Tài liệu INTELLECTUAL PROPERTY pdf

INTELLECTUAL

PROPERTY

A Reference Handbook

Selected Titles in ABC-CLIO’s

CONTEMPORARY

WORLD ISSUES

Series

Adoption, Barbara A. Moe

Capital Punishment, Michael Kronenwetter

Chemical and Biological Warfare, Al Mauroni

Childhood Sexual Abuse, Karen L. Kinnear

Conflicts over Natural Resources, Jacqueline Vaughn

Domestic Violence, Margi Laird McCue

Energy Use Worldwide, Jaina L. Moan and Zachary A. Smith

Euthanasia, Martha L. Gorman and Jennifer Fecio McDougall

Food Safety, Nina E. Redman

Genetic Engineering, Harry LeVine III

Gun Control in the United States, Gregg Lee Carter

Human Rights Worldwide, Zehra F. Kabasakal Arat

Illegal Immigration, Michael C. LeMay

Internet and Society, Bernadette H. Schell

Mainline Christians and U.S. Public Policy, Glenn H. Utter

Mental Health in America, Donna R. Kemp

Nuclear Weapons and Nonproliferation, Sarah J. Diehl and James

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Policing in America, Leonard A. Steverson

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World Population, Geoffrey Gilbert

For a complete list of titles in this series, please visit

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Books in the Contemporary World Issues series address vital

issues in today’s society such as genetic engineering, pollution,

and biodiversity. Written by professional writers, scholars, and

nonacademic experts, these books are authoritative, clearly

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Each book, carefully organized and easy to use, contains an

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sketches, facts and data and/or documents and other primary￾source material, a directory of organizations and agencies,

annotated lists of print and nonprint resources, and an index.

Readers of books in the Contemporary World Issues series will

find the information they need in order to have a better

understanding of the social, political, environmental, and

economic issues facing the world today.

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INTELLECTUAL

PROPERTY

A Reference Handbook

Aaron Schwabach

CONTEMPORARY

WORLD ISSUES

Santa Barbara, California

Denver, Colorado

Oxford, England

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Copyright © 2007 by ABC-CLIO, Inc.

All rights reserved. No part of this publication may be reproduced,

stored in a retrieval system, or transmitted, in any form or by any

means, electronic, mechanical, photocopying, recording, or otherwise,

except for the inclusion of brief quotations in a review, without prior

permission in writing from the publisher.

Library of Congress Cataloging-in-Publication Data

Schwabach, Aaron.

Intellectual property : a reference handbook / Aaron Schwabach.

p. cm. — (Contemporary world issues)

Includes bibliographical references and index.

ISBN 978-1-59884-045-2 (hardcover : alk. paper) —

ISBN 978-1-59884-046-9 (ebook : alk paper) 1. Intellectual property —

United States. 2. Intellectual property (International law) I. Title.

KF2979.S39 2007

346.7304—dc22

2007001209

11 10 09 08 07 1 2 3 4 5 6 7 8 9 10

ABC-CLIO, Inc.

130 Cremona Drive, P.O. Box 1911

Santa Barbara, California 93116-1911

This book is also available on the World Wide Web as an ebook.

Visit www.abc-clio.com for details.

This book is printed on acid-free paper

Manufactured in the United States of America

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This book is dedicated to

Qienyuan, Veronica, Jessica, and Daniel.

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Contents

Preface, xiii

1 Background and History, 1

Development of Intellectual Property Rights and

Concepts, 1

Copyright: Invention of the Printing Press, 1

Trademark: From Bakers’ Marks to Metatags, 8

Patent, 12

Intellectual Property Law in the United States Today, 14

Copyright Overview, 14

Trademark Overview, 26

Patent Overview, 34

Summary, 41

Treaties, 42

Regulations, 43

Statutes and Legislative Materials, 43

Cases, 44

Sources and Further Reading, 46

2 Problems, Controversies, and Solutions, 49

Patent, Copyright, and Computer Programs, 50

Is the Look and Feel of a Computer Program or a

Website Copyrightable?, 53

Is a Method of Doing Business Patentable?, 58

Is an Electronic Database Copyrightable?, 62

Can Content Owners Restrict or Prohibit the Sale of

Copying Devices?, 66

Copyright’s Front Line: File Sharing, 69

ix

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Copy Protection and Copyright, 82

Trademarks and the Web: Infringement and Fair Use

Online, 87

Trademarks and the Web: Cybersquatting, 90

Summary, 92

Treaties, 93

Statutes and Other Governmental Materials, 94

Cases, 94

Sources and Further Reading, 96

3 Worldwide Perspective, 99

Intellectual Property and International Law, 99

The World Wide Web, 104

The International Copyright Regime, 106

The International Trademark Regime, 114

The International Patent Regime, 116

Protection of Other Forms of Intellectual Property under

U.S. and International Law, 119

Summary, 123

Treaties, 123

European Union, ICANN, WIPO, and WTO

Documents, 126

Statutes and Legislative Materials, 127

Cases, 128

Sources and Further Reading, 128

4 Chronology, 131

5 Biographies, 149

Clara Barton, 149

Ernest Bourget, 151

Filippo Brunelleschi, 153

Laurens Coster, 155

Annie Ellsworth, 156

Johannes Gutenberg, 158

Victor Hugo, 159

Jon Lech Johansen, 160

Mary Kies, 162

Antonio Meucci, 163

Eadweard Muybridge, 164

Dmitri Sklyarov, 167

Jack Valenti, 169

x Contents

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Terri Welles, 171

Samuel Winslow and Joseph Jenks, 173

6 Data and Documents, 175

Copyright, 176

Copyright Act of 1976, 17 U.S.C. § 102. Subject matter

of copyright: In general, 176

Copyright Act of 1976, 17 U.S.C. § 106. Exclusive rights

in copyrighted works, 176

Copyright Act of 1976, 17 U.S.C. § 107. Limitations on

exclusive rights: Fair use, 177

Digital Millennium Copyright Act, 17 U.S.C. § 1201.

