Intellectual Property, Patents,Trademarks, and Copyright in a Nutshell
Authors:
Miller, Arthur R. / Davis, Michael H.
Edition:
5th
Copyright Date:
2012
26 chapters
have results for copyright
Chapter 24. Ownership 33 results (showing 5 best matches)
- or pseudonymous work can be “opted out” of this scheme if, anytime during the ninety-five to 120 year period, a person with an interest in the copyright reveals to the Copyright Office the true identity of at least one of the real authors of the work. In that event, the copyright term reverts to the natural timetable with respect to the author or authors revealed and expires seventy years after death. Thus, if a work were first published and created by a pseudonymous author in 1980 who died in 1981 the copyright would expire at the earliest in 2075. If however, somebody who had an “interest” in the copyright were to reveal the identity of the author in 2051, the work might then lose copyright and enter the public domain. If that person were held not to have an interest, the copyright owner at least theoretically could enjoy copyright protection for an additional twenty-four years in spite of the fact that the true author’s identity had been discovered.
- The old rule that the sale of a work of authorship presumptively conveyed not only the physical object itself but also the copyright has been, for all practical purposes, reversed under the 1976 Act. Under section 202, the sale of the tangible object does not impliedly convey the copyright; likewise, the sale of a copyright or of any of the exclusive rights does not imply the sale of the tangible object. Section 204 indicates that any agreement to convey the copyright must explicitly do so in writing to be valid.
- The duration of copyright has been consistently increased by Congress since the first copyright statute in 1790. There appears to be little if any constitutional limit upon Congress’ power to determine the length of the copyright term. “Calibrating rational economic incentives … is a task primarily for Congress, not the courts.” , 537 U.S. 186 (2003). Under the 1909 Act, copyright ownership vested in the author for an initial period of twenty-eight years. During the final year of copyright protection, the author had the right to renew the term for another twenty-eight years. The maximum period during which an author could exclude others from using the work therefore was fifty-six years. Under the present Act, copyright extends for the lifetime of the author (if the author is an identified natural person and did not produce the work for hire) plus seventy years. 17 U.S.C.A. § 302(a). This is subject to the modification that if the work is joint, the terminal date is seventy years...
- The two basic problems with respect to preexisting works concern (a) those common law works that never were subject to federal copyright and suddenly were brought into the Copyright Act, and (b) those works that were federally copyrighted but whose terms were to be measured by two twenty-eight-year periods instead of a term related to the lifetime of the author.
- Section 201 of the Copyright Act delineates the respective rights of the compiler and of the contributors. The compiler has the right to publish the collective work and owns the copyright in that , 533 U.S. 483 (2001). A contributor owns the copyright in the contribution subject to the rights of the compiler, unless he otherwise has expressly transferred the ownership of it. Under section 404, the contributor will not be prejudiced by a failure of the compiler to place a notice of separate copyright for the contribution apart from the compilation, and in fact there is no requirement that there be separate notices of copyright for each of the contributors.
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Chapter 20. The Subject Matter of Copyright 37 results (showing 5 best matches)
- The essence of copyright is originality, which implies that the copyright owner or claimant originated the work. By contrast to a patent, however, a work of originality need not be novel. An author can claim copyright in a work as long as he created it himself, even if a thousand people created it before him. Originality only implies that the copyright claimant did not copy from someone else. From that definition of originality comes the common but true example that an author could gain a copyright on the story as long as he made it up himself and did not copy it from Shakespeare. The resulting copyright would prevent anyone else from copying the work of the copyright owner (but it would not prevent others from copying Shakespeare’s creation since that is in the public domain).
- The constitutional limits and powers of the Copyright Clause are not necessarily coextensive with the powers and limits defined by the copyright statutes. The Constitution first defines the outer limit of protectability but Congress must expressly grant protection. Under the 1976 Copyright Act, the statute appears coextensive with the constitutional power, since although it lists, as previous statutes did, specific forms of works subject to copyright, it also states that copyright protection “subsists … in original works of authorship fixed in any tangible medium of expression, ….” 17 U.S.C.A. § 102(a) (emphasis supplied). In addition, the specifically listed categories are introduced by the phrase that copyright is to “include” those categories, thus demonstrating that copyright is not to be limited merely to the specifically listed categories. As nearly as it could, Congress attempted in the 1976 Act to extend copyright protection to all major categories of works cognizable under...
