Ch. 4 "Introduction to intellectual property" Flashcards
Public good (general IP)
“A good that can be consumed without reducing any other person’s consumption of it”
- Most intellectual property is a public good
- Public good is a product/service that has TWO basic characteristics
(1) Not appropriable: Producer of public good cannot prevent it from being used/consumed by others
(2) Inexhaustible: Once it’s produced, others can imitate or copy the innovation or creative form
Trade Secret (General IP)
Proprietary information that has value to a firm that is maintained making use of reasonable secrecy measures and is not common knowledge - very broad and can involve a formula, manufacturing processes, actual/potential customers and suppliers
Public domain (General IP)
- Commonly used term in IP, referring to material that is unprotected by IP rights, either b/c rights have expired., forfeited or abandoned/waived
- Information falls into the public domain upon expiration of the patent or copyright. Concept consistent with constitutional dictate that copyrights and patents exist with “limited times”
Constitutional grant
Promote the progress of science and useful arts by securing for limited times to authors and inventors the right to their respective writing and discoveries
Why are IP rights granted
1) Economic or incentive theory
- utilitarian perspective
- Public good
- Promote innovation and creativity
2) Natural rights theory
- Belong to their creators by virtue of their labors and efforts and by virtue of being an extension of their personhood
3) Common law approach
Cheney Brothers v. Doris Silk
Common law approach to IP - rights generally not recognized
Facts: P manufactures silks that had a short life, practically impossible to secure patent. D copied one of the popular designs and undercut P’s prie, denying they knew the design to be P’s
Issue: Can Cheney bros exclude Doris Silk from also using the design?
Holding:
Time- Cheney brothers “lead time” incentives to continue creating - earning profits between 1) when first marketing design 2) when Doris SIlk could market
Protection - Cheney brothers -wanted protection for the expression of the idea, not the idea itself
Takeaway: IP rights can NOT undercut the IP statutory systems that congress has created
Three types of intellectual property: Copyrights, patents, & trademarks
Similarities
- All arise under a first in time system for allocating entitlements
- All provide the ownership with essentially the same set of property rights - principally the right to exclude others from using the IP
- All are governed by federal statutes- are increasingly affected by international law
Copyright
Protects oringal works of authorship [books, computers programs, plays, sculptures and songs]. Protect creative and other works of authorship as soon as theyre embodied
Common terms:
- Idea/expression dichotomy; Ideas per se are not protected unless they are in the form of original expression; only protects an expression of an idea, not the idea itself
- Reproduction; Simply provides unauthorized reproduction of the copyrighted work
- Distribution: Ability to distribute copies (or phone records) of the copyrighted work to the public by sale, rental, lease, or lending
- Derivative work: 1) recast, transform or adapt the orignal work 2) must be original 3) fixated and 4) defendant must have (or obtain) permission to sue underlying work
Fair use Doctrine
Allows minor use of copyrighted work where the use does not materially affect the rights of the copy right owner
Four elements for fair use:
1) Purpose and character
- criticism, news reporting, scholarship or research
- Nonprofit
2 ) Nature of copyright work
- Informonal works
- Parodies
- Published
3) Amount and substantiality used
- very minimal uses for very specific favored purpose of a very small amount of prior copyright work
4) effect on the use of the potential market
First Sale Doctrine
Restricts a copyright owner’s control over the dissemination of copies to the first sale/transfer. Then the right is over, as thereafter that owner is entitled (without authority of copyright owner) to well off/dispose of the possession of that copy
-Serves as a check on price of copyrighted work
Copyright law - Generally
Governed by federal statutes
-Owner of a copyright holds right to exclude
The general rule: Any work that was published in the U.S. before 1923 is not in the public domain. Due to the CTEA, however, no additional will enter the public domain until January 1, 2019.
Three requirements for a valid copyright
1) Originality: Independently created and a minimal degree of creativity
- If the basic design reflected does not owe its origins to the copyright holder, then they must add something original to the design only the original addition may be copyrighted
2) Work of authorship: 8 categories of material within “work of authorship”
- Literary works
- musical
- Dramatic
- Pantomimes and choreographic works
- Motion picture
- sound recordings
- architecture
3) Fixation: must be perceived, reproduced, otherwise communicated, either directly or with the aid of a machine or device
Fiest Publication, Inc v. Rural telephone service Co. Inc.
Originality element/purpose of copyright to provide an incentive
Facts: P published a phone directory and Fiest(D) asked P to license their lisitng for their own phone directory. Rural refused and Feist used them anyways and now P is suing for copyright infringement.
Issue: How much oringality should be required for a valid copyright?
HoldingL Factual information in Rural’s directory was NOT copyrigthable. Feist’s informaotion was NOT oeginal and not protected by copyright.
Reasoning: Rural claims a copyright in the selection and arrangement of the information, NOT the information of facts.
-the D only alphabitzed the facts and did not use it in a new creative fashion.
Takeaway: Orginality has to be work that was independently created by the author and possess at least some minimal degree of creativity. FACTS ARE NOT COPYRIGHTABLE.
Copyright infringement
P must prove:
1) He owns a valid copyright
2) D actually copied his work
3) Orindary observer would be conclude that the work was substantially similar to his
D must prove:
1) P’s work is not copyrightable
2) D can assert independent creation
3) Show that the work are similar based on common source (public domain)
4) D can assert that he has been granted an express/implied license to make use of the work, or have the right
5) Fair use: using the four factors
Patents
Patent law protect new inventions [cell lines, machines, and medicines]
