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Intellectual Property Law

This guide covers basic resources for researching intellectual property (IP) law: copyright, patents, trademarks, and more.

Introduction

The U.S. Copyright Office defines "copyright" as:

US Copyright Office Logo
[T]he author's (creators of all sorts such as writers, photographers, artists, film producers, composers, and programmers) exclusive right to reproduce, prepare derivative works, distribute copies, and publicly perform and display their works. These rights may be transferred or assigned in whole or in part in writing by the author. Unless otherwise agreed in writing, work created by an employee is usually owned by the employer.

The duration of most copyright is the life of the author plus 70 years. For more on the duration of copyright, see U.S. Copyright Office, Circular 15A. For more on determining whether a work is public domain, see Cornell's Copyright Information Center.

"Original works of authorship" are copyrightable. §102 of the Copyright Act includes:

  1. Literary works
  2. Musical works, including accompanying words
  3. Dramatic works, including any accompanying music
  4. Pantomimes and choreographic works
  5. Pictorial, graphic, and sculptural works
  6. Motion pictures and other audiovisual works
  7. Sound recordings
  8. Architectural works

The following are NOT copyrightable:

  • Ideas, procedures, methods, systems, processes, concept, principles, or discoveries
  • Works that are not fixed in a tangible form
  • Titles, names, short phrases, and slogans
  • Familiar symbols or designs
  • Mere variations of typographic ornamentation, lettering, or coloring
  • Mere listings of ingredients or contents

For more on works not protected by copyright, see U.S. Copyright Office, Circular 33.

Registration is not required for copyright protection—any original work "fixed in any tangible medium" is protected by copyright. In addition to establishing a public record of a copyright claim, registration offers several other statutory advantages:

  • Before an infringement suit may be filed in court, registration (or refusal) is necessary for U.S. works.
  • Registration establishes prima facie evidence of the validity of the copyright and facts stated in the certificate when registration is made before or within five years of publication.
  • When registration is made prior to infringement or within three months after publication of a work, a copyright owner is eligible for statutory damages, attorneys’ fees, and costs.
  • Registration permits a copyright owner to establish a record with the U.S. Customs and Border Protection for protection against the importation of infringing copies.

For more on copyright registration, see U.S. Copyright Office, Circular 2.

Primary Law

Historical Antecedents

  • Statute of Anne, 8 Ann., c. 19 (1709)
    A British statute that established a copyright term of 14 years from the date of publication, renewable once, and provided for fines and forfeiture of infringing copies. It did not apply to U.S. colonies but greatly influenced the first copyright legislation in America.
     
  • Continental Congress 1783 Resolution
    The Continental Congress had no authority under the Articles of Confederation to issue copyright and could only encourage states to enact legislation. All states would all pass copyright acts by 1786. For more colonial history, see Patry's The Colonies and Copyright.
     
  • Copyright Act of 1790, Pub.L. 1–15, 1 Stat. 124
    The first federal copyright act of the United States. The act established a copyright term of 14 years from the date of publication, renewable once, and was restricted to "books, maps, and charts" (although musical compositions were routinely registered as 'books'). The act exclusively applied to U.S. citizens, and registrations were administered by the U.S. District Courts. Registration would not be centralized in the U.S. Copyright Office until the Copyright Act of 1870.

For a timeline of U.S. copyright law, see the Copyright Timeline. For more on the history and origin of U.S. copyright, see Research Handbook on the History of Copyright Law.

 

The Constitution

The Intellectual Property Clause of the Constitution states:

[Congress shall have 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.

U.S. Const. art. 1, § 8, cl. 8. For more on the origins and scope of copyright, see the Constitution Annotated.

 

Statutes

The Copyright Act is codified in Title 17 of the U.S. Code. For a quick guide to copyright compliance at CWRU, please see Using Works and Copyright.

 

§ 106 – Copyright Owner's Exclusive Right

Subject to §§ 107-112, the owner of copyright has the exclusive rights to do and to authorize any of the following:

  1. to reproduce the copyrighted work in copies or phonorecords;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
  5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  6. in the case of sound recordings, to perform the copyrighted work publicly by means of audio digital transmission.