- The boundaries of copyright thus are not defined by the statutorily listed categories of works in section 102. They are defined instead by the broader concepts of copyright articulated in the case law. One of the most basic of those concepts is the distinction between utilitarian and nonutilitarian objects. Purely utilitarian objects are not subject to copyright protection. However, to the extent a work is nonutilitarian or with respect to those separable portions of a work that are nonutilitarian, there is no reason to deny copyright protection, assuming it is statutorily authorized. For instance, in , 347 U.S. 201 (1954), the Supreme Court allowed the copyright of lamp bases, in the form of statuettes, despite the fact that the lamp itself was functional and clearly utilitarian.
- One reason the courts are unwilling to grant copyright protection to purely utilitarian works is that patent protection is reserved to works of utility. Because copyright protection lasts longer than patent protection and also because copyright protection is granted upon the very minimal showing of originality as opposed to the rigorous demonstration of novelty, nonobviousness, and utility required for patent protection, courts attempt to keep the borders between copyright and patent well-defined and clear. Thus, to allow copyright protection for a utilitarian object would allow monopoly control over something that might more appropriately be subject to the very different protection of patent law but probably could not satisfy the demanding prerequisites of the Patent Act (and the constitutional Patent Clause) to qualify for protection.
- Computer programs were accepted by the Copyright Office for copyright registration for a number of years before the Copyright Act specifically addressed their status. Mere registration did not make them copyrightable, of course, but did reflect the view of many respected persons both within and without the Copyright Office that programs were
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Chapter 25. Formal Requirements 12 results (showing 5 best matches)
- The requirement of registration as a prerequisite to an infringement suit raises two important problems. First, it is possible that registration may be denied by the Copyright Office. In fact, the question of whether an infringement has occurred may turn upon the very same issue that led the Copyright Office to deny copyrightability—for instance, if it were a work based upon a new technology of questionable copyright subject matter. To require registration in such a circumstance prior to suit would pose something in the nature of a Catch–22 situation: one could not sue for infringement of a work whose copyright status was questionable because registration is denied on that very ground. Under earlier acts, the remedy was to sue the Copyright Office to compel registration. ., 260 F.2d 637 (2nd Cir.1958). Under section 411 of the 1976 Act, one can sue an infringer despite refusal of the Copyright Office to register, by giving notice to the Office that the suit has been instituted.
- There are two deposit requirements in the Copyright Act, neither of which imposes severe requirements or even has significant legal effects upon copyright ownership. There is a general deposit requirement for all copyrighted works that mandates deposit of two “best editions” within three months of publication but which explicitly specifies that deposit is not a condition of copyright protection. 17 U.S.C.A. § 407(a). Failure to deposit a copy, but only after a demand for deposit by the Copyright Office, creates a potential liability of no more than $250, 17 U.S.C.A. § 407(d)(1), although a potential $2500 fine exists for those who willfully and repeatedly fail to make deposit after demand is made. 17 U.S.C.A. § 407(d)(3). Thus, at least until demand is made, the requirement of section 407 is in all respects an optional one.
- In a very real sense, both registration and deposit are optional. Copyright protection will exist despite lack of registration and failure to deposit cannot destroy a subsisting copyright. 17 U.S.C.A. § 408(a). However, registration and deposit have significant legal consequences, the most notable of which is that an owner of a “United States work” cannot sue for copyright infringement until he has registered the copyright. 17 U.S.C.A. § 411(a). Importantly, however, as long as registration is accomplished before litigation, there is nothing wrong in most cases with registering a copyright only after discovering an infringement and deciding to sue. Nevertheless, it is a defense to an infringement suit that plaintiff has failed to register a United States work prior to instituting the action. However, the Supreme Court has held that registration is not a jurisdictional requirement, so that just because some members of a class have not registered their works does not deprive a court...
