Intellectual Property 101

Many people think that once they conceive an idea, they automatically obtain rights under intellectual property law that protect the idea. This is not how the law works. To be eligible for protection under intellectual property law, the idea must be expressed in a tangible way. If all you have is an idea for a movie then in the eyes of the law you have an unprotectable idea. This means that if you tell someone about your movie idea without making a tangible record of it and they write their own script based entirely on your idea, there is nothing you can do about it from an intellectual property law standpoint.

Once you have expressed your idea in a tangible way, you obtain an exclusive right to use or reproduce it as the owner and the work becomes eligible for one or more of the four types of intellectual property protection. It can be protected as a Copyright, Trademark, Patent or Trade Secret.

Copyright protection is granted to original works of authorship that are fixed in a tangible medium of expression such as literary, musical, dramatic and artistic works. To qualify for protection, the work must be original and the person claiming ownership of the work must be its actual creator. It gives the author the exclusive right to reproduce the work, distribute copies of it, make derivative works from it, perform it and display it publicly. An example of this is the novel, Half of a Yellow Sun by Chimamanda Ngozi Adiche. As the author of the novel, she has the exclusive right to reproduce it from the written version to an audio version, sell it in book stores and online or write a play based on the book. Anyone who does any of these things without her consent will be liable for infringement.

Trademark protection is granted to brand names, logos and words that identify the source of a product. It can be located on a package, label or the product itself. To qualify for protection, it must be distinctive. An example of this is the word “Nike” and the Nike Swoosh symbol which are trademarks of the athletic footwear and apparel company, NIKE, Inc. Trademark law gives NIKE, Inc. the exclusive right to use these marks, sell products bearing the marks, grant a license to another person to use them and to prevent others from using the marks without the company’s consent.

Patent protection is granted to an invention for a limited time. It gives the inventor the right to exclude others from using or producing the invention without the inventor’s consent. To qualify for protection the invention must be regarded as “patentable” under relevant laws. The other key requirements are that it must be useful, it must be new, it must involve an element that is non-obvious to others in that particular industry and it must be described in such a way that a person with an ordinary level of skill in the relevant industry can replicate it. An example of this is the patent granted to Google for its Emergency Medical Response Drone that can carry medication or defibrillation equipment to a person experiencing a medical emergency.

Trade Secret protection is granted to any valuable confidential information that gives a business a competitive advantage and is unknown by its competitors. To qualify for protection, reasonable efforts must have been expended to keep the information confidential. The confidential information can be a formula, technique, consumer list, manufacturing process, advertising strategy or sales method that relates to a business. A popular example of this is Kentucky Fried Chicken’s original recipe. The recipe was initially in Colonel Sanders’ head but he eventually wrote it down. The handwritten copy is kept in a safe in Kentucky and the few employees who know it are bound by a confidentiality agreement. KFC also expends reasonable efforts to keep the recipe confidential as two different companies blend a portion of the spice and herb mixture before it is automatically processed and sent to restaurants. When such confidential information is acquired by improper means it is referred to as a misappropriation and the business can sue for a legal remedy.

Of the four types of intellectual property protection, only patents must be registered before they can be enforced. Patents are registered with the government and it is upon this grant that the inventor enjoys exclusivity. Copyright and trademarks do not have to be registered to be enforceable. However, registration with the relevant government agencies is advised because it establishes a public record of ownership and it is required for filing an infringement lawsuit in many countries as well as for obtaining monetary damages. As for trade secrets, registration is not required because then it would no longer be a secret.

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