Investor Notebook

What You Should Know about Intellectual Property and Freelancing

February 1st, 2010

intellectual property copyright

Are you a creative freelancer who values the work that you produce for other companies? As a freelance writer, designer or artist, it is important to get a glimpse into the world of intellectual property (IP) due to the many copyright claims going around. Protecting original work is an important part of being a freelancer.

What is Intellectual Property?

Intellectual property (IP) is a term referring to a number of distinct types of legal monopolies over creations of the mind, both artistic and commercial, and the corresponding fields of law. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions. (Wikipedia)

Intellectual property includes various types of creations such as music, literary work and artistic work. It also includes inventions, phrases, symbols and designs. In other words, when you hear about copyrights, trademarks, patents, trade secrets and so on, you are dealing with intellectual property. Artistic intellectual property is protected by copyrights. Industrial intellectual property is protected by patents and trademarks.

There are intellectual property laws that protect rights to original material. Under intellectual property law, anyone who creates creative material of the mind that is artistic or commercial is granted exclusive rights.

Intellectual property law changes over time and it is important for freelance designers, writers and other artists to know the current laws in their area. The primary purpose of having such laws is to grant exclusive rights to owners in order for them to obtain monopoly profits. It is a way of maintaining financial growth.

Businesses will hire independent contractors, or freelancers, to produce creative work such as articles, graphics, scripts, and other types of material. Many people believe that the company hiring the freelancer automatically owns rights to this material because they commission and pay for the project.

In reality, those who hire independent contractors do not necessarily own the final product. In fact, as an independent contractor, you have the right to retain ownership rights to the work you produce. It is important to have written agreements on the work you create to ensure that you own the rights to it.

There are different types of Intellectual property protection depending on things that we want to protect. Each country has each own laws and fees that must be paid for patent/trademark registration. Trademarks and patents registrations are usually active for a period of ten to twenty years (depending the country local laws: i.e. Trademarks are valid for 10 years both in EU and USA). After this initial period each country has renewal procedures, on which owners can request a renewal for their trademark or patent. In most cases copyrights are valid for the life of the author plus 50 -70 years after that (but in some countries periodic renewal is required)

More information regarding the valid period of a copyrighted material in US can be found here: http://www.copyright.cornell.edu/resources/publicdomain.cfm

Copyright

Copyright protects “original works of authorship” including but not limited to books, articles, scripts, software, recorded speech, databases, paintings, photographs and music. The copyright laws worldwide usually cover both published and unpublished work. These laws provide authors with the exclusive rights to display, rent, published, sell and redistributed copies of their work.

Patent

Patents

Patents are used by inventors’ to protect their novelty inventions. Usually a patent is registered to protect inventions like new machines, new process and processes, hardware systems, manufacturing procedures, or composition of matter, and any other additional new and useful improvement. Patents provide exclusive rights to the inventor to implement, apply, use, sell and/or rent his ideas and systems.

In USA patents that have been posted before November 16, 1989 last for 20 years while patents which have been submitted after November 16, 1989 last for 10years.

Trademark and Servicemark

A trademark or service mark is a symbol, graphic or word/name /expression/slogan/title that is used while trading, in order to distinguish a specific product/service or a company from others. Examples of trademarks and servicemarks are business names like Yahoo and Google and product names like iphone and logos like the one used from Apple. The owner of the trademark (after following the official registration process) has the exclusive rights to use it (i.e. on web sites, on products and advertisements). Trademarks usually have a small symbol to denote their state:

™ (Denotes an Unregistered trade mark)
℠ (Denotes an unregistered service mark)
® (Denote a registered trademark)

Protecting Intellectual Property

In order to protect your intellectual property, it is important to first define the type of property you own. You must either obtain copyright or a patent for your work. Always have in mind that an idea cannot be patented. In order for a patent to be established the inventor must provide proofs that the idea can be implemented and it works. The patent office will require analytical documentation regarding the proposed patent. So it is highly advisable for any freelancer to keep and Investor’s notebook that will use to record the process of designing and implementing his ideas.

But before a patent or copyright can be established how can one protect his ideas?

A written agreement or contract is very important for any freelancer who wants to own rights to his or her work. On the other hand, a contract can be signed so that the hiring company obtains rights to the material. Many such agreements are signed before even a project is started. These, are usually called Non-disclosure Agreements (NDA) and among other things have specific sections regarding intellectual property, and ownership of the final products to be produced. Freelancers must always be really carefully when signing such agreements. They must always ensure that such agreements will not revoke their official ownership of the patents produced, otherwise (it is agreed so) they should take that into consideration while estimating their budgeting offer for the project.

Examples of NDA agreements are:

Once you retain the Intellectual property of your work, you must determine how this work will be used and distributed. Companies that do not sign an agreement to use your work will have major problems using or distributing it.

The next step to protecting intellectual property involves coming to an agreement between the employer and the freelancer. The contract must guarantee that all the material created for the company remains in the company and is not distributed outside of the company. Without a written agreement, the independent contractor owns copyright to any of the original work despite the fact that it was paid for. You can always register intellectual property with the U.S. Patent and Trademark office to be protected under the law.

Intellectual Property Scams

Individuals need to be really carefully before exchanging information and money regarding their patents. Until now there were quite a few cases with intellectual property scams on which adversaries were pretending to be government organizations in order to collect fees from patents. The links below provide access to information regarding Intellectual property scams:

American Intellectual Property Law Association (AIPLA) :http://www.aipla.org/Template.cfm?Section=By_Organization&template=/ContentManagement/ContentDisplay.cfm&ContentID=9989
European Community Trademarks – Warning : http://oami.europa.eu/EN/office/adhoc/warning2.htm
Australian Patent Office: http://www.aipla.org/Template.cfm?Section=By_Organization&template=/ContentManagement/ContentDisplay.cfm&ContentID=9989

With the current foreign market, it is important that all parties understand and agree with property rights. Due to outsourcing, many freelancers pass intellectual property rights to the hiring business. Intellectual property law has become far more blurry and complicated today than it used to be. As a result, it is important for freelancers and businesses to be aware of their rights and seek resources for information.