What is Intellectual Property (IP)?

What is Intellectual Property (IP)?

I get this question often as copyright lawyer, so I thought I would briefly explain what intellectual property is (at a high level). Intellectual Property or IP, should really be viewed when compared to other types of legal property, namely real property (i.e. real estate) and tangible property (i.e. things you can see, touch and feel (other than real estate)). IP is really an umbrella term, as it is broken down into copyright, trademark, patent and trade secret laws. When you hear people referring to IP, just think about these 4 areas of the law, as that is what they are really describing.

So why should an IT company care about these laws?   Well, these laws help to define/protect your rights in your important property.

  • Copyright law protects and provides rights in various things, but to start with they must be ‘fixed in a tangible medium’ (i.e. can be perceived, reproduced, or communicated (written, images, etc.)). This means that copyright law protects source code, and other items that a software company writes or publishes. For example, if someone were to use your company’s source code without permission, copyright law will be one of the legal vehicles employed to identify the property, and right the wrong.
  • Trademark law protects and provides rights in words, designs, logos, phrases and slogans that identify products, and distinguishes them from the products of others. This area of the law protects company/product names, logos and associated marketing phrases, and is much more important today, as these items are used globally as soon as they are placed on a website/picked up by a search engine spider.
  • Patent law essentially provides inventors the right to exclude others from using their invention, in exchange for publicly disclosing that invention.   Patent law protection is often overlooked because of its complexity and cost, but in the right situations can be an extremely big stick/significant asset, even up against another inventor that independently came up with same invention.
  • Trade secret law protects certain proprietary information, that is not disclosed to the public, and provides a competitive advantage by keeping it a secret. As to software companies, the classic trade secret is source code, but it can and should be applied to other information of the business (e.g. customer lists and company strategy plans).

At the end of the day, this description is very general and basic, as volumes have been written on each of these categories, and many lawyers devote their entire careers to just one of these categories. As an IT attorney, I suggest that every IT based company should consider looking at these legal rights (with their attorney) early in their maturity process, as questions regarding IP will definitely come up when you don’t expect it.

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