Articles

Navigating Between the Infringement of Copyright, Fair Use and Creative Commons Licences

In recent years, there has been a great deal of movement on the front that divides copyright, fair use and alternative copyright licensing.  Whether pursuing copyright, patent or trademark, an attorney with experience in this field can help you navigate the constantly expanding list of intellectual property (IP) registration choices.

According to the US patent office, the simple act of creation itself is a copyrighted act that varies between copyright, patent or trademark.  An attorney will advise that such IPs will stand up in court if challenged by a copyright, patent or trademark attorney.  Even publication is no guarantee of copyright.  Fair use advocates admit to enforcement difficulties.

With alternative copyrights, fair use provisions and the Creative Commons movement, the question of profitability has been raised.  However, emergent artists supporting copyright or fair use swear by the creative commons model allowing IPs to function as advertisements. 

However, established IP creators are leery of alternative copyright or fair use schemes.  Registration continues to be the norm for most professionals, whether seeking copyright, patent or trademarks.  Attorneys generally counsel to seek traditional registration for IPs, including copyright.  Fair use, however, is extensively used in collaborative ventures.

For those using alternatively registered IPs, is essential to follow the terms of the licence.  Many seemingly free images have provisions that forbid derivative works or use with commercial projects.  Unlike copyright or patent, trademark attorneys and licensees have few alternative options, given the exclusively commercial nature of trademarks.

Unlike copyrights, fair use patents are rarely sought, though the university system often files for such patents when it is deemed to expensive to bother with regular patents.  When seeking a copyright, patent or trademark, an attorney can help you perform a cost / benefit analysis of defending such IPs.  Sometimes it's just good public relations to give a little bit away.

This is commonly done with shareware software.  Protected by copyright, a fair use clause allows potential customers to try it out, as long as they don't try to break the registration reminders.  Such a “hybrid” scheme has certain inherent piracy concerns, but it is thought the “try before you buy” has allowed millions of would be software developers to do business without the benefit of a regular copyright, patent, trademark or attorney. 

Alternative registration for patents, copyright, fair use and all types of emergent IP protection are complicated and may be a useful for your business.