Comment on Intellectual Property & Terms of Use

[Verne Andru]

I was reading the IP sticky: http://www.harmonycentral.com/forum/...lla-94/302789-

 

and its link: http://www.muzique.com/clones.htm

 

I'm in the middle of IP litigation ATM and have some insights that might help this commentary.

 

As that article notes, IP laws consist of Patent, Trademark and Copyright laws. Whereas you gain a Copyright the moment you create something (without the need to register), Trademark rights have to be earned by commercial use of the mark and can be in the form of common law or through registering with the USPTO.

 

The concept of "fair use" is one associated with Copyright not Trademark AFAIK and I cannot think of a situation where the "fair use" argument would hold up in a Trademark proceeding - if you have superior rights to the mark (either in common law or through registration) you can preclude anyone else from using it - even something that closely resembles it.

 

Copyright is another area in that article that could help with some elaboration. Copyright law dates back to the 1700's in England when church and state stopped funding of the "creative industries" tossing them to the commercial sector for survival. To provide incentive for "creations," Copyright laws were designed to provide exclusive rights to the creator of the property for a fixed period of time so they could benefit economically from their work before it entered into the public domain. Copyright law strives to balance the fact that we grow up in a "cultural commons" and that ideas are shared community properties with the necessity of creators to financially benefit from their work.

 

In most of the world outside the U.S., Copyright includes commercial, derivative and moral rights. U.S. creators are distinctly disadvantaged in that their domestic laws only provide for commercial rights. This is significant for a number of reasons, including: if you create and/or register your product in the U.S. you automatically forfeit any claims to derivative and moral rights which those outside the U.S. retain.

 

With reference to cloning pedals, creators outside the U.S. have legal recourse against anyone (within reach of their legal jurisdiction) who develops a "derivative" of their copy-written work whereas U.S. creators can only pursue an action if they can prove their design has been copied exactly. Notwithstanding the way Copyright laws have been gutted in the U.S., people outside still have avenues of redress against U.S. cloners through provisions in the Berne Convention (U.S. ratified) which entrenches both derivative and moral rights, plus ensures these rights cannot be stripped from the foreign creator by domestic U.S. laws.

 

I know this is not a legal forum, but it's important that these concepts are articulated clearly so peeps know what they can and cannot do.