Protecting your intellectual property

How do you protect a business idea that's in your brain? Photo / Michael Bradley

Many a great home business is based around a unique idea. The owner usually puts a lot of time and effort - often unpaid in the development stages - into fleshing out the concept, sourcing materials or suppliers, perhaps trialling prototypes, testing the market, refining the offer, building a brand and finally, hopefully, making a living out of it.

It's little surprise, then, that when someone else comes along and copies their idea, the home business owner seethes!

With a keener awareness in New Zealand of the value of intellectual property, with globalisation so much easier and with technology continuously levelling out the playing field, and with buzzwords like "the knowledge economy" and "intellectual capital" making headlines in today's media, protecting one's intellectual property (IP) is more crucial than ever before.

But what is intellectual property, and how can you go about protecting yours?

In simple terms, intellectual property is a "creation of the mind". The World Intellectual Property Organisations splits IP into two categories: copyright (including literary and artistic works) and industrial property (inventions and patents, trademarks, industrial designs, geographic indications). For our purposes we'll also include a business, product or service concept which you may want to keep secret or confidential prior to launch to maintain a competitive advantage. We'll look briefly at each of these from the perspective of the Kiwi home business operator.

Copyright

The definition of copyright includes marketing material, proposals, website copy, speeches, databases and computer programmes - in fact, just about anything you have written down, sketched, or created. In the case of ideas, it does not include the concept you have outlined, but it does protect the words or pictures you have used to do so.

Industrial intellectual property

For the home business, this category includes things the owner has invented, concepts he or she has developed, and some aspects of the brand equity that has been built up or may be built up in their business.

Confidential material

You may have a proposal, business idea, product, service, system or some other such concept which would be advantageous to you if your competitors or potential competitors did not know about until it reached a certain stage of development.

It may not be covered by the above two categories, but while you may need to discuss aspects of it with various parties during the development process, you want to ensure the information you share remains confidential.

Protecting your IP

In general, copyright subsists in any original "work" the moment it is created in material form. You do not need to register it, or even mark it with a © symbol for the copyright to take effect. International agreements mean there is general acceptance of standard copyright regulations throughout much of the world.

Your home business can take simple steps to deter others from using your copyright material, for instance, by placing a © symbol, the year and their business name on every original document you create, including on your website. Digital signatures and other embedded "identifiers" can help protect - and trace - digitally generated work.

Protecting industrial IP usually requires registration of the specific piece of Intellectual Property you wish to protect, through various mechanisms such as patents, trademarks and registered designs.

Each of these areas of IP is complex and way beyond the scope of this article, and specialist legal assistance is advisable. As some protections are geographically-specific or afford cover in only one category of item, multiple registrations may be necessary.

This can be costly, and if not done properly, may leave you exposed to unforeseen threats to your intellectual property. There is lots more information, including the cost of registering patents and trademarks, on the Intellectual Property Office of New Zealand (IPONZ) website www.iponz.govt.nz.

In cases where you need to share confidential information, you may ask the other party or parties to sign a non-disclosure agreement (NDA). This is a legal document - but the truth of the matter is that unless it has penalty clauses for disclosure which you have the means to follow through on an NDA is frequently regarded as a sign of good faith rather than a foolproof assurance of confidentiality. You may be wise to share only necessary information, and this only with people you feel are trustworthy.

Putting effective protection mechanisms in place may deter an onslaught on your intellectual property, and will provide you with a legal advantage should this happen, but it may not prevent someone else from using your copyright material, leveraging off your brand equity, or copying your patented idea.

Irrespective of whatever steps you have taken to protect your Intellectual Property, an outright assault on your Intellectual Property may need to be backed up with the resource - both time and money - it takes to defend it.

Simple common sense goes a long way as Coke's strategic decision to keep its recipe secret rather than patent it effectively illustrates: if they had patented it, it would have been freely and legally available to Coke's competitors after 50 years.

Heather Douglas

www.homebizbuzz.co.nz