Intellectual Property Issues

(Reading: With these notes, we strongly suggest you read Blown To Bits Chapter 6, Balanced Toppled: Who Owns the Bits.)


Intellectual Property

The results of intellectual work are covered by three distinctly different legal areas:

  • Copyright
  • Trademarks
  • Patents

(A rant by Richard Stallman on the very term intellectual property is worth reading.)

A trademark is the recognizable mark that a company has made to market its products. It is not only the name of the product that is covered by the trademark (e.g., Coca Cola), but also the shape (e.g., the recognizable Coca Cola bottle shape, or the font of the Coca Cola name used on the product). This means that one cannot create, say, LTCola and have it bottled in a Coca Cola-shaped bottle or have its name written with a Coca Cola-looking type of font. All famous marks are registered and watched by webcrawlers. Domain names that confuse origin or “dilute the value of the mark” will be challenged by the owners (even in ridiculous cases such as the “Christmas Blend” of Starbucks.)

The work of an inventor is covered by a patent. A patent is issued after careful review by the patent office, which must be persuaded that the work described in the patent is not a trivial extension of an existing work (“prior art”).

In your project, it is not likely that you will produce or infringe upon a patent. You might violate a trademark if, for example, you decide to have the picture of a a Coca Cola bottle on your page or you use the same font, color, and style to write something. What you need to pay particular attention, though, is on the Copyright Law.

Copyright is about the rights of the author, artist, or creator.

What rights does an author have? Suppose you're the author of a novel. You can:

  1. Reproduce copies of the work. In other words, you can print up 100,000 copies of your novel to sell, but no one else can.
  2. Prepare derivative works. You can write a sequel to your novel, a different version (maybe with a different ending) and so forth, but no one else can.
  3. Distribute copies. You can sell or give away the copies that you made, but if you decide to keep them all in your attic, no one else can give them away for you.
  4. Publicly perform it. Suppose instead of a novel, you've written a play. You can decide who can and cannot perform your play.
  5. Publicly display it. Suppose instead of a novel, you've painted a painting: you can control whether it is displayed in a gallery or stays under your bed.

Of course, as the owner of the copyright, you can decide to sell or lease the rights, piecemeal or in total, to other people. Musicians often sell their rights to the record company. Sometimes in the fine print at the end of a movie, you'll see “for the purposes of copyright, the owner of this film is Paramount Pictures, Inc.”

Note that copyright applies to things, in the sense that your creative endeavor has to be fixed in some medium: paper, videotape or whatever. You can't copyright an idea; that idea has to be expressed somehow.

Copyright law didn't always exist. Copyright actually began in England in 1557. It was a royal decree that allowed only designated printers to publish. That way the government controlled what was printed (censorship) and at the same time protected the market for the designated printers. With the end of censorship, the notion of copyright evolved into the Statute of Anne (1710), which is considered to be the forerunner of modern copyright. The full title of the law says,

An act for the encouragement of learning, by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned.

Copyright was not granted primarily for the benefit of authors, but so that authors would have an incentive to create works, thereby benefitting society. Of course, now the record and movie industries have powerful lobbies in Washington, so copyright law is being extended to benefit these big corporations. They are also jealously protecting their copyrights.

Copyrights don't last forever. For a long time, the law was that copyright protection ended 70 years after the author's death. It's actually more complicated than that, depending on whether the author is anonymous or whether a corporation now owns the copyright (see the resources section, below).

The movie industry got the copyright law extended so that the movies that were released in the 1920s, where the copyright was about to expire, are still copyrighted. Now the copyright is held by the employer for 95 years since publication or 125(!) years from creation.

Public Domain

When a work is no longer copyrighted, it is in the public domain and therefore is owned by society in general. This is where society really benefits from the new works created by copyright law. Once something is in the public domain, the author no longer has any rights and anyone can do with it what they want. For example, someone wrote West Side Story without having to pay any royalties to Shakespeare's estate, because Romeo and Juliet is now in the public domain. Similarly, anyone can perform the works of J. S. Bach, because he's been dead for more than 70 years.

Note, though, that a performance of a work is copyrighted. So, if the Wellesley Widows perform a 17th century art song, they own the copyright to their performance, even though the song is in the public domain.

In fact, some authors will create things and explicitly place them in the public domain, giving up their rights so that others can immediately make derivative works, building on the contribution.

Copyrighting Something

What is copyrightable? An original work of intellectual authorship. This has a rather low threshold (many things can fall into this category). But facts, ideas, titles, short phrases, and public domain information are not copyrightable.

How do you copyright something? Do you have to write the © symbol on the work and register it with some office somewhere? No, the 1971 Berne convention, an international convention of most countries in the world, declared that any work of yours is automatically copyrighted unless you explicitly place it in the public domain. (The U.S. joined the Berne convention in 1989.) If you made it; you control it. This holds whether or not a copyright notice is attached and whether or not the work is registered. Of course, adding those steps indicates that you intend to protect your rights, so it's not a bad idea.

Rules for Fair Use

The author doesn't hold complete power over of her work. There is an important legal concept of fair use, so that society can gain some benefits immediately. Examples:

  • A critic can quote passages from a novel or show clips from a movie to illustrate the ideas in the review.
  • A teacher can use sections from a book for educational reasons.

