Categories of Intellectual Property Law
There are three basic types of property recognized under law:
Real property (land and the buildings attached to it; real estate)
Tangible property (objects that can be touched or moved)
Intangible property (“things” that have no corporeal form but are merely ideas, such as futures in pork bellies, a song, or a software program)
Intellectual property is a type of intangible property that consists of writing, art, programming, an idea for an invention, or other creative product.
It is important to distinguish between the intellectual property and the physical manifestation of that property. The sequence of words that make up a book is intellectual property; a printed copy of the book is physical property. If you steal the physical property (the printed copy that someone bought at the bookstore), you take it away from the owner. You can steal the intellectual property (by copying all the pages and posting them to the Internet) without depriving the owner of the property.
There are four major bodies of law that protect intellectual property:
Copyright laws
Trademark laws
Patent laws
Trade secret laws
In the following sections, we define each and explain how each is applied.
Copyright
When a person produces a creative work, such as a book, poem, or song, the law recognizes that the creator has the right to determine how it will be used. Because the issue usually concerns when and how it can be copied, this right is called the copyright. Specifically, the U.S. Copyright Act of 1976, Section 106, gives the copyright owner exclusive right to
Reproduce the work
Make derivatives based on the work
Distribute copies of the work (sell, lease, rent, lend, and so on)
Perform the work in public (music, theatrical, drama, dance, and so on)
Display the work in public (art and so on)
NOTE
Copyrightable Works Works that can be copyrighted include literary works, musical works (including lyrics), dramatic works (including music), pantomimes and choreographic works, graphic or pictorial works (art, drawings, paintings, photographs), sculptures, motion pictures and audiovisual works, sound recordings, and architectural works, as well as computer software programs (which are considered written works).
Under U.S. copyright law (and most international copyright laws), when a person creates a work, he or she automatically owns the copyright from the moment of creation, whether or not he or she formally registers that ownership with the government.
EXAM TIP
Copyright Infringement Copyright infringement refers to unauthorized use of copyrighted material. This is generally regarded as a civil violation. However, recently enacted laws make copyright violations crimes in some cases.
Because the copyright is a piece of property, the owner can sell it or give it away. This is called copyright assignment.
The owner of the copyright can sue a violator in civil court, and recover monetary compensation for the unauthorized use and/or an injunction prohibiting the violator from continuing to use the material without permission. Ignoring an injunction or court order is generally a criminal offense for which one can be jailed or imprisoned.
Trademark
Copyright pertains to a “work.” You cannot copyright a single word, phrase, or sentence. Similarly, you can copyright a software program, but not a single line of code within the program. Note that if a word, phrase, or sentence is used to identify your business or organization, you may be able to register it as a trademark. You then own the use of that word, phrase, or sentence, but only in the context in which it identifies your business or organization.
For example, the word “Apple” is trademarked by Apple Computer, and no one else can use it as a name for a computer company. However, Apple Records owns the word in the context of a name for a recording studio/record company. Neither of these trademarks prevents you from using the word “apple” to describe the piece of fruit you had for breakfast.
A trademark can also be a symbol or a logo (for example, the “bitten apple” that represents Apple Computer). Technically, a word, symbol, or logo that identifies a product is called a trademark, whereas the same mark that identifies a service is called a servicemark (the term trademark is commonly used to refer to both).
NOTE
Trademark Registration As with copyright, formal registration of a trademark is not required; it can be established through legitimate usage in commerce. You can use the “TM” designation with your mark whether or not you have registered it, but you can use the ® symbol only if your mark is listed in the federal trademark registry. In the United States, you may apply through the U.S. Patent and Trademark Office.
Patent
A patent grants property rights to an inventor for his/her invention. These rights include the right to exclude anyone else from making, using, offering for sale, or selling the invention in the United States. The patent, obtained through the U.S. Patent and Trademark Office, is good only in the United States. Other countries have similar patent processes.
Patents are granted for invention or discovery of “new and useful” processes, machines, manufacture, composition of matter, or new and useful improvement thereon, according to the patent law. For example, if you invented a whole new networking architecture that uses access methods or protocols never used before, you could apply for a patent to protect your right to control who else can use it. To obtain a patent, you must go through the formal application process (unlike with copyright and trademark, with which your rights can be established without formality). The application requires a detailed description of the machine, device, or process being patented; you cannot patent a mere idea.
Only the actual inventor (or his or her estate if the inventor is deceased, or his or her guardian if the inventor is incompetent) can apply for a patent.
Trade Secret Laws
Trade secrets consist of confidential information that is used in operating a business, manufacturing a product, or providing a service that is so valuable that it creates an economic advantage over others in the same business. Examples include the “secret formulas” for Coca-Cola, the Kentucky Fried Chicken batter, or McDonald's “secret sauce,” as well as technical drawings, formulae, and so on used to construct a company's product.
The Uniform Trade Secrets Act, created by the National Conference of Commissioners on Uniform State Laws, is a model statute that serves as the basis for the trade secrets laws of 42 U.S. states. Under this Act and most of those modeled upon it, misappropriation of trade secrets can result in civil damages, including exemplary (punitive) damages for willful or malicious misappropriation.
Some states also have enacted criminal laws specifically pertaining to theft of trade secrets. For example, Texas Penal Code section 31.05 makes theft of trade secrets a felony offense carrying a penalty of up to 10 years' imprisonment and a fine of up to $10,000.