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High-Tech Times Article 011

Intellectual Property and Data Rights

With our word-processors, page-layout, and image-manipulation software, we're all digital authors today.  But are we original authors?  That's the question I pose to you today.


How to protect works of the mind from theft, unauthorized use, and misuse is an ever-growing issue, especially with the spread of the Internet.  If you've spent precious time (and brainpower) creating a new piece of art, an engineering design, or just a real funny cartoon, I'm sure the last thing you want to do is give away the fruits of your labor without the compensation that's due you.


Cartoonist Gary Larson was never overly bothered by his fans' enthusiasm.  He was pleased that copies of his The Far Side hang on millions of desks, bulletin boards, and refrigerators around the world.  However, when Larson found digitally-pirated copies of his cartoons on fans' Web sites, he was compelled to ask his admirers to stop.  "On the one hand," Larson wrote in an open letter in late 1996, "I confess to find it quite flattering that some of my fans have created Web sites displaying and/or distributing my work on the Internet.  And, on the other, I'm struggling to find the words that convincingly but sensitively persuade these Far Side enthusiasts to 'cease and desist' before they have to read these words from some lawyer."


Oh, for the days of good old-fashioned theft, where a thief was a second-story man in dark clothing, clinging to the fire escape to quietly pick the lock and steal your cat!  Now, we have CyberTheft where the trick is to steal the digital image without the owner knowing it has been stolen and reproduced by the thousands.  Are we becoming a nation of digital art thieves?  Not intentionally, according to Dick Weisgrau, executive director of the American Society of Media Photographers.  "The fact is, most of the people will not go out and invest in the equipment and the training to steal with it.  They will use it to create."


He and others believe that most infringements arise not out of maliciousness, but more from plain ignorance of what is and isn't legal in the arena of reproduction.  For example, while art and design schools often feature courses on copyright law, students are sometimes encouraged to "borrow" from other artists as part of their projects.  And many artists don't have any formal training at all, and thus have little exposure to these legalities.  If infringement seems like a slippery problem, who owns which electronic images is even more so.  That's partly because creators and publishers have always butted heads over ownership rights and other contract issues for hundreds of years.


Let's talk first briefly about protecting your own works.  The most basic form of intellectual property (IP) protection is the copyright.  Copyrights cover unique, original, creative, and expressive works of any sort, from songs, to books, to articles, to Web pages.  As the name implies, the copyright owner holds the rights to copy the work or assign that right to others.  The law states that the owner holds an "implicit" copyright immediately upon the creation of a work.  But this law covers only the look of this work, not its function.  Thus, if someone creates a sculpture exactly like yours without ever seeing yours, there is no copyright infringement.  And if you create a device that looks like a gold hourglass that turns water into wine, your copyright covers the look, not the function or process.


There are two types of copyright: registered and unregistered.  For a $20 fee and a few minutes filling out a form, you will have the inalienable right to sue the pants off anyone who misuses your copyright.  Even though you have an automatic copyright on a work you create, it's a good idea to include the standard copyright notice in the format "Copyright XYZ 1998.  All Rights Reserved."  Be sure to use the actual character, rather than a "c" with parentheses!  On the Web, spell it out, as the end-user's browser may not show the correct character.  Registered copyrights remain in force for the life of the person who created the work plus 50 years; corporations have a longer period.  A good place to keep your copyright for digital graphics is in a digital watermark, such as the services offered by Digimarc Corp. <>.


Trademarks are more specific IP protection, and can consist of graphics, such as in a company or product logo and/or text.  Trademarks are used to uniquely identify its owner as well as a product, and their purpose is to build a strong and protected identity.  Disney has trademarked Mickey Mouse, NBC has its peacock, and McDonalds is known worldwide by its golden arches.  But textual trademarks are the most common, and they are usually phrases, marketing slogans, or product names.  By necessity, they are usually short, and apply to a specific industry.


As with copyrights, you can have a common-law trademark just by putting to use.  You simply put a symbol next to the item you want to trademark.  Registering a trademark costs more than a copyright, $245, and you must provide samples of the trademark in use.  You must also list the trademark as belonging to a specific class of products, and you need to document when the trademark was first sent across state lines (on advertising, a product, etc.).  Trademarks must be renewed every 10 years to remain active.  There are a number of other requirements for trademark registration, all of which should be referred by you, like all other advice in this column, to your favorite lawyer.


Patents are even more complicated, and I'm not going to even try to cover them here.


Okay, now you have some basic ideas on protecting your rights; how about those of other authors?  Let's start with a rather new capability: copying music digitally to a CD-ROM disc.  On the surface, the use of CD-Recording (CD-R) to copy copyrighted commercial audio (from radio, CD, or whatever) for distribution and sale constitutes piracy, pure and simple.  But what if you're only copying songs from your own private collection for your own superior listening experience?  As of today, you do not have "right to copy," but you do have immunity from any copyright infringement action under Section 1008 of the Audio Home Recording Act of 1992, provided that the copying is performed with a device designed in compliance with that Act.  And good luck on finding out if your specific CD-R drive is definitely in compliance....


Now let's look at reprints of written (hardcopy) and digital materials.  The U.S. Government is pretty harsh on copyright violators.  The section of the law pertaining to copyright infringement states that "anyone who violates any of the exclusive rights of the copyright an infringer of the copyright or right of the author...."  And to make matters worse, the law also states that "anyone who infringes a copyright willfully, and for purposes of commercial advantage or private financial gain, shall be punished...."  And punishment in this case is criminal, including fines and imprisonment!  Do I have your attention now?


Let me close by listing a few steps you should take to protect your IP: (1) Park your goods - take advantage of our common law and mark your work as appropriate; (2) Protect your IP - if you catch anyone misusing your work, act quickly to get them to cease and desist - in court if needed; (3) Contracts and non-disclosure agreements with consultants, employees, and outside parties - be sure you have these legal documents in place whenever you have IP at risk. 


And a few steps to keep you from infringing on others' IP: (1) Don't Infringe!! - if you have any doubts about the ownership of materials you use (in other words, if you didn't personally create it within your firm), it's probably wisest not to use it at all; (2) Show your policy - have a copy of your or your company's intent not to infringe hanging on the wall right behind your desk in a prominent place (this may not protect you, but may keep the feds from charging you with willfulness); (3) Get indemnification - when you work with clients' materials, demand an indemnification clause in your contract that commits them to defending you in any lawsuit that's brought against you for copyright infringement on the job you're doing for them.


And always, if you have any doubts, call your lawyer!!  Good luck.