How can you know whether something is “fair use”? There is no easy answer. The only real answer can be found in a court, but we can say what the court's decision will be based on [from ] the following 4 criteria:

  1. The purpose and character of the use. Non-profit and educational use is in your favor, but won't necessarily win the case for you. All the criteria are taken into account.
  2. The nature of the copyrighted work, with special consideration given to the distinction between creative work and informational work. For example, you're on safer ground copying a news story than a purely creative or literary work.
  3. The amount, substantiality, or portion of the work. Copying a few lines from a novel is a small part, while copying one chapter from a three-chapter book is pretty big. Copying as little as you can will work in your favor. On the other hand, keep in mind that not all parts are created equally. Taking just the right snippet from a pop song might be crucial, because that snippet is the key to the song.
  4. The effect of the use on the potential market of the copyrighted work. This factor is the key factor from which the others are derived. If your use significantly reduces the potential revenues an author gets from the work, the court may rule against you. People sometimes forget this when they say “but I'm not making any money!” In fact, no one really cares whether you're making any money. The author cares about whether your use is depriving her of money. If you use your CD burner to give away free copies of Britney Spears's latest oeuvre, you're depriving her of sales, even though you don't make a dime.

An important related point is that copyright is different from plagiarism. Most of us know that we have to quote properly in our research papers and give credit where credit is due. If I quote from your research paper, I have to give you credit. However, if I've quoted so much of your work (chapters and chapters) that I get into trouble with copyright, giving you credit isn't going to help. After all, that bootleg CD of Britney Spears isn't passing itself off as someone else's work; that wouldn't be the point.

Implications for your Web Site

What does copyright law mean for you and your web site? It means that you should assume anything you find on the internet is copyrighted and that you may not use it without permission of the author. Certain things are intended to be copied, and the author may well explicitly grant permission for that. For example, snippets of code at a JavaScript download site are obviously intended to be used in your web page. You should do so with a clear conscience. Academic honesty requires that you give credit to the web site, but that has nothing to do with copyright.

For the purposes of your homework or project in this class, not giving credit might constitute plagiarism. Ask your instructor if you are not sure.

What is Copyrighted on the Web
(adapted from a talk by Karen Hersey, Sr. Counsel for IP, MIT)
Medium Example Holder
Modern Text

Screenplays, books, poetry, quotes, journals, newspaper articles

Author or publisher


Stills, video, artwork, logos

Photographer, object owner, artist, architect, trademark company


Performance rights, mechanical rights, synchronization rights

Lyricist, Performer, Studio, Composer


Patents, university employees, trade secrets to 3rd party

Programmer, University faculty, students, 3rd party

(pictured or described)

Actors, Recognizable People, have rights of Publicity, of Privacy, against defamation

individuals, agents, parents

Similarly, when you are putting things on the site, you may need to think about copyright. Say there's a cartoon you'd like to put on it. It might be a cartoon that your client (a professor) always uses in lecture. Is this fair use? Look back at the criteria, and you see that (1) the class may be educational, but the primary purpose of the cartoon is probably just to be amusing; (2) the work is probably highly creative; (3) you've used the entire cartoon; and (4) the cartoonist sells this for money, and if it's free, globally, on the internet, there goes the market. A court would probably rule that this is not fair use. (On the other hand, cartoons are ephemeral, the cartoonist makes a new cartoon every day, so one cartoon might not dent the sales of the latest Dilbert compendium.) It also depends on the artist/cartoonist. Bill Watterson and his syndicate has zealously protected Calvin and Hobbes for many years. Scott Adams probably protects Dilbert just as fiercely, but might not.

One thing to keep in mind is that the internet is global . Thus, the market effect of putting something on the web is a zillion times greater than just using it in a campus course. (Thirty students versus a billion on the web.) One approach to this is to restrict access to copyrighted material, say via a password or something.

Digital Rights Management

Copying digital information is extremely easy. This encourages people to freely share digital music, videos, books, software, etc., even though such sharing may violate copyright laws.

Digital Rights Management (DRM) refers to technological and legal methods of protecting the copyright of digital information. On the technology side, digital information may be associated with "copy protection" or "content protection" systems that try to prevent the information from being copied. For example, some distributors of digital music use a combination of DRM information in music files and DRM software in the music players to limit the number of times the music file can be copied or played or the duration of time in which it can be played. Software available for trial download uses DRM to ensure that the software can't be used after the trial period expires. DVD video discs use a Content Scramble System (CSS) to encrypt the contents of the discs as an attempt to prevent the discs from being copied or being played by devices not licensed by the DVD Copy Control Association.

Software-only approaches to DRM can be circumvented by skilled technologists, who often publish descriptions of how to circumvent the DRM or applications that circumvent the DRM. In response, the computer industry has developed hardware-assisted approaches to Trusted Computing, whose goal is to prevent uncertified programs from manipulating copyrighted digital information. A popular incarnation of this idea is the Trusted Platform Module (TPM), a chip that uses cryptography to verify that the operating system and applications manipulating the DRM-protected digital information have not been compromised. This chip is also known as the "Fritz chip" after former Senator Ernest "Fritz" Hollings, who championed its adoption. Many computers sold today are equipped with a Fritz chip.

Because many forms of digital information must ultimately be converted to analog forms in order to be displayed, DRM systems suffer from an analog hole that fundamentally limits their efficacy. End users can ultimately copy these analog audio/picture/video forms, though such copies may suffer from reduced quality.

Although DRM technology can often be circumvented, it is not legal to do so in the US. This is a consequence of the Digital Millenium Copyright Act (DMCA), a 1998 US law that includes an anti-circumvention provision that outlaws devices and methods for bypassing DRM. Even telling others how to circumvent DRM appears to violate this provision. Even providing a link to a CSS descrambler might be illegal, but CMU CS professor David Touretzky doesn't think so! The DMCA was championed by the music and film industries. Free speech advocates claim that the DMCA is at odds with the First Amendment, and critics call it Digital Millenium Competition Avoidance.


© Wellesley College Computer Science Staff. This work is licensed under a Creative Commons License. Date Modified: Sunday, 28-Aug-2016 13:04:28 EDT