Intellectual Property Law and New Media
From Baruchnewmedia
What is Intellectual Property Law?
Intellectual Property (IP) is a legal concept that includes copyright, trademark, patent, and related rights. IP laws protect the results of human creative endeavor. Under intellectual property law, the holder of one these abstract "properties" has certain exclusive rights to the creative work, commercial symbol, or invention which is covered by it.
How do people distinguish Properties?
People usually see property as a physical object like house, car or personal belonging. The owners usually have certain rights to their property, including rights to use, manage, derive income and exclude. The use of physical objects is zero-sum game. That means if someone takes a property from you, you cannot use it. However, it might not apply to intellectual objects.
Intellectual property consists of non-physical objects, which we called intellectual objects. They can be songs, music, poems, novels, product formulas, inventions, and so on. They are not physical objects that people can touch. At the same time, intellectual objects can be use by multiple users. For example, a book is a physical object and the idea and content is an intellectual property. To write a book, it can be time consuming and costly to the author. On the other hand, the cost to make copy of the book is usually tiny. From the past, people are making physical copies of the intellectual object like books, DVDs, CDs and distributing them secretly at a lower market cost without permission.
Intellectual Property and New Media Technology
The digital age has called for alterations to be made on IP laws. An important area of law that has been affected by the growing needs of technology is that of intellectual property and copyright. Intellectual property laws are designed to protect the intellectual property rights in creating new devices, processes, products, services, and creative expressions. Some intellectual property rights are granted by the U.S. Constitution, such as patent rights and copyrights. In addition to protecting the interests of the creator, these rights also serve as an incentive to others to produce creative works for the further development of the arts and sciences in the United States. The digitizing of intellectual property and the ease and speed with which it can be copied, transmitted, and globally shared poses legal challenges for traditional owners of content rights, for those who create new media, and for those who consume new media content. Intellectual property is of great importance to society as it endeavors to protect the rights of the public, the creators of the works and sets guidelines and boundaries to be abided by in the use of technological advances.
Other intellectual property rights are granted by common law and are embodied by Intellectual property laws that include specific provisions governing trademarks, service marks, and trade secrets. In addition to protecting the interests of the creator and the company that owns them, they help protect the consumers. The growing areas of law which make up Intellectual Property Law, including patents, trademarks, copyrights, trade secrets, licensing and Internet intellectual property law issues.
Copyright protection is provided for original works of authorship fixed in a tangible medium of expression. That means one cannot copyright an idea, only the expression of the idea. Copyright issues are the biggest bargain in the intellectual property field where they are protected under the Universal Copyright Convention or Berne Convention.
Types of Intellectual Property
● Patents: Utility Patents, Design Patents & Plants Patents (permits its owner to exclude others from making, selling, or using an invention)
● Trademarks: Trademark & Service mark (a word, name, symbol or devise used to identify and distinguish one’s goods or services and to indicate their source)
● Copyrights: protects original works of authorship such us literary, musical, dramatic, artistic and etc.
● Trade secrets: valuable information not to be share with one’s competitor
The first there are protected under federal law, both in the United States and other countries. Trade secrets have protection rooted in state law, with some protections granted at the federal level. Patents are property right that allows the owner to “exclude” others from the use of the patent and to file for protection. Patent protection is generally provided at the federal level by the United States Patent and Trademark Office also known as USPTO. Trademarks refer to buying and selling of goods and services. Copyrights are registered by the Copyright Office of the Library of Congress where copyrighted materials are protected as well as the variations and derivatives of that work. Trade secrets are harder to protect than other forms of intellectual property, given the lack of additionally regulatory protection of such rights. Trade secrets include information owned by an organization that is private and confidential. As an organization cannot register their trade secret with a governmental agency, one way an organization can take to protect their trade secrets is to have all personnel sign a contract or confidential agreement prior to employment. Two important trade-related acts included the Trade and Tariff Act of 1984 and the Caribbean Basin Economic Recovery Act. The U.S. Council for International Business, the Association of Data Processing Service Organizations, the Coalition of Service Industries, the Motion Picture Export Association of America, the American Electronics Association also improve the protection of intellectual property rights at home and aboard.
