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In simple terms, intellectual property is a product of the human intellect that has commercial value. Intellectual property encompasses a wide range of creations -- from fiction, poetry, songs, designs and artwork to ads, product names, mechanical inventions, processes, chemical formulas, machines and software.
The commercial value of intellectual property comes from the ability of its owner to control its use. If the owner could not legally require payment in exchange for use, ownership of the intellectual property would have intellectual worth but no commercial value.
EXAMPLE 1: Jayna writes a novel about romance in cyberspace. As the author/owner, she has the legal right to prevent others from reprinting the book, making a movie or creating a television miniseries based on the novel. It is this right that can produce revenue for Jayna: she can sell publishing rights to a publisher, movie rights to a movie producer and television rights to a network in exchange for royalties based on book, movie and TV proceeds.
How Intellectual Property Law Works
EXAMPLE 2: Todd invents a process for inserting modified genes into cancer cells. He applies for and receives a patent, a monopoly awarded by the federal government that allows Todd to require anyone who wants to use the process to pay him a negotiated license fee. If no one wants to use the process, Todd won't make any money (unless he uses it in his own gene therapy clinic).
Intellectual property law is an umbrella term for all the statutes, government regulations and court decisions that together determine who owns intellectual property and what rights go along with that ownership. In addition, intellectual property law specifies:
Intellectual property law primarily offers protection to the owner of intellectual property by giving the owner the right to file a lawsuit asking a court to enforce whatever rights are being transgressed. As a result, some experts describe intellectual property laws as "affirmative rights" rather than as "protection." Noted patent attorney and author David Pressman suggests thinking of intellectual property laws as tools that can be used when needed, but not as any kind of defensive shield. In other words, intellectual property laws won't prevent someone from stepping on the owner's rights. But the laws do give an owner the ammunition to take a trespasser to court. For example, upon request of the copyright owner, a court will halt unauthorized copying of material protected by the copyright. But if the copyright owner does not sue the copier, no action will be taken and the copier will get away with this illegal behavior.1. Types of intellectual property laws
Intellectual property law consists of several discrete legal categories. Although these categories can overlap with respect to a particular intellectual property, they each have their own characteristics and terminology.
Courts are frequently asked to intervene when one business uses unfair tactics to compete with another business. Among the unfair tactics the courts have condemned is a business trying to lure customers away from a competing business by confusing customers as to which business or products they are dealing with. The most common way to confuse customers is for a second business to market its goods or services under a name or other mark that is confusingly similar to that used by the first business on its goods or services.
Although courts originally decided these types of disputes without the benefit of a legislative enactment, Congress and most state legislatures have now legislated the basic principles developed by the courts to deal with unfair business practices. All together, these court decisions and statutes are termed unfair competition law. And under this body of law, a business may obtain a court order preventing a competitor from engaging in unfair business practices.
Unfair competition is not usually considered a separate branch of intellectual property law, as it targets general business practices rather than intellectual property as such. However, because the use of misleading names and marks to improperly lure customers away from another business is also very much what trademark law is concerned with, the two types of law often overlap.
3. International laws
EXAMPLE: The name used by Joe's Pizza is very ordinary and not distinctive enough to be considered a trademark. If, however, another business opens up down the street under a "Joes's Pizza" sign, the courts may use unfair competition laws to force the second user to modify the name to distinguish it from the first.
Under a variety of treaties, most countries in the world offer protection to U.S. intellectual property used abroad. And under these same treaties, the U.S. protects intellectual property created in these other countries. Several major international treaties -- the Berne Convention is the most important -- govern rights in copyrights in most countries. International patent rights are broadly recognized under the Paris Convention and the Patent Cooperation Treaty. Trademark owners also have some international rights under the Paris Convention. And trade secrets receive international protection under GATT (General Agreement on Tariffs and Trade).Legal Basis of Intellectual Property Laws
The sources of intellectual property laws vary according to the subject matter. Trade secret law derives both from federal and state legislation, and from court cases that have developed their own set of principles used to decide new trade secret cases that come before them (termed the "common law"). Trademark and unfair competition laws originate primarily in both federal and state statutes, but also, especially in the area of unfair competition, come from court decisions that apply principles developed by earlier courts as part of the common law. Copyright and patent laws originate in the U.S. Constitution and are specifically and exclusively implemented by federal statutes. In all these intellectual property areas, court decisions interpreting and enforcing applicable statutes also provide an important source of intellectual property law.4. Intersection of intellectual property laws
Although each category of intellectual property law is aimed at a particular type of intellectual property, trade secret, copyright, patent and trademark laws occasionally intersect with each other with respect to a particular intellectual property item. Some common examples of this are as follows:
How to Use This Book
EXAMPLE: A design patent can issue on the new, unobvious, nonfunctional design of an article of manufacture -- for example, stylistic ornamentation added to a pair of eyeglasses. Trademark law may be used to protect the appearance of the ornamentation if it is intended to be -- and is -- used to distinguish the particular brand of eyeglasses in the marketplace. And copyright law may also be used to protect certain expressive aspects of the design.
This book contains short explanations of the key terms and concepts used in intellectual property law. It is separated into four self-contained parts, each of which is targeted to one of the main intellectual property law categories. The four parts are:
You'll find a short overview of the category at the beginning of each part, followed by an alphabetical list of terms defined in that part. We also provide a number of useful lists and charts of additional information, as well as some samples of official forms that apply to each topic.1. What legal rights apply to your creative work?
If you are concerned with a creation of your own, you'll first need to know what form (or forms) of intellectual property applies to it in order to get to the right part of this book. These basic rules should point you in the right direction:
Below, we've provided a detailed chart to further help you identify the applicable law. The chart lists categories of creations, followed by indications of what sorts of intellectual property laws generally apply.More Self-Help Intellectual Property Resources
Although this desk reference provides a great deal of information about the language and law associated with intellectual property, it cannot possibly provide step-by-step instructions for following various government procedures and programs to protect works of intellectual property.
Fortunately, there are a number of excellent self-help resources if you're interested in intellectual property -- whether you're using a lawyer or doing research on your own. We provide below brief descriptions of resources published by Nolo that provide detailed guidance. (Order information is at the back of this book, or visit our website: www.nolo.com.)