during the 20 year period, no one else may make, use, or sell the invention without the inventors permission

Nonobvious products

a product is non obvious if a person of ordinary skill in the area in which the product is created could not invent it

Trademark

a trademark is any word, phrase, symbol, design, sound, smell, color, product configuration, or group of letters or numbers that is adopted and used by a company to identify its products or services and distinguish them from the products and services made, sold, or provided by others

Useful products

a useful invention does not have to be commercially valuable, but it does have to have some current use

Digital Millennium Copyright Act

amended U.S. copyright law to limit the liability of Internet service providers (ISP) for the information of users they store on a system or network that the service provider controls

transfer of copyright

any part, or all, of the copyright owner's exclusive rights may be transferred, but the transfer of exclusive rights is not valid unless transfer is in writing and signed by the owner of the rights

what copyright does not allow

copyright does not allow anyone to violate any of the rights provided by the copyright statute to the owner of copyright the most important of these is basically that the copyrighted material may not be used without permission of the copyright holder

copyright and plagiarism

copyright violation is NOT plagiarism. Plagiarism is an academic offense, usually defined by professional or academic bodies

trademark searches

critical to avoiding legal problems and keeping and maintaining a company's good reputation

the underlying idea of copyrightable material does not __________

does not have to be novel. The expression of the same idea by many different people may be protected by copyright if the expressions are different. an example of this is when two different film studios produce a movie on the same subject.

International Patent Treaties

each country has its own patent laws, which are not the same as U.S. patent laws

a person cannot patent an idea but only the tangible application of an idea

even if you think of a great invention, if someone else makes it first and patents it, you have no legal claim against the person who put that idea into tangible form and patented it

The Paris Convention

for the Protection of Industrial Properties requires each member country to grant to citizens of other member countries the same patent rights that their own citizens enjoy

copyright duration: works made for hire

for works made for hire, and for anonymous and pseudonymous works, the copyright will last 95 years from publication or 120 years from creation, whichever is shorter

Copyright protection exisists_______

from the time the work is created in fixed form. Once a work is placed in a fixed form, copyright in the work of authorship immediately becomes the property of the author who created the work.

Provisional Patent Application

if an inventor is reluctant to go through the time and expense necessary to obtain a patent, he or she may file a provisional patent application shorter, simpler, and cheaper process that gives inventors the opportunity to show their idea and invention to potential investors without the full expense of a patent application only last a year, after which time the inventor must file a regular patent application, or they will lose any patent protection, and the information they have filed becomes publicly available

registering trademarks

just as with copyright, there are definite advantage to registering a trademark with the U.S. Trademark Office and obtaining statutory protection

Original works of authorship include

literary, dramatic, musical, artistic, and certain other intellectual works

To obtain a United States Patent, an invention must meet these criteria:

novel nonobvious useful

Trademark Dilution

occurs when a famous mark is trivialized or made fun of by a third party in a way that devalues the trademark's worth must demonstrate actual dilution has occurred, not the mere likelihood of dilution

novel products

one that is unique and has not been described in a publication or been used before

primary use of trademarks

to prevent consumers from becoming confused about the source or origin of a product or service tell consumers who made the product or who provides the service

Fair use doctrine

permits the use of copyrighted works without permission for news reporting, scholarship, or research (educational purposes)

copyright protection is available to both __________

published and unpublished works

copyright protection allows the protected party to do the following

reproduce the work by making copies prepare derivative works based on the work (such as making a movie based on a book) perform the work publicly, in the case of literacy, musical, dramatic, and choreographic works, pantomimes, motion pictures, and other audiovisual works display the copyrighted work publicly, in the case of literary musical, dramatic and choreographic works, pantomimes, and pictorial, graphic and sculptural works in the case of sound recordings, perform the work publicly by means of a digital audio transmission

trademarks and trademark protection does not expire

since trademarks are commercial source indicators, they do not expire the longer a trademark is used, the more valuable it becomes

joint work

the authors of a joint work are considered co-owners of the copyright in the work, unless there is an agreement to the contrary

in the case of works made for hire

the employer, not the employee, is considered the author and owner of the copyright

ownership and copyright

the mere ownership or purchase of a book, manuscript, painting, CD, or any other copy of a copyrighted property does not give the possessor ownership of the copyright or any of the rights that come from owning the copyright For example: if you buy a music CD or a book, you do not have the right to copy, reproduce, or distribute the songs or text it contains. Your purchase merely gives you a license to use the recording or the book for personal use

Copyright

the ownership of the expression of and idea a form of intellectual property protection provided by federal law to the authors of "original works of authorship" available to published and unpublished works does not protect the underlying idea or method of operation

copyright law does NOT protect ____________

the underlying idea or method of operation for example: if person thinks of a great new song but never records it, no copyright protection may be applied

examples of putting a work into fixed form are

typing a story into a computer recording a song on a device that can reproduce it taking a digital photograph designing architectural drawings on a software program