A PRIMER ON THE MAIN TYPES OF INTELLECTUAL PROPERTY
Updated: Mar 29, 2022
Intellectual property encompasses a broad spectrum of intangible assets, such as copyrights, trademarks, patents, and trade secrets. When a business owns intellectual property, it also possesses an accompanying set of rights, known as intellectual property (IP) rights. Below we will set out the most common types of intellectual property for businesses and entrepreneurs and the primary IP rights associated with each.
Copyright arises on the creation of any original literary, visual, musical, or artistic work and lasts for the life of the creator plus 50 years. Unless the work is created in the course of employment, the creator owns the copyright in that work. This gives them the exclusive right to copy, publish, or perform the work, subject to a limited set of exceptions, such as personal non-commercial use, education, or satire. Creators of these types of work also possess moral rights. Moral rights refer to the creator’s right to choose to be attributed with the work or to remain anonymous and the right not to have the work modified in a way that will be prejudicial to their reputation. While copyright can be assigned to someone else, moral rights cannot; they can only be waived. It is important to note that no assignment of copyright or waiver of moral rights is valid unless it is in writing.
Patents are 20-year monopolies given to inventors that grant them the exclusive right to make and sell their invention in Canada during that time. Patents are extremely valuable assets and are therefore only granted when an invention is truly new or novel (the first of its kind in the world), useful, and not obvious to someone skilled in the field. When a person files for a patent, they disclose how the invention works. Therefore, prior to filing, it is essential to have a robust non-disclosure agreement in place with any recipients of this information.
Trademarks refer to the varied types of signs that signal to consumers the source of a product or service. Most often, we think of trademarks as brand names and logos, but we also learn to recognize brands by certain fonts, colours, packaging, or even sounds and smells. By registering a trademark, a business enjoys the exclusive right to use that mark across Canada for ten years (which can be perpetually renewed) in the sale of their particular goods and services. The trademark holder is further granted certain rights to help enforce this exclusive benefit, such as the ability to sue others for trademark infringement when they use their trademark in a confusingly similar way. In this way, the hard work that is put into building a brand can be rewarded and protected.
Trade secrets derive their value from remaining secret. The best way to protect trade secrets is to keep them safe and disclose them as minimally as possible. When they are disclosed, it is important to always protect them with a non-disclosure agreement, obliging the recipient to respect confidentiality and setting out consequences if they do not.Like any business asset, intellectual property needs to be safeguarded to preserve its value. Specialized legal advice from an IP expert can help business owners understand what intellectual property they have, how to use it, and how to protect it.
Anna Cook is a partner at Cox & Palmer, St. John’s, where her practice focuses primarily on corporate and commercial, employment and labour, and privacy law.