- Copyright notice, although minimally relevant under the current Act, serves four functions. First, by warning owners that a failure to affix notice will work an effective abandonment, it assures that works that are unimportant to owners (unimportant enough for them to publish the material without notice) will enter the public domain. Second, it serves to inform the public that works are copyrighted. Third, it identifies the copyright owner.
- Unlike patent protection, and markedly different from trademark protection, copyright protection basically is self-executing. An author automatically is protected by federal copyright when he fixes the work in a tangible medium. 17 U.S.C.A. § 102(a). There is no need to obtain approval, conduct a prior art search, or secure registration by any agency. The ease in acquiring protection is related to the nature of copyright: since protection is only against knowledge, there is no need to collect past art by requiring authors to file their works prior to copyright protection. Thus, copyright differs from patent in both the interest protected and the goal sought; therefore, the need for examination is nonexistent; the need for registration is not terribly significant.
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Chapter 27. Copyright Laws and the Intersection of State and Federal Regulation 24 results (showing 5 best matches)
- The clearest case of preemption is common law copyright. Any state cause of action securing to an author an exclusive right to copy a tangible expression clearly interferes with federal regulation and is preempted. In this sense, section 301 is what Congress termed the “bedrock” provision of the Copyright Act; it had as a primary goal the destruction of common law copyright protection.
- Preemption is the doctrine recognizing that, because of the Constitution’s Supremacy Clause, federal copyright protection is superior to any and all other state remedies dealing with the area and that federal law therefore always must be, in the end, the controlling principle. A corollary of this principle, which is far more vague and uncertain, is that to the extent federal copyright law does by the copyright law potentially are preempted and invalid. Likewise, state attempts to regulate matters that the copyright law could regulate but have been left the scope of federal preemption with respect to copyright protection, and it is clear that the current Act goes further in that direction than all prior Acts. 17 U.S.C.A. § 301. However, it does not go so far as to preempt everything that arguably is within the possible scope of federal regulation.
- ...does not secure rights to copy, display, distribute, or perform, it might be a viable state regulation even if it regulates a tangible medium of expression. For instance, laws of theft are not preempted despite the fact that they cover, among other things, tangible means of expression of original works of authorship. To steal a book is not to copy it, necessarily, and a law against theft is not preempted because it does not grant a right equivalent to any of the federal exclusive rights. Similarly, a state cause of action granting protection to a speaker against someone else copying or performing his extemporaneous speech may not be preempted because such intangible expressions are not within the subject matter of copyright. A number of areas of intangible expressions therefore are still viable candidates for state protection. These include unrecorded choreography, conversation, live unrecorded broadcasts, and improvisational theatre. Thus, with respect to all cases that...copyright
- equivalent to federal copyright included within federal copyright—are state laws preempted and invalidated. This has the appearance of greater simplicity than is actually the case, however, because it is not really an easy matter to decide how to define these equivalent rights nor is it clear how far the subject matter of copyright extends.
- For instance, copyrightable subject matter is defined in terms of tangible media. Section 102(b) of the Copyright Act explicitly excludes ideas, as opposed to expressions, from copyright subject matter. However, Congress did not intend to allow states to grant the equivalent of copyright protection to ideas (disregarding the obvious First Amendment problems this raises) by defining preemption solely in terms of those things that are included within copyright subject matter. The statute itself militates in favor of this conclusion, because it identifies as an example of permissible state regulation subject matter that “is not fixed in any tangible medium of
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Chapter 21. Exclusive Rights 22 results (showing 5 best matches)
- The first-sale doctrine assures the copyright owner that, until she parts with ownership, she has the right to prohibit all others from distributing the work. On the other hand, once a sale has occurred, the first-sale doctrine allows the new owner to treat the object as his own. Thus, although a copyright owner might transfer ownership to a buyer and impose certain conditions, it is not a violation of copyright for the buyer to sell the work to another, even if the copyright owner had conditioned the sale upon a promise of no resales. Copyright law and the distribution right only secure to the copyright owner the right to control the first transfer of ownership. A statutory exception to the first-sale doctrine, enacted at the behest of the computer and record industries, forbids the commercial rental, lease, or lending, or anything “in the nature of rental, lease, or lending,” of phonorecords and computer programs. 17 U.S.C.A. § 109(b)(1).
