Intro to Intellectual Property
Fall 2016 Class Notes
Professor Kane
Introduction
Intellectual Property
A general phrase for the fields of patent, copyright, trademark, trade secrets
Property rights for intellectual creations: inventions, artistic concepts
Today, a significant area of legal practice
Theoretical basis: acquisition by creation. Also, first possession supports ownership
Property is create, and the inventive or creative acts create ownership interest
Why IP?
Patents and copyright encourage inventive and creative activity by rewarding inventors and creators a term of exclusive rights to control their work. Trademarks allow consumers to associate goods and services with a point of origin
The beneficiary of IP is the public, as it gains from a constant output of creative work in the arts and sciences, and relies on trademarks for fair commerce.
Intellectual vs. Real Property
IP can be harder to define and boundaries may be unclear, where real property deeds are precise
IP rights may be time limited (i.e. 20 years) where real property rights are potentially infinite
Deep controversies over the legitimacy of some kinds of IP (i.e. DNA patenting, Internet copyright)
IP Generalities
IP rights are national rights; each country has its own IP regime
Unauthorized use of a copyright patent or trademark is infringement (unless it can be claimed as a fair use in copyright or trademark law)
When IP rights expire, a protected work enters the public domain
Public Domain
The public domain is the repository for all subject matter that is not held as an item of IP
When IP rights expire for a work, it enters the public domain, where it can be freely used by anyone
Chapter 3: Copyright: Public and Private Rights
Constitutional Origin
Article I, Section 8, Clause 8 [Origin of Copyright and Patent system]
“to promote the Progress of Science and the Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”
Science meant copyright and useful arts meant patents
Copyright Law
Copyright attaches at the time that a work is created in fixed form
The creator of the original expression in a work is its author. The author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher. In cases of works make for hire, the employer or commissioning party is considered to be the author.
The 1976 Copyright Act establishes copyright protection for original works of authorship fixed in any tangible medium of expression. 17 USC § 102(a)
First Act was in 1790.
The Copyright Work: Requirements
(1) Originality: the work must be independently created, not copied from another source. It must also possess at least a minimal degree of creativity
(2) Work of authorship: Eight categories of “works of authorship” are recognized by statute. “subject matter”
(3) Fixation: written, recorded, or otherwise embodied in some physical form.
17 USC = the title related to patent and copyright law
copyright litigation is conducted in federal court
What is protected? 17 USC § 102(a)
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or devise. Works of authorship include the following categories:
(1) Literary works
(2) Musical works, including any accompanying words
(3) Dramatic works, including any accompanying music
(4) Pantomimes and choreographic works
(5) Pictorial, graphic, and sculptures
(6) Motion pictures
(7) Sound recordings
(8) Architectural works
What is protected? 17 USC §102(b)
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 work. [facts are not copyrightable]
Copy”rights” 17 USC §106
A bundle of rights
Reproduce (most common to litigate)
Distribute (second most common to litigate)
Perform
Display
Derivative works
Digital transmission
Registration/Notice
Registration with US Copyright Office not required, although advisable
Notice not required
Attachment of notice is useful for any later litigation as it eliminates a defense of innocent infringement
Idea/Expression Dichotomy in Copyright Law
Copyright protects the expression of an idea, but not the idea itself
A creative wo
t?
Bossion must first show that defendants “actually copied” their quilts and also demonstrate “substantial similarity” between defendants quilts and the protectable elements of their own quilts.
Color is part of the creative choices. The arrangement of the quilt is also creative
Court found there was a substantial similarity between the quilts and ruled in favor of Boisson’s copyright infringement claim. Does not have a copyright for any quilt that uses the alphabet
A court may analyze a copyrighted work for its protected and unprotected elements. A copyright can only be obtained for an original work, but such a work could include the expression of unprotectable elements.
A work may have protectable and non-protectable elements
ABC v. Aereo: does capturing tv shows and distributing the shows on the internet constitute copyright infringement by “performance”?
Aereo was streaming tv shows online without permission of ABC. You were able to watch live television that may lag by a couple seconds
ABC was claiming that Aereo was infringing on their right to “perform”
Court held that Aereo was infringing. They were distributing the work to the public and they were able to “store” the programs instead of being live.
An entity that acts like a CATV system itself performs, even when it simply enhances viewers’ ability to receive broadcast television signals.
Are they performing publicly? Yes, they are transmitting the work to a large number of people. If you are transmitting to the public then you are performing.
Infringement of Right to Reproduction (copying)
Copying: violation of the right may be proven by either direct evidence, which is rare, or by indirect evidence that shows:
(1) The defendant had access to plaintiffs work, and
(2) The defendant’s work has substantial similarity
Direct Copyright Infringement
Plaintiff has valid copyright
Defendant directly exercised one of the copyright holders rights without permission
