6766625 intellectual property rights

7/23/2019 6766625 Intellectual Property Rights

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INTELLECTUAL PROPERTY RIGHT

Introduction

Intellectual Property Rights (IPRs) have been defined as ideas,inventions and creative expressions on which there is a public willingness to

bestow the status of property (David 199)! IPRs provide certain exclusive

rights to the creators of IP, in order to enable the" to reap co""ercial

benefits fro" their creative efforts or reputation! #he purpose of IPR

legislation is to protect against unauthori$ed i"itation, copying or deceptive

usage of identifying "ar%s!

Intellectual property "eans the property represented by the product

e"anating fro" creativity of the hu"an "ind, hu"an intellect and creative

ideas! It can be an invention, original design practical application of a new

idea, artistic creation etc!

#he intellectual property is an asset and such it can be bought, sold,

"anaged, licensed, exchanged or gratuitously given away li%e any other

for" of the property! &urther by ac'uiring a legal right over the property, the

creator of the IP see%s to ensure that he has exclusive right over it and the

property can be put to use by others only with his consent! esides

ownership of intellectual property right is the legal recognition and reward

you receive for your creative efforts, source of national wealth and "ar% of

an econo"ic leadership in the context of global "ar%et scenario!

India showed signs of resistance to 'uic% enforce"ent of international

intellectual property right (IPR) protection laws as de"anded by the




developed countries, particularly the *! nder the ter"s of the +#, India

is re'uired to i"ple"ent +#-standard IPR protection laws by .//0! It

"ust be ac%nowledged that there has been re"ar%able progress in IPRprotection the field of software and cine"a products!

Indian officials have pledged to introduce another bill in parlia"ent

which, if passed, will put India in co"pliance with its #RIP* obligations! #he

botto"-line is that India considers itself a responsible "e"ber of the +#

which suggests that international class IPR protection should be in place by

.//0! esides, given Indias deter"ination to e"erge as a power in the

global software industry, it is "ost li%ely that all IPR protection laws will be

instituted and enforced by .//0! 2ote that ill 3ates, the chief executive

officer of 4icrosoft 5orporation, has distinguished India as a "ost pro"ising

base for software develop"ent! If such an IPR-conscious business leader

li%e 3ates is of this opinion, one can only conclude that Indias IPR scene is

no deterrent to foreign co"panies!

INTELLECTUAL PROPERTY IN EVERYDAY LIFE

Intellectual property surrounds us in nearly everything we do! 6t ho"e, at

school, at wor%! 6t rest and at play! 2o "atter what we do, we are

surrounded by the fruits of hu"an creativity and invention!

#a%en this concept and created a virtual tour of IP in everyday life!

ased on an exhibition called 6t 7o"e with Invention, the tour provides a

http://www.wipo.int/athome/index.shtml

http://www.wipo.int/athome/index.shtml




broad, interactive excursion into the various areas of intellectual property in

a fa"iliar setting! #a%e a few "inutes to find out how we are all ! ! !

Legislations on Intellectual Property Rigts!

#he following legislation on Intellectual property Rights are in force in

India8

1!#he patents act, 19/ as a"ended by the Patents act.//0:;ffective

fro" 1-1-.//0< along with the Patents Rules as a"ended by

patents(a"end"ent) rules .//=.!#he designs act,./// along with the designs rules .//1!#he trade "ar%s act,1999 along with the trade"ar%s rules,.//.>!#he 3eographical indications of 3oods (registration and protection)

6ct 1999 and#he 3eographical indications of 3oods (registration and protection)

rules, .//. 6s laws governing the grant of all these Intellectual properties vary fro"

country to country, there are global efforts to har"oni$e IP laws and

procedures to establish "ini"u" standard for IP protection! #hese

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efforts are reflected in the international treaties and conventions, li%e

Paris cooperation treaty and #RIP*, which have been ratified by "ost

of the countries!

Need "or te Intellectual Property Rigts 6ny property has to be protected in order to save it infor" an

unauthori$ed use! *i"ilarly the intellectual Property rights also need to

be protected fro" infringe"ent!

• IPRs relates to new ideas, new technologies, new product and

evolution of %nowledge-based industrial environ"ent, IPRs are %ey

ele"ents for gaining co"petitive edge of the industry and ascertaining

the desired success and preserving exclusive "ar%ets!

