What is Intellectual Property?: Copyright and the Public Domain


Intellectual Property is the group of legal rights in things that people create or invent. Intellectual property rights include patent, copyright, trademark and trade secret rights. In Europe and some other countries, "moral rights", which are rights of the artist not to have her work greatly altered, are also included.

Origins of Intellectual Property Law

Most people are surprised to discover that intellectual property rights originated with our Founding Fathers in Article 1, Section 8, Clause 8 of the U.S. Constitution which states that Congress shall have the power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The right to exclusive ownership and use of one's inventions and the monetary rewards from giving others permission to use them, work in conjunction with the other beliefs of our Founders.

In the middle to late nineteen century, fostering of creation with monetary reward grew into capitalism. Capitalism embodied (a) the benefits and rewards of hard work (concepts from Puritanism); (b) the exchange of business ideas through products and services; and (c) competition in the marketplace and financial reward for the most popular or beneficial ideas, i.e. those items that sell the most make the most for their inventors.

It was not accidental that capitalism had many of the same theoretical bases as Charles Darwin's notions of survival of the fittest that was authored during roughly the same time period. Author and Harvard biology professor Stephen Jay Gould states that Darwin read economist Adam Smith's writings prior to authoring his "survival of the fittest" theory. 1

Indeed, intellectual property law, with exception of patents that preceded the rest in codification by several centuries, was mostly codified during this same period -- the late eighteenth to late nineteenth centuries. The laws sought to protection rights in creations and ensure earned monetary reward for their creators. These rewards incentivized others to create.

The heart of United States intellectual property law is the balancing of two goals: financially rewarding creation through granting of exclusive rights to the creators, and promoting the free flow of ideas to facilitate more inventions. The tension in these goals reflects the careful balance between the "Promotion of Science and Useful Arts" Constitutional clause above and the First Amendment - between ownership of art and words and the freedom to speak and express them.

Understanding the tension between these goals is the key to understanding intellectual property law. The balance of these concepts is visible throughout intellectual property cases and statutes. Keep these goals in mind whenever you try to assess an intellectual property problem and the solution will be much easier to grasp.

Copyright Origins

According to the United Kingdom government, the Statute of Anne was the first statute to legally address copyright during the eighteen century. In the United States, the first copyright law was passed in 1790. Copyright is used to protect the visual, text or sound aspects of creations, while patent is used to protect methods, processes and inventions.

When Do You Get a Copyright?

Upon creation (in a fixed form), a creator (author) has a copyright in the work.

What's Required to Get a Copyright?

You do not need to apply or register to receive copyright protection in a work. However, registering your work with the United States Copyright Office expands your rights. Your expanded rights include, should you win a lawsuit, specific damages set forth in the Copyright Act and attorneys fees. Deposit and registration must be within ninety days after publication of the work.

The more important reason to register your work with the Copyright Office is that the registration provides proof and notice of you having created the work, what the work consisted of and when it was created. Having created the work first is often the hardest thing to prove in a copyright infringement case.

The following categories of works have copyright protection:

  • 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
  • architectural works
  • computer programs (some times the graphical user interface) and websites

The following, among others, do not have copyright protection:

  • Works that have not been "fixed in a tangible form of expression". For example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded.
  • Works without enough "originality", some times termed "creativity", to merit copyright protection. For example titles, names, short phrases, and slogans; familiar symbols or designs; font design; ingredients or contents; facts; blank forms, etc. This exclusion from protection is to be sure that common uses are not burdened by restrictions. This supports the Founders' goal of ensuring free speech.
  • Ideas or concepts. Copyright protects the expression of the idea, but not the ideas themselves. This is easier to understand if you remember the goals of our Founding Fathers - to reward creations, but protect the free flow of ideas and information. For example (this is Plato's explanation of the concept, the Platonic Ideal, long before copyright), if I ask you what a chair is, you get a picture in your head; the picture I get in my head is different; the picture Buffy gets in her head is different. These are the "ideas" of what a chair is. However, if you draw the chair you envision in your head or use words to describe the chair, that the "expression" of the idea and that is what is protected by copyright.
  • Works Created by the Federal Government. Works created by the federal government are considered to be authored by the people of the United States and therefore also owned by all of us. Paradoxically, this concept has not often been applied to works created by state and city government, so these works have some times been granted protection.
  • Works in the Public Domain. The "Public Domain" refers to created materials which is either by law are not protected by copyright (such as the works above) or their protection under the law has lapsed. By definition, materials in the public domain do not have copyright protection and you do not need the owner's permission to use these materials. Contrary to the wording, however, whether materials are publicly displayed has no relationship to whether they fall into the Public Domain. This mistaken notion has somehow led many to believe that everything on the Internet is in public, in the Public Domain, and freely usable. This is completely false.

What Do You Have When You Have a Copyright and Is There Any Risk?

The 1976 Copyright Act gives the owner of a copyright the exclusive right

  • to copy the work
  • to modify the work (create "derivative works")
  • to distribute the work
  • to perform the work publicly
  • to display the work publicly

Length of copyright protection can be complex, but generally lasts 70 years after the death of the creator. If you have a question, you should consult with the free information available through the U.S. Copyright Office.

The risk in registering your material for copyright is that you have to submit it. Materials submitted to the U.S. government are available for public inspection under the Freedom of Information Act and some times through other means. However, the Copyright Office recognizes that in some cases, the creator may want to protect trade secret rights in the work. For example with computer programs, there are usually trade secret rights in the code and methods of programming which, if kept secret, can be asserted if the programming techniques are stolen. Therefore, the Copyright Office allows you to submit only the beginning and end of a computer program, or a version with parts blocked out, so that all of the programming code is not revealed.


[1] Stephen Jay Gould, The Panda's Thumb: More Reflections in Natural History (New York: Norton, 1982), p.64 as reported on www.crosscurrents.org/darwin.