Intellectual Property: Copyright and Trademark

The natural justice position on copyright: Private Property “Originality is the fundamental principle of copyright. It implies that the author or artist (emphasis added) created the work through his or her own skill, labor and judgment” (Vaidhyanathan, p. 20) And therefore “owns” the work as in the manner of property (from Blackstone’s Commentaries) Or in other words: “To every cow her calf” (old Irish saying)

The republican position on copyright: Commons Creativity is a process that depends on the “use criticism, supplementation, and consideration of previous works. Therefore, [the Framers] argued, authors should enjoy this monopoly just long enough to provide an incentive to create more, but the work should live afterward in the “public domain,” as common property of the reading public. (Vaidhyanathan, p. 21) “…the Framers intended for copyright itself to be the engine of free expression. By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas” Harper and Row Publishers, Inc. v. Nation Enters, 471 U.S. 539 (1985)

The Fundamental Conflicts Inherent in Copyright Law Common Law or Statute? Thick or Thin Copyright Protection? The Idea/Expression Dichotomy “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 a work.” The Idea of Authorship in Postmodernism Creative Commons (Formalizing the commons) http://www.creativecommons.org Open Source software (Copyleft)

What Does Copyright Protect? Expression Originality Compilation (preexisting) Feist Collective works Derivative works Fixation (tangible medium): 1976

What Does Copyright Protect? 1. Literary Works 2. Musical Works 3. Dramatic Works 4. Pantomimes and Choreographic Works 5. Pictorial, Graphic, and Sculptural 6. Motion Pictures (Audiovisual Works) 7. Sound Recordings

Ownership Work made for Hire

Community for Creative Non-Violence v. Reid 490 U.S. 730, 737 (1989) Who Owns It? Community for Creative Non-Violence v. Reid 490 U.S. 730, 737 (1989) “…the person who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” “Common Law of Agency” Employee or Independent Contractor?

Ownership Work made for Hire Joint Ownership Government Works Public Domain (duration of ownership) Sonny Bono Copyright Term Extension Act (1998) 95 years from publication or life of the author plus 70 years. Also renews current copyrights for 20 more years Moral Rights

How to establish copyright Who Owns It? How to establish copyright 1. Register with Copyright Office (Library of Congress) 2. Include notice of copyright ©2004

Who Owns It? Copyright ownership “vests initially in the author or authors of the work.” Copyright Act of 1976

What Does Copyright Protect? Copy Privileges 1. Right to reproduction 2. Right to prepare derivative works 3. Right to be the first to distribute 4. Right to perform the work publicly 5. Right to display work publicly 6. (1990) Control use of her/his name 7. (1990) Prevent distortortions, mutilations, or modifications that would be “Prejudicial to his or her honor or reputation.” Digital Millennium Copyright Act (1998): Prohibits the circumvention of technological protections or removal of copy rights management information

Harper and Row v. Nation (1985) Doctrine of Fair Use Purposes: Criticism, Comment, News Reporting, Teaching, Scholarship, or Research 1. Purpose and character of use (? For profit) 2. Nature of the copyrighted work 3. Amount and substantiality of the portion used in relation to the copyrighted work as a whole 4. The effect of the use upon the potential market for or value of the copyrighted work Harper and Row v. Nation (1985)

Lanham Trademark Act of 1946 Any word, name, symbol or device used by merchant or manufacturer “to identify and distinguish [his/her] goods from those manufactured or sold by others and to indicate the source of the goods. Registered with the U.S. Patent and Trademark Office Service mark: symbol used in sale and advertising to identify service (not product)