Intellectual property is the
ownership of intangible assets.
When you create something with your mind like a design idea, a brand name, or a story, you want to make sure that it can be protected in the same way you might protect a physical asset like a car or a book.
But a book is easy to steal, and it is easy to prove who stole a car. How can you steal an idea?
Intellectual property theft occurs when someone profits from someone else’s invention without permission or takes information from its original source with the intent to profit from it.
So taking the idea of a story from a small publisher or unpublished author and using it to write and sell a new book is an example of intellectual property theft.
This happens every day, and there are several legal mechanisms in place to prevent theft, to catch thieves, and to return IP and its profits to its rightful owner.
These are laid out in the section below.
What makes intellectual property so important?
From barbies to bombs, intellectual property is at the heart of decisions that businesses and governments make about their assets.
In the age of advanced technology and manufacturing, intellectual property forms the basis of every new design and invention.
When you create the next electric vehicle, wireless earphones, or wearable device, all the amazing components that will make it stand out from the competition can only be protected in the name of intellectual property.
There is a lot of risk in the development of new products. Someone on the design team may be poached by another company, and you could lose out on their expertise.
But like Mattel – the barbie company – learned the hard way, you might not always win the fight against the little guy. In 2004, they accused MGA of stealing their designs when their Bratz doll surged in popularity.
That was a decision that came back to haunt them.
At first, it seemed to be going great for Mattel. In 2008, MGA was ordered to pay them $100 million.
But that decision was thrown out in a court of appeals.
Eventually, another court awarded MGA with $88.5 million in damages.
Neither party really won the decade long battle, however, as the legal costs were too much to recoup.
You can read more about the case in this Huffpost article (https://www.huffpost.com/entry/mattel-loses-lawsuit-with-mga-bratz_n_852223).
This case shows just how important it is to keep track of your intellectual property.
And how crucial it is to make sure you know what you’re getting into before you accuse someone of IP theft.
Not every case is so long and complicated. When the theft can be proven more easily, the offenders will be severely punished. As The Verge (https://www.theverge.com/2019/1/30/18203718/apple-self-driving-trade-secrets-china-titan) reports, two Apple employees have been charged with stealing intellectual property about self-driving cars.
As you can probably guess, these kinds of secrets can be incredibly profitable.
That’s why companies are so careful to always protect their intellectual property.
And why they will punish theft with impunity.
Jizhong Chen, the man charged with the theft, was arrested before trying to flee the country. According to The Verge, he faces 10 years in prison and $250,000 in fines.
CNBC (https://www.cnbc.com/2019/01/30/apple-autonomous-vehicle-engineer-accused-of-stealing-trade-secrets.html) reports a statement from Apple on the case:
“Apple takes confidentiality and the protection of our IP very seriously.”
As they rightly should.
It isn’t just businesses that worry about IP theft, however.
Every major nation on earth is worried about their secrets being sold to their enemies, or, as they may be better defined in the age of global capitalism, their competitors.
That’s why information protection has become a major factor in national defense. Which is why you may have seen pictures of damaged aircraft that the US left behind in Afghanistan.
The US government didn’t want their expensive equipment to be left in the hands of the Taliban. But even more important than the weapons and vehicles themselves is how they work.
That’s right – the intellectual property is more valuable than the equipment itself.
This actually isn’t a new phenomenon. SEAL Team Six had to destroy a helicopter left behind when they captured and killed Osama bin Laden.
This is because the stealth technology on the helicopter was so advanced that they couldn’t risk anyone finding the crashed copter and learning from the equipment on board.
If these are the lengths that the government will go to in order to protect their IP, what can we possibly do to keep our information safe?
In other words:
How can I protect my IP?
So, with all the risks to intellectual property theft, and with the high value of IP, how can I be sure that nobody will steal my ideas?
Intellectual property law is a growing and important legal field that works to helps designers, inventors, and artists profit from their work and protect it from theft.
