What types of IP are there?

This page seeks to outline the various types of IP (Intellectual Property) with which web designers and other individuals may have to deal. Three types of IP are discussed: copyright, trademark, and patent. Background information is given where possible.

Copyright

An author who creates a "text" -- and we understand "text" to include music, text, graphical art, etc. -- is given certain legal rights to this production. Furthermore, an author has these rights automatically. He/she does not have to apply for copyright protection. Indeed, the opposite is true, and copyright must specifically be "given up", such as by putting a work into the Public Domain, signing a contract giving such rights to another, etc. Works in the Public Domain (PD) are treated as public documents that can be used by anyone.

Historically, copyright was established in order to help the English government censor printed works by controlling prnters: "Early decrees required printers to print their names, cities, and date of publication on each work to make it easier for the Crown to locate the press responsible for a particular work."(1). In the German-speaking realm, copyright was by no means a given. The appropriation of texts published elsewhere was a commonplace, and a sort of copyright protection was granted by a local ruler; copyright extended only so far as the legal arm of that ruler. Furthermore, the copyright belonged to the publisher, not to the author. Indeed, as labor was inexpensive compared to paper and ink, this made sense; a writer was seen merely as a laborer using a skill to manufacture a text.

Today copyright protection is assigned first to the original author, who may very well give up such possession to a publisher. Furthermore, after the author's death, copyright often is passed on to his/her heirs. Copyright, however, has limited duration. Once copyright runs out, works enter the public domain. So, for example, while only Stephen King's publisher and anyone licenced by them may publish Stephen King's works, and this will be the situation until long after Mr. King's death, anyone can compile and publish the works of Shakespeare, Donne, Goethe, Voltaire, etc. Note, however, that a particular edition -- as a creative work in terms of editing, layout, etc. -- may be copyrighted.

Almost any creative work may be copyrighted, and copyright is now rather standardized among the many countries that have signed the Berne Convention. Note, however, that individual words or phrases cannot be copyrighted.

Trademark

Trademarks are specific symbols of a company, corporation, or other organization. They may refer to the organization itself or to one of its products. Trademark law restricts individuals and organizations from misappropriating a rival mark, and restricts individuals and organizations from creating similar marks that might mislead others, specifically consumers.

Trademarks are granted more or less on a first-come-first-serve basis. Trademark law is narrow in that protection is usually only given for a specific market. So, for example, there is Apple Computer, but there is also Apple Records, two separate companies competing in separate markets. There are certain exceptions, however. For example, Coca-Cola is so universal that opening a "Coca-Cola Computer Company" will not only get you sued, you will lose and be laughed out of court. McDonalds is another corporation that has such protection. Trademarks, however, are also usually limited geographically. For example, it is perfectly acceptable for there to be a Paul's bookstore in Madison, WI (USA) as well as one in Boise, ID (USA); neither necessarily has precedence over the other.

Complications have arisen in the past few years, however, especially with regard to the internet and regarding globalization in general. In reference to the second aspect, there have been problems in Scotland, for example, with businesses named "MacDonals xyz"; the restaurant chain with a similar name claims to "own" the Mc/MacDonalds mark. Online, domain names (e.g. amazon.com, microsoft.com, slashdot.org, etc.) have caused problems. First, companies wish to treat such names as a type of property and real estate, whereas technically savie folks realize that domain names are merely a convenient naming scheme.

Unlike copyright, trademark must be defended or else it can be lost. For that reason, when a company believes that soneone is using their mark improperly, they feel they must pursue the "offender" legally, or else they might lose their mark. This is definitely true, yet at the same time use of others' trademarks is legitimate in certain situations, and numerous corporations are guilty of over-reacting.

Furthermore, trademark is not as universal as copyright. While one individual or corporation may own the "Linux" trademark in one country, it may be that someone else owns it in another.

Trademarks must be renewed, in contrast to copyright, which eventually just runs out.

Patents

Patents are granted for specific implementations of a process, particularly with regard to inventions. Furthermore, in order for a patent to be authorized, it must not be "obvious". The goal behind patents is to further innovation by encouraging inventors to make their inventions open; in exchange, inventors receive a limited-time monopoly, allowing them, supposedly, to get into a market first, etc.

Specifically, patents are not to be given for algorithms and general ideas. While this may be the case, it is also true that in the recent past, the U.S. Patent Office has granted a number of ridiculous patents for: algorithms (which are not specific implementations of a process; they are a process); general ideas; and trivial applications of existing ideas to a new idea ("one-click shopping", for example, given to Amazon.com). Patents have also been given recently for "business practices".

For the web designer, patents will rarely play a role. There are, however, a few specific patents that do affect the web. In particular, these include patents on the compression used in GIF graphics, and the recently expired RSA algorithm. Patents also affect the mp3 audio compression format. Programmers of web-based applications may have to watch out for software patents. It is noteworthy that unlike copyright, patent law varies widely. The U.S. seems to have the most liberal policies with regard to the way patents are granted; this seems to be partially due to the over-worked nature of the Patent Office and its inability to properly review all applications, due to 1) too many applications and 2) employees who are not qualified to review technology-related topics. Many other countries do not allow software and algorithm patents.

Note that unlike for copyright, there is a complex applications procedure for patents. Patents can be invalidated by examples of "prior art". Finally, patent protection is granted for a period of 17 years.

Non-IP

There are also a few categories of production not protected by IP.

Public Domain

Works placed in the Public Domain (either willfully by their authors or due to the running out of copyright protection) may be copied and redistributed freely. The ability to modify such texts is also given. Do not, however, assume that a work is in the Public Domain simply because you haven't seen a copyright notice accompanying it. Only with classical literature and the thousands of "joke lists" floating around the Internet is it safe to assume PD.

Trade Secrets

Trade secrets are exactly that: secrets. Once they are no longer secret, they lose that status. If you are entrusted with a trade secret and leak it, you can face civil penalties. Once the "secret" is out, however, it no longer has that status. As such, trade secrets do not have the same legal protections as IP forms like the patent.

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