Owning Ideas:
An Exploration of Intellectual Property
Bully Bulldog
CO 6313, Mass Media Law
Dr. MSU
Dept. of Communication
MississippiStateUniversity
Summer 2005
Owning Ideas: An Exploration of Intellectual Property
The concept of “intellectual property” can be difficult to grasp. When analyzing the phrase it can be assumed that “property” is something that can be owned. The word “intellectual” suggests that there is thought and/or knowledge in the process. Thus, “intellectual property” would be “possessions of the mind.” However, property of the mind is not necessarily something physical or tangible. How, then, can it be owned?
Property of the mind, such as artistic expressions (paintings, photographs, poetry, literature, song lyrics, musical scores and so on) or inventive processes or techniques can be captured in tangible forms on canvas, photo paper, typing paper, notebook paper, a CD or cassette, an email or any other “transcribable” object. Once in physical form, the intellectual property can be protected for use under the creator’s discretion. There are three main forms of protection offered: copyright, patent, and trademark registration – each of which restricts the free use of works.
Copyright Law
Copyright applies to original works of creativity, which is what distinguishes it from patent and trademark. Copyright laws offer protection for works of creativity because they provide financial incentive while ensuring that the public will eventually gain full access to the copyrighted work (Teeter & Loving). The principle of copyright is expressed in the U.S. Constitution. Article I, Section 8 states:
“The Congress shall have power…to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries” (Teeter & Loving, 871).
Copyright laws work to provide a “checks and balances” system for communications media as it attempts to protect, as well as restrict, the use of such media. Most often, the First Amendment protection of freedom of speech and press does not take precedence over copyright laws (Teeter & Loving, 882). Copyrighted works must be printed with permission by the copyright owner. Eventually, works will loose their copyright and pass into the public domain where they can be used freely. The life of a copyright is now seventy (70) years past the death of the latest surviving creator. This law is set forth in the 1998 Sonny Bono Copyright Term Extension Act, which extended the lifetime of a copyright an additional twenty years than that stated in the 1976 Act. Although this extension has been challengedby the public, the courts rule that Congress can extend the life of a copyright because the copyright will still “expire”. Although the public must wait a longer period of time before a work becomes available in the public domain, the work does eventually become available.
Some works must prove to be creative achievements in order to qualify for copyright protection. For example, Landscape Forms, Inc. – a company that manufactures site furniture for public spaces – has a patent on a particular line of park benches and trashcans. This attractive Petoskey line of furniture boasts seating that stands on two legs rather than four and sports a round sleek design. Coincidentally, the Columbia Cascade Company in the same business has a park bench remarkably similar to the Petoskey bench. In Landscape Forms, Inc. v. Columbia Cascade Co., the courts ruled that the functionality of the bench lent itself to protection under a patent alone – there was not enough creative value to allow it copyright protection as well. Landscape Forms, Inc. could not offer further protection than their patent. Columbia Cascade Company took advantage of this aspect by making a bench remarkably close to the Petoskey bench, but slightly changing the way the seat is fashioned. Columbia Cascade could strengthen their argument by stating that since the company names were printed on their respective products, there was little chance for consumer confusion among the products. This 1997 case portrays the intricacy of copyright law and protection of intellectual property.
Creating Copyrighted Documents
While a work is entitled to copyright protection as soon as it is recorded in tangible form, a wise creator will register the work with the Copyright Office. In order to secure a copyright, it is advised to mail at least two (2) copies of the work (not the original), along with a copyright application and payment of the fee ($30 per copyrighted work) to the Copyright Office. The copies will be deposited in the Library of Congress. Additional information about copyright laws and processes can be found online at the US Copyright Office website at
Patent
As mentioned above, copyright protection does not cover a conceptual process or system. This is where patent comes in to play. A patent protects a formulated process or system that, if followed exactly, would produce the same results each time. Usually a patent is perpetual – it lasts forever. Some exceptions are pharmaceutical drugs. The process or concept must require ingenuity to justify the value for patent. A recent case involves the J.M. Smucker Company and their popular product, the “UnCrustable”. A peanut butter and jelly pocket sandwich, the UnCrustable is – as the name suggests – “crust-less”, crimping the edges to seal in the peanut butter (which, by the way, is spread on both pieces of bread, keeping the jelly from making the bread soggy). Smucker sought to patent both the crimping technique and the peanut butter placement, but the Patent Office refused to patent the traditional PB & J sandwich, claiming that the crimping was similar to that of a piecrust or ravioli and that the peanut butter surrounding the jelly was not so much of an ingenious idea. The Board of Patent Appeals agreed, and courts held the same opinion as well. As it turns it, the peanut butter and jelly sandwich is just too much of a classic to have a patent.[1]
Trademark
Trademark protection is reserved for art such as icons, logos, and slogans, which represent a particular product or company to the consumer. Companies are willing to spend millions to register and market trademark products in order to reduce consumer confusion and false associations. A classic example is Microsoft. This sixty-one billion dollar company knows how important standing out to the consumer really is. “The biggest aspect driving trademark issues is what’s going on in the market place…the situations where customers are being confused and sales are being lost have serious marketplace impact,” says William Ferron, Jr. of Microsoft. The company has registered two dozen logos and over 260 product names from video games and software to fonts and gaming devices.
