In the United States, copyright law protects creators from having their works stolen or used without their permission. In the event that a work registered with the U.S. Copyright Office is stolen or infringed upon, the creator can pursue legal action. To ensure that your work is fully protected, you must have at least a basic understanding of copyright and how it applies to you and your work.
Copyright is the protection afforded to all creators of published and unpublished work, including the authors of artistic, dramatic, literary, and musical works. In addition, when you register your work with the U.S. Copyright Office, your copyright is protected both in the United States and in those countries that have a copyright protection agreement with the U.S.
Copyright allows you total control over your work: With exclusive copyright, you can reproduce your work; distribute and sell your creation; publicly perform the work; and publicly display your work.
According to U.S. law, copyright is immediately established the moment a work is created. For example, if you write a book, you legally hold exclusive copyrights to that book, unless you wrote the book on a work-for-hire basis in which you agreed to transfer all copyrights to another individual or business.
Transferring all copyrights is a common practice today, but the transfer is only valid if there is a written agreement that is signed by the original author or a legal representative acting on his behalf. However, if you’re giving another individual nonexclusive rights to a work, you do not need a written agreement for it to be valid.
For all works created after January 1, 1978, works are automatically protected by copyright law from the moment of creation until 70 years after the author’s death. Those works that are created on a work-for-hire basis or that are created by an anonymous author or an author with a pseudonym are protected (unless the author’s name appears in records of the U.S. Copyright Office) for a period of 95 years from the work’s publication or for a period of 120 years from the date of its creation, whichever proves to be shorter.
Because not all works are eligible for protection under copyright law, it’s important that you know what types of works are protected: Those works that are protected by. copyright law include: literary, musical, dramatic, pictorial, graphic, sculptural, architectural, choreographic, and audiovisual works as well as sound recordings, motion pictures, and pantomimes.
There are numerous benefits to registering an eligible work with the U.S. Copyright Office. In addition to receiving a certificate of registration, your copyright will automatically become a part of public record. Additionally, should someone use your work without your permission, you can file suit against that individual and may be entitled to both statutory damages and attorney’s fees.
Registering for a copyright with the U.S. Copyright Office is a fairly straightforward process. In addition to filling out an application form, you must pay an application fee and provide a copy, or a nonrefundable deposit, of your work to the Copyright Office. Failing to send all of the materials together in the same package will likely result in having your package sent back to you.
Archive for April, 2010
Introduction To Copyright
What Every Trademark Owner Needs To Know About The Relationship Between Trademarks And Domain Names
We are often approached by trademark owners concerned that their competition has registered a domain name that is similar to their trademark and is using the same to divert customers away from their own businesses. Here is what you need to know about the relationship between trademarks and domain names and what you can do to protect your trademarks from being used against you in competing domain names.
Registration of a Domain name is Not Trademark Use
As you are probably aware trademark rights generally attach to a trademark upon use of the mark in commerce. Although there are other ways to reserve rights in a mark before it is in use, using the mark is generally a pre-requisite to securing rights therein.
Many people believe that the registration of a domain name in and of itself creates trademark rights. Simply put, it does not. Look at a domain name like a phone number. It is merely an address on the world wide web where a web site may be located. So the address by itself is just that – an address. It is not a trademark.
Of note, this is not to say that domain name cannot become a trademark. Amazon.com has one of the web’s most recognized trademarks. But it is the name promoted on the pages of the web site Amazon.com which gives the owner trademark rights and not the URL amazon.com.
Cybersquatting
Although the registration of a domain name does not constitute trademark use per se, owning a valid trademark can preclude the subsequent registration of domain names that include or are similar to your trademarks.
There are two primary statutes or rules trademark holders can use to enforce their trademark rights against the subsequent registration of like domain names: (1) the Uniform Domain-Name Dispute-Resolution Policy (UDRP); and (2) the Anticybersquatting Consumer Protection Act (ACPA).
