Writer's Concise Guide to Copyright, Trademark, Patent & Plagiarism - I
Getting It Right When It Comes to Ownership of Intellectual Property
I am not a lawyer. I am a marine industry technical and business consultant. I've also spent more than 30 years working as a professional staff and freelance writer and editor. During that time, I've understandably been concerned with intellectual property rights and protecting them. Consequently, over the years, I've done quite a bit of research on the topic, and would like to share with you this highly distilled compendium of what I've learned. Although by no means to be considered legal advice or opinion, that which I present to you here has passed muster with more than a few intellectual property attorneys.
"Violation of copyright is a matter of law..."
Copyright is established as a matter of law in most nations and as a matter of "conventions" or treaties internationally, including the Berne Convention, UCC Geneva, UCC Paris, TRIPS, and the WIPO Copyright Treaty.
Violation of copyright involves taking the original work of an author or artist, and using that work, or substantial parts of it, without permission of its creator or the holder-in-due-course of the copyright to that work.
Under U.S. copyright law and by international treaty, the original creator of a written work or image is, by virtue of publishing his or her creative work, granted a "creator's copyright."
"Owning the copyright to a unit of intellectual property is not the same as registering or making public notification of that copyright..."
Registering your copyright with, for example, the U.S. Copyright Office, does not confer copyright; it only records your claim to having the copyright. And is one step in removing the "Gee, I didn't know this was copyrighted" excuse from the arsenal of wanton violators of intellectual property rights.
You can register your copyright to a work in about 15 minutes of work and at a total cost of about $10 to $20.
Taking a copy of your manuscript and snail-mailing it to yourself in a sealed envelope is useless. It is an old wives tale that it can establish or prove creator's copyright in court.
Firstly, because in order to establish "creator's copyright", you have to publish the work. Keeping a manuscript locked up in your drawer, or sealed away in an envelope that you mailed to yourself does not constitute publishing that work. Registering that work by providing a copy of it to the U.S. Copyright Office does constitute "publication" and so is a protection... but not one you necessarily have to use.
Publishing an original work in the form of a print media article or book,ipso facto, establishes your creator's copyright. However, that may not be sufficient. Most violators are given a second chance by the Courts when they plead ignorance. The best way to head off a violator's excuse of ignorance is to post a notice of copyright on the work itself.
"Copyright © 2015 by Phil Friedman —All Rights Reserved"
The symbol "©" is the universally established indicator of copyright under various international treaties and conventions. It's presence in your notice of copyright is important as an indication of under which laws and treaties you are asserting your claim to ownership of the copyrighted material in question.
Even if you can prove violation of copyright, you may not be able to do more than force the violator to stop using your intellectual property without permission. (And even accomplishing that may turn out to be cost-prohibitive.) Moreover, once you've removed the initial reliance on ignorance as an excuse, you still have to prove monetary damages.
"If you regularly give away your work for free on the Internet or publish gratis on social media platforms, how can you establish that using your work without permission actually damages you monetarily?"
You need to understand that copyright does not protect ideas. Copyright only applies to the published expression of those ideas. If you want to protect an original idea or concept that has commercial or monetary value, you will have to seek a patent,which may or may not be available, depending on the precise nature of your idea or concept. More on patents in a bit.
A trademark is a word, name, symbol, or design, or any combination of these, used regularly by a person or firm in the course of conducting commerce, and used to identify and distinguish the goods or services of one seller from the goods and services of another.
The use of "TM" or "SM" is de facto a declaration that you assert a claim to owning a particular styled word, name, symbol or design, and to having used such in business or commerce for a significant period of time.
However, use of "TM" or "SM" does not mean that your trademark rights have been recognized by the U.S. Trademark Office, or that you have registered your claim to that trademark. In the absence of your long-time use of a particular word or design becoming a universal icon like the Coca Cola logo, only registering your trademark with the U.S. Trademark Office establishes a strong claim to its use in law.
" In general, the ® carries a hell of a lot more weight than TM or SM..."
Securing a patent is a lot more involved and expensive than registering a copyright or even a trademark. There are two different and distinct forms of patents. In the words of the U.S. Patent and Trademark Office, "In general terms, a 'utility patent' protects the way an article is used and works... while a 'design patent' protects the way an article looks..."
Patents are complicated and costly to obtain, as most inventors know or have learned. Patents, therefore, represent an area in which it is virtually essential to retain a specialist lawyer to represent you.
If you are seeking a utility patent, having a unique idea is not enough. You have to present the patent office with a "working model" to demonstrate the genuine feasibility of your concept. Not to mention the piles of forms and documentation that have also to be submitted with your application. And even if you can secure a patent, you're still a long, hard way from being able to bring your patented item to market.
"Most inventions are dashed upon the rocks of development, marketing, and advertising costs, patented or not."
One serious caution concerning patents: You can vitiate your right to obtain a patent for an original concept or idea by publishing information on that concept or idea, say, on social media, before you actually apply for a patent. Prematurely publishing such information places your otherwise patent-able concept or invention immediately into the public domain.
Plagiarism is not the same as violation of copyright. Plagiarism is not a violation of law, but rather a violation of ethical tenet. Plagiarism is the act of taking the work of another author or artist, and presenting it as your own.
As I pointed out in a previous article on plagiarism , if you take someone else's work and present it as your own, without credit or attribution to the original creator, that is plagiarism.It may, or may not be violation of copyright.
For example, if without permission you use a work or a substantial portion of a work that is copyrighted, even if you attribute the work to the original author or artist, that use is a violation of copyright.
If you take a work that is in the public domain (no longer protected by copyright), such as Ben Franklin's "Poor Richard's Almanac", and present it without attribution, as your own work, that is an act of plagiarism, although not a violation of copyright.
"Some acts of plagiarism may be accompanied by violation of copyright, but the two forms of theft remain different and distinct."
Of course, both violation of copyright and plagiarism are reprehensible in a society that pays so much lip service to merit. And it behooves us all, writers, publishers, and readers to not treat instances of the theft of intellectual property with indifference, but to accord them the disapprobation they deserve. — Phil Friedman
About me, Phil Friedman:
With 30 some years background in the marine industry, I've worn numerous hats — as a yacht designer, boatbuilder, marine operations and business manager, marine industry consultant, marine marketing and communications specialist, boating magazine writer and editor, yacht surveyor, and marine industry educator. I am also trained and experienced in interest-based negotiation and mediation. In a previous life, I taught logic and philosophy at university.
If you'd care to read more of what I write on a regular basis, either connect with me, Phil Friedman, on LinkedIn, or click the [FOLLOW] button on this page. As a writer-friend of mine says, you can always change your mind later.
As well, feel free to "like" and "share" this post and my other LinkedIn articles — whether on LinkedIn, Twitter, or Facebook. I ask only that you credit me properly as the author. Some other of my work that you might like includes:
-- Fair Winds and Safe Harbors
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Images Credit: Stuart Miles and FreeDigitalPhotos.net
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