- Largely due to the highly developed and profitable communications and entertainment industries and technologies of the twentieth century, the right of the copyright owner to exclude all others from publicly performing his work has become one of the most important rights secured by the copyright laws. Because large segments of our population now receive copyrighted information through mass media, electronic motion pictures, television tapes and discs, radio broadcasts, and a host of other technologies by which information is delivered —the right of public performance has become extremely valuable to a copyright proprietor.
- The digital transmission performance right is only one portent of related new copyright developments. The growth of advanced, including digital, technology of which the new performance right is a part, has accelerated changes in the Copyright Act.
- The Intellectual Property and Communications Omnibus Reform Act of 1999 adopted further provisions respecting advanced technologies, many of which establish rights far broader than those of traditional copyright. These provisions make it unlawful to circumvent protection measures that control access to copyrighted works. Unlike traditional copyright, the 1999 law does not directly protect the expressions themselves, but, instead, the “technological measures” employed to prevent the expressions from being copied—forbidding descrambling, decrypting, or otherwise circumventing those measures. 17 U.S.C.A. §§ 1201 et seq. One collateral, perhaps unintended, effect of this legislation is that the measures—usually computer programs—that are meant to protect underlying works become, themselves, works that receive even greater protection than the underlying works receive from traditional copyright. The “technological measure” is protected from being deciphered, even though any other work...
- Thus, the owner of a copy of a painting, a photograph, a microfiche or even a computerized memory of copyrighted materials might publicly display the work by showing the painting or photograph to others or by making the microfiche or computer terminal available to the public at one location and be immunized in doing so by section 109(b). But, in order to protect the authors of copyrighted works from having their products unfairly exploited by developing and future communications technology, Congress has granted the copyright owner the exclusive right to display the copy in a way that would make it available in either multiple images or to persons outside the actual physical location of the copy. Thus, any digital form of network or Internet transmission would constitute a public display that violates the copyright owner’s exclusive display right and that is not immunized by the more narrow privilege granted by section 109(b) limited strictly to “no more than one image at a time, to...
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Chapter 19. Foundations of Copyright Protection 21 results (showing 5 best matches)
- the publisher—whether an independent printer, bookbinder, or the author himself—to exclusive control of the exploitation of the copying enterprise found a sturdy and long-lived home in the American copyright statutes and the body of common law rights that developed around them. The distinction produced two separate concepts of copyright. The
- of an idea, copyright protection centers fundamentally upon the original of an idea, whether literary, artistic, commercial, or otherwise. The expression is the key because only the expression is protected by copyright. For example, the idea of a Civil War family besieged by the terrors and hardships of internecine conflict cannot be copyrighted. But the is accorded important copyright protection.
- The development of copyright law in England was shaped by the efforts of mercantile interests to obtain monopoly control of the publishing industry—similar to those of the guilds that were instrumental in shaping patent and trademark law. The history of copyright law is largely the story of judicial and statutory reactions to the resulting monopolistic restraints. In addition to the interest of publishers in having a monopoly over the production of books similar to the interest of medieval guilds in having control over the production of new technology, the development of copyright law also was uniquely influenced by those with an interest in controlling the This interest, however, has left few important legacies; by far, the most enduring influence on the development of copyright law was that of the publishers themselves.
- American copyright law came to distinguish between the “common law” right of an author to his unpublished creations, and the statutory copyright that might be secured upon publication. Until recently, therefore, an author had a perpetual right to his creation, which included the right to decide when, if, and how to publish the work, but that common law right terminated upon publication at which time statutory rights became the sole rights, if any, to which the author was entitled. This distinction was altered by the Copyright Act of 1976 (the “new Act”), which shifts the line of demarcation between common law and statutory copyright from the moment of publication to the moment of fixation of the work into a tangible form.
- Copyright, at least in Anglo–American jurisprudence, never has developed a procedure of administrative examination before registration as is true of both patent and trademark law. Instead, copyright has developed the doctrine that expressive works are entitled to protection without examination—and, in fact, largely without registration. At common law, prepublication protection would have been impossible, of course, if prior examination were required since one of the purposes of protection was the author’s privacy. Registration is significant to modern American copyright law but the basic doctrine of this country’s copyright law is to protect authors without requiring it.
