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What is Intellectual Property? A handy roadmap for game developers
by Zachary Strebeck on 12/02/13 03:07:00 pm   Featured Blogs

The following blog post, unless otherwise noted, was written by a member of Gamasutra’s community.
The thoughts and opinions expressed are those of the writer and not Gamasutra or its parent company.

 

What is intellectual property?

According to the World Intellectual Property Organization (WIPO), intellectual property is defined as “creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.” Various types of legal protection are available for intellectual property, each providing different levels and types of protection for different amounts of time. For the non-lawyer, it can seem daunting, but this guide should help you to understand the basics. 

Understanding the four types of intellectual property protection:

The four types of protection available for your intellectual property are Patents, Copyright, Trademark, and Trade Secrets. Each has its own particular legal wrinkles, from the period of protection to the specific property that can be protected. We will tackle each one in turn.

Patents:

Patent law is based in the Constitution, Article I, Section 8, which gives Congress the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The patent system in place in the U.S. grants a patent holder the exclusive right to make, use, and sell an invention for a period of 20 years. This isn’t an affirmative right to do anything, but rather a right to exclude others from making use of a patented invention. The reasoning behind patent law is to promote competition and promote innovation in invention. 

Generally, in order to be patentable, the invention must be useful, novel, non-obvious, and able to be described in the patent in such a way that someone else skilled in that art can replicate and understand it. Not every type of invention is patentable, however. The laws of the universe, natural phenomena, and abstract ideas are not patentable inventions. What can be patented are processes (even business processes, such as Amazon’s 1-Click shopping cart process), machines, manufactured objects, and novel compositions of matter.

Copyright:

Copyright law is based on the same Constitutional clause as patents, and seeks to serve the same function by granting exclusivity in order to foster innovation. Copyright grants multiple rights to the owner, including the exclusive right to copy, distribute, perform, display, and create derivative works from an original work. Copyright protection is available for many modes of expression, including literature, sculpture, graphics, paintings, photographs, songs, and dance choreography. While copyright protection exists as soon as a work is created, registration is necessary in order to bring a lawsuit for infringement.

One of the important points to keep in mind when thinking about copyright is the fact that ideas themselves cannot be copyrighted. In order for copyright protection to apply, the idea must be “fixed in a tangible medium of expression.” This could be anything from writing down the idea, painting the picture of the idea, or recording the dance steps that make up your choreography. Copyright protection lasts for 70 years after the life of the author, or 95 years from the date of first publication in the case of an anonymous work.

Trademark:

Based in the Lanham Act that was passed in 1946, trademark law governs a completely different area of intellectual property protection than patent and copyright. Trademark protection has two purposes. First and foremost, trademark protection seeks to protect consumers, by preventing confusion for consumers as to the source of a product. Additionally, trademark protection grants exclusivity for protected marks to the holder of that mark in a market of competing goods.

While there are cases of colors and scents being trademarked, most often it will be a product or brand name that is the subject of the mark. Additionally, trade dress protection is available for the shape and design of products. An important requirement for trademark protection is distinctiveness; generic terms are not available for protection. Generally, the more arbitrary the mark is when compared to the product, the easier and stronger the protection will be. Merely descriptive terms are difficult to trademark. 

There are many benefits to taking advantage of trademark registration. These include “constructive” notice across the country, meaning that an infringer cannot claim ignorance of a registered mark. It also allows the use of federal courts to litigate infringement cases, and the use of U.S. customs to block the importation of knock-off goods.

Trade Secret:

Lastly, protection of trade secrets is an important aspect of intellectual property that manifests in a very different way than the others. Because of its inherently secret nature, public registration of trade secrets is not required. It is based in common law (judge-made law), rather than in statutes like the other types of protection. Two things are required for trade secret protection. First, the thing claimed to be a trade secret must actually be secret. Second, there must be reasonable efforts taken to protect these secrets. This means that some policies or procedures must be in place, and the one in possession of the secret must treat it like a secret.

