Managing the Digital Enterprise | Intellectual Property (print version)

Everything in cyberspace is composed of bits, the binary code that is the foundation of computing. In their digital form, images, music, video, and text are perfectly reproducible; not just once, but an infinite number of times. There is no degradation to limit the value of duplicate copies. With digital media, a copy is the original.

The binary reality of digital media poses vexing problems for how works are used (and reused), and the rights and responsibilities of producers and consumers under existing law. One of the virtues of the Web is its reach: the ability to widely distribute digital works faster and less expensively than ever before. There is great value in being able to communicate to millions of people. But there is a downside: content owners have little control over the subsequent dissemination and use of their work. Too many consumers unaware or confused by expansive license agreements, or willing to dismiss them as overly restrictive or unfair, approach the Internet with the erroneous belief that every item they encounter is in the public domain.

The laws that define and protect intellectual property span across three broad and distinctly different areas: patent, trademark and copyright (see below). The interpretation and applicability of the law to the digital realm has become hotly contested. With copyright, some argue that the law has been applied indiscriminantly to digital works, thereby harming both consumers and the evolution of the technology. They have gone so far as to advocate alternatives to conventional copyright, such as the "copyleft" movement.

Content owners, especially the major music producers and film studios, see digital technology as a threat and have sought legal remedies to protect their financial interests. It was not until the launch of services like iTunes that the music industry began to embrace new business models for online distribution, after years of trying with only modest success to combat peer-to-peer file sharing through legal channels.

What is allowed with respect to the use of digital works under copyright law it not always clear. Although there are provisions for "fair use", the Web raises new questions of what is legal, appropriate, and fair to content owners and consumers. One major legislative attempt to grapple with copyright in the digital world, the Digital Millennium Copyright Act, has made potential criminals out of users without lessening the confusion.

The applicability of copyright and patent law to software, the patentability of business methods, and the unregulated use of trademarks in paid placement search advertising are also major points of contention.

PATENT, TRADEMARK, AND COPYRIGHT
As Defined Under US Law

A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.

The right conferred by the patent grant is, in the language of the statute and of the grant itself, "the right to exclude others from making, using, offering for sale, or selling" the invention in the United States or "importing" the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention.

A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and servicemarks.

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office.

Copyright is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.

Source: U.S. Patent and Trademark Office, U.S. Copyright Office