• #he cost of R?D to develop new products and new processes is rising

sharply and hence there is a need to increase and accelerate the extent

of production of IPRs to get reasonable return on invest"ent and

reduce the ris% and uncertainty!

• IPR protection provides an incentive to inventors for further research

and invest"ent in R?D which leads to creation of new and better

products and, in turn, brings about econo"ic growth and social

benefits!

• IPRs are e"erging as a new wealth and power of nations! IPRs through

propagation of new %nowledge and ideas lead to creation of new and

better products and bring about industrial, econo"ic and social

develop"ent of the country!

TYPE# OF INTELLECTUAL PROPERTY RI$%T#Intellectual Property Rights can be broadly divided in to two categories




Industrial property- Patent- #rade"ar%

- Industrial design- 3eographical indication of sourceCopyrigts- road carry of literature- 6rtistic wor% re"aining fro" news paper articles to novels, &ro"

drawing to painting to architectural wor%, fro" "usic to dance,

fro" photography to fil" as well as artistic perfor"ance!

PATENT#

&at is a Patent'

6 patent is an exclusive right granted for an invention, which is a

product or a process that provides, in general, a new way of doing

so"ething, or offers a new technical solution to a proble"! In order to be

patentable, the invention "ust fulfill certain conditions!

6 patent provides protection for the invention to the owner of the

patent! #he protection is granted for a li"ited period, generally ./ years!

Patent protection "eans that the invention cannot be co""ercially

"ade, used, distributed or sold without the patent owners consent! #hese

patent rights are usually enforced in a court, which, in "ost syste"s, holds

the authority to stop patent infringe"ent! 5onversely, a court can also

declare a patent invalid upon a successful challenge by a third party!




Need "or te Patent syste(!• Patent syste" encourages an inventor to disclose his inventions instead of

%eeping it secret and provides a reasonable assurance of wor%ing and

co""erciali$ation of the invention!

• Patent syste" gives legal protection to patentee, enabling hi" to en@oy the

right without any fear of copying, and raise the capital re'uired for wor%ing

his invention on a co""ercial scale!

• #he industries or R?D centers can "a%e use of the technology disclosed in

the patent literature as stepping stone, avoiding thereby the redundant

research!

• It provides an induce"ent to invest capital in the new lines of production

and in @oint ventures and, thus, provides i""ense help for develop"ent and

upgradation of technology and acts as a sti"ulant for econo"ic growth!

• ne "ay get a good return on invest"ent "ade in R?D through Patent

Right!

• It helps for ta%ing up scientific exploration into the exploration into the

unexplored and uncovered areas

• #he vast 'uantu" of patent literature offers an ocean of scientific and

technological %nowledge and infor"ation for the use of public! 6 patented

invention beco"es available to public for free use when it ceases to be in

effect!

• Patent acts as a tradable industrial asset for an enterprise! 6 strong patent

portfolio of the co"pany is an indication of its good econo"ic health! It

encourages R?D activities by beco"ing a AtoolB for technology transfer!




PATENT RI$%T#) FEATURE#

• Patent enunciates a contact between an inventorCapplicant and the

govern"ent! 6 patent is an exclusive rights granted by 3overn"ent to

the applicant or his assignee, for his disclosed invention of industrial

invention of industrial product or process which should be new , non

obvious, useful and patentable as per the patentability criteria laid

down in the national law!

• Patent right is granted for a li"ited period! It gives territorial right and

can be enforced to only in the country where it has been granted!• #he patent right enables the inventor to derive "aterial benefit , to

which he is entitled, as a reward for his intellectual efforts and

co"pensation for expenses incurred for in research and

experi"entation relating to his invention!

• Patent right gives protection against infringe"ents and creates

possibility of assigning or licensing of the right and enables the

patentee to ta%e legal action against any person who is exploiting the

patented invention without consent or license fro" the patentee a

patentee!

• #he grant of patent right by the govern"ent does not "ean that the

govern"ent itself would auto"atically enforce the patent rigtht! It is up

to the owner to bring an action, usually under civil law, for any

infringe"ent of his patent right!

In*entions +ic are not patenta,le!




• 6n invention which is frivolous or clai"s anything obviously contrary

to well established natural laws!

• 6n invention the pri"ary or intended use or co""ercial of which

could be contrary to public order or "orality or which causes serious

pre@udice to hu"an, ani"al or plant life or health or to the

environ"ent!

