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Question: What is "proprietary" material?
Answer: "Proprietary" indicates that a party, or proprietor, exercises private ownership, control or use over an item of property, usually to the exclusion of other parties. Where a party, holds or claims proprietary interests in relation to certain types of property (eg. a creative literary work, or software), that property may also be the subject of intellectual property law (eg. copyright or patents).
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Question: What is copyright protection?
Answer:
A copyright protects a literary, musical, dramatic, choreographic, pictoral
or graphic, audiovisual, or architectural work, or a sound recording, from
being reproduced without the permision of the copyright owner. 17
U.S.C. ?102. The copyright in a work vests originally in the author(s)
of the work. The author(s) may transfer the copyright to any other party
if she(they) choose(s) to do so. 17
U.S.C. ?201. Subject to certain limitations, the owner of a copyright
has the sole right to authorize reproduction of the work, creation of a
work derived from the work, distribution of copies of the work, or public
performance or display of the work. 17
U.S.C. ?106. This right lasts for the life of the author plus seventy
years; or in the case of a copyright authored by an entity (a work-for-hire), for ninety-five years. 17
U.S.C. ?302.
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Question: What may be copyrighted?
Answer:
In order to be copyrightable, a work must be
1. fixed in a tangible medium of expression ; and
2. original.
Copyrights do not protect ideas, procedures, processes, systems, methods
of operation, concepts, principles, or discoveries: they only protect physical
representations. 17
U.S.C. ? 102(b). Anything unrecorded is not copyrightable, in as
much as it is not "fixed;" for example, dances and improvisations
themselves are not copyrightable: only visual recordings or written descriptions
of them are. Say I go to a jazz concert and listen to a soloist's improvisation.
If I have the musical equivalent of a photgraphic memory, I may be able
to reproduce that improvised solo in my own concert on the following night.
If that solo exists nowhere but my memory (i.e. the original concert was
not recorded) I may play it with impunity, because it is not "fixed"
and therefore not copyrightable. But, if the original concert was recorded
(e.g. taped, videoed, transcribed on paper), even by an amateur, I am barred
from playing my version of the solo. Even a bootleg recording (for which
the recorder can be punished under section 1101 of the copyright act) qualifies
for copyright protection: a work need not be formally published in order
to be "fixed;" it need only be saved in a tangible form. 17
U.S.C. ? 104.
The originality requirement of 17
U.S.C. ?102 demands that a work, in order to be copyrigted, be
independently created by the author. In order to be original, a work need
not necessarily have novelty, artistic merit, truth, or lawful content.
For example, a replica of a painting in the public domain may not be novel,
but it is copyrightable. An item of sculpture designed to be used as a pipe
for smoking marijuana may not be designed for legal ends, but it is copyrightable.
A false biography is copyrightable, although it may well also be cause for
defamation litigation.
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Question: Does copyright protect words or short phrases?
Answer: No. Names, titles, and short phrases are not subject to copyright protection. These are not deemed to be "original works of authorship" under the Copyright Act. Names may be protected by trademark, in some instances. See the Trademark FAQ for more information.
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Question: Does copyright protect facts?
Answer: No. Copyright protects only original expression, not discovered facts. Creative selection and arrangement of facts is protected, but you can take the basic facts and rearrange them without infringing copyright. Thus the publishers of a telephone book cannot sue an online phone book publisher for copyright infringement, even if it took the first publishers considerable effort to collect the listings.
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Question: What can be kept as a trade secret?
Answer: A trade secret is information that provides a business with a competitive advantage. The following section provides examples of circumstances where trade secret protection was approved or denied. Courts have provided trade secret protection to formulas, patterns, plans, designs, physical devices, processes, software, and ?know-how.? Examples of these trade secret categories are provided below. Please keep in mind that different courts may reach contrary conclusions concerning trade secret status with respect to what may appear to be identical matters. You may wish to consult a lawyer in your local area to obtain information on your state?s laws.
FORMULA:
A formula (i.e., a recipe that allows one to create a product) can be a trade secret. One of the most familiar examples of a trade secret formula is the Coca-Cola formula. This formula gives the Coca-Cola Company a significant business advantage in the soda market, as there is no other soda that tastes the same. The Coca-Cola Company has put numerous security measures in place to keep its formula a secret. In fact, the Coca Cola Company ensures that no one knows every step of the formula!
Other common formulas found to be trade secrets in the food, drug, and cosmetics industry include formulas for butter flavoring, cheese, breakfast cereal, seasoning for fried chicken, special diet rations for dogs, mixed alcoholic beverages, lipstick, and hair conditioner. On the other hand, formulas for a lemon-flavored soft drink, recipes and cooking procedures for common dishes such as BBQ chicken and bakery goods were all denied trade secret protection.
