Intellectual property Construction Engineering 380

Intellectual Property The design or development of a product and the manifestation of that product are legally separate. I can own a CD, but not have rights to the songs on the CD Similar logic is used in engineering design. The design and the building, product or process that follows from it can be owned by different people

Intellectual Property Intellectual Property is covered under several categories- most common are –Patent –Copyright –Artistic integrity –Trade secret –Trademarks –Shop rights (employee/employer contract)

Intellectual Property Purpose of protecting intellectual property –Foster technological development –Promote social and aesthetic good –Balance rights of artists and inventors with the commercial good created by free exchange of ideas and knowledge

Intellectual Property Copyrights –Most intellectual property no longer covered by state common law (exception is live performances) –Copyright laws are now statutory (not common) for: Literary works Musical works Dramatic works Pantomime and choreography Pictorial,. Graphic, and sculptural work Motion pictures and audiovisual work Sound recordings

Intellectual Property Plans, models, and drawings are considered pictorial, graphic, and sculptural works Written specifications are considered literary Copyrights last for the life of the creator plus 50 years for self-produced work If produced as an employee (for-hire work), copyright is held by the employer for 75 years after publication or 100 years after creation, whichever comes first

Intellectual Property Fair use doctrine- permits reproduction for purposes of “commentary, critique, reporting, teaching, scholarship or research”- efforts which serve the public good Commercial use is NOT considered fair use, even if the materials are the same Amount and substantiality of the portion used (one chapter copy rule; 10% use) Effect of the use on the market or value of the copied work

Intellectual Property No longer required to register copyrights However, if an infringement action is started, authors cannot recover if the registration is not completed within three months (example of submittal to poetry journal) Remedies for infringement- injunction, impoundment, destruction, actual damages and profits earned up to $20,000

Intellectual Property Design copyrights- stringency depends on the designer, what is being copied, and why. Also, must give credit to originator Copyrights protect –Sketches, schematics, design drawings, software, renderings, models, construction or manufacturing documents, or (in limited cases) even the completed project or product –Example- window mock-up

Intellectual Property Waiver of registration requirement makes copyrighting drawings and designs easier under the statutory laws Common law problems arose when a determination was made on “dedication to the public” (going out for bids) Architectural Works Copyright Protection Act of 1990 cleared up a lot of confusion

Intellectual Property Can only bring claims under statutory law Architects and designers are covered under artist integrity as well as literary and graphical protection Allows for destruction of the building as one course of remedy Must be used by people (not bridges or canals) and be “non-utilitarian” (not doors or hardware)

Intellectual Property –Can use pictures of the building – the work can be altered or destroyed without the designers consent – public agencies can amend or alter the work by designation (historical landmark or preservation) or regulation (zoning, codes) –If you are an independent contractors, you hold the rights, but if you are an employee. Your employer holds the rights

Intellectual Property Preemption (federal statutory law gives copyright to the design firm, but contract law gives ownership of design to the client absent specific language to the contrary) Preemption is complicated and the issues have yet to be resolved by the courts or the professional societies

Intellectual Property How to retain copyright –Follow the statutory requirements –Do not make assignments to others –Include contract language specifying ownership remains with designer –Comply with notice requirements © –Register with copyright office within three months of publication

Intellectual Property Patents- applies to the tangible end- product (machine, processes, products) If you wish to PATENT a design, it is a much bigger deal than copyrighting a design Can be expensive (over 100,000) Will require assistance of a legal team Patents must have a higher degree of creativity and uniqueness

Intellectual Property It is relatively easy to get around patents by attacking the validity of the patent or making minor design changes to avoid claims of imitation Patent infringement suits are long and expensive and are seldom won (only 18% at Supreme Court level) Patents last 17 years

Intellectual Property Because patents are hard to enforce, many companies use trade secrets instead of patent registration Trade secret- a process, device, or knowledge that gives your company an advantage over others who do not know how to make or use the process, device or knowledge

Intellectual Property Chemical formulae for industrial processes are probably the best example –Extent to which information is known outside the business –Extent to which it is known by employees and others in the business –Extent of measures taken to protect the information –Value of the information to competitors –Amount of money and/or effort spent developing the information –Ease or difficulty with which the information could be acquired or duplicated

Intellectual Property Usually becomes as issue when an employee leaves and goes to work for themselves or a competitor in the same industry Usually must sign a non-disclosure agreement and sometimes a non-compete clause at termination Trade secret litigation comes when a company believes one of its former employees has given trade secrets tot heir new employer

Intellectual Property patent protection requires disclosure, trade secret does not Trade secret need not achieve the level of creativity and uniqueness required for a patent Trade secret laws are usually non- statutory and governed by state systems

Intellectual Property Tradeoff of public good and private vice (Adam Smith)