International, National, and Industry-Specific Regulations

One of the domains that has been deeply impacted by digital technologies is intellectual property. Digital technologies have driven a rise in new intellectual property claims and made it much more difficult to defend intellectual property. Intellectual property is defined as "property (as an idea, invention, or process) that derives from the work of the mind or intellect". This could include creations such as song lyrics, a computer program, a new type of toaster, or even a sculpture. 

Practically speaking, it is very difficult to protect an idea. Instead, intellectual property laws are written to protect the tangible results of an idea. In other words, just coming up with a song in your head is not protected, but if you write it down it can be protected. 

Protection of intellectual property is important because it gives people an incentive to be creative. Innovators with great ideas will be more likely to pursue those ideas if they have a clear understanding of how they will benefit. In the US Constitution, Article 8, Section 8, the authors saw fit to recognize the importance of protecting creative works: 

Congress shall have the power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

An important point to note here is the "limited time" qualification. While protecting intellectual property is important because of the incentives it provides, it is also necessary to limit the amount of benefit that can be received and allow the results of ideas to become part of the public domain. Outside of the US, intellectual property protections vary. You can find out more about a specific country's intellectual property laws by visiting the World Intellectual Property Organization. The following sections address three of the best-known intellectual property protections: copyright, patent, and trademark.

Copyright

Copyright is the protection given to songs, computer programs, books, and other creative works. Any work that has an "author" can be copyrighted. Under the terms of copyright, the author of a work controls what can be done with the work, including:

• Who can make copies of the work.
• Who can make derivative works from the original work.
• Who can perform the work publicly.
• Who can display the work publicly.
• Who can distribute the work. 

Many times, a work is not owned by an individual but is instead owned by a publisher with whom the original author has an agreement. In return for the rights to the work, the publisher will market and distribute the work and then pay the original author a portion of the proceeds. 

Copyright protection lasts for the life of the original author plus seventy years. In the case of a copyrighted work owned by a publisher or another third party, the protection lasts for ninety- five years from the original creation date. For works created before 1978, the protections vary slightly.

Obtaining Copyright Protection

In the United States a copyright is obtained by the simple act of creating the original work. In other words, when an author writes down a song, makes a film, or develops a computer program, the author has the copyright. However, for a work that will be used commercially, it is advisable to register for a copyright with the US Copyright Office. A registered copyright is needed in order to bring legal action against someone who has used a work without permission.

First Sale Doctrine

If an artist creates a painting and sells it to a collector who then, for whatever reason, proceeds to destroy it, does the original artist have any recourse? What if the collector, instead of destroying it, begins making copies of it and sells them? Is this allowed? The first sale doctrine is a part of copyright law that addresses this, as shown below: 

The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. Therefore, in our examples the copyright owner has no recourse if the collector destroys the artwork. But the collector does not have the right to make copies of the artwork.

Fair Use

Another important provision within copyright law is that of fair use. Fair use is a limitation on copyright law that allows for the use of protected works without prior authorization in specific cases. For example, if a teacher wanted to discuss a current event in class, copies of the copyrighted new story could be handed out in class without first getting permission. Fair use is also what allows a student to quote a small portion of a copyrighted work in a research paper. 

Unfortunately, the specific guidelines for what is considered fair use and what constitutes copyright violation are not well defined. Fair use is a well-known and respected concept and will only be challenged when copyright holders feel that the integrity or market value of their work is being threatened. The following four factors are considered when determining if something constitutes fair use:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; 
2. The nature of the copyrighted work; 
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; 
4. The effect of the use upon the potential market for, or value of, the copyrighted work. 

If you are ever considering using a copyrighted work as part of something you are creating, you may be able to do so under fair use. However, it is always best to check with the copyright owner to be sure you are staying within your rights and not infringing upon theirs.