• 6 substance obtained by a "ere ad"ixture resulting only in the

aggregation of properties of the co"ponents thereof or a process for

producing such substance

•

#he "ere arrange"ent or duplication of %nown devices eachfunctioning independently of one another in a %nown way!

• 6 "ethod of agriculture or horticulture!

• Plants and ani"als in whole or any part thereof other than "icro-

organis"s, but including seeds varieties and species and essentially

biological processes for production or propagation of plants and

ani"al!

•

6 co"puter progra""e per se other than its technical application toindustry or a co"bination with hardware!

• 6 presentation of infor"ation topography, of integrated circuits

• 6n invention which in effect is traditional %nowledge is an aggregation

or duplication of %nown properties of traditionally co"ponents!

PATENTIN$ PROCEDURE#

%O& TO APPLY FOR PATENT




• 6ny person who is true and first inventor or his assignee or legal

representative is entitled to apply for a patent either alone or @ointly

with other person to protect his invention through patent right!• #he applicant has to ensure that the application for patent relates to

single invention connected by the co""on technical effect!

• #he prescribed for"s for applying for patent is as below

RE$I#TRATION FOR- FOR PATENT# IN INDIA

2a"e of the 6pplicant

6ge

*Co!

Residing at

Postal 6ddress

PI2CIP

Ph!2os, ffice,

ResidenceC 4obile

;-"ail

District

State

2ationality




*pecification in ;nglish, with drawings, if any!

Power of attorney duly signed by the applicant!

&%O CAN APPLY FOR PATENT'a) &or ordinary patent8- 6ny person, whether a citi$en of India, or

not clai"ing to be the true and first inventor or his assignee or legal

representative, either alone or @ointly with any other !b) &or patent of addition8- the application of original patent to which the

invention is an addition can only file a patent of addition!c) &or convention application8- any person who is applicant in a

convention country or his assignee!d) 6pplication under P#5 8- an applicant for international application

under P#5

DOCU-ENT# NECE##ARY FOR FILLIN$ PATENT APPLICATION

1! 6pplication in prescribed for" in duplicate with prescribed fees!.! Provisional or co"plete specification along with drawing, if any, in

duplicate! 6bstract of invention in duplicate>! 6 state"ent and understanding regarding foreign filing under section

E of the act

0! In case, provisional specification is filed first or application is a

convention application then a declaration as to inventorship in the

prescribed for", to be filed along with co"plete specification




=! In case of convention application, a certified copy of specification filed

earlier by the applicant in the convention country is re'uired to be

sub"itted! 6 duly sta"ped power of attorney is re'uired in case the application

is filed through a patent attorney

TRADE-AR.#

&at is a trade(ar/'

6 trade"ar% is a distinctive sign which identifies certain goods or servicesas those produced or provided by a specific person or enterprise! Its origin

dates bac% to ancient ti"es, when crafts"en reproduced their signatures,

or F"ar%sF on their artistic or utilitarian products! ver the years these

"ar%s evolved into todays syste" of trade"ar% registration and protection!

#he syste" helps consu"ers identify and purchase a product or service

because its nature and 'uality, indicated by its uni'ue trade"ar%, "eets

their needs!

&at does a trade(ar/ do'

6 trade"ar% provides protection to the owner of the "ar% by ensuring

the exclusive right to use it to identify goods or services, or to authori$e

another to use it in return for pay"ent! #he period of protection varies, but

a trade"ar% can be renewed indefinitely beyond the ti"e li"it on pay"ent

of additional fees! #rade"ar% protection is enforced by the courts, which in

"ost syste"s have the authority to bloc% trade"ar% infringe"ent!




In a larger sense, trade"ar%s pro"ote initiative and enterprise

worldwide by rewarding the owners of trade"ar%s with recognition and

financial profit! #rade"ar% protection also hinders the efforts of unfair co"petitors, such as counterfeiters, to use si"ilar distinctive signs to

"ar%et inferior or different products or services! #he syste" enables people

with s%ill and enterprise to produce and "ar%et goods and services in the

fairest possible conditions, thereby facilitating international trade!

&at /inds o" trade(ar/s can ,e registered'

#he possibilities are al"ost li"itless! #rade"ar%s "ay be one or a

co"bination of words, letters, and nu"erals! #hey "ay consist of drawings,

sy"bols, three- di"ensional signs such as the shape and pac%aging of

goods, audible signs such as "usic or vocal sounds, fragrances, or colors

used as distinguishing features!