Intellectual Property Laws
Intellectual property law includes copyright law in which it protects creative or artistic expression of an idea; trademark law in which it protects the distinctive symbols used in relation to services or products and patent laws in which it protects inventions. The 1976 Copyright Act preserves the rights for those who produce creative works or have acquired them through legal actions such as purchase, lease or inheritance. The 1998 Digital Millennium Copyright Act also known as DMCA clarified the application of “current” law to media works as well as adding a few principles specific to digital works. The DMCA control access to copyrighted works and copy control mechanisms through measures of digital rights management/DRM. New media contents are protected by federal and state laws. If intellectual property laws are violated, one can be served, arrested, fined and even imprisoned.
The 1976 Convention established the World Intellectual Property Organization (WIPO) and was made a specialized agency of the United Nations (UN) in December 1974. The objectives of WIPO are to promote the protection of intellectual property throughout the world through cooperation among States and other international organization as well as to ensure administrative cooperation among the intellectual property Unions. Supported by the international treaties under multilateral trade negotiations such as WIPO and TRIPS (Trade-Related Aspects of Intellectual Property Rights) and finally enacted through DMCA and Copyright Laws, these laws are proven to protect one’s intellectual property rights to the best extend.
Although many laws are there to protected the interest of old media and the development of new media technologies, the legal systems have not kept up with the development of these technology in which virtually every one could be found, in one way or another, guilty of intellectual property violations. The balance that intellectual property law traditionally strikes is between the protections granted the author and the public use or access granted everyone else. The American legal system copes with the rapidly evolving technology rather poorly where the balance was disturbed by new media technologies. As argued by Pierre Joseph Proudhon, there was an inherent tension between capitalism and private property including intellectual property: “Just as real and personal property is essentially hostile to society, so, in consequence is literary property, social and individual interests are perpetually in conflict.” Intellectual property rights are essential to incentivize intellectual and artistic creativity, but intellectual property laws must enforce to its fullest extend to protect human rights.
International Protection of IP Rights
The international protection of intellectual property rights was a concern due to the fact that these rights are uncertain or nonexistent. There are no international provisions that are designed to enforce intellectual property rights or to settle disputes as the agreements vary among the participants. However, there international agreements established for the purpose of worldwide uniformity.
There are no actual international laws that protect industrial property. Industrial property laws are specific to each country. International industrial property treaties or agreements generally do not establish rights but are designed principally to harmonize divergent national laws such as the Paris Union establish by the Paris Convention in 1883. Such agreements also exist and are governed by WIPO. European Patent Convention (EPC) creates universal standards for granting patents in European nations, but does not establish uniform national patent protection laws.
There are also no actual international laws specify for worldwide copyright protection. Once again, the international agreements such as the Universal Copyright Convention (UCC) only provide and establish many of the principles. Thus, intellectual property rights laws and protection are mainly based on national laws.
International IP Law/Agreements including the U.S.
Industrial Property Agreements under WIPO including the United States
Paris Convention, 1883: covers industrial property such as inventions, trade names, trademarks, designs, source and repression of unfair competition. It provides national treatment where each state is granted with the same protection, right of priority and common rules against unfair competition.
Nice Agreement, 1957: divides the registration of marks into thirty-four classes for goods and eight for services and to facilitate international registration of marks by establishing worldwide uniformity .
International Convention for the Protection of New Plant Varieties (UPOV) : establishes a system of international protection for breeders of new plant varieties.
Patent Cooperation Treaty (PCT), 1970: designed to increase efficiency and reduce the costs of international patenting.
International Patent Classification (IPC) Agreement, 1971: divides technologies into eight main classifications and approx. 52,000 subdivisions assigning a specific symbol.
Budapest Treaty, 1977: the patenting of microorganism where applications deposit a culture sample.
Copyrights Agreements under WIPO including the United States
Geneva Convention, 1971: protect the producers of phonograms from authorized reproductions for at least twenty years.
Mexico City Convention on Literary and Artistic Copyright, 1902: provides for national treatment where the duration of protection granted cannot exceed the term granted in the country of origin.
Universal Copyright Convention, 1952: provides for national treatment and common rules or minimum standards on copyrights and provides for a minimum of protection equal to the life of the authors.
Conventional for the Protection of Producers of Phonograms against Unauthorized Duplication of Their Phonogram, 1971: prohibits unauthorized duplication and importation of such duplicates except for education materials.
