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FYI: Protecting The Value In Your Digital Products

Graham McGlashan

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Digital IP Protection - How Can Companies Protect Their Digital Work?

Intellectual property can be a hugely valuable part of a company’s assets, yet many businesses are not protecting their company’s digital products, let alone maximising their value. DIGIT asked Graham McGlashan from IP specialists Marks & Clerk to explore how digital companies can get real benefit from the resources they put into their products.

Graham McGlashan Digital IP expert, Marks & ClerkHave you ever wondered what makes a good digital product? It might be skilful coding, inspiring visual design, a franchise or brand that has the insight to spot a desirable feature, or perhaps the valuable data that can be produced.

These factors are often the result of the creativity and skill of the team behind the product, not to mention a great deal of time, effort, money and resource. However, in a world in which it is often much easier for others to simply copy than create and innovate, it is crucial to look at ways of maximising the fruits of your skill and investment. 

It’s easy to underestimate, but intellectual property (IP) can be of significant value in modern industry – particularly when it comes to rapidly-evolving digital technology. 

Intellectual Property Protection

IP can help to swing the balance of reward from the copiers to the creators and innovators.  As such, it can be a vital tool for allowing individuals and businesses to securely capitalise on their creativity and it can have a major knock-on effect, particularly for a knowledge-based economy. 

IP protection represents a strong pillar for fostering world-beating innovation. However, it’s important to strike the right balance between encouraging that innovation and the free flow of information while still protecting ideas.

IP protection can be combined with licensing to create a wide range of strategic options.  As such, it can be viewed as simply providing creators with a degree of control, providing the conditions for others to use your IP in a licence, if that’s what you want to do.  

For example, if you want to allow free use amongst open-source or certain developer communities, but would like royalties to be paid for use by large corporates or for entities making significant revenue from your IP, then you can set out your terms in a licence and use your IP to help enforce it. As such, whatever your goals or interests for your creations, IP can be a tool to help you achieve those aims.  From that point of view, it is better to know and understand the various forms of IP and how they can work for you. 

Digital IP

Digital IP And How To Protect ItThe digital community is well aware of the many forms of IP and successfully implements schemes to capture and protect them. For example, copyright has long been a central pillar of protection for software code and many will know how to capture copyrighted code in a way that allows it to be successfully enforced.

Branding or building a franchise is also widely used in the digital field, and not just for commercially successful products such as Grand Theft Auto®. For example, the intertwined snake logo of Python® and the whale logo of Docker® are both examples of great branding that are protected by Trademark registrations.

However, IP takes a variety of forms, many of them less understood. In Europe, design registration can be used to protect visually appealing aspects of digital design, which is useful if you’ve devised a great-looking interface, games characters, icons, fonts, or indeed any product that relies on graphic design or attractive visuals. Then there’s data, widely described as the ‘new oil’.

In addition, the field is expanding, with many new entrants into the market, particularly with app-based technologies, who might not have the same understanding of this area as the traditional software houses.

Whatever your interests, it’s worth asking – do you have the procedures in place to protect your data with IP such as database right and copyright?

Embodied in the form of patents, trademarks and brands, copyright, design registrations, and know-how, IP has become a widely recognised asset for many companies, protecting products, processes and services that involve the intangible results of creativity, innovation and skill. 

With that in mind, it should come as no surprise that it is a particularly valuable asset to those engaged in digital innovation – an area in which many Scottish-based companies have proved themselves to be particularly successful. Indeed, the backbone of much of today’s technology lies in the digital realm. 

Understanding how IP legislation applies to the digital world 

Digital tech and the existing intellectual property system have traditionally had a somewhat uneasy relationship. Many innovators in the digital realm are often left confused by the options available to them for protecting a technical concept. 

When it comes to computer-implemented inventions, many have been successfully patented across jurisdictions including the US, UK and Europe. However, the patentability of such inventions varies between jurisdictions and some exclude certain computer programs from patentability.  

The European Patent Office will potentially allow a patent if the claimed subject matter is novel and inventive and has a technical character – even if the invention is computer implemented. A computer program itself can potentially be patented at the European Patent Office if it is capable of bringing about, when running on a computer, a further technical effect going beyond the “normal” physical interactions between the program (software) and the computer (hardware) on which it is run.  

So, if the invention embodied on software makes the computer function better, perhaps by making it operate faster or more securely at a low level or providing a better user interface or human-machine interaction, then it might in some cases be potentially patentable – at least in the UK and Europe. 

Since patenting of software and computer-implemented inventions remains an area that has a degree of additional uncertainty, good professional advice from a suitably qualified patent attorney specialising in this area is always recommended. Essentially, patent attorneys can help you cut through the jargon. 

Decoding the rules on code 

Copyright legislation does provide a degree of protection for computer software code. However, the protection afforded by it is generally not as strong as patent protection, since copyright is only infringed by copying – rather than independent creation – which can be difficult to prove. In addition, copyright is intended to cover an expression of an idea rather than the idea itself.  As such, copyright protection applies to the code used to form the software – unlike patent protection which can often be obtained for the fundamental new ideas and concepts that may lie behind a new piece of software.   

Importantly, copyright can be difficult to enforce unless systems are in place to verify the code that was written, when and by whom. There are also potentially issues with ownership of copyright, particularly when contractors and other third parties are involved. As such, it is important to understand how to enforce copyright and to have the appropriate systems in place to capture and evidence this.  

Make sure you’re clued up or you’ll lose out 

Laws are always playing catch-up when it comes to digital industries, so each situation may be different depending on the type of protection involved. 

Essentially, there are a number of mechanisms available to protect intellectual property associated with digital innovation – and it is up to the innovators to make sure that the results of their skill, investment and labour are protected.

Given the rapid speed of digital change, it’s increasingly important to ensure that you’re getting up-to-date digital IP advice that covers your bespoke needs.

Graham McGlashan Digital IP expert, Marks & Clerk

Graham McGlashan

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