Exclusive Rights of Copyright and Patent Owners

Intellectual property, like other forms of personal property, is characterized by the things that nobody else can do without the owner's permission. If you own an automobile, for example, only you can drive it ”unless you give others permission to do so. It is your prerogative to do what you want with your automobile, including keeping it in your garage for private showings if you are so inclined.

So too, if you own a copyright, you have an exclusive right to do certain things with your copyrighted intellectual property that others cannot do without your permission:

• You have an exclusive right to make copies.

• You have an exclusive right to prepare derivative works.

• You have an exclusive right to distribute copies of the original work or derivative works.

• In the case of certain kinds of works, including literary , musical, and motion picture works, you have an exclusive right to perform the work publicly .

• In the case of certain kinds of works, including literary, musical, pictorial, and sculptural works, you have an exclusive right to display the work publicly.

This list of exclusive rights is found in the U.S. Copyright Act, 17 U.S.C. § 106. A similar list is found in the copyright laws of most countries .

If you own a patent, you have a right to exclude others from doing certain things with your patented intellectual property:

• You have a right to exclude others from making products embodying your patented invention.

• You have a right to exclude others from using products embodying your patented invention.

• You have a right to exclude others from selling or offering for sale products embodying your patented invention.

• You have a right to exclude others from importing products embodying your patented invention.

This list of rights is found in the U.S. Patent Act, 35 U.S.C. § 154. A similar list is found in the patent laws of most countries.

You may have noticed that I described the rights of copyright and patent in two different ways. In the case of copyright, the owner has an exclusive right to do certain things; in the case of a patent, the owner has a right to exclude others from doing certain things.

This is an important distinction. Because copyright involves the affirmative act of creating an original work of authorship, it is a simple matter to determine if someone has copied , modified, or distributed that work. The copyright owner has an exclusive right to do those things, and he or she may license those rights to others.

However, the owner of a patent does not necessarily have the exclusive right to practice his own patented invention because someone else may have invented a necessary prerequisite or broader invention. The most that a patent owner can do is prevent someone else from practicing his or her invention. The patent owner usually can't guarantee that his or her own patents are sufficient to make, use, sell or offer for sale, or import the software. Additional patent rights from third parties may be necessary.

This difference manifests itself in open source licenses by the language of the copyright and patent grants. The copyright grant is an affirmative license to copy, modify, or distribute the software owned by the licensor. The patent grant is an affirmative license to practice patents necessary to make, use, sell or offer for sale, or import the software, but only to the extent of patent claims actually owned or controlled by the licensor. Additional third-party patent rights may interfere with the right to do things with the software, and the licensor does not have authority to grant that broader license.