Because they are not registered, trade secrets are generally protected by litigation in the courts. When someone wrongfully acquires and uses the trade secret of another, there can be damages awarded in court. This could come from corporate espionage, the breaking of non-disclosure agreements, or some bribe or other inducement of someone in the know to give up the secret to a competitor.

Conclusion:

We’ve only scratched the surface of the four types of intellectual property in this article. Future blog posts will hone in on each, and talk more in depth about how the different types of protection can benefit game and software creators. Stay tuned for more. You can find me at http://www.strebecklaw.com, or on Twitter @zstrebeck.


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Comments


Dane MacMahon
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"Copyright protection lasts for 70 years after the life of the author..."

One of my biggest pet peeves. should be 20-30 years max.

Katy Smith
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You can thank Disney for that.

Sam Derboo
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Even 20 years would still be grossly inflated if it was just about intellectual property. But I guess you need at least a decade or two to prevent any copyright-related murder...

Matt Wilson
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I don't think 70 years is long enough, i'd certainly advocate an increase, IP's are becoming legacies now and it is unfair to think that an entire empire built upon a particular character or franchise could be undermined because copyright protection expired. If CP was reduced to 20 years as you suggest then Mickey Mouse would now have no protection. Can you imagine the negative impact on the icon if every tom, dick and harry had the freedom to use him, it would massively dilute the property and it's representations.

Sam Derboo
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Yeah, sure, just how being in the public domain completely destroyed Alice's Adventures in Wonderland, Snow White, Cinderella, Greek Myth, 1001 Nights, Notre-Dame de Paris, the legend of Robin Hood and whatever other classical stories the Walt Disney Company ever pillaged in its history. It's perfect irony that the company that blocked a huge chunk of our cultural heritage from being creatively invigorated by free circulation and reinvention is probably also the one that profited (and keeps profiting) the most from it.

As if someone keeping to earn loads of money with something someone they've never even met invented a hundred years ago was a good thing. If you build an entire empire upon a particular character or franchise (which I don't think Disney even did, and I like to believe they would continue to do well even without them getting royalties for EVERY Mickey Mouse lunchbox sold in Europe and North America), you build an empire upon laziness, exploitation and stagnation, and you deserve to go down for it.

Dane MacMahon
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@ Matt

Pretty much what Sam said.

Zachary Strebeck
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I think it's an area where a balance must be struck. I think that copyright protection is important for creators, but I also think that pushing the duration for over a century in many cases is going too far. The constitution mandates protection "for limited Times" and the Supreme Court has held that progressive extensions do not violate this clause, but it seems to be near the edge of credulity at this point. So in that respect, I agree with you, Dane. As a creator, I may want more than 20-30 years, though!

Alex Covic
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This is a great overview!

I cannot wait to see the future article that will deal with the trade agreements and International law part, securing (and enforcing) your patent, trademark & copyright rights outside the US ... and a subsection for the "small Indie devs".

Zachary Strebeck
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I will look into it. International law is not really my area of expertise, but I realize that it can be very important in today's global marketplace. I'll check it out and write it up if I can.

Nick Meh
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The article is a great run down.

I would say, the the first three are nicely linked to the Article of Law that provides their purpose and legality.

But you kind of brush over Trade Secret and the Trade Secret Act. Of the four, it is the only one that not only can result in a court ruling, but rather those responsible are illegible for jail. Reference. 18 USC § 1905 - Disclosure of confidential information.

This too often is brushed over. Carrying secrets from one job to the next is so common. And I think the common theme, while not always malicious, is that those persons just have no idea that can't be sharing that kind of information.

Zachary Strebeck
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Great idea for another post! I appreciate the feedback. You're right, though. Trade secret is often overlooked as an important bit of intellectual property. This is where a lot of the NDAs and other contractual protection come in handy. I will definitely be writing it up soon.

Matt Wilson
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Really enjoyable article, I often feel the likes of EA and Activision distort their legal rights with pages of jargon, it's hard to come across information which explains basic legislative concepts without incorporating unnecessary complications.

Zachary Strebeck
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I think some blog posts explaining some of the common contract clauses found in publishing and development contracts would be good. Does that sound like something interesting?


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