It can also help a business to recoup losses from the theft of their designs and inventions.
In Canada, there are the four ways to protect your intellectual property from competition.
Enforced by the Copyright Act of Canada, copyright does exactly what it says – it gives you the right to copy or reproduce a work and to profit from its reproduction.
Copyright usually applies to a work like a book, podcast, lecture, performance, or film. Under Canadian Law, copyright “provides protection for literary, artistic, dramatic or musical works,” under the condition that it has already been written or recorded.
There is a distinction between authorship and ownership under Canadian copyright law. The author of a work is its first owner, unless otherwise stated in an employment agreement or contract.
Ownership of copyright can be an important issue, as copyrights lasts for 50 years after the death of the author and ownership is passed to their heirs or successors.
A trademark is a word, symbol, or combination of the two that is used to distinguish the goods and services of one person or company from another.
The name of a business, for example, is often trademarked. Any symbols or characters that obviously identify a company, like Ronald McDonald, Mickey Mouse, or the Apple logo are also a trademark of their respective company.
You can register a trademark by filing an application to the Canadian Intellectual Property Office. Successful registration grants you exclusive rights over the trademark for 10 years (renewable).
Trademarks are an important aspect of intellectual property because they often come to symbolize the brand and its reputation to the public.
A patent gives you exclusive rights to making, using, and selling an item or process. They are applied for by a person or business and granted to you by the government.
The Patent Act sets out the rules and regulations for patents in Canada – like the fact that they only apply for 20 years after the date when you file the patent – not the date it is approved!
You can only apply for a patent if you have invented something new or have significantly improved upon an existing invention.
The “something” in this case is pretty broad. It is defined in Canadian law as a “process, machine, product, or composition of matter.”
Not only must it be new, but it must also have a practical purpose in order to pass the criteria of “usefulness” set out in Canadian Law.
Canada has a “first to file system” of patents, under which the first applicant for a patent has rights to patent protection.
4) Industrial Design
Finally, you can protect your intellectual property through industrial design – the way your product looks.
The Industrial Design Act sets out protection of intellectual property based on the “shape, configuration, pattern or ornament…applied to a finished article.”
This means that something like the shape and colour of silverware or dishware that you manufacture can be protected from reproduction by other companies.
Something closely related to but legally separate from industrial design are trade secrets.
Trade secrets are also protected in Canadian Law under common or, in the case of Quebec, civil law. This protection lasts forever – at least, until the secret is out!
Keeping trade secrets is where good information protection practices come into play.
NDA’s – non-disclosure agreements – and confidentiality clauses are two formal ways of making sure your employees don’t spill the beans on your trade secrets.
Best practices in cyber security, like encryption and password protection, will also help you keep your trade secrets, well… secret.
Great, I’ve kept my IP safe from competition. But how can I stop outright theft?
There are two main threat vectors when it comes to the theft of intellectual property.
1) Insider threat
The first threat your IP comes from inside the company itself. Employees may be coerced to leak
They may have a personal vendetta against the company.
Or they may just make a simple mistake or be tricked into divulging information.
That’s why a comprehensive cyber security policy is so important for your company.
2) Cyber crime
The other risk to your IP comes from ineffective cyber security from external threats. If a competitor thinks you have information they need to build a better product, they may try to access your files from outside.
You may also become the victim of a ransomware attack, in which a lone wolf actor may access you information and then sell it to the highest bidder.
So it pays to be up to date in best practices for cyber security.
If you have been the victim of a ransomware attack and your intellectual property is at risk, we can help you find a lawyer that will sort it out.
Intellectual Property in the News:
If you still have questions about intellectual property, it may pay to highlight a current example.
The race to develop a COVID-19 vaccine was fraught with intellectual property concerns.
Intellectual property protection for medicines is a growing field, and the potential for huge profits in the health sector makes it a necessity.
The risk that bad medicine will be created because of IP theft is an additional factor that raises the issue of intellectual property protection for medicines to a public health matter.