Intellectual Property Law

Chapter 9 Lecture Notes

Major points addressed in the chapter materials include the following:

1. Copyright principles derive from the desire of authors to protect against unauthorized
copying of their books and to share in the financial rewards of book publishers and
printers.

2. Copyright law protects the creators of books, music, and art by providing them with
the exclusive right to reproduce their works and derive income from them (for a
limited period of time). Protecting these rights fosters creative efforts. Artists will not
invest time and effort into composing a song or writing a novel if others can
reproduce the song or book at will without compensating its creator.

3. Copyright has a significant financial impact in the United States with approximately 7
percent of the gross domestic product deriving from copyright industries. Similarly,
copyright piracy costs U.S. businesses a significant amount each year.

4. Copyright law stems from the Constitution, which provides that 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 rights to their respective writings and
discoveries. The present Copyright Act is the Act of 1976. The term “writings” has
been held to be broad enough to protect new forms of expression and emerging
technologies such as computer programs.

5. Copyright rights are governed exclusively by federal law. All cases alleging copyright
infringement must be brought in federal court.

6. Copyright law attempts to balance two conflicting interests: the interests of authors in
protecting their works from unauthorized copying and the interest of the public in
having the greatest possible access to works of authorship.

7. Until January 1, 1978 (the effective date of the 1976 Copyright Act), the United
States had a dual system of copyright protection in that a distinction was drawn
between published and unpublished works. Until 1978, authors had a perpetual
common law right to their unpublished works. Once the work was published,
however, the common law perpetual copyright was extinguished and protection was
afforded for up to 56 years. Publication is the distribution of copies of a work to the
public for sale or other transfer of ownership, or by rental, lease, or lending.

8. The 1976 Act eliminated the distinction between unpublished and published works
and provides that a work is protected as soon as it is created or fixed in some tangible
form. Thus, even an unpublished manuscript is governed by the 1976 Act because it
is created when the author sets the words on paper or “fixes” them in a word
processor.

9. Copyright rights arise from the creation of a work in fixed form and not from
publication or registration. No permission or application with the U.S. Copyright
Office is required to secure copyright protection; however, just as securing a
trademark registration from the USPTO provides certain advantages to mark owners,
securing a copyright registration from the U.S. Copyright Office provides certain
advantages, including the following:

• Registration establishes a public record of the copyright claim.
• Registration is necessary for works of U.S. origin before an infringement suit may
be brought.
• If made within five years of publication, registration will establish prima facie
evidence in court of the validity of the copyright and of the facts stated in the
certificate.
• If registration is made within three months after publication of the work or prior
to an infringement of the work, statutory damages and attorney’s fees are
available to the owner (otherwise, only actual damages and lost profits are
awarded).
• Registration allows the owner of the copyright to record the registration with the
U.S. Customs and Border Protection for protection against the importation of
infringing copies of the work.

10. The United States belongs to the Berne Union, an organization of more than 165
nations devoted to the protection of literary and artistic works. The Berne Convention
requires member nations to treat citizens of member nations as they do their own
citizens with regard to copyrights.

11. Under the Berne treaty, there is no longer a requirement in the United States to use a
copyright notice (©).

12. Congress amended the Copyright Act in 1998 to provide that the duration of
copyright is 70 years from an author’s death (previously, the term was 50 years from
the author’s death).

13. Another significant amendment to copyright law is the 1998 Digital Millennium
Copyright Act, which forbids individuals from circumventing copyright protection
systems and limits the liability of Internet service providers for copyright infringement.

14. The U.S. Copyright Office is a division of the Library of Congress and is located in
Washington, D.C. Its primary function is to issue copyright registrations and serve as
a depository for materials in which copyright is claimed. It provides a variety of
information and has a very useful website. The Copyright Office is implementing an
electronic registration system that will enable applicants to register copyrights
electronically.