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. identicon
    Alan, 28 Feb 2008 @ 8:39pm

    Re: Re: Re: Re: Double Speak?

    "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."

    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.

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

    Fair enough. I've only been reading this blog for a few months. I don't remember examples relating specifically to written works, besides the free online promotion concept, but I'll take your word.

    "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."

    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.

    "...Charles Dickens...9/11 commission report..."

    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? 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.

    "...authors become sought after speakers and columnists..."

    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.

    And keep in mind that the prime scarce good we are discussing - books - are in all likelihood in the sunset of their existence. At some point someone will create a DRM-free ebook reader that is just as convenient and easy to read as a normal print book, with all the desired features like wireless connectivity, etc. At that point, print books become obsolete. Yes, giving away the book for free online may promote sales of the physical book, but that is analogous to the fact that giving away music for free online promotes sales of cds - it doesn't change the fact that cds are a dying technology and that this phenomenon is only temporary. Just as a ubiquitous DRM-free music player will be the final nail in the coffin of cds, a quality ebook reader will be the death of print books.

    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. In fact, you seem to think that authors will in fact make more money, referring to the explosion of creation/innovation that takes place when monopolies are removed. But I don't think that there is anything in economic theory that says that is always necessarily true. Yes, in general monopolies hold back the growth of a market. But isn't it the case that some monopolies instead prop up an artificial market that shouldn't exist in the first place? 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. I realize it is not a precisely analogous situation, but could not the same principle apply here? Take away the artificial subsidies copyright provides, and instead of an explosion of new creation, a significant percentage of authors would be forced out of work? I'm not saying it *would* happen, I'm only saying it *could* happen.

    As a final note, I'm not passing judgment on whether if this happened it would be a good or bad thing. I'd hate to see thousands of authors forced out of work, but I also admit that sometimes I walk through Barnes & Noble and think that a little winnowing of the chaff might be a good thing. I'm not an author myself and have no vested interest in the outcome of this debate.

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