“Hands Off My IP!”–Intellectual Property is Still Property

As PR people and marketers, we are in the idea and information business. We help clients formulate and package new ideas that, in turn, help them solidify and promote their unique brand value. But can you own an idea or the process that leads to an idea? If you come up with a new concept for a client, can you then use that same idea or concept for another client? How much of what you deliver is their intellectual property and how far do you have to go to protect your own intellectual property?

What prompted this chain of thought was a situation that arose with a client recently. One of their senior managers was using information gathered for the company to feed his personal blog about a semi-related topic. Was this theft of IP? Was this individual stealing IP from the company even though he wasn’t using it for competitive purposes or to make money from the data?

First, let’s consider what, exactly, is intellectual property. According to CSO magazine, IP can be broken down into four basic categories: patents, trademarks, copyrights, and trade secrets. These are fairly straightforward concepts and the notion of protecting them is well-defined. But what about protecting an idea? As the CSO article states, “But IP can also be something broader and less tangible than these four protected classes: it can simply be an idea. If the head of your R&D department has a eureka moment during his morning shower and then applies his new idea at work, that’s intellectual property too.”

Intellectual property (IP) can be anything from a particular manufacturing process to plans for a product launch, a trade secret like a chemical formula, or a list of the countries in which your patents are registered. It may help to think of it as intangible proprietary information. The formal definition, according to the World Intellectual Property Organization is creations of the mind — inventions, literary and artistic works, symbols, names, images, and designs used in commerce. IP includes but is not limited to proprietary formulas and ideas, inventions (products and processes), industrial designs, and geographic indications of source, as well as literary and artistic works such as novels, films, music, architectural designs and web pages.


So how far do you go to protect ideas as well as other creative products? Consider the case of the Winklevoss twins, who accused Facebook founder Mark Zuckerberg of stealing their idea when he created Facebook. They took their case to court and the outcome was never really satisfactorily decided. Did they lose a potential billions of dollars because Zuckerberg violated their intellectual property rights by stealing an idea? Who’s to say.

However, the concept of IP can place those of us who create material for clients in a quandary from time to time. For example, if I use proprietary information to help a client develop a new brand strategy, can I then take that same information and use it elsewhere for a similar project? If it creates a conflict of interest by helping a competitor, then ethically the answer is clearly “of course not,” but if you are using the same intellectual process or concepts to develop a non-competing brands…?

And consider the challenges of copyright infringement. When I write an article for publication on behalf of a client, the work belongs to the publication. In fact, I routinely ghostwrite magazine article for clients, and as part of the process we usually have to surrender the rights to the work to the magazine that prints it (or at least surrender first time serial rights). I often get questioned by my clients about this practice, since they want to use the article for other purposes as well. The publication certainly can copyright the article but they can’t copyright the ideas in the article. If the content is original (i.e. not plagiarized) then you can always rewrite it using the same ideas to create a new work.

And what about IP and blogging? It has become common practice to “borrow” content from other blogs and articles posted on the web and repost them to your blog with a fresh viewpoint. In the blogosphere, giving an acknowledgment to the original source and essentially saying “this is my take on someone else’s good idea” seems to be fair game. But what if you repurpose someone else’s blog content for your for-profit blog, essentially using someone else’s freely posted ideas to make money?

I think the question of abusing IP largely boils down to who profits? Who benefits from someone else’s intellectual property is the litmus test as to whether or not there is an IP infringement. If IP is tied to a specific brand, product, of process that is tied to profits, then it has real value and as property should be protected. That doesn’t mean there aren’t gray areas. Consider the case of a piece of software code that finds its way into a competing software product. The patent attorneys spend a lot of time and money trying to ascertain if a piece of code is unique and therefore intellectual property, or if it is a more generic expression of a machine instruction that can’t be legally protected.

As a consultant, I apply a simpler criteria. Clients own the end product but I own the process to create the product. If I create an article or a press release or even a brand strategy for a client, they own that material as a deliverable for which they contracted. However, the templates I use and the process behind the deliverable are my intellectual property, and I get to reuse it as part of my service and brand. if I deliver a crisis plan to a client, for example, the specifics and protocols in that plan are theirs. However, the format, templates, and process I use to generate that plan remain my IP. Their IP – the plan, or article, or white paper, or brand strategy – is a tangible asset that promotes profit for their company. The process to create the IP deliverable remains the secret sauce that allows us to provide value as communications professionals.

I’d love to hear your stories from the field on your struggles with IP. Please comment or drop me an email.

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