Patent Basics A patent on an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States. There are three types of patents: utility, design, and plant. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or compositions of matter, or any new useful improvement thereof.
Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plants. Copyright protection can generally be obtained in three months. Alternatively, patent protection does not exist until a patent is issued. Generally it takes approximately two years from the date of filing a patent application until the issuance of a patent.
For works created in or thereafter, the copyright term commences upon creation. For most works, the term continues for the life of the author plus 70 years. For pseudonymous and anonymous works, and works made for hire, the term continues until 95 years from first publication or years from creation, whichever expires first.
Works that were created before but remained unpublished on January 1, have the same term as works created in or thereafter, as described above, with one exception. The exception is that the copyright term of any such work that was published before the end of will not expire before the end of Before the current Copyright Act became effective in , publication of a work in the United States with a proper copyright notice conferred statutory copyright and commenced the copyright term.
Publication of the work in the United States without a proper copyright notice placed the work in the public domain, with narrow exceptions. The same general rule continued, with somewhat broader exceptions, until March 1, Hence, for works published in the United States before or, with more exceptions, before March 1, , if there is no copyright notice, the work may well be in the public domain.
Be particularly careful with works of foreign origin. Special rules have restored copyright in some foreign works published in this country without proper notice.
Works that were created before and published with a proper copyright notice before are now in the public domain. Works published with a proper copyright notice from through had an initial copyright term of 28 years, which could be renewed for a second term that now extends 67 years, for a total of 95 years.
For these works, a renewal filing with the Copyright Office near the end of the first term was necessary to secure the second term; if a timely filing was not made, the work fell into the public domain at the end of the first term.
To determine whether the copyright was renewed, you can check with the Copyright Office in Washington , or www. Alternatively, you can find some, but not all, Copyright Office renewal records online, either at the Copyright Office website www. Works published with a proper copyright notice from through also had an initial term of 28 years, with a renewal term of 67 years, for a total of 95 years, but the renewal term vested or will vest automatically at the end of the first term without any filing.
Footnote 1 of the Hirtle document contains references to a number of other useful resources. Note that one work may incorporate or be based upon an earlier work. For example, with appropriate permission, a motion picture may be based on a novel, or a book may include a photograph.
The copyrights remain separate. Hence, the copyright term of the earlier work is not extended by the use of that work in the later work. But the copyright notice on the later work may pertain only to the later work, which can lead to confusion about the copyright status of the earlier work. Sometimes a work that has fallen into the public domain is published with new commentary, notes or the like. The public domain work may be copied by others, but not the new matter, which is protected by copyright.
The discussion above concerns copyright term in the United States. The copyright term in foreign countries often varies from that in the U. This is true for works created in this country by U.
If you are reproducing, publishing, distributing or displaying a work in a foreign country, you will need to investigate the copyright term in that country, a subject beyond the scope of this guide. The copyright lasts for a term of years see above , regardless of whether the work is still in print.
How do I get permission to reproduce or disseminate someone else's copyrighted work? Find the copyright owner and ask. There are no special forms that must be used, and permission can be oral or written, though it is good practice to obtain permission in writing. The copyright owner is free to charge whatever fee he or she wishes, though the user is likewise free to try to negotiate a lower fee.
Most major publishers and periodicals have a "permissions desk" or a "rights editor," and a written request addressed in this way will usually find its way to the right person. You should specify the publication you wish to take from; the precise pages, chapters, photographs or the like you want to use; how many copies you want to make; and the purpose of your use for example, "as a handout in an undergraduate course in economics at Harvard College".
Many permissions desks accept requests by e-mail or through the publisher's website. You can make as many copies as you like, without advance permission, from certain academic and scholarly journals now enrolled with the Copyright Clearance Center, a private clearing house ; www. After you copy, you remit the prescribed per-copy fee to the CCC.
If a publication is enrolled with the CCC, its masthead will usually provide the necessary information. The CCC rules for course packs may differ; check with them for current information. Because the electronic environment presents us with new media, and even calls into question the concept of works "fixed" in a "tangible medium," a great many questions challenge the conventions of copyright doctrine.
Congress and the courts are struggling to keep up with new technology, and the opinions of scholars and commentators on how the law should cope with these new changes are in lively conflict.
Nonetheless, certain principles endure. The first and most important is that there is copyright law in cyberspace. A work that is available electronically—even if it is available only electronically—is as eligible for copyright protection as a work in any other medium.
Thus, the fact that you can download text or graphics does not mean that the material is not copyrighted. And the ability to download a copyrighted work does not mean that you are free to disseminate that work to others, either electronically or in hard copy. Those who put their work on the Internet and wish to control its use should use the copyright designation, just as they would do in print or any other medium.
You should abide by the following principles when you access a database or other electronic source of information from your own computer.