But even trademarks and copyrights can protect products from unauthorized duplication and distribution. Piracy of both music and software is the largest threat to intellectual property, but artists are fighting back.
Piracy
Piracy is the illegal duplication and distribution of a product. The main forms of piracy are software, music, and video.
Ownership of software is controlled by license agreements. Software licenses are legal documents describing the proper use and distribution of the software as it is intended by the manufacturer (Microsoft). Software piracy takes on many forms.
- End-User Piracy is the copying of software without appropriate licensing for each copy. Distribution could be for a single individual or an entire company.
- Pre-Installed Software Piracy involves a computer manufacturer using one copy of a software program to install it on more than one computer.
- Internet Piracy occurs when unauthorized copies of software are downloaded over the internet.
- Counterfeiting is the illegal copying and distribution of software in packages much like the manufacture’s packaging. Usually counterfeit registration cards with unauthorized serial numbers are included with the “fake” software.
- Online Auction can involve the resale of software, violating the original terms. Online distributors may offer special deals or “liquidation” prices to explain such low prices offered for the software.
Microsoft is now incorporating Microsoft Product Activation into their software programs in order to combat piracy. This technology works in three easy steps: (1) Contact Microsoft for activation of product either by phone or internet, (2) Microsoft verifies the license, and (3) the license is confirmed and the product is activated. This reduces the number of PCs the product can be activated on, thus reducing the number of pirated or “casual copies” shared.
While software piracy is a huge issue, another form of piracy had made global news recently – music piracy. With technological advances and an increase use of the internet, stealing music is now easier than ever. Many online companies offer free or relatively cheap music for download over the internet. With the rise of the CD-R, consumers can purchase a CD burner for a couple-hundred dollars and blank compact discs for less than a buck. This makes downloading favorite songs and creating custom “mix” CDs simple and more efficient for the consumer than purchasing an artist’s CD in a store. It has been estimated at the end of 2001 that as many CD the general public listened to were burned and copied as the number of professional CDs purchased. In fact, ownership of CD burners has more than tripled since 1999.
Music piracy has just as many forms as software piracy:
- Pirate recordings are those in which only the sound or legitimate recordings is duplicated without authorization (as opposed to copying all of the packaging as well). This includes mixed CDs featuring one or more artists.
- Counterfeit recordings are those that include copies of both the sound and the artwork of the packaging (cover, labels, trademarks, etc.).
- Bootleg recordings- also known as underground recordings – are unauthorized recordings of live concerts or musical broadcasts on radio or television.
- Online piracy – the most “popular” type – is the unauthorized uploading of a copyrighted sound recording and making it available to the public; or downloading a sound recording from an internet site, even if the recording isn’t resold (RIAA).
With an enormous increase in music piracy, the need for further protection has never been greater. Awareness has been raised about consequences for copyright infringement - up to $250,000 in fines and possibly five years in prison. Sony has developed its own anti-piracy technology in which some CDs can only be played in normal CD players, not DVD players or CD-ROM drives on computers. Other Sony CDs are designed to be allowed to play in one other type of CD player, for example, a home computer, but once played in that device it cannot then be played in the DVD player in another room of that home or taken to the office to listen to on the PC at work. Such devices reduce the need to create pirate copies because there really is no use – it wouldn’t work anywhere else.
Why is the music industry fighting so hard to protect the same material that the artists would gladly play to a large crowd of ticket-purchasers at a concert? Simple – they’re loosing money this way. When consumers stop buying professional CDs and burn their own, it primarily hurts the retailers who sell those CDs. When local businesses loose money, they have to make up for it somehow – so people loose jobs. This effect ultimately works up a chain until it reaches the artists themselves who are no longer making money off their own hard work. Many artists are enraged by this and believe that their “true fans” wouldn’t “rip them off”.
Piracy is a sensitive topic in the copyright world, and the government is doing what they can to regulate this. Companies who offer software to download copyrighted material can now be held responsible for this infringement.
Conclusion
Protection of intellectual property is a wonderful and fair concept. But, it is just that – a concept. There is no fool-proof way to ensure that a product will not be copied and/or distributed illegally. Where there is a human want to do something, technology will create a way to accomplish it. The bottom line is, technology will always be one step ahead of the law, but in the end, the law is what stands in court.
Sources
Columbia Cascade, Company website. . June 13th, 2005.
Dell, Alexandria. Windows Treatment; William Ferron, Jr. has been guarding Microsoft’s IP since the company’s earliest days. LexisNexis. April 2005.
Landscape Forms, Inc. v. Columbia Cascade Company. 42 U.S.P.Q.2d (BNA) 1641; LexisNexis.
Landscape Forms, Inc. website. . June 13th, 2005.
Microsoft website. June 20th, 2005.
Music Piracy and the Audio Home Recording Act. Duke Law & Technology Review. 2002.
Recording Industry Association of America. 2003.
Rulon, Malia, Associated Press Writer. Court Denies Smucker’s PB&J Pastry Patent. April 8th, 2005.
Teeter, Dwight L. Jr., and Bill Loving. Law of Mass Communications, 11 ed. Foundation Press, NY. 2004.
[1]Rulon, Malia, Associated Press Writer. Court Denies Smucker’s PB&J Pastry Patent. April 8th, 2005.