In addition to trade"ar%s identifying the co""ercial source of goods

or services, several other categories of "ar%s exist! 5ollective "ar%s are

owned by an association whose "e"bers use the" to identify the"selves

with a level of 'uality and other re'uire"ents set by the association!

;xa"ples of such associations would be those representing

accountants, engineers, or architects! 5ertification "ar%s are given for

co"pliance with defined standards, but are not confined to any

"e"bership! #hey "ay be granted to anyone who can certify that the

products involved "eet certain established standards0 #he internationally




accepted FI* 9///F 'uality standards are an exa"ple of such widely-

recogni$ed certifications!

%o+ is a trade(ar/ registered'

&irst, an application for registration of a trade"ar% "ust be filed with

the appropriate national or regional trade"ar% office! #he application "ust

contain a clear reproduction of the sign filed for registration, including any

colors, for"s, or three-di"ensional features! #he application "ust also

contain a list of goods or services to which the sign would apply! #he sign"ust fulfill certain conditions in order to be protected as a trade"ar% or

other type of "ar%! It "ust be distinctive, so that consu"ers can distinguish

it as identifying a particular product, as well as fro" other trade"ar%s

identifying other products! It "ust neither "islead nor deceive custo"ers or

violate public order or "orality!

&inally, the rights applied for cannot be the sa"e as, or si"ilar to,

rights already granted to another trade"ar% owner! #his "ay be

deter"ined through search and exa"ination by the national office, or by

the opposition of third parties who clai" si"ilar or identical rights!

%o+ e1tensi*e is trade(ar/ protection'

6l"ost all countries in the world register and protect trade"ar%s!

;ach national or regional office "aintains a Register of #rade"ar%s which

contains full application infor"ation on all registrations and renewals,

facilitating exa"ination, search, and potential opposition by third parties!




#he effects of such a registration are, however, li"ited to the country (or, in

the case of a regional registration, countries) concerned!

In order to avoid the need to register separately with each national or regional office, +IP ad"inisters a syste" of international registration of

"ar%s! #his syste" is governed by two treaties, the 4adrid 6gree"ent

5oncerning the International Registration of 4ar%s and the 4adrid

Protocol! 6 person who has a lin% (through nationality, do"icile or

establish"ent) with a country party to one or both of these treaties "ay, on

the basis of a registration or application with the trade"ar% office of that

country, obtain an international registration having effect in so"e or all of

the other countries of the 4adrid nion! 6t present, "ore than =/ countries

are party to one or both of the agree"ents!

INDU#TRIAL DE#I$N#

&at is an industrial design'

6n industrial design is the orna"ental or aesthetic aspect of an article! #he

design "ay consist of three-di"ensional features, such as the shape or

surface of an article, or of two-di"ensional features, such as patterns, lines

or color!

Industrial designs are applied to a wide variety of products of industry and

handicraft8 fro" technical and "edical instru"ents to watches, @ewelry, and




other luxury ite"sG fro" house wares and electrical appliances to vehicles

and architectural structuresG fro" textile designs to leisure goods!

#o be protected under "ost national laws, an industrial design "ust appeal

to the eye! #his "eans that an industrial design is pri"arily of an aesthetic

nature, and does not protect any technical features of the article to which it

is applied

&y protect industrial designs'

Industrial designs are what "a%e an article attractive and appealingG

hence, they add to the co""ercial value of a product and increase its

"ar%etability!

+hen an industrial design is protected, the owner - the person or entity

that has registered the design - is assured an exclusive right against

unauthori$ed copying or i"itation of the design by third parties! #his helps

to ensure a fair return on invest"ent! 6n effective syste" of protection also

benefits consu"ers and the public at large, by pro"oting fair co"petition

and honest trade practices, encouraging creativity, and pro"oting "ore

aesthetically attractive products!

Protecting industrial designs helps econo"ic develop"ent, by encouraging

creativity in the industrial and "anufacturing sectors, as well as in

traditional arts and crafts! #hey contribute to the expansion of co""ercial

activities and the export of national products!




Industrial designs can be relatively si"ple and inexpensive to develop and

protect! #hey are reasonably accessible to s"all and "ediu"-si$ed

enterprises as well as to individual artists and crafts"en, in bothindustriali$ed and developing countries!

