Cyberspace challenges copyright laws
- By Iona Calhoun, Rich Kellett
- Apr 13, 2000
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
* 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
* 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
* 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
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.