Intellectual Property Law: A Practical Guide to Copyrights, Patents, Trademarks and Trade Secrets [Brief excerpt from Chapter 1: A Brief Introduction to American Law]

Chapter 1: A Brief Introduction to U.S. Law [Excerpt]

            Before delving into the various aspects of intellectual property law that are the focus of this book, it would be useful to briefly explore some general background information about the unique nature of law in the United States that must be kept in mind by any lay person trying to obtain information about any substantive or procedural area of law.

                                  The Common Law and Civil Law Traditions

            In order to understand our system of law and some of the unique challenges it presents for anyone seeking to acquire functional legal literacy, we should begin by understanding what makes our legal system different and more complex than that of most other nations.  A good place to begin is with a brief introduction into the two major competing systems of law around the world, the civil law and common law systems.

The Civil Law Tradition

            The oldest and overwhelmingly prevalent system of law is the civil law system that dates back more than four thousand years. Under the civil law system, law is passed down from the lawgiver (the king, or a legislative body) to the people and is strictly enforced by judges whose job it is to enforce the law. Traditionally under civil law systems, judges act as finders of fact and apply the law as written in deciding cases before them. They have little power to question, reverse, expand or define the law as they decide cases as that function is reserved to the lawgiver (e.g., the ruler or a legislative body appointed by the ruler to oversee that function).

            Traditionally, the civil law system required laws to be written down in a public place in clear language so that they could be understood by the common citizenry. The most famous comprehensive codification of law under this legal tradition dates back to the Code of Hammurabi, an ancient Babylonian king who ruled from approximately 1792 B.C. to 1750 B.C. in ancient Babylonia (modern day Iran). The Code of Hammurabi was chiseled on a massive cylindrical stone more than seven feet in height and contained 282 laws covering a variety of subjects.[1] The Code was also available on clay tablets, some fragments of which also survived to this day. The stele containing the Code of Hammurabi or clay tablets containing the Code would have been available in strategic locations for public viewing so that Hammurabi’s subjects could know the law and be held accountable for its breach. The concept of chiseling the law onto stone is also a good metaphor for the permanence and immutable nature of law, which for Hammurabi was divinely inspired and intended to reflect universal, permanent ideals of justice.

            The same tradition of writing down the law and making it accessible to the people who were expected to abide by it continued under the Twelve Tables of Roman law where, in 450 B.C., twelve bronze tablets specifying a code of law applicable in the Roman Empire were attached to the orator's platform on the Roman Forum in an attempt to make the law accessible to all Roman citizens. These bronze tablets would have been found around the orator’s platforms in any Roman city where the citizens of Rome could presumably consult the law throughout the empire. And the tradition was continued  by the Byzantine Emperor Justinian I who in 533 A.D. integrated 1000 years of Roman law into a single code that he called Corpus Juris Civilis--the body of civil law—and is now commonly referred to as the Justinian Code. The most notable attempt in modern times to codify the law into a comprehensive civil code was carried out by a commission appointed by Napoleon Bonaparte in 1800 that resulted in the 1804 Code Civil, more commonly referred to as the Napoleonic Code.

            The common thread that binds the civil law tradition from its earliest roots through the modern day is the idea that the law must be written down and made available to the people in language that they can understand. Although much has changed since Hammurabi’s time, and the law has grown increasingly complex in civil law jurisdictions as well as common law jurisdictions, as a general rule, law still changes slowly over time in civil law jurisdictions, is more accessible, predictable and easier to understand in civil law jurisdictions than in common law jurisdictions. And as a rule, making law is still in the hands of legislators, not judges.

The Common Law Tradition

            The civil law tradition never took hold in England. Whether because of its status as an island nation or lack of strong unifying kings before being incorporated into the Roman Empire, law in England was regional in nature, changing from location to location in keeping with the local customs, traditions and wisher of the local rulers. After the fall of the Roman Empire, England returned to its common law roots. When William I (William the Conqueror) completed the Norman conquest of England in 1066, he found a country without a centralized system of law and set about to consolidate English law into a unified body of law that could be applied throughout the realm. He established the King's Court (Curia Regis) as an advisory body to the barons. The court had both legislative and judicial powers that eventually led to the development of Parliament and the English court system. He also created the first circuit judge system, where royal judges traveled from district to district on a set route to hear cases in local courts. These circuit judges first began writing down their decisions to serve as guidelines for local magistrates and themselves in future cases. This tradition of writing down decisions to serve as guidelines, or precedent, for deciding future cases formed the basis for our modern common law system. Unlike civil law systems in which judges apply the law to cases before them, judges in common law systems make law as they decide cases, defining, creating and changing the common law in the course of handing down decisions that become precedent for other future cases.

            The English common law system was exported to the former British colonies, including The United States. While the rest of the world largely follows the civil law system, The United States and the former colonies of Great Britain generally follow the common law system. Also unlike judges in most civil law jurisdictions who generally have little power or discretion to interpret or nullify laws passed by legislative bodies, judges in the United States have a great deal of power to reinterpret or nullify the laws passed by federal and state legislative bodies based on their interpretation of the U.S. Constitution and the state constitutions.

