COPYRIGHTS
The copyright law protects works of authorship, published or unpublished, in any tangible medium of expression. Under this law, creators of-among other things-books, theatrical works, computer programs, videotapes, movies, music, lyrics, choreography, pantomimes, and recordings can secure exclusive rights to perform, display, or reproduce their works. These individuals have a property right for their work and may license it for reproduction or other use.
However, anyone may make "fair use" of copyrighted material. The definition of this term depends on who is using the material, how much is used, the percentage of the entire work that the excerpt used constitutes, the purpose of the use, and the effect such use may have on the ability of the copyright holder to derive income from his or her creation. For example, a teacher may be able to photocopy a few pages of a book for use in a classroom, but an advertising firm may be entitled to quote no more than a few lines from the same book in an ad without obtaining permission from the copyright holder. And while it may be lawful to quote 200 words from a novel without asking permission, the same would not be true in the case of a poem if the 200 words from a novel without asking permission, the same would not be true in the case of a poem if the 200 words constituted the whole poem.
The most recent version of the copyright law rook effect in 1978. Works created before 1978 are protected for 28 years from the time they are first published. The copyright may be renewed for an additional 47 years. Works created since the beginning of 1978 may be copyrighted for the life of the author plus 50 years after his or her death. For works made for hire, and for anonymous and pseudonymous works (unless the author's identity is revealed in Copyright Office records), the term is 100 years from creation or 75 years from first publication, whichever period is shorter.
On March 1, 1989, the United States joined the Berne Convention for the Protection of Literary and Artistic Works, an international copyright treaty. Under this convention, works are copyrighted from the moment they are fixed, or noted in some tangible form, such as in writing or on audiotape.
Works published as of March 1, 1989, need not display a copyright notice, but it is still recommended. Works created but not published before 1978 and works also are under no obligation to display a copyright notice. Works published or registered before March 1, 1989, are subject to pre-Berne requirements regarding the display of a copyright notice.
This notice includes the word "copyright" or the abbreviation "Copr." The year the work was first published, and the name of the owner of the copyright. The copyright symbol, a "C" in a circle (except for recordings, which use a circled "P", also must be displayed.
Displaying the notice of copyright is sufficient to establish exclusive rights to an original work. In many cases, however, formal registration of a copyright claim is a prerequisite for filing suite for infringement for works whose country of origin is the United States. In addition, subject to certain exceptions, the remedies of statutory damages and attorneys' fees are not available for those infringements occurring before registration.
In 1992, Congress passed legislation that applies the same principles of fair use governing published works to unpublished works created between 1964 and 1977 (inclusive). The legislation also prescribes more stringent criminal sanctions for copyright infringement, designating certain violations as felonies.
A copy of any work registered for copyright must be deposited with the Library of Congress. Works that are not registered for copyright also may need to be deposited there.
In addition to the Berne Convention, the United States is a member of the Universal Copyright Convention, another multilateral agreement. Most countries of the world belong to one or both of these conventions, offering international copyright protection to all authors' registered works. The basic feature of this protection is "national treatment," under which the alien author is treated by a country in the same manner that it treats its own authors.
As of 1995, the international implementation of General Agreement on Tariffs and Trade (GATT) restored copyright protection to certain foreign works that had entered the public domain in the U.S. GATT also criminalized the production and distribution of pirated sound recordings and music videos.
The rapid expansion of digital media such as CD-ROMS and online databases has prompted confusion and debate over the limits of copyright, in the late 1990s, Congress was formulating legislation meant to govern the vast new territory of electronic rights where existing copyright law seemed insufficient. Until updated legislation is signed, the creators of proprietary material must rely on the old law to provide protection in the new media.
Currently, filing for copyright registration costs $20. For more information and application forms, write to Register of Copyrights:
The library of Congress
Washington, DC 20559
http://lcweb.loc.gov/copyright
PATENTS
Congressional grants of patents and copyrights are based on article I, Section 8 of the Constitution, which states that "Congress shall have 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."
