This book is a collection of the primary sources of Federal intellectual property law, the set of private legal rights that allows individuals and corporations to control intangible creations and marks—from drugs, to books, to logos—and the exceptions and limitations that define those rights. It contains the full text of the Lanham Act, which lays out the rules of Federal trademark law, the Copyright Act and the Patent Act. The Patent Act has been significantly modified by the America Invents Act of 2011, part of which did not come into effect until March 16, 2013. This leaves two bodies of patent law, one applying to patents granted under the old system and another under the new. We have used a version of the Patent Act, prepared by the U.S. Patent and Trademark Office (PTO), which shows both versions and indicates which would be applicable. In addition, the book includes several international treaties: the Berne Convention for the Protection of Literary and Artistic Works, the World Intellectual Property Organization Copyright Treaty, the Paris Convention for the Protection of Industrial Property and the “TRIPs Agreement” or Trade-Related Aspects of Intellectual Property Rights Agreement brokered as part of the World Trade Organization process. For these international treaties, the useful editorial table of contents and notes provided by the WIPO editors have been retained and are gratefully acknowledged. We have also included, on the page following this introduction, a simple chart taken from our casebook that compares the trademark, copyright and patent regimes—the constitutional basis and subject matter of the rights, the length of the term, the exceptions and limitations and so on. We hope you find it of use.
This volume is current as of August 1, 2014. It is designed to be used with our casebook Intellectual Property: Law and the Information Society, 1st edition, 2014, but it can also be used as a free-standing and inexpensive source book. It is made available under a Creative Commons Attribution license. What that means is that you are free to copy, reprint or reproduce this book in whole or part, so long as you attribute it correctly (directions are given on the copyright page). N.B. The individual statutes and treaties are all in the public domain and can be freely copied by anyone without complying with that license.
Why do we do this? Partly, we do it because we think the price of legal casebooks and materials is obscene. Law students, who are already facing large debt burdens, are required to buy casebooks that cost $150–$200, and “statutory supplements” some of which consist of unedited, public domain, Federal statutes, for $40 or $50. The total bill for a year can be over $1500. We know well that putting together a casebook is a lot of work and can represent considerable scholarship and pedagogic innovation. We just put one together and we are proud of it. We think highly of our colleagues who write and edit these casebooks. Our point is simply that the current textbook market equilibrium is both unjust and inefficient. The cost is disproportionate, the product inflexible and the benefit flows disproportionately to conventional legal publishers. Students are not the only ones being treated unfairly.
Some of those costs may have been more justifiable when we did not have mechanisms for worldwide and almost costless distribution. Others were justifiable before fast, accurate print on demand services. Now we have both. Legal education is already expensive; we want to play a small part in diminishing the costs of the materials involved. We also hope that the inexorable multiplication of projects such as these will be an aid to those still publishing with conventional textbook publishers. To those casebook authors trapped in contracts with existing publishing houses: remember when you said you needed an argument to help convince them to price your casebook and your supplement more reasonably? Or to give you more options in making digital versions available to your students in addition to their print copies, but without taking away their first sale rights? Here is one such argument. There are many more either already out there or in the pipeline. Traditional textbook publishers can compete with free. But they have to try harder. We will all benefit when they do.
We will make this statutory supplement available in two ways. First, like the casebook, it will be available for digital download for free. No digital rights management. No codes. No expiring permissions. Second, a paperback version will be available at a price that covers the cost of the materials and distribution. Our goal will be to keep the price of this book under $12.50—which given the possibility of resale, might make it an environmentally attractive alternative to printing out chapters and then throwing them away. We also hope both of these options are useful for those who might want to use the book outside the law school setting. Those who do not want, or cannot afford, to pay that price can use the free digital version.
Our most important acknowledgement comes here: We would like to thank Mr. Balfour Smith, the coordinator of the Center for the Study of the Public Domain at Duke Law School, for his tireless research and editorial efforts, for navigating the publishing process, for his nifty cover designs, for helping us to put this book together from the ground up. He was the one who made this supplement possible. We would like to dedicate it to him.
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First Edition, 2014
James Boyle, William Neal Reynolds Professor of Law, Duke Law School
Jennifer Jenkins, Director, Center for the Study of the Public Domain & Senior Lecturing Fellow, Duke Law School