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Chapter 26. Remedies 10 results (showing 5 best matches)
- The classic remedy for copyright infringement is equitable relief. This includes both preliminary and permanent injunctive relief. Although in theory the standards applicable to copyright cases with respect to preliminary relief are no different than for other substantive areas of the law, it has been observed that preliminary relief is far more likely than in other contexts, especially when contrasted with patent law. As a matter of evidentiary proof this can be explained by the fact that proof of a valid copyright and of infringement is easier to develop at the pretrial stage than it is to prove comparable elements of other substantive violations of law, such as patent infringement. Perhaps more importantly, copyright infringers, like trademark infringers, but unlike patent infringers, are more likely to be transient entities who, absent injunctive relief, are apt to disappear before judgment is rendered or can be collected.
- The criminal provisions do provide broader remedies with respect to seizure, forfeiture, and destruction making these procedures mandatory upon conviction rather than discretionary and generally giving the court broad powers with respect to the treatment of infringements as contraband. 17 U.S.C.A. § 506(b). Finally, the current Act also criminalizes the fraudulent use of copyright notices, the fraudulent removal of copyright notices, and the fraudulent representation of material facts with respect to copyright registration applications. 17 U.S.C.A. § 506(c)(d)(e).
- Another possible explanation for the apparently greater willingness to grant preliminary equitable relief in copyright than in other cases is an ill-articulated assumption that copyright infringement automatically threatens irreparable harm. Since irreparable harm generally is the keystone for obtaining injunctive relief, such an assumption would tend to make injunctions more likely in copyright cases than otherwise might be expected. See ., 558 F.2d 1090 (2nd Cir.1977). Thus, although there is no clear rule that copyright carries any such assumption, there is some evidence that courts tend to make one nevertheless.
- Section 503 of the Copyright Act provides for the impoundment and eventual disposition, including possible destruction, of infringing copies and equipment used to produce them. Subsection (a) provides for impoundment prior to final judgment; subsection (b) provides for permanent disposition including possible destruction after final judgment.
- Copyright infringement if committed willfully is a federal crime punishable by imprisonment for one to ten years, depending upon the particular infringement and whether it is a first offense, and a fine determined by the Federal Sentencing Guidelines. Prosecutions under this and predecessor statutes have been infrequent, except for some recent record, DVD, and tape piracy cases. Nevertheless, it does present a possible deterrent to copyright infringement. Although only willful infringement is subject to criminal penalties and must generally be accompanied by “purposes of commercial advantage or private financial gain,” any infringements with a total retail value of $1,000 committed within a six-month period are conclusively commercial in nature. 17 U.S.C.A. § 506(a).
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Chapter 23. Fair Use 23 results (showing 5 best matches)
- There are at least two additional interests relevant to fair use. First, although infringement need not be intentional and although the intent of the defendant is not determinative, the intent and motives of the defendant often are relevant. Second, a First Amendment interest often opposes the copyright monopoly. However, in ., 471 U.S. 539 (1985), the Supreme Court found no inherent conflict between copyright law and the First Amendment, especially because of the very existence of the fair use defense. In to report the important facts of the memoir without “scooping” its very language and that, furthermore, there was no expansion of fair use based on a claimed “public figure” exception to copyright. The Court also emphasized the fact that the work had not yet had its “first publication,” the significance of which apparently continues, even after the near-total replacement of common law copyright by statutory copyright through the 1976 Act, even though not as a prerequisite to...
- Fair use under section 107 specifically allows for multiple copying of copyrighted works when done for classroom use under certain conditions. The exact scope of this permissible copying is not defined in the statute itself, however. Likewise, section 108 provides for a limitation on the copyright proprietor’s exclusive rights and authorizes libraries to make copies of certain works. It also implicitly recognizes the right of others, under what presumably is fair use, to make photocopies in libraries having photocopying machines and immunizes libraries from any copyright liability if certain notices are posted.
