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Copyright Law Explained

Copyright vs. Patents, Trademark, & Trade Secret

Copyright, patent, trademark, and trade secrets are all different types of intellectual property (IP). Although the four types of IP are very different, people often confuse them. A brief description of patents, trademarks and trade secrets, including a brief discussion of how these forms of IP differ from copyright, is provided below.

Patents

The primary goal of the patent law is to encourage innovation and commercialization of technological advances. As a result, similar to copyright law, patent law incentivizes inventors to publicly disclose their inventions in exchange for certain exclusive rights. A patent protects inventions. These inventions can include new and useful processes, machines, manufactures, compositions of matter as well as improvements to these. Certain computer programs may fall within the subject matter protected by both patents and copyrights. In this respect the patent system compliments copyright protection by providing protection for functional aspects of the software, which are not protected by copyright.

Unlike with copyright protection, to get patent protection one must first apply for and be granted a patent from the U.S. Patent and Trademark Office (USPTO). Unlike the copyright registration process, the patent application process is expensive, complex, difficult, and time-consuming and generally should not be attempted without the assistance of an experienced patent attorney or agent.

Trademarks

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Examples include brand names, slogans, and logos. (The term “trademark” is often used in a general sense to refer to both trademarks and service marks.)

Similar to copyright, a person does not need not register a trademark or service mark to receive protection rights, but there are certain legal benefits to registering the mark with the USPTO. There is rarely an overlap between trademark and copyright law but it can happen — for instance, when a graphic illustration is used as a logo the design may be protected both under copyright and trademark.

Trade Secret

The protections afforded by trade secret law are very different from others forms of IP. Trade secret protection only protects the secret from unauthorized disclosure and use by others. Works that are protected by copyright may also include trade secrets. This most commonly occurs in computer programs and testing materials. The Copyright Office has special procedures for registering computer programs that contain trade secrets. In other instances where a copyrighted work contains a trade secret the applicant can request special relief from the Copyright Office to take steps to ensure that the trade secret is not disclosed in the registration application.

The chart below details the main differences between copyright, patents, trademark, and trade secrets in regard to protection, requirements, terms, and grants.

CopyrightPatentsTrademarkTrade Secret
What’s Protected?Original works of authorship, such as books, articles, songs, photographs, sculptures, choreography, sound recordings, motion pictures, and other worksInventions, such as processes, machines, manufactures, compositions of matter as well as improvements to theseAny word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of othersA formula, practice, process, design, instrument, pattern, commercial method, or compilation of information that is not generally known
Requirements to be ProtectedA work must be original, creative and fixed in a tangible mediumAn invention must be new, useful and nonobviousA mark must be distinctive (i.e., that is, it must be capable of identifying the source of a particular good)A trade secret must not be generally known to the public, confers an economic benefit due to its secret nature, and there must be reasonable efforts to maintain its secrecy.
Term of ProtectionAuthor’s life plus 70 more years.20 yearsFor as long as the mark used.For as long as it remains secret
Rights GrantedRight to control the reproduction, making of derivative works, distribution and public performance and display of the copyrighted worksRight to prevent others from making, selling using or importing the patented inventionRight to use the mark and to prevent others from using similar marks in a way that would cause a likelihood-of-confusion about the origin of the goods or services.Right to prevent others from misappropriating, using and disclosing the trade secret.

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