Last modified on 2 May 2012, at 21:27

FOSS Licensing/Overview of Intellectual Property Rights

Intangible products of human creative activities are regarded as a kind of property and are granted protection in the same way as property rights have been traditionally protected and applied to tangible objects.

Copyright, patent, trademark and trade secret all fall under the category of “intellectual property”. But each must be understood to be significantly distinct from the others.

Trade SecretEdit

A trade secret is a confidential practice, method, process, design, the “know-how” or other information used by a business to compete with other businesses. The precise language by which a trade secret is defined varies by jurisdiction. However, there are three factors that (though subject to different interpretations) are common to all such definitions: a trade secret is some sort of information that is not generally known to the relevant portion of the public; confers some sort of economic benefit on its holder; is the subject of reasonable efforts to maintain its secrecy. Trade secrets are regulated by using a variety of civil and commercial means, such as confidentiality or non-disclosure agreements signed by those who are given access to special knowledge and information.

TrademarkEdit

Trademarks are brand names. distinctive names, phrases, symbols, designs, pictures or styles used by a business to identify itself and its products or services to its consumers. In many countries, colors, three-dimensional marks, sounds, and even smells can also be trademarked.

A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services. Although federal registration of a mark is not mandatory, it has several advantages, including notice to the public of the registrant's claim of ownership of the mark, legal presumption of ownership nationwide, and exclusive right to use the mark on or in connection with the goods/services listed in the registration. Trademarks are usually given for periods between 7 and 20 years with unlimited renewability.

Purpose of a trademark The specific purpose of a trademark is to prevent others from using the same words, designs, graphics or symbols to identify a good or service. The significance of this is that, the trademark does not prevent the good or service itself. As long as a group uses different words, symbols or designs to identify the same good, the trademark is not violated.

Interpretations of a Trademark Other than the simple protection against copying, trademarks can be interpreted in many different ways. The first interpretation associates trademarks with the quality of the good or service. According to the economists Landes and Posner, trademarks are a sign to consumers that the good or service possesses quality. A good or service with a trademark indicates that that good or service is worthy of placing a unique name on it. This unique name means that someone wants to be able to distinguish this good or service. Thus rationally, only goods that possess quality would be worthy of such a distinction.

Another interpretation of a trademark is that it is a signal of innovation. While patents are made to protect and invention or idea when it is created, the inventor is likely going to want to spread the word about his invention or idea. By trademarking that invention, it is a formal declaration that this idea exists. It can also be used to express innovation should an idea not be novel enough to pass through patent regulations. Many ideas are unique yet due to being somewhat related to something already in existence, are unable to be patented. Trademarking allows for that idea to be represented as brand new.

A third interpretation of a trademark is the ability to build a brand from it. To promote an idea or invention, one needs a unique way of identifying it. Once the idea or invention is trademarked, it can acquire significance through its mark.

Trademarks can be acquired through the United States Trademark and Patent Office by filling out an application. The process involves searching through the list of active trademarks to ensure that a similar mark does not already exist.

PatentEdit

While trade secrets enable a business to keep certain information from the public, patents are designed to grant the inventor monopoly rights or monopoly status over certain newly developed knowledge for a period of time (usually 20 years) in exchange for its disclosure. Typically, to gain such rights, the inventor is required to file a patent application, which will be reviewed by a designated patent examiner. Novelty of the invention is an essential criterion in granting a patent.

CopyrightEdit

Copyright is applied to various kinds of creative works, such as literary works, music compositions, paintings and software. Unlike patents, copyright applies to a work upon its creation, regardless of its novelty.

However, the ideas employed by the work cannot be copyrighted. Copyright only prevents others from copying the copyright holder’s particular way of expressing those ideas. Under Copyright Law, the copyright holder is entitled to exclusive rights of reproduction, modification, distribution, and public display and performance of her copyrighted work. A license is often used to explain under which terms and conditions the work can be used. To accommodate different situations, the copyright holder is entitled to draft and adopt different kinds of licenses for each piece of her work.

How is software regulated?Edit

Software is now subject to Copyright Law. Moreover, in recent years it has been argued that software should be patentable as well. Although software patents have been granted in some cases, they are still questioned by many, especially by the FOSS community. Due to page limits and the complexity of the issue, this primer does not address this topic.