Copyright Law and its Siblings: Patent, Trademark, and Trade Secret Law
By: Paul E. Thomas
August 2008
Copyright is one of the few areas of specialized American law that can point to the federal Constitution as its organic act. On September 5, 1797, the Constitutional Congress approved the wording of what has come to be known as the Patent and Copyright Clause, and which is now Clause 8 of Section 8 of Article 1: “To promote the progress of science and the useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.” The Patent and Copyright Clause is not only the origin of intellectual property law in the United States, but also it originates the broad policy on which intellectual property protection is based. The purpose of intellectual endeavor is to enhance public knowledge and promote the progress of the sciences and the useful arts. To encourage intellectual endeavor, the law grants “to authors and inventors” a limited period of exclusive ownership. Thus the public policy carefully balances private rights with public welfare.
Patent and Copyright are both major branches of intellectual property law, though their purposes differ. Copyright law strives to protect the integrity of works of art as a whole by protecting the expression of an idea in a tangible medium, such as, for example, a painting or a novel. Patent law protects new and useful processes, devices, machines, manufacturing techniques, and new compositions of matter by granting the patent owner the right to exclude others from making, using, or selling the process or product named in the patent. Thus copyright protects only the expression of ideas, but patent provides some protection for the idea itself, so long as that idea is reduced to practice and publicly disclosed.
The other main branches of intellectual property law are trademark and trade secret law. A trademark is generally a word, symbol, or combination of the two which a manufacturer adopts to distinguish its goods or services from those of others in the marketplace, and trademark law provides protection and enforcement rights for trademark owners. A trade secret is any form of confidential information, including processes and formulae, which derives its value from the fact that it is not generally known and therefore gives its owner a competitive edge in the marketplace.
These major branches of intellectual property law have different durations. Copyrights and patents can only endure for “limited times.” Currently, patents are issued for twenty years. Copyrights have various durations depending on the type of authorship, when the work was created, and whether it was published, but the current duration for a written work by a single author lasts until seventy years after the author’s death. In contrast, trademarks and trade secrets can endure indefinitely: a trademark owner can maintain exclusivity for a trademark as long as the owner keeps the mark in use on goods or services in commerce, and a trade secret can remain proprietary as long as it remains a secret.
Individuals and businesses of all sizes create intellectual property, and they should, as part of their ongoing planning, take proactive steps to build and enrich their assets through copyright, patent, trademark, and trade secret law.