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Copyright
Rutgers University, Newark School of Law
Kettle, John R.

COPYRIGHT & TRADEMARK
Professor Kettle
Spring 2007

PART I — INTELLECTUAL PROPERTY LAW IN CONTEXT
I. SOURCES AND LIMITS ON INTELLECTUAL PROPERTY LAW
a. U.S. Constitution
i. Article 1, §8, Clause 8: Congress has the power to decide the length of time that copyrights and patents may be held, “to promote the progress of science and useful arts.”
ii. Article 1, §8, Clause 3: Congress has the power to regulate trademarks (through the interstate commerce clause).
b. Eldred v. Ashcroft (Supreme Court, 2003) p.1
i. Issue concerned the authority of Congress to prescribe the duration of copyrights.
ii. Congress passed the Copyright Term Extension Act (CTEA or Sonny Bono Act), which extended the duration of all copyrights, new and already existing, by 20 years, to Life + 70 years.
iii. One of the purposes of the Act was to extend the same protection to American authors in Europe as their European counterparts.
iv. Two issues for review:
1. Whether the CTEA’s extension of existing copyrights exceeds Congress’ power under the Copyright Clause; and
2. Whether the CTEA’s extension of existing and future copyrights violates the First Amendment.
v. The Court held that:
1. A time span appropriately limited as applied to future copyrights does not automatically cease to be limited when applied to existing copyrights;
2. The CTEA was a rational enactment;
3. The CTEA does not overlook the “originality” requirement;
4. The CTEA serves to promote the progress of science;
5. The CTEA supplements the traditional First Amendment protections.
c. Intellectual Property in the Federal System
i. Trademark Act — the principal vehicle for registering marks used on goods and services; main source of substantive rights in marks.
ii. 1976 Copyright Act — preempts all but the narrowest corner of state common law copyright; protects all tangibly fixed literary and artistic works, whether published or unpublished.
d. Intellectual Property in the Global Arena
i. Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property —
1. Principal source of international obligations respecting protection of foreign works.
2. Berne = copyrights
3. Paris = patents and trademarks
4. Both conventions follow the principle of national treatment buttressed by minimum standards:
a. National treatment: Obligates each treaty member to protect the creations of nationals of other treaty members on the same terms as it protects the creations of its own nationals.
b. Minimum standards: Where the treatment a country gives to its own nationals falls below the standards prescribed by the treaty, the country must give the foreign national no less than the treaty standard requires.
5. Berne Convention bars formalities as a condition to protection, meaning that, e.g. a German national cannot be required to register her claim to copyright in the United States Copyright Office as a condition to filing her lawsuit, even though a U.S. national must comply with this formality.
ii. Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) —
1. Incorporates by reference the main parts of the Berne and Paris conventions, but also adds minimum standards of its own.
2. Augments the creaky enforcement procedures of Berne and Paris with a more practicable enforcement alternative, entitling a member country whose nationals are injured by a foreign practice to file a complaint against the offending country before a World Trade Organization panel. A country that fails t

cessary for the purpose of securing the good.”
4. Kenneth Arrow thought about public policy. At bottom, the problem is that, in many instances in intellectual, literary, and educational life, information and entertainment are costly to produce but cheap to distribute. One solution to the problem is to have governments subsidize the creative work it believes the public wants, and then distribute free copies of the works produced.
ii. Justice Breyer’s Article:
1. Attacked the natural rights argument for copyright that an author’s labor entitles her to appropriate the value of the work. Breyer devoted the remainder of the article to questioning the foundational economic premise of American copyright law: that copyright is needed as an incentive to produce and distribute creative works. Two arguments he made: (1) Even without copyright, an original publisher can ward off unauthorized copies of a written work by threatening to issue a “fighting edition” priced even lower than the pirate’s; (2) although it costs a pirate less to publish a book than it costs the original publisher, the original publisher has a lead-time advantage that enables it to recoup its costs.
h. Patent Law
i. “To Promote the Progress of . . . Useful Arts”
The Act of 1836 established a pattern for our present system by providing statutory criteria for the issuance of patents and requiring the Patent Office to examine applications for conformance thereto.