Circumvention of copyright protection systems, 178

TRIPs: Agreement on Trade-Related Aspects of

Intellectual Property Rights, 185

Part II: Standards Concerning the Availability, Scope

and Use of Intellectual Property Rights, 185

Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125

S.Ct. 2764 (2005), 186

Trademark, 198

15 U.S.C. § 1125. False designations of origin, false

descriptions, and dilution forbidden, 198

Trademark Dilution Revision Act of 2006, 203

Trademark Dilution Revision Act of 2006, H.R.683, One

Hundred Ninth Congress of the United States of

America, 204

TRIPs: Agreement on Trade-Related Aspects of

Intellectual Property Rights, 208

Part II: Standards Concerning the Availability, Scope

and Use of Intellectual Property Rights, 208

Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d

4, 210

Patent, 213

Patent Act, 35 U.S.C. § 101. Inventions patentable, 214

Patent Act, 35 U.S.C. § 102. Conditions for

patentability; novelty and loss of right to patent, 214

Patent Act, 35 U.S.C. § 103. Conditions for

patentability; non-obvious subject matter, 215

TRIPs: Agreement on Trade-Related Aspects of

Intellectual Property Rights, 216

Part II: Standards Concerning the Availability, Scope

and Use of Intellectual Property Rights, 216

Contents xi

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In re Alappat, 33 F.3d 1526, 218

Endnotes, 222

7 Directory of Organizations, 225

8 Resources, 255

Books, 255

Similar Works, 256

Other Titles, 259

Journal, Magazine, and News Website Articles and

Pamphlets, 260

Journals, 264

U.S. Materials, 275

Federal Statutes, 276

Federal Cases, 291

State Case, 295

Treaties and Other International Agreements, 295

Other International and Foreign Materials, 298

Internet Corporation for Assigned Names and Numbers

Materials, 299

Other Web Resources, 300

Glossary, 303

Index, 307

About the Author, 318

xii Contents

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Preface

T

he human desire to claim property rights in an idea is innate,

as any child who has ever told another “Stop copying me!”

knows. Legal recognition of property in ideas, however—

intellectual property—is a comparatively recent phenomenon,

appearing centuries of millennia after the recognition of property

rights in objects and land.

Revolutions in technology bring about revolutions in law.

The human race has experienced four great revolutions in infor￾mation technology. The first, lost in prehistory and probably pre￾dating our emergence as a species, was language. The ability to

attach specific sound-symbols to specific thoughts is what makes

human civilization—including legal systems—possible. The sec￾ond revolution, the invention of writing, made more complex

legal systems possible. When written documents could only be

copied by hand, however, the incentive for making unauthorized

copies of entire works was limited—although disputes did arise,

including the possibly mythical dispute between St. Columba

and St. Finnian (discussed in Chapter 2) that may have led to

three thousand deaths.

The third revolution in information technology was the in￾vention of movable-type printing. The ability to reproduce

printed works quickly and easily created an incentive for printers

to copy the works of others, and a corresponding incentive for the

authors of those works to prevent unauthorized copying. Some

countries (Korea and England, for example) reacted by granting

monopolies to approved printers and forbidding all others from

operating printing presses. In addition to controlling unautho￾rized copying, this had the fringe benefit of preventing the print￾ing of any material criticizing the government. In many countries

xiii

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several centuries passed before these monopolies were replaced

by freedom of the press and modern copyright regimes.

The three best-known forms of intellectual property—copy￾right, patent, and trademark—appeared in Europe during the Re￾naissance. After the printing revolution had taken place in east

Asia, but before it reached Europe, Europe’s commercial revolu￾tion led to laws requiring the use of symbols and words to iden￾tify the products of particular bakeries, breweries, and eventually

other businesses. And the increase in the rate of technological

change in the fifteenth century (the century that saw, among other

innovations, the arrival of the printing press in Europe) led the

Italian city-states to issue patents to inventors, granting them ex￾clusive rights to their inventions for limited periods of time.

The fourth revolution in information technology is happen￾ing right now. The advent of personal computing and the Internet

has solved the problem expressed by Abbott Joseph Liebling,

who in 1960 complained that “Freedom of the press is guaranteed

only to those who own one.” Today billions of people own

“presses”; the barrier to universal distribution of any content they

may choose to create is not expense, but the difficulty of getting

people interested—a problem commercial presses have always

faced. This revolution in information technology poses a dual

problem for traditional media. First, much Web content borrows

and incorporates existing material, and the extent to which such

borrowing should be permitted has not yet been fully resolved.

Second, many users create no content of their own, but merely

make and pass along unauthorized copies of existing content. Ex￾isting law clearly frowns on this copying, but enforcement is dif￾ficult.

The fourth information technology revolution has also accel￾erated the internationalization of intellectual property law. The

international nature of trade in intellectual property has been ap￾parent since at least the mid-nineteenth century; in the digital

age, however, barriers to international exchange of information

have vanished entirely.

Intellectual property law has adapted more quickly to the

fourth information revolution than to the first three. The response

time to the first revolution might have been measured in tens or

hundreds of thousands of years; the response to the second revo￾lution, in millennia; and the response to the third, in centuries, or

at least decades. The legal system responded to the appearance of

the Internet, and especially the World Wide Web, much more

xiv Preface

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