The Maker’s Guide to Intellectual Property
Published at: September 19th 2024
Intellectual property (IP) refers to creations of the mind, such as inventions, literary and artistic works, designs, symbols, names and images used in commerce.
Software is a unique construction, incorporating both creative and functional aspects. While creative aspects of software are protected under copyright law, the functional aspects of software may be protectable via patent law.
Picture 1. Intellectual property (source: vecteezy.com)
Types of Intellectual Property
1. Trademarks
These protective marks (like logos or brand names) that indicate the source or origin of goods or services. Trademarks are governed by federal, state, and common law.
Trademarks receive different degrees of protection depending on consumer awareness of the trademark, the type of service and product it identifies, and the geographic area where the trademark is used.
Rights can potentially last forever and while not required, trademark owners can register their marks for additional protection.
2. Copyrights
Copyrights protect original artistic works (such as literature, music, and software) fixed in a tangible medium. They grant exclusive rights to copy, perform, display, and create derivative works.
The act of creation produces a copyright. This means that even unpublished works are protected by copyright laws. The use of a copyright symbol and the date is common, but it is not required to show that you own the copyright.
3. Trade Secrets
Trade secrets hide commercially valuable information (e.g., formulas, techniques, or processes). Unlike patents, trade secrets have no fixed duration and rely on common law.
4. Patents
Patents protect the owner's invention from being made, sold, or used by anyone else for a certain amount of time. Patents give inventors the right to sell their product or to make a profit from it by transferring that right to another person or business.
Inventors do not automatically get a patent once they invent something new. They must apply for and receive approval on their patent to be protected under intellectual property law.
What’s Protected?
- Inventions: Patents cover processes, machines, or compositions of matter.
- Designs: Design patents protect ornamental characteristics applied to an article of manufacture.
- Commercially Valuable Information: Trade secrets safeguard formulas, techniques, and other proprietary data.
- Artistic Works: Copyrights cover original works fixed in a tangible medium.
- Marks: Trademarks indicate the source or origin of goods or services.
IP protection for open-source software
When working with other software developers and organizations, make sure that contracts specify exactly who owns the resulting IP.
In general, software is copyright protected, which prohibits others from sharing the same use rights as the owner. These include the right to decide who can adapt, copy, and distribute your work and the right to take legal action against those who do so without permission. By copyright law, software falls under a type of literary work.
For a license to be considered open source, it must meet specific criteria:
- The licensee has the right to distribute and charge money for the program.
- Access to and modification of the program’s source code are allowed.
- Distribution and charging for any modifications are permitted.
- The program is usable across various fields and industries.
- License rights apply without requiring additional agreements.
Sources:
What is Intellectual Property? (wipo.int)
Intellectual Property and Open Source | UpCounsel 2024
Intellectual Property Law: Everything You Need to Know (upcounsel.com)