%o+ can industrial designs ,e protected'

In "ost countries, an industrial design "ust be registered in order to be

protected under industrial design law! 6s a general rule, to be registrable,

the design "ust be FnewF or F originalF! Different countries have varying

definitions of such ter"s, as well as variations in the registration process

itself! 3enerally, FnewF "eans that no identical or very si"ilar design is

%nown to have existed before! nce a design is registered, a registration

certificate is issued! &ollowing that, the ter" of protection is generally five

years, with the possibility of further periods of renewal up to, in "ost

cases, 10 years!

Depending on the particular national law and the %ind of design, an

industrial design "ay also be protected as a wor% of art under copyright

law! In so"e countries, industrial design and copyright protection can exist

concurrently! In other countries, they are "utually exclusive8 once the

owner chooses one %ind of protection, he can no longer invo%e the other!

nder certain circu"stances an industrial design "ay also be protectableunder unfair co"petition law, although the conditions of protection and the

rights and re"edies ensured can be significantly different!




%o+ e1tensi*e is industrial design protection'

3enerally, industrial design protection is li"ited to the country in which

protection is granted! nder the 7ague 6gree"ent 5oncerning the

International Deposit of Industrial Designs, a +IP-ad"inistered treaty, a

procedure for an international registration is offered! 6n applicant can file a

single international deposit either with +IP or the national office of a

country which is party to the treaty! #he design will then be protected in as

"any "e"ber countries of the treaty as the applicant wishes!

$EO$RAP%ICAL INDICATION#

&at is a geograpical indication'

6 geographical indication is a sign used on goods that have a specific

geographical origin and possess 'ualities or a reputation that are due to

that place of origin! 4ost co""only, a geographical indication consists of

the na"e of the place of origin of the goods! 6gricultural products typically

have 'ualities that derive fro" their place of production and are influenced

by specific local factors, such as cli"ate and soil! +hether a sign functions

as a geographical indication is a "atter of national law and consu"er

perception! 3eographical indications "ay be used for a wide variety of

agricultural products, such as, for exa"ple, F#uscanyF for olive oil produced

in a specific area of Italy (protected, for exa"ple, in Italy by Haw 2o! 1=9 of

&ebruary 0, 199.), or FRo'uefortF for cheese produced in &rance




(protected, for exa"ple, in the ;uropean nion under Regulation (;5) 2o!

./E1C9. and in the nited *tates under * 5ertification Registration 4ar%

2o! 01!9E)!

&at does a geograpical indication do'

6 geographical indication points to a specific place or region of

production that deter"ines the characteristic 'ualities of the product that

originates therein! It is i"portant that the product derives its 'ualities and

reputation fro" that place! *ince those 'ualities depend on the place of

production, a specific Flin%F exists between the products and their original

place of production!

&y do geograpical indications need protection'

3eographical indications are understood by consu"ers to denote the

origin and the 'uality of products! 4any of the" have ac'uired valuable

reputations which, if not ade'uately protected, "ay be "isrepresented bydishonest co""ercial operators! &alse use of geographical indications by

unauthori$ed parties is detri"ental to consu"ers and legiti"ate producers!

#he for"er are deceived and led into believing to buy a genuine product

with specific 'ualities and characteristics, while they in fact get a worthless

i"itation! #he latter suffer da"age because valuable business is ta%en

away fro" the" and the established reputation for their products is

da"aged!




Di""erence ,et+een a geograpical indication and a trade(ar/'

6 trade"ar% is a sign used by an enterprise to distinguish its goods

and services fro" those of other enterprises! It gives its owner the right to

exclude others fro" using the trade"ar%! 6 geographical indication tells

consu"ers that a product is produced in a certain place and has certain

characteristics that are due to that place of production! It "ay be used by

all producers who "a%e their products in the place designated by a

geographical indication and whose products share typical 'ualities!

%o+ is a geograpical indication protected'

3eographical indications are protected in accordance with national

laws and under a wide range of concepts, such as laws against unfair

co"petition, consu"er protection laws, laws for the protection of

certification "ar%s or special laws for the protection of geographical

indications or appellations of origin! In essence, unauthori$ed parties "ay

not use geographical indications if such use is li%ely to "islead the public

as to the true origin of the product! 6pplicable sanctions range fro" court

in@unctions preventing the unauthori$ed use to the pay"ent of da"ages

and fines or, in serious cases, i"prison"ent!