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[1] An English translation of the Code of Hammurabi by L.W. King is available at http://avalon.law.yale.edu/ancient/hamframe.asp

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The above is a brief excerpt from Chapter 1 of Intellectual Property Law: A Practical Guide to Copyrights, Patents, Trademarks and Trade Secrets  (C) 2011 Victor D. Lopez. All rights reserved.

 

Those who Live by the Sword . . .

Frustrated over Republicans' use of the filibuster to block President Obama's nominees to the federal courts whom they deemed too extreme, Senator Harry Reid led 51 Democrat senators to an unprecedented change of the rules this past week that effectively prevents Republicans from using the power of the filibuster to effectively block presidential nominees to any federal court other than the U.S. Supreme Court. Not content to simply do away with the requirement of a super-majority of 60 votes previously required to suspend the rules of the Senate, the majority party exercised the "nuclear option" to take away the Senate minority's right to effectively block Senate action by refusing to yield the floor or yielding only to like-minded Senators.

If the tortured roll out of Obama care has taught us anything, one would think it is that passing legislation and then reading it is a monumentally bad idea. The rules of the House of Representatives strictly limit the time allotted to members who take the floor and the House does almost all of its work in Committees, where chairpersons from the majority party can easily quash legislation they oppose. That is why fatally flawed, unwise, unread legislation like the Affordable Care Act can pass in the House as long as the majority power votes as a single block--a fact that the current majority party in the House will most likely live to regret in the next election cycle as the American public learn about the misrepresentations, broken promises and outright lies that they were fed about lower healthcare costs for most Americans, keeping their doctors, and keeping their current insurance plans if they were satisfied with them.  With this parliamentary tactic, the Senate now becomes much more like the House and the minority party loses one of the few rights it has always enjoyed--to speak at length in opposition of what any Senator believes to be a bad idea.

Senator Reid spoke eloquently and forcefully against taking away the right of Senators to filibuster presidential nominees when Republicans last held the Senate and tried to do precisely what Reid has now done. Hypocrisy aside, this is simply a bad idea. No doubt Senator Reid will once again argue for re-implementing the filibuster when the big, bad Republicans regain the Senate in the future if he is not forced to retire by irate voters in the interim.

Meantime, partisan politics will continue with the lines further hardened by this newest act in the ongoing tragicomedy that is Congress making it even harder for any meaningful compromise to be reached. Moreover, presidents will be able to pick with impunity judges who serve for life from the outer reaches of left field and right field at whim--cherry picking the newest crop of jurists from the outer reaches of the Twilight Zone, if their hearts so desire, helping to ensure a high level of volatility in federal law that can only be welcomed by anarchists.

Anyone who believes this is a good thing would do well to view Mr. Smith Goes to Washington. Indeed, it should be required viewing for all of our elected officials--unless, of course, they are afraid of facing the real inconvenient truth that we are sliding ever closer to banana republic status, minus the drama of real fisticuffs in our hallowed legislative halls for the time being.

Intellectual Property Law: A Practical Guide to Copyrights, Patents, Trademarks and Trade Secrets [Excerpt: Chapter 4 - Copyright Ownership, Creation and Transfer]

Chapter 4: Copyright Ownership, Creation and

Transfer

Copyright Ownership and Transfer

            A copyright  is a personal property right that vests in the author or authors of a work. In situations when a work is made for hire (e.g., when an author is contracted by a publisher to write a book in exchange for royalties and/or other payment), the copyright owner is the employer who commissions the work who owns all the rights provided in the copyright to the work absent a written agreement to the contrary.¹⁶  In work for hire  arrangements, the author may be credited with authorship of the work, but it is the employer who commissioned the work who owns the copyright and has the right to dispose of the work in any way it sees fit absent an agreement to the contrary with the author.¹⁷ The owner of a copyright may dispose of it the same as any other type of personal property. Namely, she may sell it, license it, or give it away during her life or after death by a provision in a valid will.

The Difference Between Ownership of a Copyright

and Ownership of Physical Objects¹⁸

            When someone owns a copyright, she or he owns the right to the expression of an idea that has been put in a tangible form. The expression of that idea and the copyright are two distinct rights and transferring one does not automatically transfer the other. For example, if you purchased this book, you own it and have the right to give it away, sell it to someone else or even destroy it. By purchasing a copy of this book, you did not purchase its copyright however. Thus, you may not copy the book to give away to someone else or post an electronic copy of it online; such use would constitute copyright infringement and could subject you to both civil and criminal penalties. The book is personal property, but the intellectual property—the copyright—is retained by the copyright owner. The same, of course, is true of movies, audio books and music distributed in traditional media such as compact disks and DVDs, or downloaded electronically to be played on a computer or electronic device. You own a copy of the movie or music that you purchase, but can only use it in ways that do not infringe on the copyright owner’s property rights. (E.g., you can give away the original DVD containing the latest new release after you view it, but you cannot make a copy of it to sell or give away to a friend.) If you belong to a movie rental service that allow you to download movies online, you may view the movie in accordance with your rental agreement either once or as many times as the agreement allows. But you may not copy the movie to your hard disk or burn it to a DVD or, for that matter, use screen capture software to save the movie or a video recorder to record if off your computer screen. Of course, you also may not hook up your computer to a video projection system and project the movie outdoors for your neighbors to enjoy. (Projecting the movie indoors for the benefit of non-paying guests, however, would be fine as long as the viewing is not open to the public.)