 

§§ 107-112 – Limitations on a Copyright Owner's Exclusive Rights
§ 107 – Fair Use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
  1. the purpose and character of the use, including whether such use is of a 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; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.
For an index of cases dealing with fair use, see The Copyright Office Fair Use Index.
§ 108 – Reproductions by Libraries and Archives
§ 108 authorizes eligible libraries and archives to reproduce and distribute certain copyrighted works without permission on a limited basis for the purposes of preservation, replacement, and research.
§ 108 Checklist
§ 109(a) – First Sale Doctrine
§ 109 authorizes the owner of a work that was legally made or someone who has permission from that owner, to sell or dispose of the work without permission of the copyright owner.

 

Technology, Education, and Copyright Harmonization (TEACH) Act of 2002

The TEACH Act enables accredited, nonprofit educational institutions to use copyright protected materials in distance education—including uploading to websites and by other digital means—without permission from the copyright owner and without payment of royalties.

116 Stat. 1758 § 13301
TEACH Act Checklist

 

Legislative History

For more on compilations and legislative history, see our Federal Legislative Research Guide.

 

Copyright Act of 1909
Copyright Act of 1976
Digital Millennium Copyright Act (DMCA)
Sonny Bono Copyright Term Extension Act of 1998

 

Proposed Legislation

 

Regulations

Title 37 of the Code of Federal Regulations (CFR) contains patent, trademark, and copyright regulations. Regulations promulgated by the U.S. Copyright Office are contained in Chapter II (eCFR | Westlaw | Lexis). The Copyright Office's website also contains Open Rulemaking Proceedings.

For more on where to locate the CFR and the Federal Register in print and online, see our Federal Regulation Research Guide.

 

Cases

 

Secondary Sources

CALI (Computer Assisted Legal Instruction) lessons and tutorials:

Government

 

Industry Groups: Entertainment & Media

 

Library Associations

 

Computers & Technology

  • Business Software Alliance (BSA)
    BSA represents the interests of the computer software and electronic commerce industries.
  • Electronic Frontier Foundation (EFF)
    EFF is the leading nonprofit organization defending digital civil liberties in the digital world. Issues they work on include privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development. They "work to ensure that rights and freedoms are enhanced and protected as our use of technology grows."
  • TechAmerica
    TechAmerica is a trade association that represents the interests of the information technology industry.
  • Software & Information Industries Association (SIIA)
    SIIA represents the interests of the software and digital content industry.

 

Professional Associations (Legal)

 

Other Groups & Resources

  • Copyright Clearance Center
    CCC licenses reproduction rights for electronic and print content and collects license fees for use of that content.
  • Copyright Society of the U.S.A.
    Advances "the study of copyright law and related rights" across all media.
  • Creative Commons
    Creative Commons is a project that authors protect and share their works with alternative copyright licenses.
  • Berkman Center for Internet & Society (Harvard University)
    Research center that studies the Internet and application of law to cyberspace.
  • Techdirt
    The Techdirt blog offers news & analysis on a number of issues involving the intersection of law, government policy, and technology. See posts tagged with "copyright".
  • Lumen
    Formerly known as "Chilling Effects Clearinghouse," Lumen is an independent research project from the Berkman Klein Center for Internet & Society at Harvard University studying cease and desist letters concerning online content.
  • Public Knowledge: Copyright Reform
    An advocacy group that "promotes freedom of expression, an open Internet, and access to affordable communications tools and creative works." Focuses on issues at the intersection of copyright, telecommunications, and Internet law.
  • UNESCO Collection of National Copyright Laws
    Comprehensive collection of copyright laws from UNESCO Member States.
  • Stanford Copyright and Fair Use Center
    This site contains a lot of useful, easy-to-understand information on copyright law and how it applies to libraries and education.
  • Center for the Study of the Public Domain Law (Duke Law)
    The center promotes scholarship on the public domain (i.e., materials not protected by intellectual property law and free to use) and how it contributes to art, science, and culture.
  • Knowledge Ecology International (KEI)
    KEI is a not-for-profit non governmental organization focused on the management of knowledge resources, including patent & copyright law and policy. KEI is "focused on social justice, particularly for the most vulnerable populations, including low-income persons and marginalized groups."