A patent is the grant of a property right to an inventor, excluding others from making, using, or selling his or her invention. The invention may consist of "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof…" This patent law also covers ornamental designs, plants, and new forms of animal life. But no one can patent primed matter or a way of doing business.
In addition to being useful, the invention must be new. If the inventor describes the invention in a printed publication, uses the invention publicly, or places it on sale, he or she must apply for a patent before one year goes by; otherwise, any right to a patent is lost.
The Patent and Trademark Office currently receives more that 150,000 applications for patents each year, and it has granted more than 5 million patents since 1790. The agency grants new patents only after a diligent search of the records to make sure that the patent is original. Inventors may use the agency's Search Room (patent-research library) in Washington or any of the many patent-depository libraries throughout the United States to conduct their own searches before filing.
Although inventors can handle their own applications, the agency advises that the process is complex enough to require a patent attorney-a lawyer who also has a degree in engineering or physical science.
Only the inventor may apply for a patent. If the inventor is dead or incapacitated a legal representative or guardian may apply. If two or more persons shared the ideas for the invention, they may apply jointly. But if one person had the idea and the other financed its development, only the person with the original idea may apply.
The application consists of a written description of the invention, with "claims" relating its distinguishing features-ways in which it does things in an entirely novel manner or improves significantly on previous inventions. If applicable, pen-and-ink or color drawings must accompany the description. Models usually are unnecessary. The Patent Office keeps all documents submitted in application for a patent strictly confidential while the application process runs its course.
It is not uncommon for some or all of the claims to be rejected on the first action by the patent examiner; relatively few applications are allowed as filed. The applicant responds to the examiner's objections with clarifications and explanation. If the Patent Office finally rejects the application, the inventor can take the case to the Board of Patent Appeals and Interferences. If the board turns down the application, the inventor has recourse through the Court of Appeals for the Federal Circuit or a civil suit in U.S. District Court in Washington, D.C.
About 1 percent of all patent applications encounter a problem because two or more applications are filed by different inventors claiming substantially the same patentable invention. Only one of the inventors can receive a patent, and the procedure to determine that one is called an interference. Each party to such a proceeding must submit evidence proving when the invention was made. As in the case of the rejection of any other patent, the decision of the examiners can be appealed.
If a patent applied for before June 8, 1955, is granted, it is good for 17 years. Under the terms of the GATT international treaty, most patents applied for after that date have a term of 20 years if granted (patents on ornamental designs have a term of 14 years).
Small entities-individual inventors, small businesses, and not-for-profit organizations-pay a filing fee of $375 for most patents and an additional fee of $625 if the patent is issued. For ornamental designs, the fees are $155 (filing fee) and $215 (upon issue of patent), and for plant varieties, the fees are $225 and $315. Large entities such as corporations pay twice these amounts. Inventors also must pay maintenance fees after 3 ½, 7 ½, and 11 ½ years. Currently, these fees for small entities are $450, $905, and $1,365. For large entities, fees are $900, $1,810, and $2,730.
Once a patent is granted, all documents relating to it become available for public inspection. The Patent Office can keep such information secret, however, if its commissioner decides that such information is vital to the national security.
As with any other property, patents may be sold or assigned in whole or in part to someone else. The patent holder also may license others to use the process or produce the product under specific conditions. The Patent Office cautions that a part owner of a patent-no matter how small his or her interest-may make, use, and sell the invention for his or her own profit without regard to the other owner. He or she also may sell the interest (or any part of it) or license others to use or make it. Therefore, inventors should be very careful when agreeing to sell a part interest in their patent.
Patented articles must be marked with the word "Patent" and the number of the patent. Some people use "Patent Pending" or "Patent Applied For" to inform others of the status of a patent claim, but such words have no legal effect. To combat infringement of a patent, the person holding the patent may bring a civil suit.
Patents granted by the Patent and Trademarks Office protect inventions in the United States only. However, the United States is a signatory of several treaties that facilitate applications for patent protection in other countries. For further information write to Commissioner of Patents and Trademarks.
Washington, DC 20231
800-786-9199
http://www.uspto.gov
http://www.uspto.gov
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