Patents, Copyrights And Trademarks, Oh My!

from the the-big-three dept

Continuing my series of posts on the basics of "intellectual property" (which, yes, is a misnomer, but that's the next post in the series...), I wanted to just do a quick post highlighting the major differences between the "big three" categories of intellectual property: patents, copyright and trademarks. This is not intended to be a complete description of the three, or a full listing of the differences between them. Just a quick breakdown. And, yes, there are some other things that some people include under the IP umbrella, but we're going to avoid those for now. Too many people seem to mix up patents, copyrights and trademarks (even the popular press does it all too frequently), and it's important to at least understand the basics. Also, on the specifics, I'm sticking to US law, rather than international law. There are some major differences across countries, though the key points are pretty similar.

  • Patents: A patent is an exclusive right, or a monopoly, granted to someone for a limited time in exchange for publicly disclosing a new and non-obvious invention. The purpose of a patent, as discussed last week, is supposed to be to provide additional incentive for the invention to be created in the first place. While many insist that the purpose of the patent system is to force the disclosure of those inventions, that's, at best an exaggeration, and at worst, a complete myth. Generally speaking, a patent lasts 20 years from the date of filing. Under current US law, patentable subject matter has expanded quite a bit over the years, and now includes things that at times were not considered patentable, including software and business models or methods.

    Getting a patent requires going through an application process, which can be rather involved. Given the current backlog, it can take quite a long time to get a patent approved. These days the percentage of patents being approved at the USPTO has dropped drastically from earlier in the decade. This is due to a few things, including changes in policies at the USPTO and in the US court system (basically forcing changes on the USPTO). Recipients of patents can assign those patents to other parties or license them, if they so choose. Patents are given to inventors, not companies, but are often assigned to companies (many employment agreements require employees to assign all patents to the company).

    Infringement over a patent can be for violating specific claims within a patent -- even if the accused infringer came up with the same thing independently. Coming up with something independently is not considered a valid defense against a claim of infringement (though there is some effort underway to change this, and some believe that an independent invention should be evidence against obviousness towards a patent). Winning a patent infringement case can involve an injunction, forcing the infringer to stop producing the infringing product (even if the infringement is a small part of a larger product) as well as fines for the infringement.


  • Copyrights: Copyright is a right given automatically to the creator of new content, granting them the exclusive right (with some exceptions) to reproduce, perform or display the work. There is no application process for a copyright. Any new work is automatically covered by copyright (this is a change from earlier copyright law). Despite the fact that copyrights are automatically granted after a work is created, you can still register a copyright, and doing so allows you to sue for statutory damages against infringers. Copyrights are officially for "a limited time," though that limited time has been expanded repeatedly over the years, and currently stands at "life of the creator + 70 years."

    Like patents, the purpose of copyright is solely to encourage the creation of new content. It's an incentive system of sorts. Contrary to popular opinion, the purpose of copyright has nothing to do with preventing plagiarism or even making sure that someone gets proper "credit" for their works. It also is not designed as a system to guarantee a living for creators. It is merely an extra "right" granted to creators in the hopes that it will help incent the creation of additional content. Copyrights can be sold, and entities other than the original creator can (and often do) own copyrights.

    Copyright infringement is for actually copying the work. Unlike patents where something totally independently created can infringe, copyright infringement only covers copies of an existing work, rather than something similar, but different. There are various and important exceptions to copyright law, with "fair use" being a rather important one. These are uses of the copyrighted content that are considered perfectly legal without first requiring permission. There is also a "right of first sale" associated with copyright, which means that you have the right to resell copyrighted products you have purchased. That's why you can resell a book or a CD that you legally possess.


  • Trademarks: Trademarks are generally a company name, brand or logo that is used to distinguish the company and/or product from competitors. I take exception to the idea that trademarks should be lumped in with patents and copyrights, both of which really come out of the Constitutional clause we discussed last week, and are both designed as incentives for the creation of either inventions or new creative works. Trademarks, on the other hand, are really designed as a form of consumer protection. That is, they're designed to make it so you know who is actually creating a product, and don't get tricked into believing that a certain product was made by one company when it's really made by another.

    There are common law trademarks, but for the most part, a trademark should be registered. Unlike patents and copyright, trademarks aren't designed to expire and can last as long as they're used in commerce and don't become generic. Also, despite attempts to expand what trademark rights grant, they do not confer the same level of control over the mark. Others can make use of trademarks, just not in commerce in ways that are likely to confuse users. Competitors, for example, can use the mark in a comparison or an advertisement (this is sometimes disputed, but it tends to stand).

