We hear a lot about intellectual property (affectionately called IP) in every sector. I almost wrote “except the nonprofit sector,” but that’s no longer the case. In the past two to three years, it’s beginning to pop up more and more—as a recognition of the valuable ideas, services, and concepts that mission-driven organizations are generating across the US and the world.
As recent entrants to the IP discussion, most nonprofit leaders I work with are still learning some of the key concepts. These concepts prove crucial to understand since, too many times, nonprofit leaders think about IP too late—when their service, product, or idea is already in common use and will be difficult to rein in.
To be clear, IP isn’t just relevant for the big, ground-breaking idea that’s going to change the world. It can have smaller implications as well. For example, is that parent curriculum you created clearly protected so others can’t sell or misuse the content? What about your network of independent affiliates? Can they use your model without you, thereby circumventing your ability to control quality and distribution?
As you can imagine, I talk with nonprofit leaders about IP with increasing frequency. We always start with the basics.
Before we dive in, my disclaimer: I am not a lawyer, nor do I play one on TV. IP law is complex and specialized. My hope is to give you just a quick lay of the land, so if you need advice on how to protect your work or ideas, please see a legal professional.
What Is IP?
First, let’s start with a definition of IP. Intellectual property is the right of ownership granted to creations of the human mind. It’s about taking things that are intangible and therefore difficult to “own” in the traditional sense and providing rules on how you can own and share them.
So let’s break that down. Determining ownership of objects is relatively easy. I go into the bookstore, I buy a book, I get a receipt that shows that I bought it, and now I own it. However, the words and ideas in the book are another matter. They have value. Through intellectual property law, the way those ideas are used, reproduced, and represented can be protected by the person who created them.
And I’d like to highlight another point in the definition: like physical property, intellectual property doesn’t mean you “can only share for money.” I’ve heard clients over the years say to me that they don’t want to label their work as intellectual property because they want other organizations to use it. I’ll cover it more below, but just like physical property, intellectual property can be shared and given freely and yet still protected as property.
I’m going to immodestly use a book I co-authored with Alison LaRocca as an example. We developed the system Lean Recruitment™ to help nonprofits get better talent faster and at a much, much lower cost, and captured the system in a book of the same name. We sell the physical book on Amazon.com, but we also give away the e-book freely on our website. Though we give away the book, we still own the ideas and the system. So, if somebody were to lift our writings and try to sell them as their own, we would have rights to curtail those actions.
Copyrights, Trademarks, and Patents … Oh, My!
When it comes to defining your IP rights, typically three systems are commonly used: copyrights, trademarks, and patents.
Let’s start with copyrights, which give the author of a written or recorded work the ability to control the copy, reproduction, and sale of that work. The most basic example of the kind of work you use a copyright for is written documents. However, copyright has been expanded for use in a variety of different ways to cover written and recorded intellectual property, including movies, architectural designs, and even computer code.
Typically, as soon as you author a work, it’s protected by copyright law, so you don’t have to have that copyright symbol on every document (that ubiquitous copyright “C” inside the circle). However, including the copyright symbol provides a good, visual reminder of ownership, so you may want to employ it broadly.
A trademark protects a word, name, symbol, or design that represents a brand or company. It’s something that needs to be unique and clearly associated with your organization or its specific products and services. For example, the Nike “swoosh” is clearly associated with the company and protected. Applying a “TM” in a circle can be done at any time, showing that you lay claim to trademark protections for the idea. However, the “R” in a circle means you have the trademark registered through a lengthy process with the US Patent and Trademark Office, showing that your proposed trademark is unique (not used by others) and not in common use. Registering your trademark provides you with stronger legal standing in a dispute about the use of your trademark (since the federal government is seen as designating it as your legal property).
A patent protects an invention, either because of its unique utility or design. A patent usually applies to a product such as a new solar-powered stove your organization creates for use in areas off the utility grid. But it can also apply to processes such as those used in manufacturing or computing that have a specific value. Here, the author is not protected from the start, but rather when he or she becomes the first person to get the patent approved. So, when you have a product that you believe should be patented, you need to move swiftly. In this case, you again have a lengthy process to follow with the US Patent and Trademark Office, but for one year while you pursue the process, you can use “patent pending,” which protects your invention while you apply.
The Creative Commons
In more recent years, additional systems of IP have come into practice outside of US law. They arose out of the practice of Open Source – where computer coders retained the copyright on their code, but also shared it without cost so that other developers could use it for their creations.
The Creative Commons was created in reaction offering a new set of copyrights that openly designated different levels of sharing allowing others to use or even profit off the ideas while still marking the creation as IP owned by a person or organization.
Protection Before You’re Protected
Copyrights, trademarks, and patents protect ideas once they are fully formed. However, you should also consider protections for your organization that cover development as well. Typically, these take two forms. A nondisclosure could be a clause in an employment agreement or in your employee handbook; it prohibits current and former employees from disclosing your unique ideas. When you’re dealing with outside organizations who are partners, you may want them to sign a nondisclosure agreement (known as an NDA). This prohibits the partner from sharing the ideas they may learn about while working with you. For example, a few years ago, my firm was part of the development team for an online service that a nonprofit was creating. All the partner organizations had to sign NDAs to ensure we wouldn’t share the concept with others.
Get Over It—Protect Your Organization’s Ideas!
One of the things I love most about working in the nonprofit sector is the generosity of the leaders—their willingness to share with others whether it furthers their mission or someone else’s. This incredible generosity has often inspired leaders to question whether they should impose intellectual property rights on their work at all.
Again, IP doesn’t mean you’re hording your creations or holding them from people who could benefit. This doesn’t mean you can’t share it or freely give it away. As I mentioned in our example, we sell our book, but we also give it away. At the same time, we are protected from somebody misusing information or profiting off it themselves.
So if you have an idea, authored work, service, or product of value, protect it.
Please feel free to reach out to talk about this post or any other on The Mighty Blog, I look forward to hearing from you!