Saturday, 22 October 2005

IP: I am confused

The recent arguments on copyright, patent and IP rights have confused me and messed up with my layman understanding.

Here is my understanding of the issue, please, PLEASE, correct me if I am wrong.

Copyright is automatically assigned to the creator for a manifestation. The ideas behind the manifestation is NOT protected.

If you want to protect your idea, there are two ways to do so:
1. as trade secret - do not tell anyone. If you do, that's your problem and the secret is out for everyone who gets to know it to exploit it.
2. as a patent. You tell people of a particular jurisdiction how you have done something (the method) so that you don't need to protect your secret. In exchange, the law grants you a right to exploit your own idea exclusively for a definite period of time within that jurisdiction. However, the law does not grant you the right to exclude someone else finding an alternate method of doing the same/similar thing. Obviously, the law would not be applied outside of the jurisdiction.

Here is my interpretation of this understanding.

The creation of a writer is the assembling of words into paragraphs and work. The manifestation is the "assemble". Note that the writer does not own the manifestation of the assemble of "word". Writers use the word commonly available to them as well as to everyone else. Writers do not have exclusive right to use any word. Since the copyright is given to the writer for the manifestation, when the writer dies, shouldn't the right be reversed and the assembling of these words is now owned by the general public?

A writer may grant a publisher a right to "publish" the work. The manifestation done by the publisher may be in the form of a book. That's should be protected by copyright as well. So, no one should be allowed to "reproduce" the book.

However, the writer granting the right to the publisher may not be exclusive. The writer may also grant the right to another publisher, who must produce another manifestation, in order not to violate the copyright of the first publisher. So, as long as the book is in different format, different pagination or any way significantly different from the first, the second publisher will have the copyright of the second manifestation.

Of course, the first publisher would have acquired *ALL* rights from the writer to protect his investment. So, what does this "ALL" mean? I suppose that would mean all the known ways of exploiting the author's work. Should it include those yet-unknown way of exploiting the work? I don't agree so.

New way of exploiting a work is by itself an invention, protected by patent or by trade secret. Patent, implicitly, involves only the method.

So, I may later discover that I can read the work, record my reading and exploit my audio recording. I, most likely, should ask the author for this right. If the author is dead, or when the copyright expired, I should be free to do so. Among all the rights the first publisher has gotten, this new right should not be included because without someone discovering that the work can be exploited in that way, that right would have no value. As implied by transfer of any right, there is a compensation. Without the ability to evaluate a future yet-unknown way of exploiting a work, there is no evaluation on the right linked to that way of exploitation and hence is NOT transferred to the publisher.

The fact that I have recorded a work, whose copyright has expired, should not exclude anyone else doing another recording. I am protected by my own copyright that people should not be able to exploit my manifestation (ie my recording). But my act of recording should not exclude anyone else to do so.

A new way of exploiting a work should not extend the copyright period of the work as well.

Here is something I cannot understand.

Say an author has created a character (in a novel say). In what ways can the ideas that supported the character be protected?

1. Copyright? No, because copyright only protect the manifestation of work. So, if the character is protected by copyright, anyone else should be allowed to use a specific combination of the few words that make up the name in their own work. The name of a character is only a few words combined in a special sequence. That would not represent, to any reasonable test, a significant portion of the work.

2. Trade secret? Bad luck. It's out and it is out.

3. Patent? Should such patent be granted in the first place? What are the distinguishing characteristics of that character from any other character? OK, as described in the work. Fine. Then any use of that name, deviated from that described in the work is NOT infringing on the patent!

4. Trade mark? My understanding of trade mark is a special symbol to represent a product (and with extensions). A character may be trademarked. That would mean a special graphic representation of the character, either its name or some other thing. However, Trade mark does not exclude people using the word that make up the make. When I say, "my windows are broken", Microsoft(tm) cannot sue me. Although they have trade marked a specific form of the "Windows", they don't own that word.

Can I use "Mickey Mouse" in my work? It seems that I cannot. I don't understand!


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