So what the hell is IP? Tim Riley from Dominion Law offers an overview of the legal philosophy underlying Intellectual Property (IP), breaks it down into its common forms and looks at some practical applications.

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Intellectual property reminds me of that song by the Buzzcocks – “well it looks so good, I can see it; and it sounds so good I can hear it; so why-y-y-y-y-y-y can’t I touch it?”. Except with IP, as well as not being able to touch it, you can’t see it or hear it either…

IP is a legal creation, and the law loves creating things that no one can see or touch but which in the eyes of the law are as real as any bricks and mortar. Take a company for example. What is a company? It doesn’t exist in a physical sense. It’s a legal fiction. But it has nearly as many rights as you or I and some that we don’t have.

IP is a little similar. An intellectual property right is a legal right to do something or to stop others doing something in connection with something you have created (for example, a song, a film, a painting, a computer program). The law has taken this right and dressed it up in the clothes of a piece of physical property so it has nearly all the attributes of any other property that we own or control, apart from a physical form. And like physical property, once you own it you can do just about anything you want with it, like sell it, rent it, or lend it to the neighbour.

The other interesting thing about an intellectual property right is that it is a monopoly right. Generally, the law abhors monopolies like nature abhors a vacuum. IP is one of the few exceptions to the general principle that monopolies are illegal.

Anyway, we don’t have to get too bogged down in the philosophical implications. Let’s just go straight to the most important categories of IP that will be relevant to you.

Types of IP

1. COPYRIGHT

Copyright is far and away the most important form of IP for people who make their living in the creative industries. It was invented around the time of Shakespeare to protect the owners of printing presses. Copyright, as its name implies, is primarily a right to stop other people copying your work. But it goes a lot further. Taking music as an example, the law of copyright stops people not only from copying your song, but also from performing it in public, reproducing it on to a physical medium (eg a record), and “synchronising” it with the images of a film or TV programme.

Copyright applies to:

• Musical works
• Sound recordings of musical works
• Literary works (anything original written down in words - War and Peace, a computer program, and the telephone directory all meet the criteria)
• Artistic works (which includes a photograph, a diagram, and an architecturally designed building)
• Dramatic works (including a dance routine and a film script)
• Film
• Communication work (radio or television broadcast)

And the best thing about copyright is that you don’t need to do anything to get it! It just happens automatically, as if by magic, whenever you create one of the things listed above. Just write a poem down on a bit of toilet paper, and suddenly you are the owner of a monopoly right that you can take out into the world and use as a sword or shield to defend yourself and attack would be usurpers. The period for which you can enjoy these rights has consistently been increased since copyright was first invented, but in NZ it currently the life of the creator plus 50 years for most works.

For further reading on copyright, I would recommend having a look around the websites of some of the organisations which administer aspects of it. For example APRA, which administers the public performing right for songwriters; PPNZ, which administers the public performing right for record companies; and the NZ Writers Guild, which represents film and TV writers. The government department which deals with intellectual property also has some great resources on its site.

2. TRADE MARKS

A trade mark is the name or logo that you use to identify your business, or parts of it, to the public. Its value is that if someone has had a good experience in connection with that trademark, they will remember it in the future. Consequently, trademarks can become very valuable business assets. And a trademark, like copyright, comes into existence without any intervention by you, once you establish public recognition in the name or logo. However, unlike copyright, there is a process of registration for trademarks by which you can formalise your connection to the trademark.

The benefit of registration is that once the process is completed, you do not have to go through the potentially expensive and time consuming process of proving that you have a right to the name or logo in order to stop someone else using it. You simply point them to the registration and they must submit to you without further argument. So although you incur a cost up front, you save down the track in enforcement costs. One thing to note though is that the registration is specific for a particular class of goods or services and there is usually nothing to stop someone else using the same name in connection with a different class of goods or services.

The registration process is reasonably expensive; around $1,000 in legal costs plus registration fees of $100 for each class of goods or services that the trademark is registered in. I again recommend www.iponz.govt.nz for further reading and resources on trademarks. You can also search the existing trademark register for free at this site to determine if anyone has registered a trademark that is similar to the one you are proposing (similarity is one of the grounds for IPONZ to deny registration).

3. PATENTS/REGISTERED DESIGNS

Patents and registered designs are almost like two sides of the same coin. A patent protects the hidden process that is used to make something, and a registered design protects the outside appearance of it.

Take a piece of furniture as an example. Let’s say you have designed a new chair and the design includes a new way of connecting the legs and back of the chair to the rest of it. You might take out a patent to protect your invention of the new method of constructing the chair, and a registered design to protect the external appearance of the chair. Patents and registered designs are more expensive than trademarks to obtain and will usually need the input of a specialist patent attorney to draft the application. It is crucial with both patents and registered design that the process and design are secret at the time of registration. If they have already been disclosed to the public it is likely that they will be un-registrable.

Which of these do I need?

Apart from copyright, the other types of IP I have described above, all cost money to obtain, with patents and registered designs being the most expensive.

It is worth noting that copyright will also protect a trademark that is in graphic form and a written design (both of which qualify as artistic works). So you already have some protection with those types of IP even without registration as a trademark or registered design.

Generally the time to consider investing in formal IP registrations is when your business has moved from idea creation and development and is ready for commercial release. Trademarks are especially worth considering if your business plan involves licensing or franchising any aspect of the business. Patents are quite rare (but not unheard of) in businesses in the creative industries. Registered designs are only worth considering if you are commercialising an item that has a truly novel appearance (or at least novel characteristics). And with all IP, the best protection is gain the commercial advantage by getting to the market first, with a good product, and a good marketing plan so that by the time any potential competitors notice and attempt to imitate, you are already firmly established as the recognised producer.

Other approaches

The philosophical position represented by the formal processes set out above is one of protection. Of course, that is only one way to look at IP, and in many people’s eyes, it is an approach that is contrary to the notions of creative freedom and innovation, particularly in the digital age. Web 2.0 seems like an anachronistic cliché now, but the prevailing philosophy of the internet (at least amongst its users) is still one that enshrines the concepts of freedom, growth, collaboration, and openness.

There is some truth to the view that IP policy has to a large degree been controlled by media companies, for which IP represents valuable business assets from which large revenue flows can be generated. From that perspective protection is the most important consideration. This explains why the period of copyright has steadily increased over the years. Once something is in the public domain the monopoly rights finish and the work cannot be exploited in the same way. (A famous example of this is Disney lobbying President Clinton (successfully) in 1998 to extend the period of copyright by a further 20 years due to Mickey Mouse being about to come into the public domain).

Copyright is an all or nothing thing, but there are other options now for people who wish to retain some rights in their works, but also don’t want to lock them up. Creative commons licensing is a possible solution for these people. Creative Commons is an organisation that has developed a licensing system that you can use for free. There are a variety of different licenses depending on what specific rights you wish to retain and what rights you want to grant to the public. For example, there is an attribution only license, which enables anyone to use your work and do what they want with it as long as they attribute you as the original creator. The Wikpedia page on creative commons licenses contains a useful summary of the different types of licenses available.

About Tim Riley

Tim Riley was a corporate lawyer for 12 years before he saw the light and crossed over from the dark side. He now specialises in film and TV, general commercial, IP and media law.