Duration of Copyright  

            Copyright in works created on or after January 1, 1978 last for the life of the author plus an additional 70 years after the author’s death.¹⁹For works prepared by two or more authors, the copyright lasts for the life of the longest surviving author and for 70 years after the death of the longest surviving author.²⁰ Copyrights in works published anonymously  or under a pseudonym will last for 95 years from the date of their first publication or 120 years from the date of creation, whichever expires first.²¹ But if such works are registered prior to the expiration of this time period in the name or names of their true authors, then the copyright will extent to the usual life of the longest-lived author and 70 years after his or her death.²²

            In the case of works for hire , where an author is contracted to create material as an employee that is to be copyrighted by the employer (e.g., a publisher of college textbooks who owns the copyright to work created by its authors under the terms of the typical publication agreement), the copyright protection runs for 95 years from the date of first publication or 120 years from the date of creation, whichever expires first.²³

            Copyrights that became effective prior to January 1, 1978 generally lasted for 28 years from the date of creation, with an additional extension of 67 years available to authors, their heirs and to owners of copyrights that were commissioned as works for hire.²⁴

The Process of Securing a Copyright

            Copyright protection  attaches automatically to any work of authorship as soon as it is created and saved in a permanent form. It is not necessary to formally register the work with the U.S. Copyright Office for copyright protection to attach. However, and most importantly, copyright registration  is a prerequisite to bringing suit for copyright infringement. So that while copyright protection may  attach automatically to a work of authorship fixed in tangible form, one may not begin a lawsuit to recover or enjoin copyright infringement without registration.

            The good news for authors, musicians, choreographers, performance artists, painters sculptors, architects, business people and all others who want to protect their works of authorship against infringement is that the process for registering one’s copyright is relatively simple and can be accomplished at a very modest cost.

            Copyrighted material  can be registered in the U.S. Copyright Office either by filing the required forms and payment through the mail or electronically. Of the two, the online method is less expensive and generally results in faster processing times.²⁵ As of this writing, the filing fee  for a registering  a basic claim to a single work is $35 if electronic filing is used and $50-65 if paper forms are filed through the mail.²⁶ The U.S. Copyright Office estimates that 90 percent of electronic filers  will receive a copyright certificate within six months of filing a complete submission, while one-third will receive the certificate within ten weeks of filing.²⁷ Filings through the mail take a bit longer with 90 percent of certificates received within eight months of submission and one-third of filers receiving certificates within five months of filing.²⁸ (You will find samples of the current forms in Appendix A.)

            Copyright registration  can generally be accomplished at any time when copyright protection is in force for both published and unpublished works. Whether registration is done electronically or by regular mail, a copy of the unpublished work  or phonorecord must accompany the complete application along with the required fee.²⁹ If published work is involved, then two copies of the best edition of the published work or phonorecord must accompany the application.³⁰ If the copyright relates to an author’s contribution to a published collected work (e.g., a chapter in a book or short story in a collection of short stories), a single copy of the published work or phonorecord must accompany the application.³¹

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¹⁶ 17 U.S.C. §201(b) (2006).

¹⁷ This is the usual arrangement in the writing of college textbooks, for example. But a work for hire  can result in work created by an employee in his role as employee, such as reports, artwork, web page designs, and other works of authorship produced by the employee in the normal course of employment that qualify for copyright protection. Absent an agreement to the contrary, including terms in an employment contract or in a collective bargaining agreement covering employees in a union environment, works of authorship produced on the job as part of an employee’s work responsibilities generally belong to the employer.

¹⁸ See 17 U.S.C. §202 (2006).

¹⁹ 17 U.S.C. §302(a) (2006).

²⁰ 17 U.S.C. §302(b) (2006).

²¹ 17 U.S.C. §302(c) (2006).

²² Id.

²³ Id.

²⁴ 17 U.S.C. §304(a)(1)(A)-(C) (2006).

²⁵ The USCO provides tutorial assistance for using the electronic filing option at http://www.copyright.gov/register/index.html (last visited September 2, 2009).

²⁶ Information on all current filing fees and services can be found at http://www.copyright.gov/docs/fees.html. (last visited September 2, 2009). Information on current fees can also be obtained by telephone from the Copyright Public Information Office at (202) 707-3000, 8:30 a.m. to 5:00 p.m. eastern time, Monday through Friday, except federal holidays, and by writing the Library of Congress, Copyright Office, 101 Independence Avenue, S.E., Washington, D.C. 20559-6000.

²⁷ http://www.copyright.gov/register/index.html (last visited September 6, 2009)

²⁸ Id.

²⁹ 17 U.S.C. §408(b)(1) (2006).

³⁰ 17 U.S.C. §408(b)(2) (2006).

³¹ 17 U.S.C. §408(b)(3) (2006).