What are the best ways to secure intellectual property against loss or compromise? PART ONE:

PART ONE:

1.Using the Registration Procedure

In the UK and in the USA and in most other countries, there are robust Intellectual Property Registration Offices, Laws and Systems; which ought to be the first port of call for anyone who holds what they hope or suspect might be a money-spinning piece of abstract property.

But first we need to know what such an abstract piece of property looks like, which is able to be translated into a registered and legal property right backed by the full force of law in the jurisdiction of its Registration or recognition.

In the main four chief Intellectual Property Rights (IP Rights) exist; although there are some others which ought to be considered in certain instances of trading.

These four main items are:

1.Patent – which is awarded as a Grant
2.Trademark – which is awarded as a Registration
3.Design – which also is a Registration
4.Copyright, which is registrable in the USA but which is automatically created as an Intellectual Property Right upon an eligible work’s creation in the UK

But not everything a person is able to think up, or invent qualifies as a right which is registrable, recognisable, or grantable. Particularly regarding Copyright, the IP Right for copyright is not in the uniqueness or the value of ideas embodied in say a piece of writing; the IP Right is embodied in the words use to express those ideas and thoughts. Thus a person without any legal prohibition is able to ‘steal’ another’s ideas from a piece of writing; provided that the expression of those ideas is altered into words which are considerably different to their original prose expression.

(For higher level students and academic tutors there are special terms in place regarding copyright and the protection the law gives to copyright. These special terms will be looked at in a later article)

Copyright is able to protect artworks, pictorial and musical; recordings of performances like theatre or concerts; movies; statues, architecture, drawings, computer programs, software, and more or less anything which is a recordable medium allowing a distinctively singular expression of any sets of ideas or perceptions.

If you are in the United States and you think you are holding something you think might be registrable under copyright law there; you should enquire at the US Copyright Office; which office is able to advise you on whether what you are holding is registrable as a copyrighted item. Remember, it is very hard to overturn a registration of a copyright once it has been allowed. It will probably mean a court case and attorney’s fees and a collecting of and a marshalling of evidences; the whole nine yards of it. So if the right is rightfully yours, and it is copyright registrable; and it might be of business value; register it, before someone else goes before you.

Do not disclose the item to others; not without first having registered it – or else you have had the person to whom it is being disclosed to sign to a Non-Disclosure Agreement, which is a document effectually able to help greatly to prevent further disclosure than to the signee, when such a document is worded properly and comprehensively.

Disclosure of any item which constitutes an as yet unregistered IP Right is not good business sense; not even to your nearest and dearest; you are putting temptation in the way of the persons to whom you disclose it; temptation to steal it from you. The more an item is worth potentially in money terms; the greater the temptation you are putting before your friends and colleagues.

Like Pandora’s Box; once the item of value is out the hat; it is not able to be put back into the hat; just like the invention of Nuclear Weapons.

Copyright arises automatically in the UK upon the creation of a work which qualifies to be copyrighted. No registration is required or available at the date I am writing this. So, in order to be able to have evidence of certain copyrighted works of yours, that they are yours and that you made them at such and such a date; what people do is to seal securely and very well indeed, an envelope with the manuscript or the software coding or whatever inside it, and post it to themselves.

The postal service franks the envelope and this dates the contents objectively and independently and in the course of events. You must never open the packet you sent to yourself – not until you need –say for a court case – to establish and verify with some force that you actually did make the items at the date of the items enclosed in the envelope.

Some items which are copyrightable are not able to fit in an envelope of course; and other means of objectively establishing evidence of ownership or authorship or both will be required.

Now ownership of a copyright is a very different thing from having been the creator of it. Like all marketable Intellectual Property a copyright is a saleable asset in one’s business or one’s bottom drawer. The saleable value of an item like this is of course dependent on the money value and potential of the item itself. But only the owner of the copyright is able to realise by sale of the right to another, any money from an absolute transfer of the property right to another.

There are of course licenses which a copyright owner is able to grant to users of his copyrighted item; and these will be dealt with separately elsewhere also. Just to say for now that the owner retains ownership of his copyright when he has licensed out use of it to others. Others have use of it on lease as it were for a set period normally; after which their license to use that item expires. During this period under license to a person, this person aims to make money by the commercial use of the copyright they have lease of for a time.

The owner of a copyright in the normal way is the creator of it; at least the initial owner of it is the creator. But not always. In the USA and in the UK, and in many other nations and jurisdictions there are laws which say that when an item of Intellectual Property (of almost any kind) is made by an employee during that employee’s working hours in his company, the IP right for that work belongs to the employer.

There is more to this aspect of law than merely this provision that the employer owns the rights in what is created during that time an employee gives to the employer; but you might look up these additional details on the web if you feel you need to know about them?

In the US this kind of provision labels works created in employers’ time under the title of ‘works for hire’. (But don’t think that you can get around this by working at home in your own time and inventing or creating something which will be yours and not your employer’s. Employers have successfully gained ownerships of rights in such works based on evidence they have presented that the content of these works originated substantially with data owned or explored by their company in the course of their business.)

