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 @ 4:10pm

    Re: Re: Re: Double Speak?

    I'm not sure how it's infringment if you give credit to the original source, which generally means we're talking about fair use.

    Oh really? So if I put up an MP3 by Metallica on this website and say "hey, everyone, here's Metallica's MP3" that's not infringement? I think Lars would disagree.

    Giving credit alone is not fair use.

    Again, how else would copyright provide incentive except through the fact that it gives authors a way to profit from their works

    Yes, it gives *a* way for authors to profit from their works. In the same way that *giving* some farmer a monopoly on sugar gives that farmer a way to profit from his farming. It's just not a very efficient way or the best way.

    It's all well and good to talk about new business models using the economics of the free, but until we see a successful one actually demonstrated, it's all just theoretical.

    By this point, I've pointed to at least 50 different *actual examples*. Must I repeat them all?

    In a world devoid of copyright, how would authors make money? In your arguments for the music industry, you tout touring and merchandising, which certainly is an effective strategy, but this doesn't really apply to authors.

    Er. Selling books doesn't hurt, you know. Books being tangible things (remember, the model is selling scarce stuff). As we've pointed out repeatedly, giving away free elctronic versions tends to help with sales of the physical book.

    Other authors have found that it helps generate other ways of making money as well: authors become sought after speakers and columnists thanks to their written works and their influence. Writers get commissioned to work on other projects.

    These aren't theoretical, either. We've pointed to examples of all of them.

    Sure, distributing copies of the work for free online drives up book sales, but without copyright publishers would not have to pay the original author royalties on those book sales.

    There is tremendous demand for *authorized* copies, as published by the actual author. Being first to market makes a serious difference. Even if a publisher doesn't pay royalties (and US history shows that they often will even if not required to in order to keep the author happy for future deals -- see what US publisher paid Charles Dickens, despite not being required to do so), a publishing house that expects to be able to sell lots of books by an author would pay that author an upfront payment, knowing that having the "approved" version that would be first to market is a lot more valuable than being a copycat.

    For proof of this, look at the sales of the 9/11 commission report (which was a huge best seller). It, being a gov't document, was not under copyright. However, the gov't gave it to one publisher first. That publisher got the book version out first, and even though others caught up withn a day or two, the original publisher DOMINATED sales throughout the lifecycle of the book.

    Even though it was a public domain document, being the first with it, and being seen as the authorized publisher was worth a TON of money.

    But this would clearly drive down the amount of published work dramatically.

    You say this as if it's true, yet in every historical look at this subject, removing the monopoly *increases* the amount of work produced, because authors can no longer rest on their laurels and need to keep writing new stuff to continue generating revenue.

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