Protection of intellectual property rights from various claims, including those under DMCA

Nowadays, even trade secrets — for inexplicable reasons — have legal protection. Every sane person understands that if a secret is revealed, then it is no longer a secret. And only in the strange and confusing labyrinths of the intellectual property law can secrets continue to be considered secrets, even if everyone knows what they are.
Linus Torvalds (creator of the Linux kernel)

In the IT business, intellectual property is an integral part of a software development company and directly affects its overall viability and success.

Intellectual property consists of a wide range of different objects, such as logos and corporate styles, programs, services and even processes.

Illegal use of intellectual property causes tremendous damage to the IT business every year. Pirate torrents, uploaded to Telegram online courses, unlicensed online movies, broken operating systems and programs ... the list can go on.

Virtually all companies have undoubtedly benefited from the Internet, where products, services and marketing communications reach a wide audience at relatively low cost. However, technological advancements have also increased the frequency and magnitude of infringement of intellectual property rights, making intellectual property protection more important than ever.

There are four primary types of intellectual property rights in the IT world: copyrights, trademarks, trade secrets and patents.

So let’s decode the differences between them and how they apply to IT products into simple human terms.

Copyright

Copyright exists from the moment the work is created, that is, from the moment it is "fixed in a tangible medium of expression", The copyright is valid for a limited time and does not require mandatory state registration, as it automatically applies to any protected work anywhere in the world. Copyright protects the form, but not the content of the original idea. The form means the external representation of information in text, graphic, color, object representation. For example, for a computer program, copyright protection will cover the source code, object code and user interface. The weak point of copyright protection and holding violators accountable is that the fact of creating a work and, as a result, the availability of copyright is not always easy to prove.

Trademark

A trademark protects the brand, including the logo and name of a product or service, giving the owner significant rights from the moment of its registration. Registration of a trademark is a paid service (unlike copyright, which occurs automatically). It is a relatively inexpensive and a universally recognized method of legal protection of names of software products, brands, and in practice, the most effective one. It’s a must have in this day and age.

Trade secret

A trade secret is a list of information that includes all the information considered confidential by company management, such as processes, design, tools, templates, etc. In other words, it’s the information through the use of which a company can gain an economic advantage over competitors. Not unfrequently, companies have to give access to confidential information to development companies and other third parties. In such cases, not only competitors, but even their own employees or contractors can pose a threat to the business. The legal basis for protecting trade secrets are laid down in charters, orders, internal labor regulations, agreements and labor contracts, which means that protecting trade secrets is primarily a function of the company, not the state.

Patent 

A patent protects the method of use of inventions. A patent provides the owner with the protection of an invention. Patent protection means that an invention cannot be manufactured, used, distributed or sold for commercial purposes without the consent of the patent owner.

Protection of intellectual property rights can be carried out both independently and with the help of competent state bodies or international institutions, such as the World Intellectual Property Organization (WIPO). 

A competent IP lawyer will advise you on the best methods for protection of your intellectual property rights. However, independent analysis of the situation and minimal knowledge on how and through which means to protect your rights will certainly be a plus for the success of your business.

How to protect your intellectual property rights?

License agreement

A license agreement is concluded in writing, where one party (licensor) provides the other party (licensee) with the permission to use the object of intellectual property right (license) subject to the terms and conditions determined by the mutual agreement of the parties and the requirements of the law. Under the license agreement, only exclusive rights can be transferred, for which the licensee pays an agreed upon by the parties fee. Personal non-property rights are closely related to the licensor. Hence their transfer to another person is impossible. One of the differences between a license agreement and a transfer of rights agreement is that the owner of the intellectual property, subject to which the agreement is concluded, remains the same.

Non-disclosure agreement (NDA)

A non-disclosure agreement (NDA), among other things, contains the procedure for accessing information, who can use it and how it can be used, as well as the terms and conditions for the distribution thereof. Companies establish liability for violation of the mentioned above terms for everyone who has access to the information. A NDA is an excellent way to legally identify the rights and obligations of anyone with access to confidential information. Protection of source code and ensuring that information about business ideas along with all the algorithms is not disclosed to third parties are the two main issues that clients often approach Icon.Partners with.

Copyright Infringement Notification Procedure under DMCA

The DMCA procedures are based on the US law. However, if the owner of the resource (online service provider) is located in the United States, it does not matter which country the copyright holder, whose rights have been violated, is from. The copyright holder can send a "takedown notice" request to the US provider to remove the materials that in its opinion violate copyright in accordance with the DMCA. After receiving such a notification, the service provider must delete the content with a preliminary backup of it or restrict access to it, that is, remove the URL of the pages from the search results, notifying the Internet users that access was restricted due to copyright infringement in accordance with the DMCA.

What are the ways to resolve intellectual property disputes?

Friendly settlement

It involves notifying the infringer of the violation with a proposal to resolve the dispute through negotiations in a pre-trial/out-of-court procedure. This allows you to peacefully resolve the dispute and stop the violation without any substantial time and financial costs.

Litigation

Litigation is used when the infringer ignores the warnings. If the necessary evidence is available, going to court can help achieve the desired results, such as cessation of violations or acceptance of  obligations by the violator to compensate for the damages and lost profits.

Even if a dispute over a violation of intellectual property rights can be settled in a judicial proceeding, companies are increasingly resorting to mediation, arbitration or other alternative dispute resolution procedures.

The aforementioned World Intellectual Property Organization (WIPO) helps disputing parties to resolve intellectual property disputes quickly and without spending significant amounts of money by:

  • Acting as a mediator. This is an unofficial consensual procedure within the scope of which an independent mediator assists the parties in resolving a dispute based on their mutual interests. The mediator cannot impose any decision(s). The settlement agreement has the force of a contract. Mediation does not prevent the parties from filing a dispute with a court or using the agreed arbitration procedure.
  • Arbitration. This is a consensual procedure in which the parties refer the dispute to one or more of selected arbitrators for a final and binding decision that reflects the interests and obligations of the parties and is binding under the arbitration procedure law. Arbitration, being an alternative procedure of a private nature, usually deprives the parties of the right to take their case to court.
  • Expedited arbitration. This is an arbitration procedure carried out within a shorter period of time and with smaller arbitration fees. Usually, expedited arbitration is carried out by one arbitrator.
  • Expert determination. This is a consensual procedure whereby the parties refer a specific issue (for example, a technical issue) to one or more experts for an opinion. The parties may agree that this expert determination will be a binding one.

The significance of the protection of intellectual property in the field of IT is undeniable. Modern software development companies must especially maintain their focus on things like copyright, trademarks, patents, protection of trade secrets, monitoring competitors, licensing agreements, NDAs, as well as regular audits of intellectual property.  

And for this focus to be extra-clear and well-tuned, it is imperative to resort to the services of real professionals. The Icon.Partners team will find the most effective ways for you to achieve your most ambitious business goals and protect your intellectual property.

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