Are intellectual property rights the same as copyrights?

On Behalf of | Aug 5, 2021 | Intellectual Property |

Not exactly. Copyrights are one of the four major categories of intellectual property rights, which include copyrights, patents, trademarks and trade secrets.

Copyrights, specifically, protect the exclusive legal right to publish, sell, reproduce, perform, display, distribute or license copyrightable materials and their derivative works. Those materials are original works of authorship that are fixed in any tangible medium of expression, from which they can be perceived, reproduced or communicated, either directly or using a machine or device.

Basically, copyrightable materials are “writings,” although the definition of the word has been expanded over time. Interestingly, copyrights and other intellectual property rights were not recognized in common law. Once voluntarily communicated, intellectual property was once “as free as the air to common use.”

Today, a federal law and international treaties protect copyrights. The U.S. Copyright Act protects original works and derivative works based on those originals, such as:

  • Literary, musical and dramatic works
  • Compilations of works and derivative works
  • Pantomimes and choreography
  • Motion pictures
  • Sound recordings
  • Software
  • Pictorial, graphic and sculptural works
  • Architectural design

In order to be copyrightable, a work must not only be original and fixed in a tangible medium but also contain some minimal degree of creativity.

Copyrights are limited by the doctrine of “fair use,” meaning that people other than the owner can use parts of copyrighted works for certain purposes, such as criticism, news reporting, scholarship, teaching or research.

Copyrights are also limited in that they may not extend to the underlying idea, procedure, process, system, method of operation, principle, concept or discovery that a copyrightable work may describe. These underlying ideas, however, might be protectable by patent.

Are all original works automatically copyrighted?

Yes and no. Although registration with the U.S. Copyright Office is voluntary and not a precondition for protection, the copyright owner’s rights are limited if the copyright has not been registered. For example, the owner of an unregistered copyright cannot pursue an action for copyright infringement until they register the copyright. There is no deadline to register a copyright as long as you do so within the protection period.

Patents

Another category of intellectual property is the patent. Like a copyright, a patent gives exclusive rights to its holder. However, the thing protected by a patent is the idea, process, procedure, system, method of operation, principle, concept or discovery, as opposed to the description and presentation of the idea.

A patent allows its owner to exclude others from being able to make, use, import or sell an innovation for a limited time period. This is meant to encourage people to invest time and resources into the development of new and useful discoveries.

In order to protect an idea or innovation, you must immediately disclose the patented information to the U.S. Patent and Trademark Office (USPTO).

There are five requirements for patentability: 1) the subject matter is patentable; 2) utility, 3) novelty, 4) non-obviousness and 5) enablement.

Basically, in order to be patentable, the idea or innovation must be a process, a machine, a manufacturing process, a composition of matter or an improvement. One court described this as “anything under the sun that is made by man.” That said, abstract ideas, the laws of nature and physical phenomena are not patentable.

The innovation must be useful, novel and non-obvious to qualify for patent protection. There are specific definitions for each of these, but they are relatively straightforward. In addition, a patent requires “enablement,” which basically means disclosure of sufficient specifics about the idea or invention that a skilled person could make and use it, along with the best mode of use. This must be done in writing.

Trademarks

A trademark is a name, word, phrase, design or symbol, or a combination thereof, that is used in commerce to identify and distinguish one manufacturer or seller’s goods from another’s. Additionally, sounds, fragrances, colors and shapes can be trademarked. Anything that is distinctive and is used in commerce could be trademarked. Trademarks cannot be generic to be protected – and they can become generic with time and use.

Trademarks can have some protection even if they aren’t registered. However, registered trademarks have significant advantages – registration serves as notice of ownership and use of the mark. In addition, five years’ continuous use of a registered trademark can achieve “incontestable” status, which eliminates some infringement defenses.

There are often elements of a company’s or product’s branding that are not eligible for trademark protection, but which nevertheless are used to identify and distinguish the goods. These are things like brand colors, fonts and recurring design themes, and they are referred to as “trade dress.”

Trade secrets

A trade secret is information that has actual or potential economic value because it is not generally known; has value to others who cannot legitimately obtain the information, and; is subject to reasonable efforts at maintaining secrecy. If all three of those elements are in place, trade secrets can be protected indefinitely.

Trade secret protection is complementary to patent protection. While a patent application requires the inventor to reveal its underlying secrets in exchange for the protection and patents only protect their owners for a limited time, trade secret protection last as long as the underlying information remains secret.

The things that can be protected under trade secrets law are defined broadly, and there is often a choice to be made whether to retain the secret and go for trade secret protection or to reveal it and go for patent protection. This choice is to be made by weighing the relative benefits and risks.

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