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Registered rights such as patents and trade marks are very important when it comes to protecting your IP and intangible assets; but it would be a mistake to ignore other ways to protect them, including unregistered rights such as copyright, trade secrets, as well as strategies to record valuable know-how that resides in your employees heads.
Copyright protection
In almost every country in the world, copyright is an automatic right (which means you don’t have to register it) that protects original works of authorship. An excellent example of this is the copyright held by J.K. Rowling for her “Harry Potter” series. No one else can write Harry Potter stories, make films based on the characters or sell toys and games set in the Harry Potter ‘universe’ without her permission.
However, copyright only protects the expression of an idea and not the idea itself, limiting its scope. Nonetheless, it plays a crucial role in the creative industry, protecting authors, musicians, filmmakers, and creative artists from having their work copied without permission.
One drawback to copyright is that it is the creator who gets the automatic copyright to a creation – so if your company uses freelancers to write copy, create designs, take photographs, make videos etc, you should always get a legal agreement assigning copyright to the client company for the work produced.
Securing copyright in this way is particularly important for marketing materials or advertising collateral, as it means a company can use that copyright to stop other companies from using their images, sales documents, brochures and the like – a particular problem online.
Where multiple people may have had a part in creating something, copyright ownership can become quite complex. This is often the case with music, film and TV, and can even be true of books – the original author will have copyright in that first work, but designers, illustrators and publishers can all also get copyright for their contributions to the finished product.
Possibly one of the most useful aspects of copyright is that it can protect software code; and it does not cover raw data, it can cover how databases are organised.
The UK IPO has a useful guide to copyright here.
Trade secrets
Trade secrets cover information that companies keep secret to give them an advantage over their competitors. The recipe for Coca-Cola is one of the most famous trade secrets in the world – and is now locked away in a vault in the World of Coca-Cola visitor experience in the company’s home city of Atlanta, Georgia.
Trade secrets can be short-lived (e.g. a marketing plan) or long lasting (as with the Coca Cola recipe); but they all have to adhere to certain criteria including:
- They can’t be known generally to the public;
- They have having commercial value because they are secret;
- They are subject to reasonable steps to keep them secret.
Protection of trade secrets can be challenging since it requires constant vigilance. Once a trade secret is exposed, it cannot be protected again. That means companies must implement strict internal procedures to ensure the confidentiality of such information.
For example, trade secrets should be:
- Clearly marked as confidential;
- Stored and catalogued securely;
- With access restricted to those with a “need to know”.
The biggest risk with trade secrets concerns accidental or deliberate disclosure by employees, former employees or other confidants. This should be addressed in formal agreements, backed up by training.
If you do ever need to discuss anything relating to your trade secrets with a third party, you must ensure that you have robust Non-Disclosure Agreements in place prior to those discussions starting.
Similarly, a company’s trade secrets policy, and how employees must adhere to it at all times, should be an integral part of employment contracts and regular training for all staff.
It would also be sensible to have strict cybersecurity protocols embedded in your company culture.
Ways to protect know-how
Often, some of the most important intangible assets a company can own are the experience and creativity of its key personnel. While such know-how has immense value, when it’s in their heads, it’s difficult to protect. They may leave the company, or they could be knocked over by a bus.
One way to protect this valuable knowledge is to get them to record it. So you should, as a matter of course, get anyone involved in research and development to keep up-to-date process notebooks and other records. As soon, as this knowledge is recorded, it can be protected by copyright law.
At the same time, if a new invention or innovation is really core to your company, then explore whether it can be patented.
Inngot offers a range of tools and services to help identify, value, and exploit your IP assets and may be able to advise on steps to protect them, although we do not draft patent or trade mark applications.
Other forms of protection
Although patents, trade marks, copyright and trade secrets are the forms of protection that most companies will find most useful, there are various other specialist rights such as Plant Varietal Rights and topographical rights for printed circuits, also called chip design rights.
Inngot offers a range of tools and services to help identify, value, and exploit your IP assets and may be able to advise on steps to protect them, although we do not draft patent or trade mark applications or advise on legal matters.
