Terminology and Background on Intellectual Property

Overview

Teaching: 5 min
Exercises: 5 min

Questions

• What is the primary form of intellectual property typically associated with software?

• What is the purpose of a license for software?

• At what point can you assert copyright over your software?

Objectives

• Be able to differentiate the terms copyright, patent, trademark, and license.

• Understand that your creative works (including software) are copyright at creation.

Terminology: copyright, patents, trademarks, and licenses

Intellectual property (IP) is a general term referring to intangible creations of human intellect. There are multiple types of IP recognized in law in most jurisdictions. The types that are most often associated with software include:

• Copyright grants the creator of an original work (e.g., a software package) exclusive rights to its use and distribution, including limits on derivative works.

• A patent grants the inventor of something new, useful, and non-obvious (which may be embodied in software) the rights to its production, use, and distribution.

• A trademark is a sign, design, or expression which identifies products or services from a particular source (e.g., your software), as distinguished from other sources.

Licenses are a legal tool to transfer (selected) rights in a work, invention, or mark (forms of intellectual property) from one party to another. When we talk about licenses for software, we’re primarily focused on copyright. But some software licenses include clauses pertaining to patents and trademarks related to that software.

Your software starts out copyrighted

Under the law, the software you write is subject to copyright on creation. You don’t have to do anything special to claim copyright.

Normally, the creator of the work owns the copyright in the work. But it is “work for hire” (i.e., as part of your job), often the employer will own the copyright. Employment contracts often make IP rights explicit. If your employer owns the copyright, you probably have to get formal permission to license and distribute your software.

Unless you specify some license for your software, all rights in the software are reserved to the copyright owner.

Special case: U.S. government works

Works created by the US government (and its employees) cannot be copyrighted. They are considered to be in the public domain. The motivation for this was to ensure public access to the U.S. legal code. This does not apply to works created by contractors for the U.S. government (e.g., federally funded research).

Activity

Who owns the copyright in the software you create? You or your employer?

If you don’t know the answer, it might be useful to find out. If you don’t have a copy of your employment contract, consider asking your Human Resources department for a copy. Your supervisor or your institutional Technology Transfer office may also be able to help you answer this question.

Key Points

• Copyright is the primary form of intellectual property associated with software. Patents and trademarks may also be relevant.

• A license is a legal tool to transfer selected intellectual property rights from one party to another.

• Creative works, including software, are subject to copyright protections from the moment of creation.