Theory: Intellectual Property Flashcards
lWhat is a patent?
a legal document that gives the inventor the right to prevent others from making, using, selling, or importing their invention for a set period of time, granted to technical item that meets a 3 fold test
Test for patent?
Novelty, utility, non-obviousness
What are the advantages of a patent?
- Gives innovators a strategic advantage for marketing the project
- Allows innovators to make improvements
- Social benefits to society- know the technical properties of an item
Example of patent?
Polaroid, founded 1937, declared bankruptcy in 2001
What is a trademark?
A word, symbol or combination thereof used in association with a product to identify in the marketplace
What does potency of names mean
Legal protection provided by the name
4 categories of trademarks?
Arbitrary (self created), suggestive (leap of imagination), descriptive (describes attributes), generic (no fed protection)
What is the duration of a trademark?
5 years, need to renew it after every 5, pay a registration fee every 10 years
What are 3 ways to lose a trademark?
abandonment (e.g. Brooklyn Dodger to Salty Dog Bar), genercide (kill of a brand bc not put enough $$ into the name e.g. kleenex vs tissue), procedural issues
What is the fear of trademark infringement?
Dilution- watering down of the mark’s distinctiveness
2 tiers of potency of names
A. legal protection, B. strong mark
Test for arbitrary or fanciful?
1st user
Test for suggestive potency of names?
secondary meaning, first user
Test for descriptive potency of names
secondary meaning, first user
Test for generic potency of names?
No test
What was the Lanham Act 1946
Provided federal framework for trademark registration + protection
prevents customer confusion about the source of goods and services, established clear rules + procedures for trademark registration and enforcement
Examples of Lanham Act 2 bars to registration (forbidden)
immoral, flag, name/portrait/sig of living individual, merely descriptive, primarily geographically descriptive, functional
What is the principle of nature of the works?
Anytime you have artistic, intellectual, and creative works, you have room for a possible copyright
What is a sequel?
A published, broadcast or recorded work that continues the story or develops the theme of an earlier work. Includes “remakes”
What are the seven principles and procedures?
Limited monopoly, idea v expression dichotomy, constitutional issue, statutory authority, copyright symbol, two tests for copyright infringement, damages
What are the technical tests for ©
- Registration
- Notice
- Deposit
What are the two tests for copyright infringement?
- 3 Ps
- Public
- Performance
- Profit - General test
- Access
- Familiarity
- Similarity (substantial)
What are the four types of damages?
- Statutory damages (pre-determined by law)
- Actual damages (based on real, measurable harm suffered by plaintiff due to infringement)
- Punitive damages (punish defendant for egregious, malicious, wilful behaviour)
- Award-of-Profits (allows plaintiff to recover profits the defendant gained from the infringement)
What were 5 major changes from the 1976 copyright act?
- Duration: life of the author plus 70 years
- 33 Exemptions built into the act
- Definition of copyright: fixation standard
- Permissive registration procedures
- Statutory status for Fair Use Doctrine
What are 90% of IP cases about?
Patent, trademark, copyright
What are the two kinds of derivative words?
- Public domain work
- Existing with a valid copyright
What is a derivative work?
A work based upon a pre-existing work
e.g. Madame Butterfly
Long wrote story, Belasco bought dramatic rights, Italian Opera Company purchases musical rights
Rights are divisible- as you move from one medium to another you create new rights
E.g. Chekov’s Uncle Vanya
or
Spotlight: real newspaper articles from Boston Globe, but original screenplay
What are two elements of a public domain work?
- Substantial originality
- Distinguishable variation
e.g. Julius Caesar
Any reprinting will have something new/different
But a “reprinter” must add something more to take the work out of the public domain
What are traits of existing with a valid copyright
- Can transfer exclusive rights e.g. someone buys the rights for Batman merchandise
- non-exclusive rights
What is a monopoly?
Exclusive possesion/control of the supply of or trade in a commodity or service
What does a limited monopoly mean?
The temporary exclusive rights granted to creators, authors and inventors to control the use and distribution of their creations.
What is incentive theory
Justifies limited monopoly by arguing that creators need motivation to invest time, resources and effort into producing creative works, inventions and innovations
The “incentive” for creating their work, which gives them a monopoly over their work
e.g. Patent on new tech: inventor has a temporary monopoly, can sell/license their invention w/o competition, provides an incentive to develop/share new tech
What is labor theory- reap what you so?
Argues that individuals have a natural right to own the fruits of their labor (John Locke)
When someone invests effort + skill into creating something new, should have the right to control + benefit from that creation
What is the idea v expression dichotomy?
According to Section 102(b) of Copyright Act of 1976, no “idea, procedure, process, system, method of operation, concept, principle or discovery” is eligible for copyright protection
Copyright law protects the fixation of an idea in a “tangible medium of expression” not the idea itself, or any processes or principles associated with it.
What is statutory authority?
Power given to a gov agency/official by a law passed by a state legislature/Congress
Examples of Statutory Authority in IP
- 1790: 1st US Copyright Act
- 1831: First major revision of US Copyright Law (added musical compositions to list of protected works)
- 1870: Centralised Copyright Registration
- 1909: Comprehensive Copyright Revision (expanded scope of protected works to include all forms of authorship, incl musical, literary, dramatic works)
- 1976: Modern Copyright Law
Key features of 1976 Copyright Act?