Both systems generally have the same requirements. A complainant in a UDRP or ACPA proceeding generally must establish three elements to succeed:
1. The domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights at the time the disputed domain name is registered;
2. The registrant does not have any rights or legitimate interests in the domain name; and
3. The registrant registered the domain name and is using it in “bad faith.”
In regard to bad faith, considerations of whether the domain name was registered in bad faith include, but are not limited to:
a. the registrant’s intent to divert customers from the mark owner’s online location that could harm the goodwill represented by the mark, for commercial gain or with the intent to tarnish or disparage the mark;
b. the registrant’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or a third party for financial gain, without having used the mark in a legitimate site;
c. the registrant’s providing misleading false contact information when applying for registration of the domain name; and
d. the registrant’s registration or acquisition of multiple domain names that are identical or confusingly similar to marks of others.
The UDRP and Its Remedies
The Uniform Domain-Name Dispute-Resolution Policy (UDRP) is a process established by the Internet Corporation for Assigned Names and Numbers (ICANN) for the resolution of disputes regarding the registration of internet domain names. The UDRP applies to all .com, .biz, .info, .name, .net, and .org top-level domains (TLDs), and some country code top-level domains.
In short, if you register a domain name with one of these TLDs, you are subject to the policy.
Under the policy a registrant consents, in advance, to binding arbitration under the UDRP concerning disputes to the ownership of the domain name. These disputes, which are handled by various authorized private arbitration companies throughout the world, allow for the quick and efficient resolution of UDRP claims.
Of note, the only remedy under a UDRP action for the prevailing party is to have the offending domain name transferred to their ownership. There are no money damages.
One significant benefit to the system – speed. From start-to-finish cases can often be completed in roughly 8 weeks. In light of the current state of our court systems that is about as fast as you are going to get.
The ACPA and Its Remedies
The ACPA was enacted by Congress and signed into law to combat the rising incidences of cybersquatting in the U.S. Unlike the UDRP which relies upon a relatively simple administrative proceeding, an allegation under the ACPA is generally set forth in a federal district lawsuit filed in a court of competent jurisdiction.
Unlike matters under a UDRP claim, speed is not one of the hallmarks of the federal district court system. Due to the complexities of the issues involved as well as other actors a case filed under the ACPA in federal district court can take a year or more to reach trial.
However, the remedies under the ACPA are much broader than those under the UDRP. Should a Plaintiff be successful, in addition to transfer of the disputed name the prevailing party may also be awarded monetary damages, costs, and attorneys’ fees.
Summary
So if you (1) have existing rights in a trademark and (2) someone thereafter registers a domain name similar to that mark (3) in bad faith you may be able to have the domain name transferred to you. If you just want the domain name pursue the matter under the UDRP. If you want more, a claim under the ACPA will be required.
Posted in Copyrighting 
Tags: About, Between, Domain, Every, Know, Names, Needs, Owner, Relationship, Trademark, Trademarks 
No Comments »Patents and Ethics in the Pharmaceutical Industry
Abstract
This paper is concerned with the impacts of strict patents in the pharmaceutical industry, focusing on the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement. It discusses the historical and current policy context, to better understand how strict patents affect the availability of essential drugs in developing countries.
The research shows that the pharmaceutical industry prioritises profit above health. Strict patents reduce the availability and affordability of new essential drugs in developing countries, and thereby have a negative impact on the health of the world’s poor. Larger pharmaceutical companies benefit more than smaller companies because they have a monopoly in the industry. They invest more in research and development and, linked to economies of scale, are better positioned to exploit markets for new drugs.
The example of India highlights the importance of generic production and essential drugs in developing countries. It shows that while TRIPs promotes economic growth of the industry and encourages investment in research and development of new drugs, it increases the prices of new essential drugs, thereby isolating benefits from the majority poor populations in developing countries.
The paper suggests that based on historical and current trade policy, developed countries have an ethical obligation to allow poorer countries to develop infrastructure for their pharmaceutical industry, a responsibility not being fulfilled. It suggests TRIPs be revised under a more ethical framework. This includes increasing public funding of research and development, shortening the length of patents and allowing developing countries to generically produce essential drugs.
