For more than two decades now IBM has filed and received more U.S. patents than any other corporation. Last year the company received an astonishing 6,809 patents, up from 6,478 the year before (a number that was already a record high). This commitment to patenting its innovations illustrates how much value IBM places in the patent system and in the profits it can generate.
But patents aren’t the only piece of the intellectual property puzzle that matters to high-tech industries and the engineers who work in them. In fact, patents are just one element of the three tiers of intellectual property law. Intellectual property is actually a portfolio of rights that covers patents (which protect inventions), trademarks (which protect reputation) and copyright (which protects creative works).
Unfortunately, copyright seems to be overlooked in the patent-centric world of technology and in today’s modern environment when many companies are going open-source and software pirates upload games to torrent sites within days of their release. Still, the big of copyright continues to play a vitally important role in high-tech industries, not just for big companies but also for individual engineers.
The Role and Value of Copyright
Copyright protects creative works basically words, images and music. That may not seem like it applies to engineers, but software which is in pretty much everything these days is protected under copyright. So are journal papers, instruction manuals, web sites, lectures, blog posts, the music and images in games or apps, and much, much more.
“The function of copyright is incentivizing,” says Adam Mossoff, co-chair of the IEEE-USA IP Committee and a professor of law at the George Mason University Law School. It protects the hard work and expense that goes into creating something, which in terms of modern software systems can be substantial. Copyright literally breaks down into the “right” to “copy” something and distribute it, through licenses, in a way that benefits the creators.
Of course, the thing you tend to hear most often about copyright these days is the phrase “information wants to be free.” But is the copyright genie really out of the bottle? “A lot of people currently claim that the Internet has changed everything and you don’t need copyright anymore,” Mossoff says. “I think that argument is wrong.”
Economists agree. A report last year from the U.S. Bureau of Economic Analysis and the National Endowment for the Arts found that art and culture, and the industries related to those activities, contributed $916 billion to the U.S. GDP. But that report itself was limited: it only covered software specifically related to video games and the arts, which leaves out a lot of engineering and technology applications. The total economic impact of copyright, therefore, must be much higher.
But Wait What About Open Source?
Many software companies have moved to an open-source model, but open-source licenses are actually enabled by copyright, explains Mark F. Schultz, associate professor at Southern University School of Law and an expert on copyright. “You can’t have an open-source license without property rights that give you the right to control what people downstream from you do with that property,” he says. Open-source licenses don’t, as a rule, put things out there in the world with no restrictions. The licenses like those for full copyrights dictate how that item may be used. For example, the open-source license could say a piece of software could be used commercially, but only if it isn’t modified. Copyright law makes that possible.
On a related note, the companies that embrace the open-source route also rely upon one of the other aspects of intellectual property law. “Red Hat, for example, is all about its reputation, which is their trademark,” Schultz says. “Companies like Red Hat provide services to really demanding consumers who have really intensive IT needs. The fact that the software doesn’t cost them any money is almost irrelevant because what you really worry about is your website being up 24/7 and functioning well.”
Then there are the ancillary industries that crop up around open-source. GNU/Linux is an open-source operating system, and it may be free, but that doesn’t mean it’s easy to use. A quick search on Amazon.com found more than 2,200 books about GNU/Linux each of which is copyrighted.
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But changing times have been dangerous for copyright. “Tens of millions of takedown notices are sent annually just by the major film production companies,” Mossoff says. “They’re almost entirely ignored.”
This isn’t just a threat to movie-makers. “It makes it harder to secure an investment in a new product especially a risky new digital product because it’s harder to get enforcement on things like software code,” Schultz says. “It simply increases the risk of doing business and makes it more difficult to get a return on investment.” That means existing companies may make fewer risky investments and new products.
Startups, meanwhile, may find it harder to get the funding they need to survive, while currently employed engineers could find themselves too scared to set out on their own. “New companies are by their very natures risky ventures,” Schultz says. “If founders see that they’re going to have an even harder time being a success because it’s harder to protect their work, they’re less like to take that risk.”
A large company may be able to absorb some of that risk by depending on its trademarks and reputation, but new companies don’t have that fallback. “The lack of ability to enforce property rights tends to hurt the little guy more,” Schultz says.
Using Copyright to Your Advantage
Anything you do that can be copyrighted is actually automatically copyrighted as soon as it is written down or otherwise created, but that doesn’t actually offer you much real protection. In order to really take advantage of copyright, you must register your creation with the U.S. Copyright Office (or similar offices in other countries).
Until you do that, “it’s more difficult and maybe impossible to enforce against a copyright infringement,” says Rachel Kronman, an intellectual property and trademark attorney with the law firm Frankfurt Kurnit Klein & Selz PC in New York City. Luckily, registration doesn’t just protect you in the country in which you register your creation: “An interesting aspect to copyright is that you can enforce it internationally under the Berne Convention,” Kronman says.
Copyright registration is also cheap protection, running just $35 in the U.S., and the process only takes a few months. Patent registration, meanwhile, is a multi-step process that can take years and cost thousands of dollars. “Copyright protection is easy to obtain the probably the least expensive IP protection available,” Kronman says.
You can also use copyright to your advantage in your business practices. Jeff Kear, owner or the online management software company Planning Pod, gives one example. He says he recently encountered someone who had infringed upon their program. Rather than pursuing infringement, they took steps to make sure future infringements would be harder. They placed copyright notices on specific pages in the application and updated them with each release. They also instituted lean processes to update their product more frequently. “It’s hard for people to copy a moving target,” he says. It also provided their customers with a constantly improving product.
Engineers also have an opportunity to create their own IP by writing books, articles or blogs, creating videos, or giving lectures all of which will also help to establish themselves as experts. It could even create a second revenue stream outside of the full-time job, which is something we all could use in this economy.
Copyright, Mossoff says, boils down to creators being able to enjoy “the justly earned fruits of their labors.” They may not be as fruitful as the next big patent, but they remain an important part of the mix and something that high-tech industries and employees should keep in mind as part of their overall IP portfolios.