Today, April 26, is World Intellectual Property Day 2012. “To increase general understanding of what intellectual property really means, the World Intellectual Property Organization (WIPO) member states chose April 26 – the day on which the WIPO Convention came into force in 1970 – as World IP Day” (http://www.wipo.int/ip-outreach/en/ipday/).
As creative professionals and industries around the world celebrate this day, let’s take a few minutes to understand what is intellectual property and how is it relevant to YOU in your everyday life, even if you are not an artist, a musician, a film maker, and/or a writer.
Let’s begin with defining what intellectual property is. WIPO defines intellectual property as creations of the mind; inventions, literary and artistic works, and symbols, names, images, and designs used in commerce ( Source: http://www.wipo.int/about-ip/en/ (WIPO)).
These are divided into two categories:
- Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source
- Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs
Intellectual property rights are the incentive for creative professionals, including but not limited to, artists, musicians, writers and moviemakers, to generate the work they do that we can then enjoy, criticize, purchase, give away, protest against or rally around. This is after all, a controversial area. Copyrights are basically a bundle of rights to the “author” of the work to control the reproduction, distribution, display, and ultimate use of the work created.
Some key points:
- It has to be in a fixed, tangible medium. Thoughts and ideas are not protected, their expression is. Ever see the same movie twice with different actors?
- Who the author is can sometimes be the point of legal contention – work for hire, employee vs. independent contractor, commissioned works – each of these adds a new dimension of complexity if a contract that spells out the exact relationship isn’t explicit or doesn’t even exist. Then expand that question to who owns user comments on a Facebook® Fan Page or who owns contributions to a Wikipedia page?
- Rights can be transferred through a sale or license agreement. Rights can be split – for example, a right for composition vs. for lyrics in music; a right to reproduce but not distribute.
- Rights last a certain amount of time only and the length depends on which country the work was produced or registered.
- Do you need to register? If you want to sue is what we’ve always been told. Easy, but can be expensive when you begin to register in every country you want protection in. (For an easier solution, look up Madrid Protocol).
Trademarks are symbols or words used to identify a source. In marketing, trademarks are related to branding. In today’s online world, finding the perfect name for a company, product and/or service can be complicated as you want to make sure you not only have a unique and distinctive name, but that you can have the website domain name, the Facebook® Fan Page name, the Twitter® ,Linkedin®, YouTube®, and Flickr® accounts, WordPress® or Blogger® account and as many other social media platforms you will have a presence on that are the same as the brand name you decided on.
Some key points:
- Trademark can be infringed if customers are confused between two marks because they are too similar.
- Trademark value can be diluted if someone else has a similar mark or uses your mark in a less than positive way (way less than positive, if you know what I mean).
- ™ and ® are different. You can use the ™ as soon as you start using your logo/symbol in commerce. You use the ® when you have a trademark registration with the US Trademark and Patent Office (expensive but worth it).
- Can the registered trademark help you in securing the account names for social media platforms? A lawyer’s answer – it depends. But it is always a good first step.
Other intellectual property rights include trade secrets (best one Coke Cola’s formula) and patents.
A good rule of thumb is everything on the Internet is owned by someone – logos, icons, graphics, articles, text, photos, drawings, advertisements, blog posts, videos, and on and on. Do not use it without permission (even if it was posted by a family member or life-long friend) or without an absolute justified defense under the fair use doctrine of the Copyright law (in the US or its international equivalent for foreign websites).
Intellectual property rights are all around us – from the coffee we drink to the late night comedy program; form the morning newspaper on our iPad® to the evening email right before we leave work – our favorite television shows, movies, morning cartoons, and more. We wear them on our clothes, on our carrying cases, on our technology. How does intellectual property affect your world?
For more information on World IP Day check out their Facebook Fan Page – yes, the WIPO is in the 21st Century! https://www.facebook.com/worldipday
For more information on my intellectual property legal practice and other resources (including presentation handouts) see: www.dgonzalezesq.com.