- One response to the defense is that the First Amendment creates no exception to copyright because, as a constitutional doctrine, it is opposed by an equally constitutional doctrine: the Copyright Clause. This response, however, has been dismissed by most courts and commentators as excessively simplistic for at least two reasons. First, a literal reading of the Constitution will show that since the First Amendment is an amendment to the Constitution and to the Copyright Clause itself, the amendment should control. Second, even if the Bill of Rights and the Constitution are taken as a whole, priority must be given to the specific protections contained in the Bill of Rights. To do otherwise would be to grant carte blanche under a number of general constitutional powers such as the Commerce Clause, thereby creating a risk of utterly destroying the rights granted by the Amendments.
- The more accepted response to claims of First Amendment fair-use rights is found in the idea-expression dichotomy. Viewing the First Amendment as prohibiting any restraints on the free communication of ideas, courts have held that there is no constitutional violation as long as copyright merely restrains using a particular expression as opposed to the idea itself. However, matters of public interest sometimes become so important that copyright has been lost because the particular work is uniquely situated to convey the ideas. In , 293 F.Supp. 130 (S.D.N.Y.1968), the Zapruder films of the Kennedy assassination were held too important to be restricted by copyright claims. It may be thought that in such a case the idea and expression tend to merge. Generally, the courts have found the idea-expression line a convenient and workable way of resolving ...1977). The Supreme Court has dismissed the potential conflict between copyright and free speech because fair use and the idea/expression...
- First Amendment claims also have been evaluated under a rule of reason. In doing so, a court usually avoids the somewhat circular trap of the constitutional argument by acknowledging the constitutional right of criticism and fair use but insisting that the criticism and fair use be done reasonably. Using a greater amount of the copyrighted work than is reasonably necessary in reporting matters of public interest can defeat a fair-use defense. See ., 433 U.S. 562 (1977). Indeed, the idea-expression dichotomy dictates that even when there is a clear First Amendment right involved, such as the memoirs of an ex-President, the First Amendment does not override copyright interests when a lesser taking would communicate the same ideas and facts and satisfy First Amendment interests. Furthermore, the very existence of the fair-use privilege undercuts the notion that the First Amendment either conflicts with copyright or creates its own privilege such as, for instance, a public-figure...
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Introduction 3 results
- Trademark, for instance, is hopefully even more commonplace than a punch in the nose. We all have seen Xerox machines and the ads that manufacturer places periodically to reinforce the strength of its mark. We have used aspirin, which once was a trademark but is no longer. Likewise, although most people have not seen a patent document, we all have seen, used, and benefitted from patented items, processes, combinations, and the like. We have seen and used copyrighted materials, including this book, and enjoyed many of them. Without patented and copyrighted items, our lives would be quite different. The richness they bring to us is one of the justifications for these protective legal concepts (although one always should note that copyright was not necessary to inspire Shakespeare to
- A book presenting the basics of intellectual property faces two difficulties. First, intellectual property traditionally includes the three legal areas of patents, trademarks, and copyrights. However, except for tradition and the fact that the three subjects are commonly taught together in one survey course, one might question why a single book should include these three divergent subjects. What they have in common is a relatively amorphous character and a highly abstract concept of property. Only two of them, patent and copyright, share a common constitutional source. That brings up the second difficulty. The “property” of intellectual property is not the concrete form that characterizes the area of real property, for instance. It has been said, with respect to tort law, and the supposed ease with which students grasp its basics, that anyone can recognize a punch in the nose. Unlike a punch in the nose, however, the force of intellectual property is more like that of the invisible...
- Two considerations, however, make our task easier. First, the areas of patent, trademark, and copyright, are substantially statutory. Although that means that the law cannot be understood without occasional reference to the statute, it also means that, with the statute, at least some “black letter” law is immediately available. With the recent explosion of intellectual property as a mainstay of national and international trade has come a concomitant explosion of statutory changes. This presents a challenge to students and practitioners to stay up-to-date. Second, although intellectual property is relatively abstract, that is not to say that it is unfamiliar.
