Copyrights, Patents & Intellectual Property Rights: An Overview

I am not a lawyer, so do not treat this as legal advice. However, I have learnt about copyrights, patents and other intellectual property issues the hard way, and hence feel qualified to give you practical ‘big picture’ advice (which might sometimes go against what a lawyer might tell you legally).

By way of background in this area, I have 9 issued patents from 3 different companies (1 startup, 2 large MNCs), I’ve been on the patent committee of a large company, and I’ve been forced to learn about copyrights by being involved in transactions where they played a major role. Through this series of articles I wish to give quick ‘n dirty advice, just enough of it so that you know what major mistakes to avoid, and when to hire a good lawyer.

If all this sounds boring to you, please take this copyrights and patents quiz which has nice, day-to-day examples that could affect you. And then look at the answers to see how badly you did. That might motivate you to understand this topic better.

First, you need to understand the difference between copyrights and patents, and their related cousins: trade secrets and trademarks. Here is an over-simplified overview (later articles will give more details):

Patents:

A patent gives an inventor of an innovative machine/idea control over who is allowed to implement, make, use, sell, or distribute products based on that invention. If I invent a machine and patent it, and if you look at my machine and create a different machine, which conceptually uses the same idea/mechanism, then you are violating my patent – you can’t do that without my permission. Patent protection only exists if you file the patent with the patent office, and if the patent is accepted.

Copyrights:

A copyright essentially ensures that any creative work cannot be copied without the permission of the author/creator. This allows the author to charge others for copying his work, or modifying it, or building on top of it. For example, everyone who sells any Calvin & Hobbes stickers is violating the copyright of creator Bill Watterson. For a creative work to be protected by copyright law, it needs to be something concrete – i.e. put into some physical format. (The technical term is ‘fixed in a tangible medium.’) It can be the source code of a software program, or the binary executable file, or a piece of music, or a movie, or the text in a book, or a photograph, or a painting, or a speech. It cannot be just an idea in your head.

Let me repeat: concepts/ideas/algorithms cannot be copyrighted. If you invented a brilliant algorithm, and wrote a program about it, your actual program code is copyrighted but the algorithm is not. I can look at your program and rewrite the algorithm in my own style, and that would be legal. (If you had patented the algorithm, then I would be violating your patent, not your copyright.) Anything you write, say, record, paint, etc. is automatically copyrighted as soon as you create it. It is not necessary to register it with any authority. Notice how this is different from patents.

Trade Secrets:

A trade secret is some formula, design, process, or other information that is important for your business/product, and which is kept a secret from others. For example, the Coca-Cola formula. If you take reasonable precautions in trying to keep your secret a secret, then the law prevents other people from using this information if they were to obtain it somehow. Specifically, if you have a secret formula for making bakarwadi, and I obtain the recipe by bribing your cook, you can sue me in court if I try to use this recipe.

Note that a trade secret is almost the exact opposite of a patent. To get trade secret protection, all you need to do is take reasonable measures to ensure that your secret remains a secret. No ‘registration’ is needed, or possible in this case.

Trademarks:

Short phrases, single words or symbols can neither be copyrighted nor patented. But if you’re using something like that to market and sell some product, then trademark law prevents anybody else from selling a similar product (or products in a similar domain) using the same word/phrase/sign.

Nobody other than the Times of India group can use the phrase ‘News You Can Use’ for selling newspapers. But nothing prevents you from starting a restaurant called ‘News You Can Use’ (as long as you don’t sell any media products/services there). This is different from copyright laws, where you cannot copy a copyright work, irrespective of how you plan on using it. You get trademark protection automatically if you’ve been using that same trademark to sell/market some service/product for a long enough time without anybody else claiming it. A registration of the trademark is not necessary, but is recommended to remove ambiguity.

Just to clarify these concepts, let us take some examples.

• Consider any article that Arun writes on trak.in. This article is protected under copyright law, and the copyright is owned by Arun. (Who owns the copyright to this article, written by me, but for trak.in, is an advanced topic to be covered in a future article.)
• The word/phrase ‘trak.in’ belongs to Arun, and he can sue in court anyone else who tries to use the words ‘trak.in’ to sell any Indian business articles/information/services. Note: This is inspite of the fact that Arun has not registered a trademark for trak.in. It would have been easier to prosecute if the trademark was registered, but trak.in already has a well known reputation, and that is enough to give it legal protection.
• If Arun invents an innovative way to monetize text that appears on this website (hmmm… why does that sound familiar) then that algorithm would be patentable. But, there is no protection until he actually files a patent.
• If Arun has invented some super secret SEO trick which ensures that trak.in always stays at the top of Google search results for ‘Indian business blog’, then that is a trade secret, and enjoys legal protection from spies and cheats, unless Arun blurts out the secret one evening after a few too many beers at Doolally.

Arun’s comment: Navin will be writing series of  4-5 articles that will cover Copyrights & patents in further details. Here are some of the topics that you can look forward to in coming days:
Understanding Patents further
Understanding Copyrights further
Understanding Open Source Software Licenses
Copyright issues for bloggers, website owners and other content creators