The paper highlights the interconnectedness of social, economic and political factors that could increase the availability of essential drugs in developing countries. It highlights the importance of better understanding the issues surrounding strict patents, and why the scientific community is critical to this process, in terms raising awareness and collaborating with independent organisations and concerned citizens to ultimately press governments for change at the national and international level.
Table of Contents
1. Introduction
1.1 What are Patent Laws?
1.2 What is TRIPs?
1.3 Focus and Structure of the Paper
2. Pharmaceutical Industry for Profit or for Improving Health?
2.1 Scale of Profits
2.2 Investment Priorities
2.3 Diffusion
3. Essential Drugs and Generic Production
4. Impacts of TRIPs
4.1 Main advantages
4.2 Main disadvantages
4.3 The Doha Agreement and Compulsory Licensing
5. Conclusions
6. References
1. INTRODUCTION
‘As the ancient scourge of polio was rolled back by his vaccine 50 years ago, Jonas Salk, the inventor of the polio vaccine was asked why he never took a patent out on the medicine, a patent that would have made him wildly rich. “There is no patent,” he replied … “Could you patent the sun?”’ (Salon.com magazine 2001).
This paper explores the impacts of pharmaceutical patents on drug availability in the third world, focusing on the impacts of the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement. It highlights the value of essential drugs and generic production in developing countries, using India as a case study. It also explores alternatives to TRIPs and the role of the scientific community.
1.1 What are patent laws?
A patent can be defined as ‘a monopoly right granted to person who has invented a new and useful article, an improvement of an existing article or a new process of making an article’. It consists of an exclusive right to manufacture the new invented article, or manufacture an article according to the invented process for a limited period. During the term of patent, the owner of the patent, i.e. the patentee can prevent any other person from using the potential invention .
Figure 1: Brief History of Patent Law
The timeline below illustrates the brief recent history of patents in the world .
1880-1882
Patent statutes introduced in most European countries
1883
Paris Convention for the Protection of Industrial Property – cornerstone of the modern international patent system.
1947 International Patent Institute (IIB) established at the Hague
1970
Patent Co-operation Treaty signed in Washington, D.C.
1978
International Patent Institute integrated into the European Patent Office (EPO)
1979
Bayh-Dole Act passed-granted permission to U.S. universities to license and profit from federally sponsored research*
1980
International Patent Documentation Centre (INPADOC) integrated into the EPO
In the pharmaceutical industry patents have a straightforward objective. They provide a strong incentive for companies to invest in the research and development of new drugs, knowing that they will be able to recuperate costs and, subsequently, profit from the new drug. However, patents enable parent companies to control the price and availability of new drugs. There is no competition from other companies to produce the drug, which would usually lower the price. Thus, increasing the length of patents can reduce the availability of new essential new drugs in developing countries, with knock on health problems.
Essential drugs can be broadly defined as those that satisfy the health care needs of the majority of the population. They should, therefore, ideally be available at all times in adequate amounts; in the appropriate dosage forms; at reasonable (affordable) price; and, meeting the criteria of quality, safety and efficacy (New Strait Times 1998).
Under the term of a patent, drugs, essential or non-essential, can only be produced by the parent company. This means that there is no competition from other companies to produce the drug, and the parent company can charge a high price for the drug, effectively making the drug unavailable for poorer people.
New drugs tend to be more available to developed countries, because people are more affluent and can afford higher prices. For this reason, pharmaceutical companies tend to market their drugs at developed countries. Overall, developed countries benefit more from new technology and advances in science because their governments, companies, and people can afford to buy into the technology.
The World Trade Organisation’s (WTO) Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which extends the length of patents, enables companies to significantly increase their profits and increase the technology gap between developed and developing countries.