%o+ are geograpical indications protected on te international

le*el'

6 nu"ber of treaties ad"inistered by the +orld Intellectual Property

rgani$ation (+IP) provide for the protection of geographical indications,




"ost notably the Paris 5onvention for the Protection of Industrial Property

of 1EE, and the Hisbon 6gree"ent for the Protection of 6ppellations of

rigin and #heir International Registration! In addition, 6rticles .. to .> of the 6gree"ent on #rade-Related 6spects of Intellectual Property Rights

(#RIP*) deal with the international protection of geographical indications

within the fra"wor% of the +orld #rade rgani$ation (+#)!

&at is a 2generic2 geograpical indication'

If a geographical ter" is used as the designation of a %ind of product,

rather than an indication of the place of origin of that product, this ter"

does no longer function as a geographical indication! +here that has

occurred in a certain country over a substantial period of ti"e, that country

"ay recogni$e that consu"ers have co"e to understand a geographical

ter" that once stood for the origin of the product - for exa"ple, FDi@on

4ustard,F a style of "ustard originally fro" the &rench town of Di@on - to

denote now a certain %ind of "ustard, regardless of its place of production!

&at is &IPO3s role in protection geograpical indications'

+IP is in charge of the ad"inistration of a nu"ber of international

agree"ents which deal partly or entirely with the protection of

geographical indications (see, in particular, the Paris 5onvention for the

Protection of Industrial Property, and the Hisbon 6gree"ent for the

Protection of 6ppellations of rigin and #heir International Registration)!

&urther"ore, through the wor% of the *tanding 5o""ittee on the Haw of




#rade"ar%s, Industrial Designs and 3eographical Indications, "ade up of

representatives of "e"ber *tates and interested organi$ations, +IP

explores new ways of enhancing the international protection of geographical indications!

COPYRI$%T

&at Is Copyrigt

5opyright is an exclusive right to "a%e and dispose of copies of a literary,

"usical, or artistic wor%! or

5opyright is a for" of protection provided by the laws to the authors of

Aoriginal wor%s of authorship,B including literary, dra"atic, "usical, artistic,

and certain other intellectual wor%s! #his protection is available to both

published and unpublished wor%s! 5opyright 6ct generally gives the owner

of copyright the exclusive right to do and to authori$e others to do the

following8

• #o reproduce the wor% in copies or phonorecordsG

• #o prepare derivative wor%s based upon the wor%G

• #o distribute copies or phonorecords of the wor% to the public by sale

or other transfer of ownership, or by rental, lease, or lendingG

• #o perfor" the wor% publicly, in the case of literary, "usical, dra"atic,

and choreographic wor%s, panto"i"es, and "otion pictures and

other audiovisual wor%sG

http://www.investorwords.com/4282/right.html

http://www.investorwords.com/4282/right.html




• #o display the wor% publicly, in the case of literary, "usical, dra"atic,

and choreographic wor%s, panto"i"es, and pictorial, graphic, or

sculptural wor%s, including the individual i"ages of a "otion pictureor other audiovisual wor%G and

• In the case of sound recordings , to perfor" the wor% publicly by

"eans of a digital audio trans"ission!

In addition, certain authors of wor%s of visual art have the rights of

attribution and integrity It is illegal for anyone to violate any of the rights

provided by the copyright law to the owner of copyright! #hese rights,

however, are not unli"ited in scope! 5opyright 6ct establishes li"itations

on these rights! In so"e cases, these li"itations are specified exe"ptions

fro" copyright liability! ne "a@or li"itation is the doctrine of Afair use,B

which is given a statutory basis in 5opyright 6ct! In other instances, the

li"itation ta%es the for" of a Aco"pulsory licenseB under which certain

li"ited uses of copyrighted wor%s are per"itted upon pay"ent of specified

royalties and co"pliance with statutory conditions! &or further infor"ation

about the li"itations of any of these rights, consult the copyright law or

write to the 5opyright ffice!