If you create a website and wish to post copyrighted material on it, you must obtain the permission of the copyright holder, just as you would for more traditional media, unless fair use or another exemption applies.
See the following section for a discussion of fair use and its application to course websites. If you are requesting permission to post material for the use of students in a Harvard course, your request should specify that the material will be restricted for example, by password or student ID number to students enrolled in the course, and that the site will be deactivated at the conclusion of the course.
Specify the expected enrollment. This information lets the publisher know that the material will not be available to the public, and allows publishers to set fees according to the number of users.
Harvard faculty and academic staff who create course web pages should consult their school's experts in this area for example, FAS Academic Technology Group , who can provide technical assistance. The Harvard libraries license a vast number of periodicals and other copyrighted works for educational use. If material you wish to make available to students is licensed, you will be able to establish a link to the resource from a course website, or otherwise furnish students a URL, which will enable them to access the material in electronic form and print a copy for personal use.
Like other aspects of digital media, the law relating to links from one website to another is not entirely settled. Generally, however, you should not have a problem if you simply post a link to another site, even if that site contains copyrighted material. In such a case, you are not publishing the material; you are simply pointing the way to someone else's publication. You should not, however, provide a link to a site that you have reason to know is violating copyright law—for example, a site that illicitly allows the free downloading of copyrighted software, music, or other material.
You may reasonably assume that a website has the right to include the material found there, unless you have reason to know it is infringing.
If the site you wish to link to specifies particular requirements or restrictions concerning linking e. Ordinarily, sites that require users to enter a user name and password do not permit linking that would bypass that process.
When you construct a link, be sure that it simply sends the user to another site. Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner.
The doctrine helps prevent a rigid application of copyright law that would stifle the very creativity the law is designed to foster. It allows one to use and build upon prior works in a manner that does not unfairly deprive prior copyright owners of the right to control and benefit from their works. The fair use defense is now codified in Section of the Copyright Act. The statutory formulation is intended to carry forward the fair use doctrine long recognized by the courts.
To determine whether a given use is fair use, the statute directs, one must consider the following four factors:. These factors are not exclusive, but are the primary—and in many cases the only—factors courts examine. The following questions consider each of these four factors in turn. What considerations are relevant in applying the first fair use factor—the purpose and character of the use? One important consideration is whether the use in question advances a socially beneficial activity like those listed in the statute: criticism, comment, news reporting, teaching, scholarship, or research.
Noncommercial use is more likely to be deemed fair use than commercial use, and the statute expressly contrasts nonprofit educational purposes with commercial ones. However, uses made at or by a nonprofit educational institution may be deemed commercial if they are profit-making. A use that supplants or substitutes for the original work is less likely to be deemed fair use than one that makes a new contribution and thus furthers the goal of copyright, to promote science and the arts.
Courts have also recognized, however, that non-transformative uses may be socially beneficial, and that a use does not have to be transformative to support a finding of fair use. The Supreme Court has cited reproduction of multiple copies for classroom distribution as the most obvious example of a non-transformative use that may be permitted as fair use in appropriate circumstances.
Other factors that sometimes weigh in the analysis of the first fair use factor include whether the use in question is a reasonable and customary practice and whether the putative fair user has acted in bad faith or denied credit to the author of the copyrighted work. What considerations are relevant in applying the second fair use factor—the nature of the copyrighted work?
The two main considerations are whether the work is published or unpublished and how creative the work is. Unpublished works are accorded more protection than published ones, as the author has a strong right to determine whether and when his or her work will be made public.
The fact that a previously published work is out of print may tend to favor fair use, since the work is not otherwise available. Works that are factual and less creative are more susceptible of fair use than imaginative and highly creative works.
This is in keeping with the general principle that copyright protects expression rather than ideas or facts. What considerations are relevant in applying the third fair use factor—the amount and substantiality of the portion used in relation to the copyrighted work as a whole?
Courts have taken both a quantitative and a qualitative approach in assessing the impact on the fair use analysis of the amount and substantiality of the portion used. What percentage of the original work has been used? There are no bright lines, but the higher the percentage, the more likely this factor is to weigh against fair use. Even if the percentage is fairly small, however, if the material used is qualitatively very important, this factor may weigh against fair use. Also important in applying the third factor is the nexus between the purpose of the fair use and the portion of the copyrighted work taken.
In order to register your software copyright, you must submit an application with the U. Copyright Office, complete with a non-returnable copy of the code to be registered.
In most instances, a portion of the code you submit with your application will become disclosed to the public.
Fortunately, you are not required to submit a complete copy of your code, so you can preserve critical portions as a trade secret and still obtain copyright protection as well. You should consult with a qualified intellectual property lawyer who has experience with trade secrets and registering software with the U. Copyright Office if you have concerns about maintaining trade secret protection while obtaining copyright protection for your software code.
0コメント