Copyright then is not always straightforward. There are other perils arising from things like shared ownerships of IP rights, say in business partnerships which are being dissolved – especially when there is bad blood between partners. Or else, there are perils to assessing what amounts to unlawful use of another’s copyright; say for instance, because what you think you have created was maybe a vestigial memory of something you had met with sometime beforehand

George Harrison was sued successfully by The Chiffons; and that girl group’s representatives and backers. Harrison’s ‘My Sweet Lord’ had a melody which was found in law to be too similar to The Chiffons’ ‘He’s so Fine’ a song released a good ten years before ‘My Sweet Lord.’ George paid a phenomenal sum to settle the case. Even the best of us can mess up.

But the key to unlawful usage is the word ‘commercial’. The usage objected to by a owner of a copyright has to be commercial usage and usage intended to make monetary gain from it by the copier. Some jurisdictions add that reparations from the copier are due also when commercial harm has been done to the copyright owner. These two things then: gains to the copier and harm to the copyright owner – or the ‘holder’ –as the owner is generally called in Europe – have to be established by hard evidence presented to a court before the court will find in favour of the holder.

Copying for non-commercial purposes; where no gain is made nor intended – and where no harm to the holder can be established – generally this is not usually an offence in law.

Also in general Copyright does ‘run out’ – expires. This is called the ‘term’ of a copyright. Terms are different for different kinds of items which are copyrightable. For instance, I believe a song in the UK presently has a term of 90 years after its first publication; but that is a copyright in the song (I believe) as an abstract entity. Thus when a singer gets permission (under license) to sing another person’s song, this other person being also its copyright holder, and this new version by this singer is recorded; then the recording of that song is a separate item to the song in the abstract; and as such is separately copyrightable as performance of the song. Other items under copyright, like say performances and say artworks carry different term periods

So the owner of the rights in a song-in-abstract is able to make money from his ownership of his copyright by him licensing permission to other singers as a right to record it. And the singer, or his associates, to whom the song is licensed to be performed and recorded; obtains a separate copyright in any recorded performance made of the song by that singer. It can get pretty complex.

Live events like concerts sports games and theatre cannot be copyrighted unless as recordings. Think about it. Can one hold a monopoly on a certain moment in time which has now gone by? Like the air and space, historical time is owned by everyone and no-one simultaneously.

Recently in the past ten years a large streaming service of live sports matches attempted to obtain copyright to the materials it was streaming live by way of what they probably thought at the time was a great wheeze. The streaming service claimed that because there was a four or five second delay between what happened on the stage or on the field of play and when the remote viewers of the streaming saw that same action onscreen; that this four or five seconds delay constituted a recording of those events. Thus they were copyrightable.

The streaming service’s digital streaming box in fact held for four or five seconds an ‘echo’ or a ‘ghost’ of the live actions going on in real time elsewhere; and this ‘ghost’ or ‘echo’ was the basis for the legal bid for copyright rights.

I believe the streaming service failed to convince the law courts and judges.

But it was deeply considered by them nonetheless. They have to abide by what the acts of law say and not by what they want to be the case. Yet it was an enormous presumption and audacity in the streaming company. It was after all bidding to obtain in law exclusive rights to stream live events. What they wanted was not just a right via signing with the persons who put on the matches and shows an exclusive license under civil law to stream them. The streaming company wanted in criminal law to possess an exclusive hold and so an unassailable benefit to it; on streaming its live events. In this way they hoped to blow away the competition – by claiming ownership on real time!!!

But there we go – just one of the conundrums raised in law by the new digital age; an attempt at exploiting the law which tries unhappily to encompass it. Such a bid to own live time is perhaps akin to asking whether virtual reality is in fact wholly virtual; or whether a black hole singularity is actually occupying zero space and so has zero extension?

Virtual reality has to have at least a few electrons and particles/waves flying here and there so that it works; and these particles/waves are the basis of all the material things which we contrapose as being ‘physical’ as against ‘virtual’.

A black hole singularity likewise is described as an ultra-dense mass of materials which has by gravitational forces collapsed in on itself so far as to occupy zero extension. This description is beyond our imaginations to grasp. Something about it sounds impossible. Just like virtual reality sounds in absolute terms unfathomable.

This is how far physics and technology have come – and so have gone into realms which the law and jurisdictions are unable to cope with; because the laws of physics have seemed to have superseded the bounds of common reason, and of elementary logic.

This perplexity is the case also with IP law in some respects too. Thus law is not purely a ‘dinosaur legislature’ hopelessly behind the times; but just as much if not more it is presented with a ‘quantum conundrum’ of how to handle the new scientific worlds and their fringes whereupon our IT and latest gadgetry subsist.

Once again, all is not what it seems; once again, we are at the mercy of forces beyond our management; once again, we are taught humility and due respect for a creation and a universe which refuses to be held by

‘The eyes that fix you in a formulated phrase’