1.2 What is TRIPs?
The Trade Related Aspects of Intellectual Property Rights (TRIPs) was added to the General Agreement on Tariffs and Trade (GATT) at the end of the Uruguay Round of trade negotiations in 1994. It came into full force in January 2005, and its inclusion by the World Trade Organisation (WTO) was the ‘culmination of a program of intense lobbying’ by the United States, supported by the EU, Japan and other developed countries .
The United States strategy of linking trade policy to intellectual property standards can be traced to senior management at Pfizer (a large United States pharmaceutical firm) in the early 1980s. Pfizer mobilised corporations and made maximising intellectual property privileges the number one priority of United States trade policy .
According to the WTO, ‘TRIPs is an attempt to strike a balance between the long term social objective of providing incentives for future inventions and creation, and the short term objective of allowing people to use existing inventions and creations’ .
The following requirements of TRIPs all have a bearing on the pharmaceutical use of patents .
? Copyright must be granted automatically, and not based upon any “formality”, such as registrations or systems of renewal.
? National exceptions to copyright (such as “fair use” in the United States) must be tightly constrained.
? Patents must be granted in all “fields of technology” (regardless of whether it is in the public interest to do so).
? Exceptions to patent law must be limited almost as strictly as those to copyright law. In each state, intellectual property laws may not offer any benefits to local citizens which are not available to citizens of other TRIPs signatories (this is called “national treatment”). TRIPs also has a most favoured nation clause.
? Patents in the pharmaceutical industry will apply for 20 years, instead of 10 to 15 years.
Some developing countries began to grant their own patent protection in the late 1980s, but TRIPs is a compulsory requirement for any country who wants to be a member of the World Trade Centre, and with that memberchip access to international markets and trade relationships. Countries which do not adopt TRIPs can be disciplined through the WTO’s dispute settlement mechanism, which is capable of authorising trade sanctions against dissident states . Therefore, the economic and poltical threats, which could cripple a poor economy, effectively forced developing countries to ratify the agreement.
The TRIPs agreement makes it easier to obtain and enforce patents. It increases the length of pharmaceutical patents, from 10 to 15 years to 20 years, which encourages companies to invest more in research and development and promotes economic growth. However, it favours developed countries, which have the capacity to enforce their rights globally, and create more exclusive trade options under the Intellectual Property Rights (IPRs). Developed countries have more pharmaceutical infrastructure and companies that are used to using patents to make profit.
1.3 Focus and structure of this paper
Chapter 1 introduced the main contentions of using strict patents in the pharmaceutical industry. It explained how patents work, and the main changes that TRIPs will make to the pharmaceutical industry.
Chapter 2 shows the monopoly of a handful of large pharmaceutical companies in the pharmaceutical industry. It provides a sense of the scale of the profits made by these companies, contrasting [...]
How Do I Know If I Need A Patent, Trademark, Or Copyright?
Step 1:Â Understand What Patents, Trademarks, and Copyrights Are.
A patent is a a property right granted by the government to an inventor to exclude others from making, using, offering for sale, or selling the invention throughout the country or importing the invention into the country for a limited time in exchange for public disclosure of the invention when the patent is granted.
A trademark protect words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods. In short, trademarks are your brand. Trademarks, unlike patents and copyrights, can be renewed forever as long as they are being used in commerce.
A copyright protects original works of authorship, such as writings, music, software code, and works of art that have been tangibly expressed. The Library of Congress registers copyrights which last for the life of the author plus 70 years.
Step 2:Â Determine What You Need to Protect.
What is it that you are trying to protect? The name of your business? Then you need Trademark Registration. A new invention that allows cars to run on water and the exhaust is oxygen? You need a patent. A new song you have written and you want to make sure it is protected before pitching it to the music industry. You need a Copyright Registration.
In short, if you are trying to protect your name, business slogan, logo, or other ways consumers identify you or your business you need a trademark and a Trademark Registration. The brands Coca Cola®, Microsoft®, McDonalds® are all examples of registered trademarks.
