Intro to IP Kane
8/16/17
Final Exam – closed book
Chapter 1 – Intro
IP is national law. No world rules, have to look at each country
Copyright, Trademark, Patent (Big 3)
Most doing Copyright and/or trademark. = Soft IP (IP Lawyer)
Lots of contracts and licenses
Patent = Hard IP (Patent Lawyer)
Demanding tech qualifications
Patent Bar Exam
2 characteristics that distinguish IP from Real Property
Non-excludability
Tangible objects: Apple, land excludable
Intangible objects: Music – experience – nonexcludable
Non-rivalrous
Apple – consumed
Music – no one’s use diminishes other’s use/experience
Non-excludable, Non-rivalrous goods are “public goods”
IP creates scarcity where it doesn’t really exist – risk is underproduction
IP Incentives
Creator/Inventor/Author
“property right” in exchange for creative work
General Public – one of the main drivers of why we have IP law
Public benefits from a system that encourages a person to create
IP law helps people feel safe in revealing their work to the public
Our Order of Study:
Copyright
Trademark
Patent
Trade Secrets
IP = General phrase for field of patent, copyright, trademark and trade secrets
Property rights for intellectual creations: inventions, artistic concepts
Example: Excedrin
Trademark = brand name, hugely valuable (esp. in Pharma)
Expire after a longer time
Patent = drug (Patents expire in 20 years)
When Patent rights expire the invention is in the public domain
Copyright = insert
Don’t expire, indefinite
Theoretical basis: acquisition by creation, also first possession supports ownership
Property is created and the inventive or creative acts create an ownership
IP can be harder do define and boundaries may be unclear
Controversies over the legitimacy of some IP (DNA patents, Internet copyright)
Unauthorized use is infringement (unless it can be claimed as fair use in copyright or trademark)
Public domain = repository for all subject matter no held as an item of IP
Copyright
Copyright and Patent both come from US Constitution
C & P laws are federal laws – there in federal courts
Trademark has state and federal
Copyright has U.S. Copyright Office (Library of Congress)
Register a Copyright
Patent Office – U.S. Patent and Trademark Office (PTO)
Apply for a patent, not guaranteed
Write and prosecute patent applications
Article 1, Section 8, Clause 8 – “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Written to Congress, gives directive to set up patent and copyright system
Limited time – is not clear
P = 20 years
C = life of author + 70 years
Copyright attaches at the time that a work is created in fixed form
Author owns unless a written agreement by which the author assigns the C to another person or entity such as a publisher. In case of works made for hire, the employer or commissioning party is considered the author
1976 Copyright – 17 U.S.C.
Bundle of rights to:
Reproduce
Distribute
Perform
Display
Derivative Works
Digital Transmission
1 & 2 are most valuable and where infringement happens
Copyright litigation is usually civil litigation, there is criminal copyright law
Seeking damages and/or injunction
What is protected 17 U.S.C. §102 (a)
List…. Software is considered a literary work
Read the beginning of Chapter 4, she will send the end page
8/21/17
Intellectual Property Concepts
Purpose of IP Law – get credit, get property right, creative person can disseminate creation without it immediately being taken (Safe and protected disclosure)
Public is the beneficiary of IP Law
Copyright
The monopoly privileges that Congress may authorized are neither unlimited nor primarily designed to provide a special benefit. Rather, the limited grant is a means by which and important public purpose maybe be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of this genius after the limited period of exclusive control has expired
Sony v. Universal (1984)
1976 Copyright Act establishes copyright protection for “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. §102(a)
Two attributes/requirements
Fixation – captured in a physical/digital form in a final state
Originality – must have a minimal standard of creativity
Stay away from value judgements
Interaction with the Copyright board is minimal. Registration is straight forward
Article I, Section 8
Copyright system is a under federal law. No state copyright laws
Appeals go to Circuit Court, then supreme court
17 U.S.C. = the title related to copyright law
Attaches at the time the 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 the copywrite…..
Requirements
What is protected: 17 U.S.C §102 (a)
…Original works of authorship fixed in any tangible medium of expression…
Literary works/software
Musical works, including accompanying words
Song/Symphony§
Performance
Dramatic works, including accompanying music
Pantomimes and choreographic works
Pictorial, graphic, and sculptural woks
Motion pictures and other audio/visual works
Sound recordings and
Architectural works
What is not protected – 17 U.S.C. §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 such work.
Can’t copyright facts
Copyright protects the expression of an idea, but not the idea itself
First Sale Doctrine – mere ownership of a book, painting, CD, etc. does not transfer ownership of the underlying copyright in the creative work.
Registration/Notice
Registration with U.S. Copyright Office Not required but advisable
Notice not required
Example of notice: © 2015 Jane Doe
Attachment of notice is useful for any later litigation as it eliminates a defense of innocent infringement
Assumes creative works are copyrighted. But without notice, hard to find the creator to
bed, explained, illustrated or embodied in such work.
Idea – Expression dichotomy
No copyright for facts, yes can copyright the essay or expression of an idea
Can a compilation be original? Yes, in the way the facts are presented
Originality requires only that the author make the selection independently and it display some minimal level of creativity
P D
Rural —————–à Feist
Infringes
Copyright 1) I didn’t infringe
2) No valid copyright
Feist is arguing #2
Court said that p.336 – Question was if they selected and arranged facts in an original way. Facts not original, nor was compilation
Note 1 p.337
Email to family member describing what did yesterday – even though what I did is a fact, how I express it is copyrightable
Doodle in my book – yes, it is original art
Snapshot of a child playing with puppy – yes, minimal originality, each person’s photograph is the author’s expression
Tape of birds, crickets, and other forest sounds – yes – compilation, one expression in capturing
Note 3 p.338 – Works of the federal government are not eligible for copyright protection
Note 4 p.339 – Goal is to get more work created. Focus on work and not on labor.
Note 5 p. 339 – Labor argument will not rescue the work
Note 6 p. 339 – thin, the second author would need to reproduce more of the copyrighted expression
Thin would signal that a significant amount of the work is not protectable
Idea – Expression Dichotomy
Copyright protects the expression of an idea, but of the idea itself. In the expression, you find the originality
Baker v. Selden (1897) – Supreme Court
Subject matter of a copyright (§102), drawing boundaries
Selden is original author, he has the original property right (copyright), on the expression in the book AND on this system/method
Baker publishes his own book, with forms that are similar. Selden’s estate sues Baker
Court looks at whether the idea/system/method were copyrightable. They decide it would need a patent to protect the system. The expression is copyrightable, but not the method. (§102(b))
Supreme Court says Baker’s correct. If the discover writes a book on the subject and publishes it, the ideas are public.
Note 4 p. 345 – Patent system is more difficult
Feist and Baker fought the legitimacy of the copyright itself. Baker didn’t get rid of Selden’s copyright, but limited what it applies to
