Introduction To Copyrights, Patents, and Trademarks
By Deepak Dutta (c) 2007
What is a copyright? Can everything be copyrighted? A copyright
is the expression of an idea. The idea itself is not
copyrighted. Ideas can be patented and I will talk about
patents later.
Let's consider the example of a story: a poor man who found
lots of cash on his way back to his home from his work. He
decided to keep the cash to improve his financial situation.
But he could not sleep at night because he was haunted by
strange voices that told him to find the owner and return the
cash. This idea cannot be protected. Anybody can write a short
story based on the idea. What is protected is how the author
expresses the idea in the form of texts, illustrations,
drawings, photographs, etc.
Once an expression is copyrighted, others can still use it for
fair use. You can tape a few 15 seconds video clips from a
copyrighted TV program and post it in your video blogs about a
commentary on the program or broadcaster, etc. This will be
considered a fair use and you will not infringe the copyright.
After a copyrighted material expires, it falls into the public
domain. The life of a copyrighted material is the life of the
author, plus 70 years. The public domain copyrighted materials
can be reproduced without any infringement. For example, if you
have an old picture with expired copyright, you can post the
picture in your website.
In the USA, the Copyright Act of 1976 governs all copyrights.
The Copyright Act does not protect any ideas, procedures,
process, systems, and methods of operations, concepts,
principle or discovery regardless of how it is expressed. It is
the expression that is protected by the Copyright Act. You
cannot copyright titles, names, slogans, and short phrases even
if those have new ideas.
As mentioned earlier, the life span of a copyrighted material
is the author's life, plus 70 years in most cases. There are a
few exceptions to this rule and they are: un-renewed
copyrighted materials published pre-1964, materials published
before 1978 without a copyrighted notice, and materials
published by the US Government.
All copyrighted materials should be fixed in a tangible medium
(papers, CDs, DVDs, etc.). If it is not fixed in a tangible
medium, it is not copyrighted. For example, your speech to the
graduating class that was never recorded, taped, or published
is not protected under the US Copyright Act. Your can register
your copyrighted materials with the US Copyright Office. All
expressions of ideas are copyrighted regardless of whether they
are registered with the Copyright Office or not. If you register
the expression with the Copyright Office, you can receive
statutory damages and attorney's fees if an infringement
occurs. If the material is not registered with the Copyrighted
Office, you can only recover actual damages.
A patent holder of an invention has the right to exclude others
from using, selling, and making the invention. The United States
Patent Office (USPTO) awards patents. There are three kinds of
patents: utility, design, and plant patents.
The most frequently used patents are utility patents. They have
a life span of 20 years from the effective filing date if the
filing date is after June 8, 1995. A utility patent also
requires periodic maintenance fees. A utility patent must be a
novel, useful, and non-obvious process, machine, manufacture,
or compositions of matter or improvement to the same. There are
three things that define a utility patent. First, it must be
novel. Nobody should have invented, published, used, or
manufactured the invention before. Second, one should be able
to do something useful with the invention. If it is just novel
without any usefulness, it cannot be patented. A patentable
invention should not be obvious to the person with ordinary
skills in the same technology space related to the invention.
A design patent is the appearance or aesthetic of an article
and it has a life span of 14 years after the patent is issued.
A plant patent, as the name applies, protects a distinct plant
produced asexually. It has life span of 20 years from the
filing date.
A trademark is word, symbol, design, or a combination of one or
more of these items. It is used to identify the source of goods
or services of one company and differentiate a company's goods
and services from others. A trademark should not be confusingly
similar to other existing names or symbols.
A trademark is registered with the USPTO. It can also be
registered through the state's Secretary of State's office. If
the trademark is not registered, the rights to the trademark
may be geographically limited. You cannot use the symbol ® to
represent a mark if it is not registered.
If you want to maintain a trademark for your business, you must
actively use it. Just registering a trademark without using it
actively will result in diminished rights over time. Never
allow a trademark to become a generic word. For example, the
trademark "Aspirin" by Bayer has become a generic word to
represent acetylsalicylic acid. Others can use it without
causing any infringement. When you see a trademark used by
authors as a noun or a verb, it may become a generic word.
Trademark owners vigorously pursue authors from using the
trademark as a noun or a verb. A trademark should always be
used as an adjective. For example, Google is preventing others
from using the word Google as a verb.
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Dr. Deepak Dutta is the creator of
http://www.semantic bay.com
- an interactive social network website based on user shared
text and picture contents on any topics.
Copyrights, Patents, and Trademarks 
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