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Human and Intellectual Capital Checklists

Intellectual Property—Copyright


Checklist Description

This checklist provides an overview of copyright and how it is used.

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Definition

Intellectual property is a legal concept that provides for the exclusive ownership of abstract creations. It entitles the owner of such rights to charge for the use of the property or sell it.

Copyright is a concept of intellectual property that gives the author of a creative work the right to be credited for that work and to control its distribution. A copyrighted work may be reproduced only with the copyright owner’s permission. There is no standard length of copyright protection, which varies according to the type of work protected and the country where protection is sought.

Copyright is applicable to most creative works, such as literature, drama, music, recordings of sound and film, and broadcasts. It comes into existence purely as a result of the work being produced; the author does not have to apply for copyright. For copyright to be recognized, the work must be original and in a fixed medium. Original ideas cannot be copyrighted unless they take the form of written or broadcasted work. Any items that are already in the public domain cannot be the subject of a copyright claim.

Copyright gives an author a monopoly over certain rights: the right of reproduction, the right to create derivative works, the right to performance, the right to display, the right to distribution, and the right to digitally transmit its performance.

People wanting to publish their work usually enter into a publication and license agreement with a publisher. In the agreement, the author grants exclusive or nonexclusive rights to publish, reproduce, distribute, and use the work in any form for a defined period of time. Nowadays, much work is self-published on websites that support user-generated content, social networks, wikis, and blogs.

Authors are usually asked to give a warranty that what they have written does not defame or invade the privacy of any person, nor infringe anyone’s rights.

If copyright infringement occurs, an author may be entitled to an injunction (a court order to stop the infringement), damages, a refund of lawyers’ fees relating to the infringement, and an order to confiscate and destroy any copies that infringe the copyright. On the other hand, if a written work infringes the rights of another person, that person will be entitled to damages, which the author will have to pay.

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Advantages

  • The author of a creative work is automatically protected by copyright.

  • Copyright allows the author of a creative work to profit from it by charging for its use or by selling the copyright.

  • Copyright gives the author exclusive rights to the use of the work. This will deter others from copying the work or pretending that they were the authors.

  • An author may take legal action against any person who infringes their copyright and is entitled to compensation for that infringement.

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Disadvantages

  • Copyright is recognized only for work in a fixed form; ideas, however original, are not protected.

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Action Checklist

  • Always protect your copyright and take action in relation to any infringement.

  • Obtain legal advice to protect your copyright if you suspect an infringement.

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Dos and Don’ts

Do

  • Balance the cost of taking action against a perceived infringement of a copyright against the consequences of nonaction.

  • If necessary, involve your lawyers in the evaluation of both the risks and potential benefits of taking any action.

Don’t

  • Don’t ignore an infringement of your copyright; take action against it.

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Further reading

Books:

  • Poltorak, Alexander I., and Paul J. Lerner. Essentials of Intellectual Property. New York: Wiley, 2002.
  • Stim, Richard W. Intellectual Property: Patents, Trademarks and Copyrights. 2nd ed. Florence, KY: Delmar Cengage Learning, 2000.

Articles:

  • Gordon, Wendy J. “Excuse and justification in the law of fair use: Transaction costs have always been only part of the story.” Journal of the Copyright Society of the USA 50 (2003): 149.
  • Novos, Ian E., and Michael Waldman. “The effects of increased copyright protection: An analytical approach.” Journal of Political Economy 92:2 (April 1984): 236–246. Online at: www.jstor.org/stable/1831385

Websites:

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