Intellectual Property Rights for Dummies

With the advent of blogging, Facebook and the rise of independent news organizations questions regarding intellectual property rights have begun to be a topic of interest.

To look at this subject, one should first define intellectual property and copyright and secondly address the concept of idea-expression dichotomy before going into actual intellectual property rights themselves.

Noun: intellectual property
Intangible property that is the result of creativity (such as patents or trademarks or copyrights) [1]

Intellectual property
n.
A product of the intellect that has commercial value, including copyrighted property such as literary or artistic works, and ideational property, such as patents, appellations of origin, business methods, and industrial processes. [2]

Intellectual property

Computing: Intellectual property (IP) The ownership of ideas and control over the tangible or virtual representation of those ideas. Use of another person’s intellectual property may or may not involve royalty payments or permission, but should always include proper credit to the source.

Economics: Non-tangible property that is the result of creativity such as copyrights and patents. [3]

Noun: copyright
A document granting exclusive right to publish and sell literary or musical or artistic work [1]

Copyright n.
The legal right granted to an author, composer, playwright, publisher, or distributor to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work. [2]

Copyright
noun
A document granting exclusive right to publish and sell literary or musical or artistic work. [3]

This takes us to the subject of ideas. In short copyrights provide protection for the expression of an idea and not the idea itself. This is known as the Idea-Expression Dichotomy. This doctrine has held in literally hundreds of cases and is one of the most commonly used principles regarding copyright. Idea-Expression Dichotomy means that an author’s ideas go into public domain while their creative expression of those ideas remain the author’s to control. [4] A perfect example of this doctrine can be found in the United States Copyright Act 5 which was itself modeled after TRIPS and Berne, discussed below. A relevant portion of this act reads as follows:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. [5]

This specific distinction is at the heart of the issue between patents and copyrights. Were ideas to be protected under copyright law, then all inventors would have to do is create a copyrighted piece and then they could circumvent governing patent law.In turning my attention to intellectual property rights themselves, I came across two important international agreements regarding intellectual property that govern world standards: what is known as the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) [6] and the Berne Convention [7] . Both of these agreements control nearly every country in the world and even developing nations such as Brazil, India, Korea and Thailand now recognize the automatic rights of authors over their own writing as a result of TRIPS and Berne.

In 1994 the World Trade Organization negotiated what is called the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) during the Uruguay Round of the General Agreement on Tariffs and Trade. Ratification of the TRIPS is a compulsory requirement for membership in the World Trade Organization (WTO) and any nation seeking to obtain access to world markets opened by the WTO must enact the strict intellectual property laws mandate by TRIPS. A few of those rights include:

Copyright must be granted automatically and immediate to creation of material with no requirement for registration or renewal.
Copyright terms for authors are for the term of their life plus 50 years after death.
Copyright terms for films are set at 50 years and photographs at 25.
National exceptions to copyright rights are to be tightly constrained.
TRIPS rights must be equal for all persons in a member state with no benefits enjoyed by local citizens not available to nationals from any TRIPS country.

The Berne Convention of 1886 upon which TRIPS was based was an international treaty that is still in place to protect intellectual property rights. As with TRIPS, under Berne copyrights for creative works do not have to be declared, asserted, or registered. They are instead immediately in force upon creation (as soon as a work is “fixed”, that is, written or recorded on some physical medium). At that time the author is automatically entitled to all rights of copyright to include any derivative works until such time as the author explicitly disclaims those rights or until fifty years after his or her death.I also found myself interested in the rights and privileges afforded to authors in particular. Authors under TRIPS and Berne have the right to:

display their work publicly,
import or export their work,
produce and sell copies of their work,
create derivative works,
sell or assign any of these rights to others.

Additionally, there is the Digital Millennium Copyright Act (DMCA) – a United States copyright law that implements the 1996 treaties of the World Intellectual Property Organization (WIPO).

It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. Passed on October 12, 1998, by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of on-line services for copyright infringement by their users.

The DMCA’s principal innovation in the field of copyright, the exemption from direct and indirect liability of internet service providers and other intermediaries, was adopted by the European Union in the Electronic Commerce Directive 2000. The Copyright Directive 2001 implemented the 1996 WIPO Copyright Treaty in the EU. [8]

Footnotes:

Additional Reading:

Works Unprotected by Copyright Law, i.e. titles, short phrases, ideas: http://www.bitlaw.com/copyright/unprotected.html

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