"Intellectual Property"
Congress has the power 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.
U.S. Constitution, Article I, Section 8, Clause 8
- Copyrights
- Patents
- Trademarks
- Trade Secrets
Copyright History
- circa 1440 - Gutenberg printing press
- reduced cost & time of copying
- circa 1550 - Stationers' Company (England)
- gave publishers control of copying
- 1710 - Statute of Anne
- gave authors control of copying
- 1790 - first U.S. copyright law
- 1886 - Berne Convention
- 1976 - major revision of U.S. copyright law
- 1988 - U.S. joins Berne Convention
- 1998 - Sonny Bono Copyright Term Extension Act
- 1998 - DMCA
- present - ACTA, SOPA/PIPA
U.S. Copyright - 1790
| Covered: | books, maps, charts
|
| Duration: | 14 years + 14 year extension
|
| Formalities: | registration & notice required
|
| | copies of work deposited w/ government offices
|
| Exclusive rights: | copying & distribution
|
| Not covered: | music, newspapers, paintings/drawings, etc
|
U.S. Copyright - Present
| Covered: | "original works of authorship" (literary, dramatic, musical, artistic)
|
| | including: any text, music (scores, lyrics), pictorial works (maps,
drawings, paintings, prints, photographs), sound recordings,
motion pictures, sculpture, dance notation, architecture
|
| Duration: | life + 70 years
|
| | works for hire: 95 years (or 120 if unpublished, whichever is shorter)
|
| Formalities: | no registration or notice required
|
| | copyright exists immediately, upon "fixation" of work
|
| | registration required for infringement suit
|
| Exclusive rights: | - copying & distribution
- derivative works
- public performance
- public display
- sound recordings - digital audio transmission
- visual art - "moral rights" (attribution & integrity)
|
U.S. Copyright - Present
| Not covered: |
- works not fixed in tangible medium (dance performance,
improvised speech, etc)
- words/titles/names/short phrases
- "mere listings of ingredients or contents"
- ideas / procedures / methods
- facts / information containing no original authorship
(calendars, phone numbers, measurements)
|
Copyright Details
- originality
- a work must demonstrate "originality" to be copyrightable
no standard exists
generally requires "some minimal level of creativity"
Feist Publications, Inc. v. Rural Telephone Service Co (1991)
Bleistein v. Donaldson (1903) - "it would be a dangerous undertaking" for courts to decide what is worthy of copyright (fine art v. advertising)
- idea vs. expression
- ideas are not copyrightable
only a specific expression of an idea is copyrightable
patents are considered to cover ideas
- license
- grant of permission to use a work
can be restricted to a defined time, context, territory
can be exclusive or non-exclusive
does not transfer ownership
- assignment of copyright
- transfer of ownership of copyright
must be in writing
can transfer individual rights
- work for hire
- work made by an employee, "within the scope of his/her employment"
or, commissioned work, explicitly identified in writing as "made for hire"
employer/commissioner owns copyright
Public Domain
Works that are not under copyright control
Anyone can freely copy, distribute, derive from, etc
Usually from expiration of copyright
Works published in the U.S. are public domain if:
- published prior to 1923
- published prior to 1978, without copyright notice
- published prior to 1963, and copyright was not renewed
- a product of the U.S. Federal Government
www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm
Fair Use
Allowed use of a work, which would otherwise be considered infringement
e.g. quoting a line of text in a review, satirizing a film
no firm definition of what is allowed
- general determining factors:
- purpose and character of use
- nature of copyrighted work
- importance of portion used in relation to whole work
- effect on market for copyrighted work
www.ccumc.org/copyright/ccguides.html - Fair Use Guidelines for Educational Multimedia
First Sale Doctrine
Purchaser is allowed to sell or give away legally acquired work
Without needing permission from copyright holder
Generally also includes renting
But not for phonorecords & some software
Computer software companies claim software is not sold, merely licensed ("EULA") & therefore First Sale doesn't apply
Obtaining a Copyright
Copyright exists as soon as work is "fixed" in a medium
Copyright notice & registration no longer mandatory, but help when suing
for violations
Registration forms: www.copyright.gov/register/
- Complete form
- Pay $30 fee
- Send copy of material to be registered
Historic Cases
Sony Corp. v. Universal City Studios (1984)
Betamax Case
"I say to you that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone."
- Jack Valenti, 1982
Declared that devices with "significant non-infringing uses" are not illegal
Cases
ASCAP threatens Girl Scouts (1996)
Said singing copyrighted songs at camp violated public performance rights
Demanded licensing fees
Backed down due to bad publicity
Cases
Happy Birthday
"Good Morning to All" written circa 1893 - public domain
Sometime later, modified to "Happy Birthday to You"
Copyright registered in 1935
Currently owned by Warner Communications
Cases
It's A Wonderful Life
Made in 1946
Owner failed to renew copyright in 1974
Became widely shown due to public domain status
Republic Pictures reclaimed control in 1993 via copyright on story -
the film is a derivative work
Cases
Eldred v. Ashcroft (2003)
Challenged Sonny Bono Copyright Term Extension Act (a.k.a. "Mickey Mouse Protection Act")
Argued that repeated extensions = effectively unlimited copyright term
Challenge denied by Supreme Court
Patents
Exclusive right to "make, use or sell" a "useful process, machine, manufacture,
or composition of matter".
Cover ideas, rather than specific expressions of ideas
Invention must be new, useful, & non-obvious
Must file significant application, which is reviewed
Last for 20 years
Trademarks
Names, phrases, designs, or images that distinguish a business and its
products.
Registered with USPTO or similar office
Cannot normally trademark generic terms (e.g. "Shredded Wheat")
except when strong connection is developed (e.g. "Windows")
Can last indefinitely
Must be used & defended
DMCA
OCILLA (Online Copyright Infringement Liability Limitation Act) has "safe harbor" provision for service provider websites such as YouTube & Wikipedia
- Viacom v. YouTube
- Viacom sued Google/YouTube for hosting thousands of clips infringing copyrights
- court ordered YouTube to turn over terabytes of data on what users watched
- 2010 ruling in favor of YouTube, based on DMCA safe harbor
- Lenz v. Universal Music
- Lenz posted home video of child dancing to copyrighted song
- Universal sent YouTube DMCA takedown notice
- Lenz sent counter-notice of fair use
- Lenz sued Universal for bad faith use of DMCA
- judge ruled that copyright holders must consider fair use
www.chillingeffects.org
Sharing / Free Culture
This document is by Dave Pape, and is released under a Creative Commons License.