    Because of the risk of losing a trademark if it becomes generic, there's a belief that trademark holders are required to police its use -- which, again, is a bit of an exaggeration. Yes, trademark holders are required to take certain steps to keep a mark from becoming considered generic and potentially losing the mark, but that doesn't mean threatening or suing anyone who uses the mark. As we've stated, there are many perfectly legitimate ways to make use of someone else's trademark, and going after those uses is not necessary (though, it still happens all too frequently).
Hopefully that helps explain the key points between the three big types of "intellectual property" highlighting some of the similarities and differences between them. Again, this isn't designed to be comprehensive -- but just to highlight some of the key points, in order to avoid confusion in some of the later discussions. For the next piece, I'll get into the phrase "intellectual property" itself, and whether it's an accurate term, as well as look at some of the alternatives.
Links to other posts in the series:

Filed Under: copyright, intellectual property, patents, trademark


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  1. icon
    Mike (profile), 28 Feb 2008 @ 10:58pm

    Re: Re: Re: Re: Re: Double Speak?

    Hi Alan,

    Sorry, I should have made clear I was thinking specifically of written works, where "giving credit" is referring to quoting with citation, which is fair use.

    Even that's not accurate. You can only copy a small portion to have it be considered fair use. If you copy all or substantially all of the piece, then it's still infringement, even if you give credit. Hell, the AP is suing Moreover for merely reposting headlines and the first sentence of an article...

    Here's my issue with this example, and where I think that written materials differ fundamentally from the music industry, where I wholeheartedly agree with your arguments. When a band gives away their music for free and makes money off their scarce commodity, i.e. touring, they are in 100% control of that scarce commodity. But when it comes to authors and the scarce commodity is books, the authors are not in control of the publication of those books. They are at the mercy of the publishers, who are not obligated to pay them royalties in the absence of copyright, as I said before.

    As I noted with Corey, books are a scarce product, but not necessarily the only one. And, don't get caught up in thinking that you need the publisher as the middleman any more...

    Good examples I was not aware of. However, there is at least the possibility that they are unique and not representative of the market at large. A publisher might give a well-known author like Charles Dickens preferential treatment, but would they do the same for new authors trying to break into the market?

    A new author tends to be more worried about obscurity than piracy... and if pirating the book makes that author famous, then the next go around they have the leverage.

    And with the 9/11 report, because we are still at the beginning of a new era of thinking, perhaps it has just not entered people's consciousness that for a work not protected by copyright, one publisher's copy is just as good as another, the only differentiator being price.

    There's little evidence to support there and plenty of evidence that suggests it's not the case at all. A recent look at generic drugs is a perfect example. Despite the fact that generic drugs are chemically equivalent, and most people know that, many people will stay pay much, much more for the brand name drug. There is a value placed on the "official" version of something or the brand associated with something, and people pay it.

    No question, and these are in fact scarce commodities the authors are in control of. But there are I-don't-know-how-many thousands of published authors in the US, and I don't think there are enough speaking engagements and columns to go around to all of them that they could make the equivalent living they do today.

    Indeed. I should be clear here. I am not saying that all authors will suddenly get speaking engagements and columns. I am saying that there are a host of different business models that will show up -- and some authors will accept some, and others will pick up others. There isn't one business model any more.

    Are there potentially other scarce commodities authors could make money from? Yes, but the key word is *potentially*. Part of the problem I have with your arguments is that you assume that when the infinite goods are liberated, the scarce goods will definitely be sufficient for creators to make as much as they did under the old scheme.

    Fair enough. I'll just say that I've yet to come across a market where the infinite good hasn't created more scarce goods from which to make more money -- and I've been looking. Everywhere you look, it only creates additional opportunity. It makes sense, too, when you think about it -- because the infinite good is, by its nature, increasing the resource pool from which to make scarce goods more valuable. Any time you increase the resource pool, there should be greater opportunities to profit.

    For example, you truly shocked me when you wrote against a la carte pricing in the cable industry. You basically admitted that the prices we currently pay for cable subsidize lesser channels that would not be able to survive for themselves in a market purely driven by competition. Take away those artificial subsidies and several channels would go out of existence.

    That's mostly due to the regulatory nature which enforces a near monopoly on cable tv providers. And, I wasn't necessarily saying it's good or bad. I was just noting the idea that people have that a la carte would decrease costs is unlikely to occur. I'm not against a la carte pricing -- it's just that people who think a la carte pricing means that they'll just pay $4 for a couple channels are going to find the reality much different.

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