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Intellectual Property

Paralegal Guide: Intellectual Property Resources

The field of legal studies encompasses laws that protect citizens from unauthorized use of their work creations. The term intellectual property covers everything from pieces of writing, music, and art, to products, services, and inventions. In 1867, the North German Confederation first covered, in its constitution, protection for intellectual property. One hundred years later, the World Intellectual Property Organization’s mission was to promote protection across the globe for works that are unique in nature.

In an effort to provide a beneficial resource for students, teachers and enthusiasts interested in legal studies, below are descriptions of the areas relevant to intellectual property, such as copyright, fair use, patents, and licensing. Links to websites will prove helpful to those seeking information on obtaining registration for their private works, or to those hoping to learn more about the laws covering such works.

Copyright and Fair Use

Until the Berne Convention Implementation Act of 1988, it was necessary to obtain specific formal requirements: copyright registration and copyright notice (according to the United States Copyright Office). The Berne law amended the Copyright Act of 1976 and made it so that a given work of authorship would have copyright protection without obtaining standards. Copyright registration is optional today, but people who create original works are encouraged to apply for it. A benefit of doing so is ensuring that a public record for the work is kept with the United States Copyright Office.

The United States copyright law includes a limitation and exception clause to the author of an original work by allowing some use of the author’s copyrighted material without permission. Projects or work covered by this doctrine include teaching, research, commentary, criticism, news reporting and scholarship. Section 107 of the law lists four factors that must be considered in determining whether fair use applies to a situation: 1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for, or value of, the copyrighted work.

Educators ought to know about the stipulations and coverage of fair use to make sure the reproductions they teach are within the law’s provisions. Making a “good faith” effort to stay within fair use guidelines can be considered a defense—not a guarantee—against being sued by an author of a work.

Licensing

Permission must be obtained from a specific author in order to use or copy any portion of that author’s creation. Part of securing permission might involve getting a license to use someone’s project, and sometimes a royalty fee might be required. When obtaining permission is not practicable, avoiding the use of copyrighted material altogether is generally recommended.

  • United States Copyright Office: Basic information is detailed here in helping to determine if permission is needed in certain use circumstances.
  • Copyright Committee: The Association of American Publishers (AAP) presents a guide for requesting copyright permission.
  • Copyright Clearance Center: Emphasis on business settings is placed on this resource for finding out how to obtain copyright compliance.

Trademarks and Patents

A trademark design, phrase, logo, or symbol used by an individual or company is allowable without the need to seek formal federal registration. It’s possible to have a common law trademark, the rights of which are governed by states. Federal registration is recommended in order to secure additional rights. A service mark is similar to a trademark, but implies protection of a service rather than a product. The purpose of either is to make an object or service easy to identify by the consumer. If a product carries its own unique characteristics—i.e., the shape of a razor handle—this is known as trade dress. If one group owns the rights to a particular trademark, an infringing group who uses the trademark in an authorized way is subject to suing. A patent procures a property right for an invention and protects against unauthorized sale or manufacture of the invention.

Plagiarism

Whenever something is written, the author needs to take time to assess whether the newly written content reflects in any way the work of someone who wrote about the subject first. Even if a student or any other individual is not specifically cutting and pasting—or otherwise directly copying—the prior words, phrases, or sentences of someone else verbatim, paraphrasing is still considered a type of plagiarism, because it still involves the borrowing of ideas. It’s always better to err on the side of caution, and create a healthy list of citations or endnotes. A student or employee who commits an act of plagiarism is subject to the bylaws or rules of the affiliated organization.

Software Protection and Sharing

In 1998, President Clinton signed the Digital Millenium Copyright Act, which incorporated two treaties signed by the World Intellectual Property Organization (WIPO) in 1996. Under Clinton’s Act, limits on copyright infringement were made to help protect online service providers. Proprietary Software is licensed by legal right to a copyrighted holder. Some software is in the public domain, meaning access is open to all.

Miscellaneous Resource Links

  • Avoiding Copyright Scams: The Blog Herald discusses points on copyright infringement and plagiarism.
  • Industrial Espionage: Learn about several prominent industrial espionage cases through a page on Wright University’s website.
  • Trade Secrets: At CIO.com, read an article on the difference between copyright, patents and trade secrets.
  • Legal Information: The Offices of Michael Leventhal provides web legal information.