An Overview
Intellectual property law traditionally meant copyrights and patents. Both are created and limited by federal statutes based on the Constitution’s intellectual property clause: “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
technology; and to act as a defender of those liberties.
Among our various activities, EFF opposes misguided legisla-tion, initiates and defends court cases preserving individu-als’ rights, launches global public campaigns, introduces leading edge proposals and papers, hosts frequent edu-cational events, engages the press regularly, and publishes a comprehensive archive of digital civil liberties information at one of the most linked-to websites in the world: http://
www.eff.org.2
1 From the EFF website, http://www.eff.org/homes/lee_tien.html
2 From the EFF website, http://www.eff.org/abouteff.html
1 Joel Miller, Reverse Engineering: Fair Game or Foul?, IEEE Spectrum, Apr. 1993, at 64, 64.
2 17 U.S.C. § 1201–1204.
3 18 U.S.C. § 1831–39.
Writings and Discoveries.” Computer programs are typically protected as copyrighted “literary works,” but they can also be patented.5
People have recently come to think of trade secrets as another kind of intellectual property. Trade secrets were originally protected by courts under case law, but they are now the subject of both state and federal states as well.
Unlike copyrights and patents, trade secrecy law is historically grounded in unfair competition principles.
In the United States, authors and inventors don’t have “natural rights.”6 Instead, their rights are based on a notion of public welfare. Society will benefit if authors and inventors get some protection, because they won’t have adequate incentives to create if others can freely use their work. But that protection is limited in order to assure that the public ultimately benefits.7 For example, copyright and patent rights are only for “limited times”; eventually, protected works must enter the public domain.8 In short, intellectual property law sets the terms for a “bargain” between the public and authors or inventors.
Copyright
Copyright law protects original works of expression that are “fixed” in a tangible medium and gives the author (or assignee) exclusive rights over reproduction, distribution, adaptation, public display and public perfor-mance of the work. It does not protect against independent creation.
Works are not the same as copies or phonorecords (copies of sound recordings). When you buy a book, you own a copy, but the copyright owner retains the rights to the work itself. Note, by the way, that the “first sale” doctrine allows lawful owners of copies to sell or transfer these lawfully owned copies, 9 with certain exceptions.10
There are many different types of works, with many different rules for each
4 U.S. Const. Art. I, §8, cl. 8. When the Constitution was written, the word “science” was often used as a synonym for
“knowledge.”
5 See Diamond v. Diehr, 450 U.S. 175 (1981); In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994).
6 In Europe, copyright has traditionally been viewed as protecting an inherent inalienable personal right of the creator of a work.
7 “ The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’” Mazer v. Stein, 347 U.S. 201, 219 (1954).
8 Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 348-49 (1991) (“This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art.”)
type. So copyright law is quite complex, and technology hasn’t simplified matters. Consider a copyrighted song. The song or musical composition (MC) is protected by copyright, typically held by the songwriter. To record the song, one needs permission from the MC copyright owner.11 Once recorded, there is an independent copyright in the sound recording (SR), which protects the actual recorded sounds including the singer’s interpreta-tion of the underlying song as well as the efforts of the producer and sound engineers. Record companies usually own SR copyrights. As a result, if you want to use a copyrighted sound recording of the song in a TV commercial, you need permission of both the MC copyright owner and the SR copyright owner.
Most of the copyright owner’s rights are fairly obvious, but some of them are not — especially when computers are involved. For instance, computers load programs into RAM, creating a copy for copyright purposes. The copyright act contains a specific exemption that permits the owner of a copy of a computer program to copy the program into computer memory.12 This illustrates the general strictness of copyright law: that one can’t use a copyrighted work for its intended purpose without making a copy doesn’t mean that making the copy isn’t copyright infringement. The implications of this strictness for the Internet are serious, since Internet dissemination generally involves the making of copies.
The right over adaptation can also be confusing. Adaptations, or “derivative works,” are works based on a copyrighted work: foreign-language transla-tions, movies based on books, and so on. In one much-criticized case, a court found that cutting pictures out of lawfully owned copies and mount-ing the pictures onto ceramic tiles created infrmount-ingmount-ing derivative works.13 Most courts disagree with this result.14
9 See 17 U.S.C. Sec. 109. “The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.” Quality King v.
L’Anza Research Int’l, 523 U.S. 135, ___ (1998).
