Intellectual property is commonly misunderstood, when it need not be. Mixing up the basic terminology is one of my pet peeves, too. Here, I will give some straightforward and basic information about intellectual property concepts and law. It should be easy to follow!
Although they are not the only forms of intellectual property, there are three main types: copyrights, patents, and trademarks.
In the US (and most of the world), copyright exists for the protection of creative works. The idea is that the individual (or company) that created something should be entitled to control its distribution and any money made from it. By default, only the copyright holder can make copies of, distribute, and profit from their work. They can, of course, authorize others to do this on their behalf, or license the work in such a way to make it freely available to everyone. A work that is no longer covered by copyright belongs to the public domain. Works in the public domain can be used by anyone, in any way, without having to obtain permission or pay any fees. A copyright holder can, of course, release their work into the public domain intentionally, as well, but protection is the default. Currently, copyright protection lasts for 70 years after the creator’s death, or in the case of a work made for hire (meaning a company holds the copyright), it lasts for 95 years from publication or 120 years from creation, whichever is shorter.
It is no longer necessary to file a work with the US government in order for it to have copyright protection, however registering your copyright with the US Copyright Office makes enforcing its protection easier by offering a clear record of the work’s origins, history, and ownership.
During the copyright protection period, it is both a civil and criminal offense to commit copyright infringement. “Infringement” includes making unauthorized copies except for backup/archival purposes, distributing such copies, and selling such copies. It is also considered infringement to produce what are known as “derivative works,” meaning works that substantially use elements of a copyright-protected work.
But what sorts of things does copyright cover, exactly? This is where people tend to get it mixed up with trademarks and patents. Copyright applies only to creative works: books, TV shows, movies, songs (both recordings and sheet music), software, photographs, paintings, sculptures, etc. Copyright does not cover informational sources that lack a creative component. A phone book, for instance, is not copyrighted, because it contains only factual information and no creative elements.
With copyright, there is also the notion of “fair use.” While fair use is not legally well-defined, it is meant to allow limited uses of copyright-protected material for purposes of information, education, or criticism. This is what allows people to use excerpts of books, movies, TV shows, songs, etc. when talking or writing about them: the law recognizes that it would be difficult to have an actual dialogue about the source material if you are unable to reproduce any of it. But there are limits: the use must be “transformative,” which means that the context of the work using it must alter the source material in some way, such as by offering commentary or analysis of it. The more transformative the use, the less likely it is to be legally objectionable.
Patents protect inventions. Inventions can be physical devices–like light bulbs–or more abstract concepts, like business processes or software algorithms (but not entire software products, which are protected by copyright). While creativity may go into the initial research and creation of an invention, the final product must be a finite, tangible creation, or a defined, repeatable process. Patent protection lasts twenty years, universally, and they may be assigned to either individuals or business entities. In order to be patentable, an invention or process must be novel and “non-obvious.” Making a slight modification to an existing invention is not patentable unless it profoundly changes the function or utility of the original invention.
Patent protection means that only the patent owner may use the described process or create and distribute the described invention. Like copyrights, patents can be licensed to others for use or production, and may also be waived so that anyone, anywhere can use them. Unlike copyrights, to be valid an invention must be registered with the US Patent and Trademark Office, and indeed, if two parties come up with the same invention around the same time, the one who makes it to the Patent Office first gets the patent!
Also distinct from copyright is that infringement of patents carries only civil liability, not criminal. Nevertheless, patent lawsuits can be expensive for everyone involved.
There is also no “fair use” provision for patents. The use of a patent is the exclusive right of the patent holder and anyone to whom they have licensed or granted the patent.
Trademarks protect words, logos, slogans, and other small creative works that are used to identify or distinguish a brand or product. To that end, they are a bit strange in comparison to patents and copyrights. For one, trademarks do not have finite terms–they are valid for as long as the trademark owner keeps their registration current and actively protects the trademark. If you own a trademark but never legally challenge others who use it without your permission, you risk losing it.
It is likely that you see trademarked items every day. Product logos and names, slogans, mascots, and even stylistic elements can be trademarked. Trademarks are also unusual in that they need not be unique, they must only be unique enough to avoid consumer confusion. For instance, if there is a parcel delivery service called Awesome Express and a video game with the same name (but that has nothing to do with parcel delivery), it may be possible that both can claim a trademark on “Awesome Express.” They are in entirely different market segments, therefore the risk of consumer confusion is very low. But two parcel delivery services could not respectively trademark the name, and indeed may not be able to trademark similar names, either, due to the risk of confusion.
The “worst” fate that can befall a trademark is to become generic. This means that a trademarked term has become so tightly associated with a product or activity, that the brand name becomes associated with the entire product category, regardless of brand. For example, “Xerox” has become a generic term for photocopies, “Band-Aid” is often used to describe all adhesive bandages, and “Kleenex” refers to facial tissues. Each of these are still registered trademarks of their respective brands, but in the vernacular they are used generically to refer to all photocopies, adhesive bandages, and facial tissues, respectively.
Some trademarks that have actually become generic–meaning they have lost trademark protection due to overwhelming generic use–include “thermos,” “aspirin,” and “laundromat.” Essentially, a genericized trademark has become a victim of its own success!
Trademark protection is also why it is common to see fake brand names on TV shows. This means the production staff did not obtain permission to use the trademarked product, so it was modified to have a fake name.
Finally, a type of intellectual property not often mentioned is trade secret. Trade secrets consist of information that cannot be copyrighted, patented, or trademarked. Instead, it must be kept secret within an organization. These secrets have legal protection so that they may not be improperly disclosed–criminal and civil penalties can follow from the dissemination of trade secrets. An example of a trade secret would be the mix of herbs and spices KFC uses in their chicken. There is no formal, government-registered type of intellectual property protection available for such information, but since it is unique to that company and is an important part of their business–and, indeed, their business would be severely damaged the recipe were made public–it is legally protected.
There are a lot more complexities to intellectual property law than I have covered here, and I also have some rather strong opinions about particular elements of those laws that I will save for another post, but hopefully this primer helps make clear the differences between copyrights, trademarks, and patents.
Photo by samirluther