ViWhere Nanotechnology Fits

What is evident from both the criteria for obtaining a copyright and from the fair-use defenses to copyright infringement is the fact that copyright protection is strongest for creative works. This is perhaps the most important distinction between (utility) patents and copyrights—what patents protect is largely the functional aspects of an invention. In this sense, these two intellectual-property doctrines are essentially complementary. The functionality of some invention is beyond the purview of copyright protection in the same way that the artistic or creative aspects are outside the scope of patent protection.

The question thus remains: which is the more important form of protection for nanotechnology? Like most responses that attorneys provide, the answer is "It depends." It depends on whether the functional or artistic aspects of some nanotech creation are more important. By far, the current emphasis on nanotech research is on functional structures that should be protected by patents. This is true of the majority of products that have already been commercialized, from surface coatings used in ski wax to tennis racquets that incorporate nanotubes.

But it would be a mistake to dismiss the potential that copyright protection provides. Although they are so small that they cannot be seen by the naked eye, there may yet be artistic aspects to nanotech structures that are amenable to copyright protection even when patents cannot apply. In the previous section, some examples were given of structures that have hybrid aspects of functionality and creativity. In the next section, the idea that nanotechnol-ogy may be a form of art is explored further.

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