- Copyright protection begins automatically when a work is created, rather than requiring registration/publication
- Extended term of copyright to life of author + 50 years (later exited to life plus 70 years in 1998)
- Codified Fair Use Doctrine, allowing limited use of copyrighted works for purposes such as criticism, news reporting, education
- Expanded deinfiton of protected works to include computer programs
- Introduced concept of “works made for hire”, where employers hold copyright ownership
What is the fair use doctrine
Aspect of US Copyright Law that allows limited use of copyrighted material without obtaining permission from rights holder
- codified in 1976 Copyright Act
Key factors in determining Fair Use?
- Purpose and Character of the use
- transformative vs derivative
the more transformative, the more likely it is to be deemed fair use
- commercial vs non-commercial
non-commercial, nonprofit or educational uses are more likely to be considered fair-use
- Nature of the work:
- fictional vs factual
fictional more likely to be deemed fair use
- published vs unpublished
published more likely to be deemed fair use
- Amount/substantiality of the portion used
quantity and quality
the smaller the portion taken the better, and if the portion taken is considered the most significant part of the work, less likely to be considered fair use - Effect on market
Examples of fair use:
- Criticsm + commentary
- News reporting
- Parody
- Education
- Research + scholarship
Examples of Fair Use cases:
Sony vs Universal; Reader’s Digest v Werlin
What is outside the concentric circles of IP?
- Ideas
- Publicity
- Colorization
- Parody
What is third-party liability?
Situations where a party (the third party) is held responsible for the infringement of someone else’s intellectual property rights, even though they may not have directly committed the infringement
What are three types of third party liability?
- Contributory infringement
A. Knowledge of infringing activities
B. Induces, causes or matierlaly contributes to the infringement - Vicarious liability
A. The right and ability to supervise
B. Benefits financially from the infringement - Inducement
A. When a party encourages, persuades or induces another to infringe on intellectual property
What is the importance of third-party liability?
Usually directed at a deep-pocket litigant- someone who can pay for the liability but does not want to
What are the 6 rights afforded to copyright owners?
- Right to make copies
- Right to make derivative works
- Right to display
- Right to perform
- Right to distribute a work
- Right to digital transmission
What were 5 major amendments to the 1976 Copyright Act?
- 1988 Berne Agreement- Backdoor extension to international copyright agreements
- 1998 Sonny Bono Copyright Extension- created more vigorous Copyright movement, extended duration of copyright for 20 years (life of author + 70 years)
- Digital Millenium Copyright Act: makes it illegal to bypass tech that block digital info e.g. TV programs, movies. No fair use
- 2002 Teach Act- Copyright Harmonisation Act
- Allows teachers who use materials in the classroom an exception in using the materials - 2018 Music Modernisation Act
- Music system designed to give compensation to artists/songwriters of music
A. Blanket licensing for digital streaming services e..g Spotify
B. Better compensation for songwriters and musicians
What are defenses for copying?
- Fair-use
- Scenes-a-Faire
Public Domain - Independently Derived
- Incidental copying
- Parody
More info on Digital Millennium Act?
- Grants absolute control to ©owners for digital
materials - Makes it illegal to bypass technologies that block
access to information - Protects the downloading of information and
content from the interest from a legitimate
distributor—provides harsh penalties - Provides safe harbors for ISP
What is the balancing test in IP?
Judicial method used to weigh competing interests or rights when determining the outcome of a case.
Helps courts decide when one party’s rights (e.g. those of a copyright owner or patent holder) may need to yield to another party’s interests. (e.g. free speech, fair use or competition)
Goal: achieve a fair outcome that respects the rights of IP owners while also considering public interests, competition and individual rights
What is in the right of publicity?
- Right to control your name, likeness and appearance
- Affects ballplayers, actors, rockstars
- Want to provide incentives for people to become celebrities
Exists under state law
17 states have a ROP statute
Want to allow people to exploit their own image
What are the standards for parody?
- Creative taking of the original work
- Exploitative and unfair use
parody cases are treated as a form of fair use of the copyrighted works
e.g. Sr Seuss Enterprises v Penguin Books (about OJ Simpson trial)
SNL is a good example of parody
Key terms: conjure-up, productive/transformative use, reasonable and fair taking vs exploitive and unfair use (Air Pirates), excessive copying, parodic purpose
Parody vs Satire?
Satire: literary or artistic work holding up human vice and follies to ridicule or scorn
Parody: a literary, musical or artistic work in which the style of an author/creator is closely imitated for comic effect/ridicule
What is the ninth circuit approach?
- Conjure up test
- Limited taking with creativity
- Deliberately restrictive in scope
What is the second circuit approach (less strict compared to 9th)
- Take “most important elements” plus creativity
- Restrictive with respect to visual images and music
- Deliberately liberal in scope
What are 3 elements of Fishman’s Wide Latitude Test?
- Parody should contain overt or explicit social criticism of society
- Parody should not interfere with the plaintiff’s original market
- Defendants work takes place in a market that plaintiff is not likely to enter
What is Fishman’s alternate approach?
A. Parody should be permitted in the case of a
clear purpose and the reasonable taking of the
original work
B. Parody should not interfere with the plaintiff’s
primary market
C. Defendant’s work takes place in a market that
plaintiff is not likely to enter
