"How can I protect my idea?"

So someone asks - "how can I protect my idea?"

Someone else says "put it in an envelope and post it to yourself."

Someone responds that that does nothing and is useless.

What is the reality?

Answer:

It's not useless to post to yourself as evidentially this has some value. It has more value than not doing so but the key is that it is "evidence".

It's all about evidence when it comes to copyright. Copyright arises automatically on the creation of an original work - there is no need for registration to get it (though I believe that in the US you need registration to litigate it).

So you have to prove that you created it and when.

Posting a full copy of the design history etc works more because of the fact that there is a full design / development history.

You will be the only one with the full design / development history and this is something that an infringer will not have.

So that means keeping (and not overwriting) all files and each iteration of the design, program etc. - from the first to the last

What you do then is icing on the cake. FTP to a secure server can verify date of submission (not creation unless you do it daily). Email to yourself or a secure hotmail / googlemail account should have the same effect as posting to yourself - if not more because it is less easy to fake.

But of course this all relates to copyright which only protects the expression of an idea not the idea itself AND which can only be infringed if someone else copies it.

Of course the best way to avoid someone copying your idea is to keep it confidential.

Which creates the big dilemma - if no one knows about it then no one can copy it - Great. but if someone independently comes up with the same idea there is nothing you can do about it.

then there is also the problem that copyright only protects the expression of an idea - not the idea itself. So if someone takes your idea and expresses in a different way then there is no protection that copyright gives.

Also functionality per se isn't protected by copyright and so with web applications and software you have to rely on the code as a literary work or the visual appearance as an artistic work - to the extent that it can be protected as an artistic work.

Practically therefore if you want to protect functionality mechanics then you have to look at writing down all the component elements, producing flow charts, design drawings and committing as much as possible to paper in the same way they do in film and TV when they create "Format Bibles" to try and protect game show ideas etc.

There is no great certainty whether this will work either - buts its all about doing the best you can with the rights you have since a bare idea is not protectable.

Enter Patents - which can protect the idea / invention itself - if it is novel, capable of industrial application and inventive (i.e. not discoveries). These cost money. In Europe software is not patentable per se (though the technical effect it has on hardware can be). In the USA business processes and software are patentable but the costs can vary from $15000 for a provisional "holding" filing to many 1,000s for the full thing - if you want it done properly.

Then we have trade marks (spelt trademarks in the US) which are essentially used to protect names, logos and marks that differentiate your goods and services from those of other i.e. brands that designate the origin of goods or services as being yours.

These can be registered or unregistered - though for you to have enforceable rights in an unregistered trade mark you will have to have made use of it in such a way as to give you good will and reputation in it.

As I say - so much to say - too much to cover it all here but the key rule with intellectual property is to:

Identify - what rights exist
Protect - them as best you can
Enforce - use them or lose them
Exploit - make them work for you

IP is the single most important asset of a software business and if you don't look after it at then its like leaving your house unlocked.

If nothing else following a few simple steps at least give you the option down the line.

Oh and one final point - make sure anyone who creates anything for you enters into an agreement confirming that you own the IP in it (wherever you intend to do so).

The whole of the above can fall down if someone else can claim rights in the work.

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Alex is a partner with Campbell Hooper and a leading lawyer in the interactive and digital media industry.