If you have a new invention that will change the world or even an improvement upon existing technology you need a patent. Historical patents of note: (1) the cotton gin; (2) the electric motor; (3) the ice machine; (4) an improvement upon the existing telegraph machine; (5) the phonograph (aka record player); (6) the light bulb; (7) the calculator; (8) the airplane; and (9) sliced bread!
If you have written a song, code for software, a book, have made a cartoon character, or really anything else that can be deemed “an original work of artistic expression” you need a copyright registration. Examples of matters protected by U.S. Copyright Laws: (1) Microsoft’s code for Windows 7; (2) The Da Vinci Code by Dan Brown (Book); (3) The Da Vinci Code (Movie) starring Tom Hanks; (4) all NFL broadcasts.
Step 3:Â Understand Sometimes You Need to Protect More than One Form of Intellectual Property.
Some things, however, cross-over between the various forms of protection. As such, in some instances you may need more than one form of protection. Some examples are:
Bands
Bands should seek a Trademark Registration for their band’s name but also register copyrights for their songs and lyrics.
Books
In authoring a series of books the author should register both the common name of the series as a trademark (e.g., Star Wars, Star Trek) as well as seek copyright protection for the manuscripts of the books themselves.
Clothing
Clothing has some very specific guidelines that manufacturers must be aware of. Generally speaking copyrights and trademarks will be most applicable to clothing, however it is possible that patents could play a role as well.Â
If you are seeking to register the brand name of the clothing (e.g., Polo, Izod, etc.) these would be protected by a Trademark Registration. The best rule of thumb to think about here is where is the trademark going to appear? If it is the mark that will appear on the tag of the clothing a Trademark Registration is what you need.
However, there is an interesting interplay between copyrights and trademarks in regard to clothing. Recall, trademarks are only designed to let people know who made the shirt (e.g., the little horse for Polo, the crocodile for Izod). But the larger the design or matter sought to be protected, the more likely it would receive what is known as an ornamental refusal from the trademark office and should, instead, be protected by a copyright as an original design. It also depends on where the design appears.
If the design only appears on the label of the clothing, it is a trademark. If it appears on say the front of a shirt, it is a trademark if people will see it and think “Hey, that’s a Polo.” It is a design and should be copyrighted if people see the design and see it only as a design and have no idea who made the shirt (i.e., a big yellow smiley face on the front of your shirt is the classic example).
Lastly, patents can come into play here. If you event a new and improved zipper or something to that effect patent protection is definitely possible.
Software
Software is tricky. Software often involves all three elements, patents, trademarks, as well as copyrights. For a new software program, a developer or company would seek a Trademark Registration for the brand name of the software (e.g., Windows 7), seek a copyright registration for the code, and possible seek patent protection for the code if the code is an improvement upon the prior art or is otherwise protectable by patent.
Websites
Generally speaking the overall look and feel of a web site as well as the content (i.e., writing and information thereon) can be protected as a copyright. Trademarks used on the web site can be protected by a Trademark Registration. Patents may also play a role if the web site features some new and innovative back ground element.
The Trademark Company
What Is Copyright Infringement?
Copyright laws are constantly changing. Knowing exactly what copyright infringement is, whether you’re creating an eBook, publishing articles, using music as a backtrack to your podcast, is important. Although copyright laws change from one jurisdiction to another, knowing the basic rules of copyright infringement will ensure you’re following the proper rules of engagement when you create your works. Before you make any final decisions regarding the use of a work that has been copyrighted, always contact a copyright attorney to ensure you’re following the law — this will keep you from being sued or, even worse, punished in a court of law.
What is Copyright Infringement?
Copyright infringement, as defined by Wikipedia.org, states: “Copyright infringement (or copyright violation) is the unauthorized use of material that is protected by intellectual property rights law particularly the copyright in a manner that violates one of the original copyright owner’s exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works that build upon it. The slang term bootleg (derived from the use of the shank of a boot for the purposes of smuggling) is often used to describe illicitly copied material.”
