FOSS Licensing/Overview of Intellectual Property Rights
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Intangible products of human creative activities are regarded as a kind of property and are granted protection in the same way as property rights have been traditionally protected and applied to tangible objects.
Copyright, patent, trademark and trade secret all fall under the category of “intellectual property”. But each must be understood to be significantly distinct from the others.
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[edit] Trade Secret
A trade secret is a confidential practice, method, process, design, the “know-how” or other information used by a business to compete with other businesses. The precise language by which a trade secret is defined varies by jurisdiction. However, there are three factors that (though subject to different interpretations) are common to all such definitions: a trade secret is some sort of information that is not generally known to the relevant portion of the public; confers some sort of economic benefit on its holder; is the subject of reasonable efforts to maintain its secrecy. Trade secrets are regulated by using a variety of civil and commercial means, such as confidentiality or non-disclosure agreements signed by those who are given access to special knowledge and information.
[edit] Trademark
Trademarks are the distinctive names, phrases, symbols, designs, pictures or styles used by a business to identify itself and its products or services to its consumers. In many countries, colours, three-dimensional marks, sounds, and even smells can also be trademarked.
[edit] Patent
While trade secrets enable a business to keep certain information from the public, patents are designed to grant the inventor monopoly rights or monopoly status over certain newly developed knowledge for a period of time (usually 20 years) in exchange for its disclosure. Typically, to gain such rights, the inventor is required to file a patent application, which will be reviewed by a designated patent examiner. Novelty of the invention is an essential criterion in granting a patent.
[edit] Copyright
Copyright is applied to various kinds of creative works, such as literary works, music compositions, paintings and software. Unlike patents, copyright applies to a work upon its creation, regardless of its novelty.
However, the ideas employed by the work cannot be copyrighted. Copyright only prevents others from copying the copyright holder’s particular way of expressing those ideas. Under Copyright Law, the copyright holder is entitled to exclusive rights of reproduction, modification, distribution, and public display and performance of her copyrighted work. A license is often used to explain under which terms and conditions the work can be used. To accommodate different situations, the copyright holder is entitled to draft and adopt different kinds of licenses for each piece of her work.
[edit] How is software regulated?
Software is now subject to Copyright Law. Moreover, in recent years it has been argued that software should be patentable as well. Although software patents have been granted in some cases, they are still questioned by many, especially by the FOSS community. Due to page limits and the complexity of the issue, this primer does not address this topic.