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Chapter 22. Infringement 13 results (showing 5 best matches)
- On the other hand, the simple title of a literary property is not subject to copyright protection—although it may be more than adequately protected under common law theories of unfair competition, misappropriation, or possibly even trademark law. For instance, in ., 70 F.2d 310 (2nd Cir.1934), the plaintiff sought to enjoin the defendant’s use of the title “Gold Diggers of Paris” as the title of a movie because the plaintiff owned the rights in a script entitled “The Gold Diggers.” The court denied the plaintiffs relief under copyright law, saying: “A copyright of a play does not carry with it the exclusive right to the use of the title.” However, it granted an injunction upon common law trademark grounds, since the title had acquired secondary meaning, the public having come to identify it with the plaintiff’s property. The possibility of public deception justified the relief.
- it is possible that an author might create a work that is unconsciously based on a prior work and therefore impermissibly infringes the original copyright owner’s exclusive right to prepare derivative works.
- Infringement—a word that is not defined anywhere in the Copyright Act—occurs whenever somebody exercises any of the rights reserved exclusively for the copyright owner without authorization. 17 U.S.C.A. § 501(a). Infringement need not be intentional. Liability for innocent infringement is well-established.
- Just as the physical act of copying is the paradigmatic act of infringement, literary infringement seems to represent the paradigmatic subject matter of infringement. This is at least historically understandable, see § 19.1, supra, since in its beginnings copyright infringement involved nothing but literary works. With respect to the elements of an infringement action, literary infringement does not differ from any other copyright subject matter: illegitimate copying must be proven, usually by demonstrating access and substantial similarity. The application of the substantial-similarity test to literary works poses difficulties because so many writing elements inevitably are repeated from one work to the next. Since some elements will be common to numerous works, the courts have struggled to develop ways of distinguishing those aspects that can
- ., 2005 WL 832356 (U.S.2005), the Supreme Court held that the way the defendant promoted its product and encouraged others to use its “peer-to-peer” network to download copyrighted music was evidence sufficient to support a finding of indirect infringement.
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Chapter 28. International Agreements 4 results
- There are only a handful of important multilateral international agreements to which the United States is a party that directly affect intellectual property. The major agreements are the Paris Convention (addressing patent and trademark), the Patent Cooperation Treaty, or PCT (addressing patent), the Trademark Law Treaty, or TLT (addressing trademark), the Berne Convention (addressing copyright), The Universal Copyright Convention, or UCC (addressing copyright), NAFTA (addressing all three), and the Trade Related Aspects of Intellectual Property Rights, or TRIPS (also addressing all three). Although all differ in more than just their subject matter, they share certain characteristics that have historical and continuing significance. In 2003, the United States acceded to the Madrid Protocol of the Madrid Agreement, governing trademark, and is now a part of the so-called Madrid system of international trademark registrations.
- The Universal Copyright Convention was created as an alternative to Berne, largely by the United States with the assistance of UNESCO. It is a very unintrusive national treatment treaty, more similar to the Paris Convention for patents than Berne for copyrights, requiring very little more than national treatment and making liberal allowances for formal
- § 28.4 Copyright Treaties
- adopted substantive terms addressing intellectual property. NAFTA, comprising only Canada, the United States, and Mexico, although with provisions for extensions throughout the Western Hemisphere, was in many ways a precursor to TRIPS. Under the banner of globalization, both NAFTA and TRIPS member signatory countries have agreed upon substantive minimum standards for patent, trademark, and copyright—as well as trade secrets and unfair competition—with various although severely limited opportunities for developing countries to delay compliance temporarily. GATT, which has been absorbed into an umbrella organization, the World Trade Organization, or WTO, includes TRIPS as part of its overall terms. TRIPS, in turn, imposes upon its members most of the provisions of the Paris and Berne Conventions, with some important exceptions, in addition to imposing quite substantial minimum requirements for patent, trademark, and copyright coverage. Among the most important of these are mandatory...
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Chapter 12. Distinctiveness 1 result
- The distinctiveness requirement is roughly analogous to the requirement of novelty for patent rights and to the requirement of originality for copyright. Without distinctiveness, either based on the inherent nature of the mark or developed by the owner through marketing, trademark rights fail.
