Copyright as an Element of Intellectual Property Law

AuthorRobert A. Gorman
ProfessionUniversity of Virginia School of Law
Pages4

The general domain of copyright law is often misunderstood. In particular, its boundaries are often confused with those of the law of patents and trademarks. These three fields are commonly grouped together as "intellectual property," but they are quite different in important respects, which can only be summarized here.

The purpose of copyright and patent is to provide incentives to "promote the progress of science and useful arts" and the constitutional source of Congress's power to legislate is the Copyright and Patent Clause. The purpose of trademark is to prevent confusion in the commercial marketplace-and thereby to assure accurate information and the maintenance of quality of goods and services-and the constitutional source of Congress's power to legislate is the Commerce Clause.

Patents

The law of patents embraces the subject matter of products and processes. To be eligible for protection, an invention must be useful and novel, and-even though it might not have been known before-also "nonobvious," that is, not reasonably anticipatable by a person versed in the current state of the pertinent art. Before a patent is issued by the Patent and Trademark Office, the invention must be determined by an examiner, after a detailed search of prior art, to satisfy these statutory conditions. Patent protection begins only when the Office issues the patent at the end of the examining process, and it lasts for only seventeen years.

The exclusive right granted by the patent law is much more powerful than that accorded by copyright, in two important respects. Copyright infringement requires that the work of the copyright owner have been copied, so independent origination of a similar or identical work is not an infringement, but patent infringement can arise even from an independently created invention. Copyright gives the author exclusive rights to copy and otherwise exploit only the pattern of expression in the copyrighted work and not the underlying ideas, concepts or systems; patents protect against replication of chemical or mechanical processes as usefully embodied. For example, copyright in a book that describes a newly invented medical device will afford protection only against those who copy or closely paraphrase the author's prose depiction. It will not prevent another person from manufacturing, selling or using the medical device; only a patent can provide that protection to the inventor.

Similarly, copyright in a computer program...

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