Intellectual Property - Who Owns What?!
To mark International Intellectual Property Day, we are partnering with KPMG to provide a basic guide to intellectual property. IP can be tricky, especially with start-ups, but Deirdre Miller from KPMG Ireland is here to clear the air.
What is intellectual property?
Intellectual property (IP) refers to any creation of the mind, otherwise known as an intangible asset. IP allows for the productions of work, specifically research, to be protected from copying and infringement. There are great financial and commercial benefits from IP. It also allows for it to be owned in a similar manner as physical property being bought, sold and rented by licensing.
The main intellectual property rights cover a number of areas:
Designs - appearance of a product including shape, texture and colour
Trade Marks - brand identity including words, features, mainly things which a consumer would distinguish between brands
Copyright - original literary works including poems, songs, TV, radio and books
Patents - technical result produced by inventions giving the right to exclude other from using, making or selling an invention
How do you register intellectual property?
The Irish government body responsible for intellectual property rights is the Irish Patents Office (IPO) which includes designs, trade marks, copyright and patents. It is important to first check that the idea, invention or brand is available and not already registered, which can be done on the IPO website. The intellectual property right can then be applied for through the IPO. They can provide further information on the particular intellectual property right being registered.
Is there a cost associated with registering intellectual property? If so, how much would it cost?
Yes, there may be a cost associated with registering intellectual property. The main IP rights such as patents and trademarks will have associated costs. For trade secrets and copyrights there is no registration system, consequently there will be no associated costs for such protection. The Irish Patents Office can provide further information on the associated cost with the particular intellectual property right.
What are some common misconceptions about intellectual property that people may have?
Some common misconceptions about intellectual property that people may have include:
Assuming registering a company name with the Companies Registration Office will give equal protection to that provided by intellectual property rights. The only way to be fully protected is to register with the IPO.
Companies will automatically own the IP that is created by their contractors and employees. This is incorrect unless the contract between both parties clearly states that any IP created by the contractors and employees is owned by the company.
Various IP protections overlap. The IP protections such as patent, trade mark and copy right do not overlap one another. They provide rights to owners in different fields such as technology and music.
Irish registration of an intellectual property right protects abroad. Irish registration does not protect the trademark abroad. It is important to protect trademarks in other EU countries, which can be done be applying for a Community Trademark or the equivalent in the applicable country.
Anyone can use it if it does not have a copyright symbol. Any creative work that did not have the © symbol or have a copyright notice traditionally was free for use by the public. If they were missing, public use of this creative work was acceptable without consequences. Nevertheless, these laws have changed and creative works are protected with or without a copyright symbol and permission should be sought from the owner before use.
Something created to an individual’s or client’s request makes the individual or client the owner of it. If something is created and completely customised at an individuals or a client's request that is very different to the standard deliverable - the individual or client may think that they own the intellectual property in that. This is incorrect as unless it's expressly stated in the contract between the individual or client and the creator, the intellectual property rights lie with the creator.
When a license is given on a product, for example a software product, to an individual on a perpetual basis that the intellectual property rights belong to them. This perpetual licence (as opposed to a fixed term or subscription period) does not mean the individual owns the IP rights. They are simply permitted to use it forever under the terms of the licence it has been provided to them upon.