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Index 19 results (showing 5 best matches)
Outline 11 results (showing 5 best matches)
- At the Constitutional Convention, in 1787, a measure was proposed to incorporate as one of the new federal powers the ability to secure, for limited times, patents and copyrights. The measure was adopted without debate. It reads:
- The patent application is submitted to the Patent Office but no rights immediately accrue. Unlike a copyrighted work, for instance, there is no monopoly right in an invention until a patent actually is issued by the Patent Office. (There may be other rights created by state common law, however, such as the law of trade secrets or unfair competition.) The Patent Office examines the application and conducts a search of past patents and of relevant
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Part III. Copyright 1 result
- The major issue relating to design patents is that field’s affect on copyright and utility patent law. Since the protection afforded design patents is against copying, it bears a striking resemblance to copyright. Similarly, because design patents by definition involve designs on articles of manufacture, they intersect with matters of utility patentability and threaten to protect by design that which may have a function otherwise nonpatentable under utility patent protection. As a result, a design patent cannot be obtained for an exclusively functional design.
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Chapter 17. Infringement 2 results
- Parody has been held a legitimate form of trademark fair use, and, in fact, the subject is informed by the Supreme Court’s treatment of copyright parody in
- This leaves it up to the courts to decide the critical issue: confusion as to what? Those courts that have decided that the statute thereby treats as sufficiently confusing any mark that is visually or sensorially similar have collapsed the requirement of confusion into similarity, a step not clearly mandated by the statute, and one that moves trademark perilously close to copyright.
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Chapter 15. Trademark Practice 1 result
Chapter 9. Remedies 1 result
- States are protected from suit for patent infringement by Eleventh Amendment sovereign immunity as they are from trademark and copyright suits. See §§ 17.8, 26.6, infra. This is so even if Congress expressly attempts to abrogate such state immunity, which it has done in the patent statute. 35 U.S.C. §§ 271(h), 296. Although patents are property under the Fourteenth Amendment and thus are protected against state deprivation without due process, absent a “pattern of patent infringement,” states enjoy immunity against patent suits.
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Chapter 16. Subject Matter 2 results
- Section 43 is still developing. The TLRA revisions have added a prohibition against false advertising without any requirement of any showing of confusion, mistake, deception, or their likelihood. 15 U.S.C.A. § 1125(a)(2). Other, more recent amendments have prohibited the importing of products that violate the section, as well as acts of dilution, see § 13.6 supra, and so-called “cyberpiracy,” 15 U.S.C.A. § 1125(b)–(d). Section 43(a) also has been used as a vehicle for asserting something close to copyright moral rights. See §§ 27.3–27.4, infra. One court has characterized section 43(a) as articulating “an affirmative code of business ethics.”
- paradigms. However, to prevent collision between trademark and copyright law, it has been held that a section 43(a) action cannot be based on a misrepresentation of authorship of a noncopyrighted work, and that the “origin” of goods within the meaning of 43(a) does not extend to the origin of ideas contained within those goods.
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- ., 416 U.S. 470 (1974), the Supreme Court held that state trade secret law could prohibit the disclosure of industrial technology developed by the plaintiff even though that technology was unpatented. Trade secret law does not necessarily interfere with federal policies—it provides far weaker protection, it addresses different, noninventive subject matter, and focusses on conduct instead of technology. Since, at least within those limits, trade secret law and patent law can coexist, the doctrine of preemption does not apply. The doctrine of preemption applies to copyright law as well as to patent
- ., 527 U.S. 666 (1999). The same is true of trademark and copyright infringement. See §§ 17.8, 26.6, infra.
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- Publication Date: March 30th, 2012
- ISBN: 9780314278340
- Subject: Intellectual Property
- Series: Nutshells
- Type: Overviews
- Description: Miller and Davis’ Intellectual Property, Patents, Trademarks, and Copyright in a Nutshell presents the fundamentals of trademark and copyright laws. Authors Michael Davis and famed Harvard professor Arthur Miller provide authoritative coverage on the foundations of patent protection, patentability, and the patenting process. The text addresses: Torts and property Antitrust and government regulation Concept of federalism State and federal conflicts
