Intellectual Property: Patents, Trademarks, and Copyrights

Since copyrights are usually more visible in your daily routine than other types of IP, it is especially good for you to know your rights as copyright owners (creators) and as copyright users (consumers). Kenneth Crews, author of Copyright Law for Librarians & Educators: Creative Strategies and Practical Solutions, states that, only with this awareness, can you identify alternatives that the law allows to make decisions about copyright that best advance your objectives. Obviously, there is even a civic responsibility for copyright users regarding the ethical and legal use of copyrighted resources. Fair use for personal or work applications is challenged more than ever, with music/video file sharing downloads and other digital technology applications. This website is designed to assist all of us with increasing questions in an ever-changing world of intellectual property, especially copyrights.

Copyright advances the progress of knowledge for all consumers by giving an economic incentive to authors and artists to create new works. The Fair Use doctrine (Section 107) of the U.S. Copyright law strives to balance public interest rights and individual author rights. More on Fair Use is covered on this site.

Our legal history of copyright is derived from the British Statute of Anne in the early eighteenth century. U.S. copyright was introduced in the late-eighteenth century in the Constitution, Article I, Section 8 granting Congress the power in “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  The Copyright Act of 1976 (with some variations) still applies to our copyright law today.

Copyright covers authors and their literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. Flip around the root words "copy and right." Think of it as authorizing others for the “right to copy.” Copyright protects the aesthetic or textual expression of ideas, but not the ideas. Copyright registration is affordable (compared to a patent and a trademark) and is registered with the U.S. Copyright Office at the Library of Congress.

The Copyright owner is usually the original author/creator of the copyrighted work. An author may relinquish part or all of their copyright to a publisher or to someone else. In works made-for-hire, the employer is considered the author. This is especially important to note with for-profit businesses.

Copyright offers rights to the author of the copyrighted works which are “fixed in any tangible medium of expression,” as stated in the Copyright Act of 1976. Under the Copyright Act, Section 106, a copyright owner’s exclusive rights include permitting reproduction, distribution, public performance or display, and derivative works of their copyrighted work publicly.

Copyright subsists automatically as soon as the work is created. You do not need to publish or register the work to be copyrighted. However, registration with the Copyright Office is advantageous for any future legal actions. It is easy to let others know you are the copyright owner. Just place your name (or a company name) with the © symbol and year on the document or work, e.g. © 2020 John Schlipp.

The following intellectual works may be protected by copyright:

• Literary works, including business brochures and product user manuals.
• Musical works, including any accompanying words.
• Dramatic works, including any accompanying music.
• Pantomimes and choreographic works.
• Pictorial, graphic, and sculptural works.
• Motion pictures, sound recordings, computer software & games, websites, etc.
• Architectural works.

The Copyright Office website provides more details on protected works at https://copyright.gov/.

On the other hand, the following works may not be copyrighted:

• Works not in a fixed medium (tangible format), or works that lack creativity. For example, recipes for cookbooks cannot be copyrighted. However, the expression or formatting of a group of recipes could be copyrighted.* 
• Works chosen to be available with no copyright restrictions by the author, such as Creative Commons. 
• Most U.S. Government Documents, including those freely available online.
• Facts, ideas, dates, names, and short phrases.
• Works which have entered into the public domain.

What is the duration of copyright?  When does a work enter into the public domain? It depends on when the work was copyrighted. For most published U.S. works older than 96 years, there is usually no question that it is in the public domain. Copyrighted works up to 1963, which were not subsequently renewed, may have expired and entered the public domain. For works created between 1964 and 1977, the copyright lasts up to 95 years from the publication date. Finally, works created since 1978 are copyrighted for at least 70 years past the author’s death. See Researching & Tracing Copyright Records on this LibGuide or Cornell University’s Copyright Term and the Public Domain chart to determine if a work may be in the public domain.

There are some free-to-share type services which utilize other intellectual property labels related to copyright. These include open source, Creative Commons, copyleft, and so forth, which may offer some attributes of public domain.

*A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. -- US Copyright Office: What Does Copyright Protect.  

To review in greater detail, U.S. Copyright law offers a bundle of exclusive rights to the authors or creators of copyrighted works that are in a fixed tangible medium of expression. Under Title 17, Section 106, a copyright owner, such as a musician or an author has six exclusive rights:

• The right to reproduce and make copies of an original work; 
• The right to prepare derivative works based on the original work; 
• The right to distribute copies to the public by sale or another form of transfer, such as rental or lending;
• The right to publicly perform the work;
• The right to publicly display the work; and
• The right to perform sound recordings publicly through digital audio transmission.