U.S. Domestic Intellectual Property Laws
Article I, section 8, clause 8, of the U.S. Constitution
● gives Congress the power to “promote the Progress of Science and useful Acts, by securing for limited times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.”
U.S. Copyright Act, 17 U.S.C., 1976
● grants the author exclusive rights of their work on the form of expression. Exceptions: for fair use; single copy to the library; nonprofit organization; for the purpose of educational, government, or religious uses. Protects for the life of the author plus fifty years.
Patent Act of 1975, 35 U.S.C., 1975
● provides the creator with a short-term monopoly over the creator’s invention or idea.
Lanham Act (trademark law)
● forbids affixation or use of false designation of origin or false representation in connections with goods or services. Provides civil penalties for trademark counterfeit. Trade secret: protect proprietors from piracy of trade secrets when effort are made to maintain confidentiality.
Tariff Act of 1930, section 337
● permits the International Trade Commission (ITC) to prohibit the importation of foreign goods in terms of unfair trade practices.
Trade Act of 1974, section 301
● grants the president powers to impose import restrictions to remove practice violating trade agreements.
Intellectual Property Protection Organizations
Agencies Responsible for Intellectual Property Registration
- United States Patent and Trademark Office (PTO) : one of fourteen bureaus within the U.S. Department of Commerce.
- Trademark Trial an Appeal Board (TTAB) : deals with patent and copyright cases.
- Library of Congress: also known as Jefferson’s Legacy, one of the oldest national cultural institution and largest library.
International Organizations, Agencies, and Treaties
- International Trademark Association (INTA) : a not-for-profit international association for trademark owners and practitioners.
- World Intellectual Property Organization (WIPO) : founded in 1883, a specialized agency of UN to promote IP throughout the world.
- Berne Convention of the Protection of Literary and Artistic Works (the Berne Convention) : created in 1886 to protect literary and artistic works.
- Madrid Protocol: existed since 1996 that establish trademark protection.
- Paris Convention: address trademark protection in foreign countries and to facilitate international patent and trademark protection.
- North American Free Trade Agreement (NAFTA) : since Jan. 1, 1994, primarily establish trademark law.
- General Agreement on Tariffs and Trade (GATT) : changes the duration of patent, a trademark intellectual property law.
Old and New Medias on Intellectual Property
As Internet and digital copies are available to almost everywhere, the copies of intellectual objects are sharing for free online. The market of computer and software market is increasing while the market of intellectual properties like CDs and books are going down dramatically, because no one is going to spend money on CDs and books when they can get them for free online. However, if everyone shares intellectual property for free online, are the creators and authors are willing to make it for free to the public? A writer might need to spend years to finish with a book and a chef might need to try few hundred times to make good recipes. As a result, copyright and patent protections are very important at cyberspace. Copyright laws protect the authors’ works from being reproduced without permission with exclusive rights up to their lifetime plus 70 years. In order to be eligible for the copyright protection, the work must be originally created by its author. When people are downloading a song or an E-book from the internet without the author’s permission, they are violating the copyright law. If you are printing out your E-book and sharing it with your friends, you are violating the patent law as well. Patents protect physical objects from being reproduced by unauthorized people. Even if you purchase the E-book from a proper publisher, you only have the right to access it but not to share or distribute it [1]. Usually, copyright protection is to use in respect to literary works.
References
1. Benko, Robert P. Protecting Intellectual Property Rights: Issues and Controversies. Washington, D.C.: American Enterprise Institute for Public Policy Research, 1987.
2. Bouchoux, Deborah E. Intellectual Property for Paralegals : the Law of Trademarks, Copyrights, Patents, and Trade Secrets. 2nd ed. Clifton Park, NY: Delmar Cengage Learning, 2009
3. Lamoureux, Edward Lee, Steven L. Baron, and Claire Stewart. Intellectual Property Law and Interactive Media. New York, NY: Lang, 2009
4. Richard A. Spinello, 2006, Cyberethics - Morality and Law in Cyberspace, P91-97.
5. Yu, Peter K. Intellectual Property and Information Wealth: Issues and Practices in the Digital Age. Westport, CT: Praeger, 2007.