&o Can Clai( Copyrigt'

5opyright protection subsists fro" the ti"e the wor% is created in fixed

for"! #he copyright in the wor% of authorship i""ediately beco"es the

property of the author who created the wor%! nly the author or those

deriving their rights through the author can rightfully clai" copyright!

http://www.copyright.gov/circs/circ1.html#sound

http://www.copyright.gov/circs/circ1.html#sound




In the case of wor%s "ade for hire, the e"ployer and not the e"ployee is

considered to be the author! *ection 1/1 of the copyright law defines a

Awor% "ade for hireB as81! a wor% prepared by an e"ployee within the scope of his or her

e"ploy"entG or

.! a wor% specially ordered or co""issioned for use as8

• a contribution to a collective wor%

• a part of a "otion picture or other audiovisual wor%

• a translation

• a supple"entary wor%• a co"pilation

• an instructional text

• a test

• answer "aterial for a test

• an atlas

if the parties expressly agree in a written instru"ent signed by the" that

the wor% shall be considered a wor% "ade for hire!

#he authors of a @oint wor% are co-owners of the copyright in the wor%,

unless there is an agree"ent to the contrary!

5opyright in each separate contribution to a periodical or other collective

wor% is distinct fro" copyright in the collective wor% as a whole and vests

initially with the author of the contribution!

T+o $eneral Principles

• 4ere ownership of a boo%, "anuscript, painting, or any other copy or

phonorecords does not give the possessor the copyright! #he law

http://www.copyright.gov/title17/92chap1.html#101

http://www.copyright.gov/title17/92chap1.html#101




provides that transfer of ownership of any "aterial ob@ect that

e"bodies a protected wor% does not of itself convey any rights in the

copyright!• 4inors "ay clai" copyright, but state laws "ay regulate the business

dealings involving copyrights owned by "inors! &or infor"ation on

relevant state laws, consult an attorney!

Copyrigt and National Origin o" te &or/

5opyright protection is available for all unpublished wor%s, regardless of

the nationality or do"icile of the author!Published wor%s are eligible for copyright protection in the nited *tates if

any one of the following conditions is "et8

• n the date of first publication, one or "ore of the authors is a

national or do"iciliary of the nited *tates, or is a national,

do"iciliary, or sovereign authority of a treaty party, or is a stateless

person wherever that person "ay be do"iciledG or

• #he wor% is first published in the nited *tates or in a foreign nation

that, on the date of first publication, is a treaty party! &or purposes of

this condition, a wor% that is published in the nited *tates or a treaty

party within / days after publication in a foreign nation that is not a

treaty party shall be considered to be first published in the nited

*tates or such treaty party, as the case "ay beG or

• #he wor% is a sound recording that was first fixed in a treaty partyG or

• #he wor% is a pictorial, graphic, or sculptural wor% that is incorporated

in a building or other structure, or an architectural wor% that is




e"bodied in a building and the building or structure is located in the

nited *tates or a treaty partyG or

• #he wor% is first published by the nited 2ations or any of itsspeciali$ed agencies, or by the rgani$ation of 6"erican *tatesG or

• #he wor% is a foreign wor% that was in the public do"ain in the nited

*tates prior to 199= and its copyright was restored under the ruguay

Round 6gree"ents 6ct (R66)! Re'uest 5ircular Eb, 7ighlights of

5opyright 6"end"ents 5ontained in the ruguay Round 6gree"ents

6ct (R66-36##), for further infor"ation!

• #he wor% co"es within the scope of a Presidential procla"ation!

&at &or/s Are Protected'

5opyright protects Aoriginal wor%s of authorshipB that are fixed in a tangible

for" of expression! #he fixation need not be directly perceptible so long as

it "ay be co""unicated with the aid of a "achine or device!

5opyrightable wor%s include the following categories8

1! literary wor%sG

.! "usical wor%s, including any acco"panying words

! dra"atic wor%s, including any acco"panying "usic

>! panto"i"es and choreographic wor%s

0! pictorial, graphic, and sculptural wor%s

=! "otion pictures and other audiovisual wor%s

! sound recordings

E! architectural wor%s

http://www.copyright.gov/circs/circ38b.pdf

http://www.copyright.gov/circs/circ38b.pdf




#hese categories should be viewed broadly! &or exa"ple, co"puter

progra"s and "ost Aco"pilationsB "ay be registered as Aliterary wor%sBG

"aps and architectural plans "ay be registered as Apictorial, graphic, andsculptural wor%s!B

&at Is Not Protected ,y Copyrigt'

*everal categories of "aterial are generally not eligible for federal

copyright protection! #hese include a"ong others8

•

+or%s that have not been fixed in a tangible for" of expression (for exa"ple, choreographic wor%s that have not been notated or

recorded, or i"provisational speeches or perfor"ances that have not

been written or recorded)

