Cyberspace challenges copyright laws

Cyberspace has brought many challenges to laws regarding intellectual property.

The ease of communicating with millions of people with a click of a mouse

brings many advantages. But that ease also produces many disadvantages for

creators of intellectual property.

How can one protect the multitude of products and ideas being distributed

over the Internet from improper usage, and how do you protect yourself in

the use of World Wide Web products?

To avoid intellectual property problems, you should assume that exclusive

rights belong to the owner unless there is a statement from the owner granting

access to the public domain. Only by explicitly granting public domain permission

does the owner give up all rights.

Posting pictures to the Internet that were scanned from a magazine or that

appeared on another site can be a legal violation that carries a heavy penalty

if one damages the commercial value of intellectual property. Even if the

material is given away, you still can be sued for damages, and criminal

penalities can be assessed. Beware that there are Web sites that allow for

third-party registration to ensure the validity and timing of copyrights.

In addition, companies and individuals regularly search the Web using automated

tools to see if their material has been copied improperly.

A product is referred to as intellectual property if another person is willing

to pay the owner to use the property, product or creation. Compensation

brings commercial value to the owner of intellectual property legally covered

under patents, copyrights, trademarks, trade secrets and related rights.

Examples of intellectual property are songs, processes, designs, mechanical

inventions, machines, software, chemical formulas, product names, artwork

to ads and electronic writings.

An owner of commercially valued property has a legal right to prevent others

from using the property without payment or permission. If an owner does

not have control over the intellectual property's use, it would be worthless.

The following categories of intellectual laws cover intellectual products:

copyright, trademark, patent, unfair competition, international and intersection

of laws.

* A copyright is the legal exclusive right granted to an author of a creative

work to control the copying of that piece of work over time to obtain its

commercial value. A copyright may include, but is not limited to text, a

song, an image, software code, a manuscript, a painting, photocopies, recordings,

pictures and photographs. Fair use permits limit use of another's work without

permission for public interests to educate, criticize, or provide for scholastic

endeavors. Fair use is a complicated area and a careful review of this section

of the copyright laws should be conducted before relying on fair use to

protect against potential damage claims. Copyright law automatically applies

to any work of expression the instant it becomes fixed in a tangible form.

Works of the federal government by federal employees do not receive copyright

protection. But a copyright "position" can be created through creative use

of contracting clauses. Every contract should address copyright to ensure

that there are no misunderstandings later. The federal government can own

trademarks.

* A trademark protects distinctive words, phrases, logos, graphic symbols

or other devices or images used to identify a product or service. The federal

government can obtain trademarks such as the symbol for Y2K. Some agencies

use trademarks to protect Web pages that provide an identity and branding

for marketing purposes.

* A patent issued by the U.S. Patent and Trademark Office grants the creator

exclusive rights for a limited time — 14 to 20 years. The period depends

on the type, use and development of an invention issued under one of the

three different kinds of patents: utility, design and plant. Patents are

granted only if the invention is novel and non-obvious to the trade. Software

and architectures (software and/or hardware) also can receive patents. Novel

and unique designs of Web sites, underlying searching strategies and other

"intangible" products may qualify for patents.

* Trade secrets focus on preventing disclosure of proprietary information,

such as formulas, processes, marketing information, customer lists and just

about anything a company defines as significant to their business. Trade

secrets usually are protected by requiring employees to sign nondisclosure

agreements and noncompete agreements. The Federal Acquisition Regulation

provides additional guidance when procuring goods and services.

* Unfair competition laws focus on the use of unfair business tactics to

compete with another business. Such practices include using misleading names

and marks to improperly lure customers away from another business. A business

may obtain a court order preventing a competitor from engaging in unfair

business practices. Business fraud is indirectly related to intellectual

property in that the use of information to deceive can also result in significant

penalties.

* International laws offer protection to U.S. intellectual property used

abroad, and the United States protects intellectual property created in

other countries. The following international treaties govern our international

rights: The Berne Convention covers copyrights in most countries; the Paris

Convention recognizes internal patent rights and trademark owners; the Patent

Cooperation Treaty recognizes international patent rights; and the General

Agreement on Tariffs and Trade covers trade secrets.

* The intersection of intellectual property laws is used when two or more

intellectual property items intersect with each other. Intersection examples

include a trade secret and copyright; trade secrets and patent; copyright

and trademark; patent, copyright and trademark. Intersection occurs when

the owner wants to keep the work secret for the purpose of getting a jump

on competitors or in the case of a patent issue something new on an old

design.

In today's cyberworld, intellectual property is the currency of the new

information-based economic order. As such, strategies to protect the value

of intellectual property are important. Each Web site and knowledge management

activity should develop an intellectual property strategy in coordination

with their legal office.

— Calhoun is a senior program analyst at the General Services Administration's

Emerging IT Policies Division. Kellett is founder of the Federal Web Business

Council, co-chairman of the Federal Webmasters Forum and is director of

GSA's Emerging IT Policies Division.

MORE INFO

The following Web sites offer additional insight on intellectual propertyand cyberspace issues:

Patent and Trademark Office

Trademark information

Patent information

Update to U.S. copyright laws and information on the Digital MillenniumCopyright Act of 1998

United States Copyright Office

"PTO takes biotech patents online" [Federal Computer Week, Oct. 11, 1999]

"Internet database accesses patents, trademarks" [Federal Computer Week,April 21, 1999]

BY Iona Calhoun and Rich Kellet
Apr. 13, 2000

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