The intellectual property right: trademarks, patents and copyright – Part I

proprietà intellettuale - risonanza cervello
04Jul, 2018

(Important note: this article refers mainly to the Italian and European legislation)

We cannot count the times we are asked “Can I patent my song?” or “How I get a patent upon my book?”Knowing how to move around in the field of the intellectual property requires a peculiar expertise. Even among attorneys-at-law it is difficult to find those capabilities. Not to mention that some are experts only in trademarks, others only in patents, others in music or art.

None of us can “know-it-all”. After all it is considered ordinary to go to the general practitioner and be recommended to go to a specialist. Why should it not work in the same way with the attorneys-at-law?

What should be comprehended, also in this sector is that everyone of us should know a bit the differences between heart, livers and lungs. In other words it is fundamental to know how to find the way.

In this article we will clarify a bit about the world of the intellectual property rights. Let’s start with a first distinction:

Copyright (when the right is born with the simple creation)

  • Creative works (literature, photography, cinema, architecture, design with artistic value)
  • Softwares
  • Databases

Industrial property (when the right requires the filing through specific offices)

  • Trademarks
  • Patents of inventions
  • Utility models
  • Registered design

As already mentioned, the industrial property is born generally with the filing (with some exceptions) and has a duration of 5-25 years, depending on the situation.

Instead, the copyright is born with the creation of the work and its duration is equal – in the majority of the cases – to the whole life of the author plus 70 years after author death (at least in Italy, even if the duration may vary depending on different conditions regarding the type of work or if it is published with an alias…).

The proof of creation

Although it is easy to talk grandly saying that the copyright birth is simply generated with its creation… a different thing is to prove the originality of the work’s creation, just like to demonstrate to be the authentic authors.

In case of conflict between similar works it is clear that the one with the best possibilities of success will be the author who is able to prove to be “the first” creator of the work.

The proof of the creation is a complex thing to put in practice, but it can become very simple to provide through the possession of a “certificate of creation” obtained at the right time. Proofy (read here our complete story) was born from this simple need of certainty, for the protection of the good faith and the benefit of creators.

It is a service available to everyone that allows creators to take care of their works.

But let’s go with order:

Copyright

Even if in the common language the term copyright is used in the same way as the Italian term “diritto d’autore” (literally “authorship rights”), these are belong to two different legal contests.

The Copyright is the term used in the Anglo-Saxon legislation (UK and USA principally) and governs all the area regarding the economic exploitation of protected works.

The “authorship rights” is the term used in the European law (UK excluded) and governs not only the economic rights (i.e. intellectual property rights) of the works but also the moral rights of the authors (for example being recognized as authors or choose to withdraw the own work from the market).

Apart from this distinction, we decided to use the term copyright in some cases (like at the bottom of the website page) to simplify the communication.

What is protected by the copyright

In order to be protected, works must have all these 3 characteristics:

  • New
  • Creative
  • Expressed in a tangible form (the mean is not important)

The works have to be new and not seen previously, in case of works resulting from others it is necessary to have the authorization form the author (and/or of the copyright owners) or that the work has a sufficient level of originality to be considered new.

Te second element is to be creative. The level of creativity is evaluated specially for works like for the photos. In the case of photography, for the protection to be valid for the maximum duration possible, it must be a photography work and not merely a photo or, in other words, the mere reproduction of an object.

Expressed in a tangible form means that it is not enough to be ideas or concepts drafts. The idea of a story is not enough to obtain protection but it is necessary that it is written in a book, told in a video or recorded in an audio. The idea of a software is not protectable, the written code is (or the mock up of the user interface as well is protectable as design).

Categories of protected works

Among the works protected by copyright (only if they respect the requirements described above of novelty, creativity and expression in a tangible form) we can find:

 

  • Literature works: books, stories, poems but also plays and film scripts, articles, posts of a blog, etc.;
  • Music works and composition: this is the most frequent case where we find the collaboration of more authors. For example we can distinguish between the text of a song, the music composition or the arrangement and the performer;
  • Choreographic works;
  • Works of sculpture, painting, the art of drawing;
  • Drawings and works of architecture projects;
  • Works of the cinematic art;
  • Photography works and those expressed with a similar procedure of the photography if it is not the case of simple photography (in particular photography without an artistic value, think about all of those photos for reportage or about those of the catalogues). This simple photography is also protected but with different modalities and duration over time;
  • Software, for EU law are protected by copyright, while in the Anglo-Saxon legislation these can obtain a patent. See the patent section for particular cases.
  • Database: those who have created a database know the hard work of collection, auditing and updating of the information. Even if these are data open to the public, the work of aggregation and organisation of the database are protected;
  • Works of industrial design (design), which present a creative character and an artistic value. The case of design is very particular and changes a lot in the different legislations. In Italy it stays in middle between copyright and industrial property.  Actually, if we exclude the rare cases of designers already affirmed, the protection of design has to be obtained first with the intellectual property and only after with the copyright. Check the interview with the attorney Arlo Cannella for more information.

Which date I should use for the Copyright

The date to use is the one of the first creation. In some cases it may happens that the works are modified or updated. The most common and known case is the website. In this case there should be indicated both of the dates: the one with the oldest content and the one with the most recent content (for example: Copyright name of the author/society 2013-2018)

And remember that it is always better being able to prove when a content has been created.

© Copyright 2018… namely the declaration of Copyright

We refer to the write “Copyright of name of the author/owner copyright” followed by the year (chosen as indicated in the previous paragraph).

In many countries it is not mandatory but it is always a good idea to indicate it.

The declaration of copyright has always an educative function; it is useful to make people remember they cannot freely use those contents.

A further step is to indicate, using the Creative Commons Licenses, if, how, and under which conditions the work can be used or reproduced.

How to cash out copyright payments

There are different cases of copyright collection, let’s see some of the most common:

The copyright can be collected from an copyright collection societies – CCS (for example SIAE in Italy) in this case the author associates himself and register his works. It will be the OGC to collect the royalties for the author, calculate his earnings and pay him periodically.

The copyright can also be due because of private agreements (for example a creative who sells the usage of a work for an advertising campaign). In that case there will be an agreement (better if under the form of a written contract) and the author will be paid on the basis of royalty notification. With royalties the copyright is given under certain agreed conditions and the author is paid with a lump sum or based on the sales. To create the royalty notifications in Italy it is not required to have the VAT number but it is important to follow a series of measures better explained in this article.

For audio and audio-visual works there are also the related rights like the communication to the public right  (former diffusion right) and the right of private copy for personal use. The connected rights are collected for performers and executors. These rights in Italy are collected by a collecting such as NUOVO IMAIE for music and audio-visuals.

If you want to know more about the Intellectual Property rights and, in particular, about the industrial property you can read the second part of the article here.

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