Midwest ip summit_copyright_trade_secret_handouts_2011_mmm
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Updates to Copyright and Trade Secrets
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Midwest ip summit_copyright_trade_secret_handouts_2011_mmm
- 1. Trade Secrets & Copyrights Mike Morris
- 13. Copyrights Protecting Original Works of Authorship
- 25. Copyright Duration From Copyright Law , sixth edition, Joyce, Leaffer, Jaszi, Ochoa. Used with permission. Renewal term of 67 years, but only if renewal was properly obtained Automatic renewal term of 67 years (renewal registration is optional but incentives attach to renewal registration) Work is now in the public domain N/A N/A Works Published Before 1923 28-year first term Dual term When work was published with notice Works Published between 1923 and 1963 28-year first term Dual term When work was published with notice Works Published Between 1964 and 1977 Same as above, at least through 12/31/2002, if the work remained unpublished as of that date, or until 12/31/2047 if the work was published before 1/1/2003 Unitary Federal protection began on 1/1/78 Works Created but not Published Before 1/1/78 Basic-term: Life of the author (or last-surviving author for joint works) plus 70 years Alternative term for anonymous or pseudonymous works, or works made for hire: 95 years from publication or 120 years from creation, whichever is shorter Unitary When work was fixed in a tangible medium of expression Works Created On or After 1/1/78 Length of Term Nature of Term Date of Protection DURATION AFTER THE CTEA
- 30. § 304(c) Provides for termination of grants with effective dates from the end of the 56th year through the 61st year (the first 5-year window) measured from the date copyright was originally secured .
- 39. Comparison of §203(a) and § 304(c) and (d) Majority of joint authors can terminate Either joint author can terminate Author/successors can terminate Author/successors or surviving persons who executed grant can terminate Applies to grants by authors only Applies to grants by authors and others Measure from date grant executed Measure from date copyright secured Post-1978 grants Pre-1978 grants §203 §304
- 43. Questions
Notes de l'éditeur
- Trade secrets are not insignificant - DuPont Won a $919.9 Million Award in a Trade Secret Case Against Kolon Industries for information regarding DuPont Kevlar aramid fiber (known for its use in body armor, but is also used in tires, fiber optic cables, sports equipment, and spacesuits.) http:// www.wgmd.com/?p =34945&cpage=1
- Reasonable Efforts to Maintain Secrecy – It is difficult to articulate the efforts required to protect the confidentiality of the information, since the standard is one of reasonableness.
- Conduct exit interviews to confirm understanding about continued confidentiality and to ensure employee has returned all trade secret materials to which he or she had possession.
- Misappropriation is the wrongful acquisition, disclosure, or use of a trade secret. ; “Improper Means” in Indiana includes Theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means Ind. Code. Sec. 24-2-3-2
- AIRFRAME SYSTEMS, INC., f/k/a Airline Software, Inc., Plaintiff, Appellant/Cross-Appellee, v. L-3 COMMUNICATIONS CORPORATION, Defendant, Appellee/Cross-Appellant, and RAYTHEON COMPANY, Defendant. (1 st Cir. 2011) - Airframe alleged copyright infringement of a 2009 version of its source code, but could not produce a copy of that code. Instead, Airframe compared the allegedly infringing copy to an updated 2009 version. 1 st Cir. held that Airframe could not prove that there was “substantial similarity” between L-3’s source code and the source code that was allegedly infringed.
- 304(c) and (d) allow authors or statutory successors to terminate pre-1978 grants by AFFIRMATIVELY serving notice of termination, effective within 5-yr windows
- As of the date of the copyright act, which is 1/1/1978
- - Remember that a grant by person other than an author must follow an earlier grant by the author
- In response to Sonny Bono CTEA of 1998, adding 20 more years, gave author second bite at the apple
- Assume copyright secured 3/1/1956 5 yr window opens 3/1/2012 5 yr window closes 3/1/2017 Effective date within 5yr window (arbitrary) 8/1/2013 Time to serve notice: 8/1/2003 – 7-31-2011
- WFH - If in business of acquiring other artists works, advantageous to get agreement as work for hire rather later grant Derivative works - If know termination is approaching, can still exploit that work by creating derivatives prior to effective date
- Twist: Effectively gives Grantee 5 yr grace-period to publish before clock starts
- Ways to get around termination rights *1 -new agreement can’t be with author *2 –exercise of unilateral right, not agreement – explicitly contemplated by Congress, evidenced by legislative history re-negotiation after notice of termination: specifically contemplated by Congress (legislative history) Work can be transferred back to original grantee AFTER notice of termination becomes effective, even BEFORE termination becomes effective – “ termination notice” is not an “agreement”, but is a unilateral right WFH – comes with authorship rights, not subject to termination
- *2 – successors could use as bargaining tool for new royalty rates, or