Questions and Answers about Copyrights and Trade Secrets

Q: What is a copyright?

A: A copyright is a form of intellectual property right granted by the federal government for "original works of authorship." The copyright itself includes five basic rights regarding the use or exploitation of the copyrighted work. With certain limitations, the owner of a copyright has the exclusive right to A) reproduce the copyrighted work; B) prepare derivative works; C) distribute copies; D) perform the copyrighted work publicly; and, E) display the copyrighted work publicly.

Q: What is the value of a copyright?

A: A copyright prevents others from benefiting unfairly from the author's creativity. The value of the copyright is in requiring that others either make their own investment of time, money, and creativity to create their own work, or that they purchase the rights to use the author's work.

Q: How are copyrights obtained?

A: A copyright exists under federal law once a work is fixed in some tangible form. However, to maximize protection under the copyright law, place a copyright notice on each copy of the work. Proper notice consists of three elements: A) the symbol, the word copyright or an abbreviation; B) the year of first publication; and C) the name of the owner of the copyright.

A copyright may be registered with the federal government by filling out a simple form, paying a nominal fee, and submitting a deposit of the work. Registration is required in order to bring a suit to stop infringement. Also, prompt registration may entitle the copyright owner to several advantages in the event that its copyrights are infringed.

Q: What types of things qualify for copyright protection?

A: Any original work of authorship that is fixed in some tangible form of expression qualifies for copyright protection. "Works" such as literary, musical, dramatic, pictorial, motion pictures, and sound recordings are all protectable. Computer programs, for example, are considered literary works.

Q: What does not qualify for copyright protection?

A: Works that consist entirely of common information or matters of common knowledge are not protectable by copyright. For example, standard calendars and the common markings on rulers or measuring tapes lack the requisite originality or authorship. Ideas, concepts, or procedures alone are not considered works of authorship and cannot be protected by copyright.

Q: What is a trade secret?

A: A trade secret can be any information not known generally in the trade that is used in business to provide an advantage over competitors.

Q: What is the value of a trade secret?

A: Trade secrets can create an advantage over competitors in many of the same ways as patents. Also, the right to use trade secret information can be licensed or the information can be sold outright. Although trade secrets provide no protection against those who independently develop the trade secret information, trade secrets never expire as do patents and copyrights. For example, as long as it is kept secret, the formula to COCA-COLA will remain a trade secret indefinitely.

Q: What kinds of things can be a trade secret?

A: A trade secret can be any information that has value in that it is useful in business and has some cost associated with its development, and is generally and not commonly known in the particular trade. The following types of information have previously been found to qualify as proper trade secret subject matter:

1. customer lists;
2. chemical processes and formulas;
3. algorithms and processes that are implemented in computer programs and the programs themselves;
4. designs, drawings, architectural plans and blueprints;
5. data compilations, business plans and methods of doing business;
6. manufacturing or repair processes and techniques.

Q: How are trade secrets obtained?

A: Trade secret rights can be obtained only by developing the information representing the trade secret and maintaining the secrecy of the information. The first step in obtaining trade secrets, then, is to become aware of those things that give your business a competitive advantage. All copies of the trade secret information should be marked "confidential," access to the information should be limited to key personnel, and the information should be disclosed only in a written confidentiality and non- disclosure agreement if it is to be disclosed at all.

Q: How long does a trade secret last?

A: A trade secret lasts as long as it is secret. Once the information is generally known in the trade, the trade secret status and protection is lost and cannot be recaptured.