What is the Creative Commons and How Does It Interact with Fair Use?

Intellectual Property - Copyright

The Creative Commons is a project initiated in part by professors at my alma mater, Duke Law, through their work at the Center for the Public Domain. The Creative Commons says that it “develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.”

What exactly does that mean? Well, it means that the Creative Commons project provides legal documents to average people who want to be able to share their content on the web and allow others to use it. There are several options for how to allow others to use your content. You can allow others to use your work commercially (for profit) or non-commercially (for display). You can allow others to make changes to your work, make changes only if they attribute the original to you, or not to make changes.

Who would use a Creative Commons license, and why? It is a great option for creative works like web comics, where the goal is often to get as many people sharing as possible. It is a great option for some amateur or new-to-the-scene artists who care more about seeing their work gain recognition than about making money on the work at the moment. It is a great option for a non-profit or advocacy organization that wants to have its materials distributed by its members with clarity about the expectations surrounding that distribution. It is not a great option if you want to ensure that you have complete control over the use and distribution of something you made.

How does the Creative Commons relate to fair use? Fair use is use of copyrighted material that does not violate copyright infringement laws. Fair use is defined by the Copyright Act’s Section 107. Section 107 states that for certain purposes, including “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” copying and making use of other rights granted to copyright holders do not constitute infringement. The Creative Commons licensing system expands the ways in which a particular work can be used without needing specific permission from the owner of the work, to make use and copying of particular works more compatible with the ways in which the Internet allows sharing.

Do you think you might be a good candidate for a Creative Commons license? Want something similar, but don’t think Creative Commons is for you? Feel free to contact me for help!

How Do I Protect My Idea? Part IV: Trade Secrets

Internet Law - Trade Secret - Protect My Idea

You have a brilliant idea. With all your might, you are making it grow. You nurture it with your time, your energy, your hopes, your sweat, your dollars and your dreams.

This idea? Its time has arrived.

When you have put so much creativity, time and energy into something, you want to know that it is as well-protected as possible. My job as your attorney is to help you with the “how.” Sometimes, you know what kind of protection will work best for your idea. Sometimes, you don’t, or you aren’t sure which of your options is the best. This four-part series is a brief introduction to the various types of intellectual property. Today’s topic: trade secrets.

Trade secrets are often ignored in the excitement surrounding the federally registrable types of intellectual property, but this is a mistake. Trade secrets can be among the more versatile types of protection, and are the only way to protect ideas, as opposed to the expression or physical embodiment of those ideas. Trade secrets protect:

Information and/or ideas that: 1) have actual or potential economic value if they are kept secret; 2) cannot be easily ascertained by others who are using proper means; 3) are minimally novel; and 4) are the subject of reasonable efforts to maintain them as secret.

Trade secrets are an excellent choice for protecting an invention or discovery that does not meet the rigorous novelty standards of patent law, so long as it is not easy to reverse-engineer. They are also ideal for certain types of software, tests, recipes, and other intellectual property that is possible to keep secret.

How does one obtain trademark protection? It is simple enough in theory: all you need to do is keep the material secret using reasonable efforts. However, what constitutes reasonable efforts varies depending on the nature of the secret and the size of the company. In general, protection involves legal safeguards such as nondisclosure agreements and physical safeguards such as locks. Maintenance is also facially straightforward: continue to keep the material secret, and take action against anyone who threatens to reveal it (e.g., get an injunction). You should consult with an attorney about how best to protect and maintain your trade secrets and what to include in your nondisclosure agreement.

The greatest benefit of trade secret protection is that it is the only way to protect certain types of intellectual property, such as ideas or inventions that are not sufficiently novel to obtain patent protection. Trade secret protection can be combined with copyright or patent protection (at least until the point of patent registration). Trade secrets can also last indefinitely; the recipe for Coca-Cola, for example, has been maintained as a trade secret for over one hundred years.

The greatest drawback of trade secrets is that they are destroyed by being revealed. There are some remedies for this, but an unhappy former employee has the potential to do a great deal of damage to a company whose most important intellectual property is protected by trade secrets.

Well-known intellectual property protected as a trade secret includes the formula for Coca-Cola and the recipe for Thomas English Muffins’ “nooks and crannies.”