PATTERNS, PLANS, & DESIGNS:
A pattern, plan or design can be a trade secret. For example, courts have found the following to be trade secrets: circuitry for an advanced minicomputer, color TV circuitry, schematics for an analog circuit, plans and specifications for gears and rollers of a photo-processing machine, plans for drilling equipment, plans and designs for a veneer dryer, molds for the manufacture of street markers, and a design for a grating.
PHYSICAL DEVICE:
A physical device used in manufacturing can be a trade secret. Examples of these devices found to be trade secrets include: a device for manufacturing radio parts, machinery and equipment used to manufacture polyethylene, machinery and equipment used to manufacture saw grade diamonds, a computer tool used to service microprocessor-based elevators, a tool for making a pressure-sensing mechanism, a machine for inking carbon paper and ribbons, and an adhesive-tape machine.
PROCESS:
A process, method or technique used to make the final end product can also be a trade secret. The following is an example of using a process as a trade secret: Suppose you work at a hair salon and when a customer wants you to dye his or her hair, you use a hair dye formula that is pre-bottled. However, you have also developed your own unique process in applying the formula to hair so that the hair color stays longer. Because your process gives you a competitive business advantage, you may obtain trade secret protection of your dye process.
Other examples of processes found to be trade secrets include: a process to manufacture foam crash pads, a process to treat metal, a process to manufacture fiberglass, a method and procedure to manufacture epoxy resin rods, a process to manufacture potassium sulfate, and a process for an environmentally sound method to manufacture coated paper.
Keep in mind that processes and methods incident with a patent may still constitute a trade secret. See below for more information on patents and trade secrets.
?KNOW-HOW?:
"Know-how" can be a trade secret. A method or technique in some cases might fall into the ?process? category, but many methods and techniques can be better described as ?know-how" (i.e., information and experiential expertise related to using formulas or processes.) When asserting methods and techniques in this category, however, one must be very specific in describing the method or technique. Examples of trade secrets in this area include: know-how pertaining to the construction of plant chemicals, methods for testing procedures to assure the quality of raw material, know-how to ascertain whether CAT scanning equipment and components are operating according to specifications and to identify malfunctions, and methods to manufacture typewriters.
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Question: What do courts consider in determining if a trade secret exists?
Answer: Courts usually consider the following three factors in determining whether you have a trade secret: (1) Is the information deemed to be a "trade secret" valuable to the business?
Only secret information can be protected by trade secret law. Secrecy is typically determined by evaluating whether or not the information is "generally known" or "readily ascertainable." If the information is secret, you must consider whether the secret information is valuable to your business. How would you rank its value? Courts tend to find that the information is a trade secret if the information is so valuable as to significantly impact the operations of a business.
(2) What steps have been taken to keep the information secret?
Trade secret laws require that you have taken some action to keep your information a secret. The security procedure taken to protect the information is often the most important evidence that the information constitutes a trade secret. For example, courts have often found that restricting access (on a "need to know" basis) to any sensitive information is a factor that helps to meet this requirement. Courts have also found that physical security, such as keeping written trade secret information in a locked drawer and granting very limited access to it, can meet this requirement. Generally, holders of trade secrets develop a formal system for safeguarding their trade secret information. Such a system can include, for example, reviewing information to be sure that the secret information is not included in documents sent to customers and competitors. In addition, proprietary notices can be placed on all documents containing information related to trade secrets and strict confidentiality provisions can be written into all consulting, manufacturing, employment, and/or non-disclosure agreements.
(3) To what extent do employees and others involved in the business know about the information? What about people outside the business?
The extent that those in your business and those outside the business have access to the information can affect a court's decision as to whether you have a legal trade secret. Generally, courts have found the information to be public knowledge and not a trade secret if people who do not have a need to know the information have access to it. This is especially true if many people outside the company are familiar with the information.
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Question: Do I need permission from the copyright holder to make fair use?
Answer: No. If your use is fair, it is not an infringement of copyright -- even if it is without the authorization of the copyright holder. Indeed, fair use is especially important to protect uses a copyright holder would not approve, such as criticism or parodies. See Campbell v. Acuff-Rose Music, 510 US 569 (1994).
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Question: What does ?misappropriating? a trade secret mean?
Answer: One has ??misappropriated? a trade secret if he or she has acquired, disclosed, or used the trade secret information without the permission of the holder, where such activities were done through improper means (e.g., the trade secret information was stolen from the holder) or in breach of an obligation of confidentiality or non-use. If you have received a letter stating that you have ?misappropriated? a trade secret (see SAMPLE LETTERS; also see TRADE SECRET LAWS), you should consult with an attorney.
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Question: Is anonymous speech a right?
Answer: Yes. Anonymous speech is presumptively protected by the First Amendment to the Constitution. Anonymous pamphleteering played an important role for the Founding Fathers, including James Madison, Alexander Hamilton, and John Jay, whose Federalist Papers were first published anonymously. And the Supreme Court has consistently backed up that tradition. The key U.S. Supreme Court case is McIntyre v. Ohio Elections Commission. http://www.eff.org/Legal/Cases/mcintyre_v_ohio.decision
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