1TC 930 • Fall 2003Intellectual Property RightsPart IBasic Policy Issues & Legal Framework(C) 2003 J. M. Bauer 3Basic policy issues IPRs attempt to facilitate knowledge generation and dissemination:z Patents and copyrightsz Trademarks and service marks Temporary protection allows creator to control use of copyrighted work and secure a stream of income After protection works become part of the “public domain”(C) 2003 J. M. Bauer 4Economics of information Information is a quasi-public goodz Once produced, it can be consumed by many people without wear and tearz Very low incremental cost raises the problem of how firms can recoup the investment expense of creating informationz Often results in exorbitant surcharges over the variable cost of an information product Property rights can remedy problem(C) 2003 J. M. Bauer 5Legal framework Article I, Section 8, U.S. Constitution.Congress shall have 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” Trademark Act of 1946 as amended Patent Act of 1959 as amended Copyright Act of 1976 as amended(early predecessors were passed in 1790 and 1909)(C) 2003 J. M. Bauer 6Legal framework ... Berne Agreement (formerly known as Berne Convention for the Protection of Literary and Artistic Works of 1886) signed by U.S. in 1988 (effective 1989) World Intellectual Property Organization (WIPO) Copyright and Performances and Phonograms Treaties (1996) Digital Millennium Copyright Act (DMCA) of 19982(C) 2003 J. M. Bauer 7Challenges and critique Technological changez Photocopying, audio and video recordingz Cable television, satellite broadcastingz Internet and digital information processing Optimal duration and exceptions?z Copyright Act of 1790: 14 yearsz Copyright Act of 1909: 28 yearsz Presently: life of author plus 70 years Negative effects on creativityPart IIPatents, Trademarks, Service Marks(C) 2003 J. M. Bauer 9Patents Section 101 Patent Act of 1959:“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor …” Since 1995 last for 20 years. Administered by U.S. Patent and Trademark Office (PTO). Software can be patented (10% of all patents in 1998).(C) 2003 J. M. Bauer 10Trademarks/Servicemarks Allow consumers to identify product or service (trust). Statutory creations of states and federal government. Lanham Act defines trademark as“… any word, name, symbol, or device, or any combination thereof adopted and used by a manufacturer or merchant to identify his or her goods or services.”(C) 2003 J. M. Bauer 11Trademarks ... Last for 10 years but can be renewed indefinitely. If not “defended” become part of the public domain. Registration at PTO is not necessary for protection but brings advantages in infringement cases. Trademarks and Servicemarks can be traded.Part IIICopyright: Scope & Rights3(C) 2003 J. M. Bauer 13Protection The Copyright Act protects “original works of author-ship fixed in a tangible medium of expression” Protects work itself, not ideas or facts underlying itTypes of work that can be copyrighted•Literary works• Musical works, including lyrics• Dramatic works, includingmusic• Pantomimes and choreo-graphic works• Pictorial, graphic, andsculptural works• Motion pictures, televisionprograms, and other audio-visual works•Sound recordings• Compilations, e.g. of poems•ArchitectureTypes of work that can be copyrighted•Literary works• Musical works, including lyrics• Dramatic works, includingmusic• Pantomimes and choreo-graphic works• Pictorial, graphic, andsculptural works• Motion pictures, televisionprograms, and other audio-visual works•Sound recordings• Compilations, e.g. of poems•Architecture(C) 2003 J. M. Bauer 14“Originality” Most important criterion for work to be copyrighted Originality means:z The work is solely produced by the copyright ownerz Created through his/her own effortz Not copied/derived from the work of othersz Work does not have to be unique, innovative, or groundbreaking(C) 2003 J. M. Bauer 15“Originality” ... Copyright does not protect the idea of the work or the facts behind it“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 work” (§102, Copyright Act 1976)Unprotected works• Trivial materials (e.g., titles)•Ideas• Utilitarian goods• Methods, systems• Mathematical principles andformulasUnprotected works• Trivial materials (e.g., titles)•Ideas• Utilitarian goods• Methods, systems• Mathematical principles andformulas(C) 2003 J. M. Bauer 16“Fixed in tangible medium” “Fixed” means:z The work, under the authority of the authorz is sufficiently embodied in a copy or recording, so that itz can be observed, comprehended, reproduced, or otherwise communicated for more than a brief period of time Examples include:z Recording on audio or videotapez Printed works or works stored on computer(C) 2003 J. M. Bauer 17Rights Copyright grants six exclusive rightsz To reproduce the work in copies or phonorecords;z To prepare derivative works based upon the original (e.g., a screenplay from a book);z To distribute copies or phonorecords of the copyrighted work to the public for sale or other transfer of ownership, or by rental, lease, or lending;(C) 2003 J. M. Bauer 18Rights ...z To perform the work publicly, in the case of literary, musical, dramatic, and choreographcworks, pantomimes, and motion pictures and other audiovisual works;z To display the copyrighted work publicly, in the case of literary, musical, dramatic and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and4(C) 2003 J. M. Bauer 19Rights ...z In the case of sound recordings, to perform the work publicly by means of a digital audio transmission. The rights can be sold, (leased, given as a gift, transferred to