Here are several questions that will test your understanding of fundamental aspects of copyright. After you have drafted a paragraph or two responding to a question open the Answer link to see whether your response identifies the same issues as the proposed answer.
Assume you have become a full-time employee in Bristol-Meyers Squibb’s marketing department. You are tasked with drafting a one-page information sheet for patients about a new BMS cancer therapeutic. The marketing department at Novartis, which has produced a similar new drug, is understaffed, and Novartis hires you temporarily, as a consultant, to draft a similar patient information sheet for its drug. The sheet you prepare for Novartis is nearly identical to that you prepared for BMS although, of course, the brand name of the drug has been changed. BMS’s then alleges you infringed their copyright in the sheet you prepared for BMS, and plans to use a determination of infringement as grounds for your dismissal. What facts will BMS use to establish that you infringed its copyright, and what might you assert in your defense? Which party would you anticipate prevailing in this dispute — and do you think you will remain on BMS’s payroll if this dispute is litigated?
As you are an employee (full-time, no less) BMS would own any copyrightable expression you create that falls within the scope of your employment. You are working in BMS’s marketing department, and the patient drug information sheet BMS assigned you to draft is a work made for hire. As such BMS has the exclusive right to copy and disseminate the text you drafted. If, during coffee breaks while drafting the sheet, you sketched relieved faces of imaginary patients whose cancer had been cured by the drug for which you are drafting the sheet, these images would probably not be considered work product for BMS, and you could freely copy and sell them as copyrighted expression you own.
Given BMS’s ownership of the information sheet, your near-verbatim copying of it and selling it to Novartis would constitute copyright infringement. On the other hand, if your work comprised nothing more than factual information about the drug (its chemical composition, proven efficacy, etc.) you might claim that you could not be liable for infringement because it contained no copyrightable expression. Even if this were true, however, you might still be liable to BMS if you violated the terms of your employment contract, or deliberately disclosed BMS trade secrets.
Assuming you want to remain on the BMS payroll, and not face the unpleasant and potentially costly effects as a defendant in an infringement dispute, your best approach might be to arrange a heart-to-heart chat with a BMS personnel officer or attorney, plead ignorance, and promise to read the BMS employee manual you discarded after your orientation session with the company.
You are a resident at a Chicago hospital, attending grand rounds presided over by a preeminent and eloquent neurosurgeon. You have an excellent memory, and recall many of the neurosurgeon’s effective phraseology and even humorous comments he used in discussing the condition of several patients with a particular type of brain tumor. You later draft an article on treatment of this disease, and incorporate into it many of the clever analogies and comments used by the neurosurgeon who let the grand rounds you attended. This neurosurgeon reads your published article and recognizes in it many expressions he used in his improvised remarks during grand rounds. If he were to claim your article infringed his copyrighted expression, how likely is it he would prevail, and what arguments would you use in your defense?
Verbatim copying, without authorization or attribution, in the published article, of the expressions and anecdotes spoken by the eminent neurosurgeon, may have been grossly impolitic, but probably did not violate U.S. copyright law. This is because in the U.S. (and certain other countries, like the U.K.) original expression must be fixed in a tangible medium to obtain copyright protection. If the eminent surgeon had been reading from prepared notes during the grand rounds, his bon mots and clever anecdotes would have been protected by copyright. The same is true if he, or one of the other attending physicians had recorded or transcribed his presentation while he was giving it. But, because no one recorded his language visually or aurally, it fell into the public domain as he spoke, and the resident who later recalled it was free capitalize upon it for essentially any purpose. This outcome may seem unjust in this case, but the fixation requirement avoids the ownership quandaries raised by authorship claims to expression for which there is no tangible record. (And the eminent neurosurgeon will likely have future opportunities to retaliate against the hapless resident!)
San Diego based Genalyte invents and manufactures medical diagnostic technologies. You work as an engineer for Genalyte and have been involved in its quest to develop a blood analysis technology that requires minimal blood samples from patients, and provides immediate results. Unlike the scandal-ridden Theranos’s small-sample blood analysis technology, Genalyte’s actually works.
Genalyte legal counsel plans to submit a patent application for the invention which, if awarded, would provide Genalyte a 20-year monopoly on its new technology. You have heard that the term for copyright protection is 120 years, and suggest to Genalyte’s lawyers that they pursue copyright protection instead of, or in addition to, patent protection. They listen to your suggestion and shake their heads with a smile. Why do they do so?
Copyright protects original expression, and does not protect useful products and inventions. One might use information in a copyrighted work, like a medical textbook or a book on growing vegetables, for useful ends, but the information is not useful per se, but rather only through human understanding and application of it.
The result of Genalyte’s exhaustive experimentation and development efforts is an entirely useful product. As such, only patent will provide effective IP protection for it, and only for 20 years.
One could potentially claim copyright in the physical apparatus of Genalyte’s technology as a 3d sculptural work. The copyright would protect any aesthetic or expressive information conveyed by the design of the work; useful objects (like Marcel DuChamp’s bicycle wheel, or upside-down urinal, recast as “sculptural works”) may, arguably, acquire expressive meaning when re-contextualized. But this copyright protection would not offer any protection of the valuable technology embedded in the apparatus. If Genalyte only obtained copyright protection for the original expression evidenced in the 3d apparatus, it could not prevent anyone from legally reverse engineering its valuable technology, and building a similar apparatus, unless it had also obtained a patent for its invention
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