IP Rights SIG/Forms of IP Protection
International Game Developers Association
Contents |
Forms of IP Protection
Intellectual property can be primarily categorised into Patents, Trademarks, Copyrights, and Trade Secrets. A brief summary of each category is provided below.
Copyright
Copyright is a right given to creators to control the distribution of their original literary or artistic works. The owner of a copyright owns exclusive rights to make a copy of the work, to issue copies to the public, to perform or show the work in public, and to create derivative works (such as a translation of the work, or its representation in another medium; the book version of a movie, or the movie version of a book). A copyright does not, however, protect the underlying idea or concept of the work.
Copyright is one of the easiest protections to obtain: once a work is created and fixed in a tangible medium of expression, it is automatically protected by copyright. The duration of a copyright under international law is the remainder of the creator's life plus 50 years (but this term can differ from country to country). However, in some nations these rights may be extended further; refer to the Copyright section for more detail.
Trademarks
A Trademark is a distinctive sign that indicates that specific goods or services are provided by a specific person, group, or business. Trademarks may be a combination of words, letters and numerals in addition to drawings or symbols. Trademarks can also be applied to the shapes of packaging of goods, music or vocal sounds, and fragrances. Even a colour that is considered a distinguishing feature can be trademarked.
Trademark protection prevents rivals from offering imitation goods and services under a name or image that is identical or too similar. The purpose is to prevent consumer confusion, so that the purchaser can be confident in the origin of the product which they are buying. The application for a trademark must provide a reproduction of the actual sign for which protection is sought and include a list of goods and services to which the proposed trademark would apply.
Trademark protection must be obtained through a formal application and registration process. You can obtain an international registration through the World Intellectual Property Organisation (WIPO), which has effect in over 60 countries worldwide. Two treaties - the Madrid Agreement Concerning the International Registration of Marks and the Madrid Protocol - give protection to trademark applicants from countries that are signatories to one or both of the treaties. In the US, and unlike copyrights and patents, a person can sue for trademark infringement without ever registering the mark. What in the US are called "common law" rights exist from the fact of use in commerce. German law trademark rights also exist in other jurisdictions (for example the United Kingdom and Australia). Also, the Lanham Act, the US federal trademark law, allows actions for "unfair competition" based on infringement of unregistered marks.
Once registered, trademarks can be renewed indefinitely by paying a periodic renewal fee. This makes trademarks especially valuable as the only publicly disclosed type of IP with the potential of immortality. Refer to the Trademarks section for more detail.
Patents
A patent is an exclusive right granted to an inventor to control production and distribution of an invention. A patent owner may take legal action against anyone who attempts to make, use, distribute or sell the invention as described in the patent documents. A patent protects more than one particular embodiment of the invention – it also protects variations if properly described in the filing. In order to achieve patent protection, the inventor must publicly disclose how they created the item so that anyone skilled in their area could reproduce it. The intent of patents is to spur innovation, ie building a better mousetrap, by encouraging inventors to share their knowledge in return for a period of exclusivity.
Protection of a patent lasts generally for a period of 20 years. Some countries have grants that are renewable or extendable under specific conditions, but generally a patent is not renewable once the patent has expired. Like copyright, once a patent expires, the invention enters the public domain and anyone may freely use the invention.
To qualify for patent protection an invention must meet certain criteria. An inventor must show novelty, utility, and non-obviousness of the item. Novelty requires that the item incorporate some feature that is outside the scope of existing knowledge in the particular technical area in which the invention spans. Utility refers to whether there is a practical use for the item. Non-obviousness requires that the patent contribute something new to technology as a whole. Once these criteria are met, governments can still refuse to issue a patent for an invention if its commercial exploitation is prohibited for reasons of public order or morality, or if the invention has been previously offered for sale. Refer to the Patents section for more detail.
Trade Secrets
Simply put, a trade secret is a secret that, by virtue of its secrecy, provides a business advantage; for example, a "secret recipe," a "secret algorithm" or invention, a list of customers or employees or marketing plans. A trade secret owner may take legal action against anyone who improperly discovers or reveals the secret; for example, an industrial spy, disgruntled employee, or another company who violates the terms of a non-disclosure agreement.
The legal definition of a trade secret varies from country to country and, where applicable, from state to state. Today, the Uniform Trade Secrets Act (UTSA) gives us the most widely accepted definition of a trade secret. In fact over 44 U.S. states have adopted the same language used in this act, as their own definition of a trade secret.
"information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."
Trade secrets are not registered with any government, or published in any catalogue, nor do they have a finite legal lifetime - they are, after all, secrets. A trade secret can be conveyed safely only to others who are contractually bound to maintain secrecy. That a given piece of information is a trade secret of a specific company, must be proven in court only after the fact - when and if the secret is ever compromised.
To qualify as a trade secret, the information in question must be a legitimate secret; common industry knowledge cannot be appropriated as one's own trade secret. In addition, the owner of a putative trade secret must demonstrate that proactive measures (non-disclosure agreements, labeling, secure storage, employee handbook guidelines for handling) were taken and remain in place to protect the secret. Once a trade secret has been disclosed to the public by proper means, it can no longer receive trade secret protection. Refer to the Trade Secrets section for more detail.
