What is Intellectual Property?

 The Basics:

The purpose of setting up a business is to exchange goods and services for value, usually cash.

The products or services of our business emerge from ideas for how we can meet an identified need in the market. Whether the idea is novel or not, the business owner must package it in such a way that they are able to legitimately sell their product.

Most societies will not allow a person to promote a business that is harmful to society and does not promote the advancement of that society. For example, trading in people as a commodity is illegal.

Therefore, a product or service must be lawful. It must be one that meets the legal requirements for products and services that can be distributed and sold to the public in that society. If the product is illegal, then the business is also illegal, and the business owner will find themselves in the unenviable position of staying one step ahead of the law to avoid prosecution and losing all their gains.

So, having established that the business is lawful, the next thing any business owner wants to do is secure the products and services of the business. No person wants to be robbed of their property. We know how to deal with our tangible property – property that we can see, touch, and feel. We can keep them in a safe place, attach security devices to track them if they get lost or stolen, and get insurance to cover any losses. But what about things that we cannot touch and feel? Those intangible things that are integral to our business such as the very idea of the business?

A person’s business idea is their property, intangible as it is, and there are several ways to protect intangible business property that we often refer to as intellectual property. Every business person must be aware of their assets, including intellectual property, and put measures in place to secure them.

Intellectual property covers a range of rights that allow a business owner to enjoy the work of their sweat. And this is what we will cover in this module.

What is Intellectual Property?

Intellectual Property (IP), as the name implies, is a person’s property derived from their intellect. The world decided a long time ago that in the interest of the development of our societies, these things called IP must be protected by law in order that we continue to innovate, and do the IP related things that make our lives easier, and worth living. These protections are also aimed at rewarding and compensating those who put their time and effort into creating protected ‘property’ that the rest of us enjoy. There are also timeframes within which the original rights owners can exclusively enjoy the material rewards from their IP protected creations.

Intellectual Property Rights broadly fall into four groups – Copyright, Patents, Design Rights, and Trademarks.

Copyright:

Copyright is probably the easiest to claim and protect. It is the protection of the expression of original ideas, in books, courses, sound recording/music, architectural design, computer software, fine arts, photography, broadcast, etc. Things that cannot be copyrighted include facts, titles of works, scènes à faire, slogans, and catchwords/catchphrases. In certain circumstances, titles can be trademarked. For instance, where you have a book series like Harry Potter, The Baby-Sitters Club, and Diary of a Wimpy Kid, you create a brand around the book and the titles can be protected under a trademark.

At the core of copyright lie the two elements of expression and originality. The idea has to be expressed in tangible form for it to enjoy protection. Unlike Patents, Copyright is not so much concerned with novelty as it is with originality.

This focus on originality is the reason why works that seem similar to existing works can enjoy copyright protection, as long as they are the original products of their creator. As we move through the world, it is possible that we witness or participate in similar experiences that inspire our expression of those experiences. It is the reason we can have several movies and books written on the same battle in a war. It is the reason two people can experience love or pain and express what they feel in a similar fashion through song or book or art.

How many times have you heard someone say something and you say or think to yourself, ‘Gosh, I was just thinking about that’? Although the idea may be the same, the expression of that idea will certainly be different when it is an original expression.

Copyright does not require registration. As soon as the protectable property is created, it enjoys protection, which lasts through the life of the creator, plus 70 years. Subsequent claims contesting the originality of a work will have to show that the contested work was created at some time after the existence of the original work and that the work being contested was so greatly influenced by the original that it is an indisputable copy of it. Although copyright does not require registration, in jurisdictions like the United States, registration is required to bring an action for infringement in court. The Nigerian Copyright Commission also has an e-registration platform if you want to register your work. In the US, the Copyright Office also has an e-registration platform. The advantage of registration is that it puts an official date stamp on the existence of your copyright on a work.

By Kaine Agary

Lawyer | Policy Analyst | Writer