What is intellectual property? There are three general forms:
● Trademark – protects individuals, i.e., a consumer knows when they are buying a Coke that it is a Coke. This maintains a brand, and should be protected aggressively.
● Copyright – protects written works (including things like drawings and artwork, which are also a type of expression). This also covers websites, videos, software. In the U.S., to get a copyright, you just need to write something down. There is no longer a need to include “Copyright by XX…” How a party licenses and/or controls content is a key strategic question.
● Patent – protects processes, or how things are done, i.e. how medicines work. Patents are expensive and difficult to obtain.
Other miscellaneous issues:
● Domain names – problematic if owned by the person who registered it - the IT guy? The founder?
● Social media accounts – who owns them? Who has the passwords?
Goal: determine a copyright licensing strategy – what permissions do you want to give to whom for your content? Questions to ask:
1 Most important - Is it your content to license? If a volunteer or contractor created it, you may need to consult that person if you have questions about how that content will be used.
If it is your content:
2 What purpose does distributing your content serve? The answer will vary depending on the content.
3 Who do you want to access your content, and where should they access it? The web makes this muddier, but also gives lots of good options.
4 How will you sustain your content?
The baseline is “All Rights Reserved.” If you want to share rights with others, here are things to consider as part of your licensing process:
● Give attribution? If so, how?
○ ‘Scraping’ information is another, newer issue. Search engines are the largest “scraper” and defend themselves vigorously, so that area of law is really developing.
○ Is attribution important if the work will only be seen by a small number of people? Legally, you should always ask permission and give attribution. Practically, it is not always done.
● Modify? If so, share them?
○ If this is allowable, what restrictions might you want to put in place?
○ It sometimes makes sense to ask others to share any changes they made to your content with you.
● Use commercially? You may want to charge if another entity will make a profit.
● Mixed models – some organizations have some material that they are willing to share, while controlling other material more strictly. This can be time-based (e.g., only printed on paper for limited distribution for the first six months.)
● How to figure out intellectual property questions? Default…go to a lawyer, and negotiate. But standardized licenses like Creative Commons are becoming more popular. [Creative Commons – a way that people/organizations can allow others to use their content with specific licensing restrictions and/or permissions outlined. www.creativecommons.org IMPORTANT CAVEAT: the rights specified in a Creative Commons license are irrevocable, so not a decision to be taken lightly. ]
A session participant from a library asked about being able to videotape and share when artists perform at their library.
Response: It is sometimes easier to ask for forgiveness than permission, but should generally ask for permission. Asking for constant permission may thwart the mission of a nonprofit, though.
Another participant runs a website with neighborhood-specific information. How do you balance being generous with information you have developed while also protecting the work that you put into generating the information?
Response: Couple of ways to balance things. For example, the Copyright Act has a portion called the Digital Millenium Copyright Act. In a nutshell, if you find a website that is copying your material or vice versa, there is a process by which you can email or contact the other party and they are required to take the material down. If they do this, in general, they are no longer liable. Print, however, has no such loophole.
In addition, in U.S. copyright law, there is also a concept called ‘fair use.’ It’s a fairly vague loophole, which means it can be hard to determine if there is a violation without a judge deciding case-by-case.
Bottom line: there is quite a bit of vagueness in this field. That is why it’s important to think strategically about intellectual property questions before moving forward.
If we develop an app and allow others to use it, are there any liabilities to us if they tweak the software and create an error as a result?
If this is developed through Open Source, there are generally disclaimers already built into those licenses.
Are there models to reference to help set up what a licensing agreement for software might look like?
Most intellectual property attorneys have a standard agreement they can customize.
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