There are three primary and distinct types of intellectual property implicated in eCommerce—trademark, patent, and copyright—each with its own set of laws to protect different types of subject matter and indicia of source for goods and services. This three-part series gives a general overview of each. Importantly, this series is designed to be only a basic introduction to three complex areas of law and how the laws are applied in matters of eCommerce. This post addresses copyright law. Click here to see the first blog or click here to see the second blog post in this series.
In contrast to a trademark registration, a copyright “provides protection for the author of an original work, giving the owner exclusive rights for a certain number of years in the copyrighted works as well as derivative works.” 1 Gilson on Trademarks § 1.05 (2019). Like patent rights, copyright rights in the United States arise originally from the Constitution of the United States, Article I Section 8. Clause 8. The currently applicable Copyright Act of 1976, as embodied in Title 17 of the United States Code, now regulates the primary aspects of copyright rights. According to 17 U.S.C. § 102, copyright protection subsists in:
original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated . . . . Works of authorship include the following categories: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.
Copyright law does not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries, regardless of the form in which they are embodied—some of these areas are reserved to patent law, as discussed in Part II of this series, others may be entitled to trade secret protection, assuming they have been held in confidence by the owner.
Copyright attaches to a work from the time it is embodied in fixed form (whether physical or digital). Copyright owners have several exclusive rights, including the rights to make copies of the work, sell it, prepare derivative works based on the work (like movie sequels), distribute copies of the work, perform the work publicly and/or by means of a digital audio transmission, and display the work publicly. 17 U.S.C. § 106. Other than the owner, any person doing any of these actions without permission can be liable for copyright infringement. To enforce a copyright against an alleged infringer in federal court, and to be entitled to statutory damages, the copyright owner must register the work with the U.S. Copyright Office. Other laws provide mechanisms to assert copyright, for example, the notice and take-down provisions of the Digital Millennium Copyright Act, a powerful tool against unauthorized sellers using, for example, a brand’s own photographs or advertising copy (whether the work is registered or not) to sell counterfeit products.
Copyright law can also be an effective mechanism for combating sales by unauthorized sellers for brands that have registered copyrights in any of their materials, but is less common than trademark protection.
To learn more about why your brand needs a full comprehensive eControl solution that goes beyond addressing copyright, click here to download this free eBook.