So, what is copyright infringement in plain English? It means if you’re not allowed to use something, then don’t use it — plain and simple. It can be very simple to get permission to use a work — many times you’ll be able to use a “sample” of music or an excerpt of writing for a nominal fee, or a small attribution. However, if you do not have the permission of the copyright holder — whether it’s an author or a publishing house — you can be sued for copyright infringement or worse.
What is Copyright Infringement in America?
In many jurisdictions, such as the United States of America, this act is known as a strict liability crime or tort (a tort is a civil wrong — not a criminal wrong). This means the person who infringes the copyright — whether intentionally or not – will be responsible for the damage or loss. Also, the prosecutor (in criminal court) or plaintiff (in civil court) must only prove that the act of copying was committed by the defendant — they do not need to prove guilty intent. This means, even if you had no intention of committing copyright fraud or infringement, you can (and in present times, in many cases, WILL) be prosecuted, even if you used the material in good faith.
What is Copyright Infringement in Action?
Many cases of copyright infringement are difficult to see to the layperson, because the violation is not limited to exact copying. In many cases, when something is inspired by another thing — such as in music, when the inspiration of one song is used to create an entirely different song — it’s difficult to see where the new product or “thing” has crossed the line to something illegal. Some works aren’t even protected by copyright, such as compilation of facts that lack the creativity necessary to be covered by copyright, or works that are in the public domain because the copyright has expired. Knowing the difference is often very difficult to see, and because of this we’ve seen a number of copyright infringement cases in recent years, especially in tandem with the music industry.
As you can see, copyright infringement is a very difficult, albeit necessary, act to define. However, if you make sure you’re using works that are in the public domain, or have long since been out of copyright (think Beethoven or Frankenstein), you’ll be safe. Do your fair share of research. Download my free e-book, “Copyright Basics,” at www.ResearchCopyright.com to learn more about how to avoid copyright infringement.
What Is Copyright Music Infringement?
In recent years, copyright infringement of music has seen an unprecedented leap in scope and scale. This is largely due to online services that allow unchecked file sharing among their subscribers. While this abuse of copyright is not only limited to music, this is where we observe the most profound effects of file sharing.
Industry giants of file sharing are emerging quickly with the demise of the pioneer for illicit file sharing, Napster. The Recording Industry Association of America (or RIAA) has made copyright music infringement their primary focus. They estimate that peer-to-peer file sharing steals 4.2 billion dollars worldwide each year from the coffers of the music industry. These estimates, however, assume people would buy every piece of music they downloaded.
The RIAA has argued that new and struggling bands are less likely to continue making music because it will no longer be profitable. The bulk of musicians’ incomes result in royalties, which depend entirely on the sales of their albums.
The RIAA also argues that people burning music to CDs (which they have bought) does not constitute fair use because CDs are not “unusually subject to damage”; if they do become damaged they can be replaced affordably. This assertion has raised more than a few eyebrows and is giving rise to opponents of the RIAA who claim the lawsuits and crackdowns against those presumed guilty of copyright music infringement are actually hurting music sales and the profits of the music industry.
During the height of Napster popularity (the hallmark by which all file sharing seems to be compared) CD sales were at their highest rate ever. People were exposed to music and music groups which they otherwise may not have heard without file sharing. As a result of enjoying the music by these music groups, people bought the CDs of the music they enjoyed. It’s ironic that the very lawsuits designed to stop copyright music infringement have actually managed to stifle file sharing enough that CD sales are dropping noticeably around the world.
Opponents and critics also challenge that rather than being a source of copyright music infringement, peer 2 peer networks offer unprecedented exposure for new artists and their music. Another argument against the RIAA is that the reason for the lawsuits against file sharers is because they want to keep the prices for CDs over inflated while keeping the actual royalties coming to the artists relatively low. The copyright music infringement claims made by the RIAA have become suspect.
The music industry is currently working on ways where fans can legally download music. This will mean that music fans have access to the music they love from their PCs and directly to their music playing devices without resorting to illegal copyright music infringement. The truth is most people want to do the right thing and will do so if given an alternate, easy solution.