What is Intellectual Property? A handy roadmap for game developers
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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.
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 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.
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.
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.
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.