Internet's Affect on Copyright, Trademark and Patent
Imagine this: you pull into your driveway. The garage door opens and the lights in your house turn on with the push of a button on your cellular phone. As you walk into your living room, your computer displays the latest news of the day and a record of missed telephone calls. Your television sports a large screen and wireless controls, offering online content and traditional programming originating from a single source. A single wire coming into your home or office delivers phone, videophone, Internet and television service. These connections are offered by the telephone company, the cable company, and possibly even utility companies. These hybrids enhance access, speed, selection, and convenience; bridging the best of technologies. The world of the Internet has clearly become an open door for innovation, creativity and development of various new business tools.
The rapid growth of the Internet also has a negative impact on the protection of intellectual property. The most common forms of intellectual property are copyrights, trademarks and patents. Although there may be some similarities among these kinds of intellectual property protection, they are different and serve very different purposes. A patent is the grant of a property right to the inventor of an invention, issued by the United States Patent and Trademark Office (USPTO). The time period that an inventor is given exclusive rights in the new patent is 20 years from the date on which the application for the patent was filed in the United States. In special cases, the time period can extend from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available.
The right given to the patent owner is the right to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO. There are three types of patents, utility, design and plant patents. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement relating to such a process. 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 plant.
Obtaining a patent can be expensive and the process can take up until several years until the patent is issued to the owner. Patents can be worth millions of dollars, sold or licensed to major corporations. As a result, those holding patent rights usually vigorously defend against infringers, and multi-million dollar lawsuits are decided on the individual claims written that describe the invention. Patents are very valuable to corporations, most of which will go to great lengths to protect their patents.
On the Internet, common forms of web activity have been potentially threatened by software patent holders attempting to exercise their patent rights. Patents with broad claims over common activities seem to appear regularly. During the mid-1980's, the intellectual property status of software changed. Prior to this time, software had largely been protected by copyright protection. This form of copyright protection was aimed at preventing direct copying, but not most other forms of imitation, such as providing products with similar functions but a somewhat different appearance. Before this time, relatively few patents for software inventions had been upheld. During the 1980's and 1990's. court decisions extended patent protection for software.
A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the USPTO. Trademarks are also an important asset for corporations because the public comes to associate a trademark with the company who owns it. This helps build a company's brand recognition. A few of the most famous trademarks are Coca-Cola, Kodak, and McDonald's. Trademark rights are also vigorously protected by owners.
A copyright is a form of protection provided to the authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.
The copyright protects the form of expression rather than the subject matter of the writing. A description of an object could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the description. Copyrights are registered by the Copyright Office of the Library of Congress.
Mentioned above, the United States Patent and Trademark Office (USPTO) is an agency of the U.S. Department of Commerce. The role of the USPTO is to grant patents for the protection of inventions and to register trademarks. It serves the interest of inventors and businesses with respect to their inventions and corporate products, and service identifications. It also advises and assists the President of the United States, the Secretary of Commerce, the bureaus and offices of the Department of Commerce and other agencies of the government in matters involving all domestic and global aspects of "intellectual property." Through the preservation, classification, and dissemination of patent information, the Office promotes the industrial and technological progress of the nation and strengthens the economy.
The protection of the forms of intellectual property discussed above are impacted by the Internet in several ways. The Internet provides millions of people with a low cost way to become an instant publisher of an online magazine with a potentially global audience. Each of the millions of existing web pages is potential source of trademark infringement. Trademark disputes have continued to rise as the Internet emerges as the new global medium for both advertising and selling every type of goods or services imaginable.
The Internet evolved from interactive computer technology as part of a networked system that began as an outgrowth of a military program called "ARPANET" in 1969. The system was designed to enable military computers to communicate with each other, even if some portions of the network were damaged during war, by communicating over redundant channels. This network, while no longer in operation, provided an example of the mass amounts of information that could be communicated over a network linking millions of people together. In recent years, the Internet has experienced drastic growth, appearing in homes, schools, and libraries. It has been noted that by 2005, ninety-one percent of U.S. homes will be online, and the number of people using the Internet would "mushroom."
The growth of the Internet has presented two new kinds of possible trademark infringement, one involving metatags and the other involving the sale of key words for banner advertising. A metatag is a list of words normally hidden in a web site that acts as an index or reference source identifying the content of the web site for search engines. This has been analogized to the subject index of a library card catalog, indicating the general subject of a book. When one searches the Internet, several competing search engines are available. Keyword tags are invisible to the human user but perceptible to the search engine. Hidden words, such as words that are the trademark of a rightful owner, are intentionally inserted to intercept search engines and divert the user to a site that he did not intend to visit or expect. The hope is that once there, the user will linger and see the advertising and content. Companies can use metatags to divert a potential competitor's web sites users to their site, a clear case of trademark infringement.
Some search engines sell or auction high placement on the list of hits for certain words. Many users believe that every search engine lists the hits it finds in order of relative importance. One search engine even lists how much it costs to get the top listing and, in auction fashion, offers the number one listing to any subsequent higher bidder. A user can no longer…