• #itles, na"es, short phrases, and slogansG fa"iliar sy"bols or

designsG "ere variations of typographic orna"entation, lettering, or

coloringG "ere listings of ingredients or contents

• Ideas, procedures, "ethods, syste"s, processes, concepts,

principles, discoveries, or devices, as distinguished fro" a

description, explanation, or illustration

• +or%s consisting entirely of infor"ation that is co""on property and

containing no original authorship (for exa"ple8 standard calendars,

height and weight charts, tape "easures and rulers, and lists or

tables ta%en fro" public docu"ents or other co""on sources)




Copyrigt Registration

In general, copyright registration is a legal for"ality intended to "a%e a

public record of the basic facts of a particular copyright! 7owever,registration is not a condition of copyright protection! ;ven though

registration is not a re'uire"ent for protection, the copyright law provides

several induce"ents or advantages to encourage copyright owners to

"a%e registration! 6"ong these advantages are the following8

• Registration establishes a public record of the copyright clai"!

•

efore an infringe"ent suit "ay be filed in court, registration isnecessary for wor%s of !*! origin!

• If "ade before or within 0 years of publication, registration will

establish pri"a facie evidence in court of the validity of the copyright

and of the facts stated in the certificate!

• If registration is "ade within "onths after publication of the wor% or

prior to an infringe"ent of the wor%, statutory da"ages and attorneys

fees will be available to the copyright owner in court actions!

therwise, only an award of actual da"ages and profits is available

to the copyright owner!

• Registration allows the owner of the copyright to record the

registration with the ! *! 5usto"s *ervice for protection against the

i"portation of infringing copies!

Registration "ay be "ade at any ti"e within the life of the

copyright! nli%e the law before 19E, when a wor% has been

registered in unpublished for", it is not necessary to "a%e another




registration when the wor% beco"es published, although the

copyright owner "ay register the published edition, if desired!

Registration Procedures

Original Registration

#o register a wor%, send the following three ele"ents in the sa"e envelope

8

1! 6 properly co"pleted application for"!

.! 6 nonrefundable filing fee

for each application!

! 6 nonreturnable deposit of the wor% being registered! #he deposit

re'uire"ents vary in particular situations! #he general re'uire"ents

follow! 6lso note the infor"ation under A*pecial Deposit

Re'uire"ents!B

o If the wor% was first published in the nited *tates on or after

January 1, 19E, two co"plete copies or phonorecords of the

best edition!

o If the wor% was first published in the nited *tates before

January 1, 19E, two co"plete copies or phonorecords of the

wor% as first published!

o If the wor% was first published outside the nited *tates, one

co"plete copy or phonorecords of the wor% as first published!

o If sending "ultiple wor%s, all applications, deposits, and fees

should be sent in the sa"e pac%age! If possible, applications

http://www.copyright.gov/circs/circ1.html#note

http://www.copyright.gov/circs/circ1.html#sdr


http://www.copyright.gov/circs/circ1.html#note






should be attached to the appropriate deposit! +henever

possible, nu"ber each pac%age (e!g!, 1 of , . of >) to facilitate

processing!

&o -ay File an Application For('

#he following persons are legally entitled to sub"it an application for"8

• #he author! #his is the person who actually created the wor% or, if the

wor% was "ade for hire, the e"ployer or other person for who" the

wor% was prepared!• #he copyright clai"ant! #he copyright clai"ant is defined in 5opyright

ffice regulations as either the author of the wor% or a person or

organi$ation that has obtained ownership of all the rights under the

copyright initially belonging to the author! #his category includes a

person or organi$ation who has obtained by contract the right to clai"

legal title to the copyright in an application for copyright registration!

• #he owner of exclusive right(s)! nder the law, any of the exclusive

rights that "a%e up a copyright and any subdivision of the" can be

transferred and owned separately, even though the transfer "ay be

li"ited in ti"e or place of effect! #he ter" Acopyright ownerB with

respect to any one of the exclusive rights contained in a copyright

refers to the owner of that particular right! 6ny owner of an exclusive

right "ay apply for registration of a clai" in the wor%!

• #he duly authori$ed agent of such author, other copyright clai"ant, or

owner of exclusive right(s)! 6ny person authori$ed to act on behalf of




the author, other copyright clai"ant, or owner of exclusive rights "ay

apply for registration!

#here is no re'uire"ent that applications be prepared or filed by anattorney!

REFERENCE

6766625 intellectual property rights

Documents