10 For instance, phonorecords and stand-alone computer programs are treated differently than books under Sec. 109.
11 Under current copyright law, the MC reproduction copyright is controlled by compulsory license provisions, which means that you automatically get permission by paying a statutory rate.
12 17 U.S.C. § 117 (permitting making of copy or adaptation copy or adaptation “as an essential step in the utilization of the computer program in conjunction with a machine.”).
13Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341, 1344 (9th Cir. 1988), cert. denied, 489 U.S. 1018 (1989).
14 See, e.g., Lee v. Deck The Walls, Inc., 925 F. Supp. 576 (N.D. Ill.
1996), aff’d sub nom. Lee v. A.R.T. Co., 125 F.3d 580 (7th Cir. 1997) (rejecting reasoning of Mirage Editions); Precious Moments, Inc.
v. La Infantil, Inc., 971 F. Supp. 66, 68-69 (D.P.R. 1997) (denying claim against one who purchased fabric and then incorporated it into bedding); Paramount Pictures Corp. v. Video
Broadcasting Sys., Inc., 724 F. Supp. 808 (D. Kan. 1989) (distribution claim barred by first sale doctrine, distinguishing Mirage Editions).
Copyright protection begins automatically when a work is created and generally lasts for the life of the author plus 70 years.15 Works become free for all to use, i.e., enter the public domain, once the copyright term expires.
There are many exceptions to copyright. The rule that copyright protects expression means that it doesn’t bar anyone from using the ideas or facts revealed in the work. “Ideas” includes the plots of stories. More generally, copyright doesn’t protect the utilitarian aspects of a work, so you can write a computer program that does the same thing as another program so long as you don’t copy its expression.
Facts are considered “outside” copyright because they are discovered, not authored. This would include, for instance, the discovery of new prime numbers. But you can have a copyright in the selection, sequence or arrangement of facts or anything else that is not itself copyrightable. The classic example is an anthology of public-domain poetry. You can have a copyright to the compilation even though the individual pieces are unpro-tected if the selection, sequence or arrangement is sufficiently original. The alphabetical arrangement of facts in the typical telephone “white pages”
directory fails the constitutional originality requirement. You don’t get any protection merely because you invested money, time or effort into collecting the phone numbers.
Copyright doesn’t cover many “ordinary” uses of the work. In itself, reading a book isn’t subject to copyright, because it doesn’t infringe any of the copyright owner’s rights. Singing a song in the shower is a performance, but the copyright owner only has a right over public performances. Here again, however, the Internet has changed things. When you read a docu-ment in your web browser, a copy of the docudocu-ment was probably made by your computer. Thus, many formerly ordinary uses now entail the making of a copy, which raises copyright issues.
Today, there’s a lot of controversy about “fair use.” Fair use is a defense to copyright infringement that was intended to allow people to make some unauthorized use of copyrighted works. Fair use allows book reviewers to quote from books. It’s a very complicated area of law; whether a use is
“fair” depends on factors like the purpose, nature, amount, and economic effect of the use.16
Patent
Patent law protects inventions and gives the inventor (or his assignee) the right to exclude others from making, selling, or using the invention for 20 years from the date of the filing of the patent. Unlike copyright, patent law protects against independent invention by another person.
The bargain here is that in return for the patent, the inventor must provide enough information in the patent application to enable one “skilled in the
15 Under the first copyright act, protection lasted for only 14 years.
16 17 U.S.C. § 107.
art” to create the invention without much experimentation. Once a patent is awarded, the application is made public. By making the information public, the patentee contributes to society’s store of knowledge.
A patent confers no affirmative rights, however; if you patent an im-provement to someone else’s invention, you can’t practice the improve-ment without infringing on the underlying patent. If you invent and patent a new drug, you may still need regulatory approval before you can sell the drug.
To be patentable, an invention must be useful, novel, and “nonobvious”
to one “skilled in the art.” The novelty and nonobviousness requirements mean that the invention must be a sufficient development in technology before the right to exclude is given. Developments that do not meet these high standards are denied protection.