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What is intellectual property?

The State of Utah alone receives 20 million attacks per day, and the Pentagon reports seeing 10 million a day. We all create or interact with documents that need to be consumed, collaborated on and shared. But which are sensitive, who should have the right to access what documents, and what are the different security levels we can implement? I like to tell people to start with one small project, and then expand. Get your first success under your belt, and grow from there.

Going too big too quick can often derail organizations. Digital Rights Management DRM is a content-based security measure that allows you to grant access only to the people who need it dynamically. Users must go through an authentication process before accessing any file. This works by encrypting files at the document level i. With DRM, you can audit document interactions in one place, seeing when an employee accesses, prints, closes and modifies the document.

You can even prohibit the ability to print or modify documents, or set expiration dates for opening the document.


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Because the protection is dynamic, you can remotely change access policies on the fly without having to revoke and renew document permissions. Attribute-Based Access Control ABAC helps insulate your network from hackers by placing protections on a group of files in a repository. Further, in order to be deemed "fixed in a tangible medium", the work must be created on something sufficiently permanent to be perceived, reproduced, or otherwise communicated for a sufficiently long duration. Copyright protection begins automatically as soon as the work is created.

In other words, the author need not register the work in order to achieve copyright protection. However, in order to initiate a copyright infringement suit, registration is required. To achieve maximum protection, a copyright should be registered within three months after publication, to enable the copyright owner to maintain the right to recover statutory damages and attorney's fees. In general, the duration of copyright protection is the life of the author plus 50 years for works created on or after January 1, In the case of works made for hire, the term of protection is 75 years after the first publication or years after creation of the work, whichever expires first.

For works created before January 1, , the term of protection varies depending on whether the work was published or copyrighted before January 1, If, within the scope of his or her employment, an employee creates a copyrightable work, the employer is deemed the owner of the copyright.

Copyright Subsists

If, however, the creator of the work is an independent contractor, or if the work is commissioned, the copyright will belong to the creator of the work. The transfer of copyright is not an "all or nothing" proposition. Copyright is frequently referred to as a "bundle of rights", including, among others, the right to reproduce and distribute the work, the right to perform the work, the right to create derivative works, such as a screenplay from a story or a translation, etc.

The hidden costs of an IP breach: Cyber theft and the loss of intellectual property

Any portion of these rights can be assigned to another, with the copyright owner retaining all other rights, or assigning certain other rights to other entities or individuals. A sample Assignment of Copyright is attached to this paper as Appendix C. As with assignments, copyright licenses can be restricted to specific rights, with the copyright owner retaining all other rights. Appropriate restrictions must be built into such licenses to assure to the owner the flexibility to utilize the copyright for all uses which should be retained and to assure to the owner the benefit of his bargain, not releasing rights that are not compensated.

Publishers' standard agreements almost invariably call for assignment of copyright from the author to the publisher.

Intellectual Property as a Business Asset

This makes matters easier for the publisher, because it then has unrestrained use of the work worldwide for future editions, abridgments, translations, etc. It is not necessary, however, and is rarely advantageous for the author. A publisher need only have a license to publish and distribute the work. Copyright generally can and should be retained by the author. Another type of agreement frequently encountered in copyright practice is the Software Development Agreement, wherein a company or an individual programmer is hired to develop software for a specific application.

Under copyright law, unless the programmer is an employee, employed for the purpose of writing software, copyright in the software will most likely be considered to be owned by the programmer, or the company who does employ the programmer. From the standpoint of the programmer, copyright is protected by covenants not to copy or reproduce or alter the software, similar to the "shrink wrap licenses" packaged with commercially available software.

Such covenants are frequently secured by the programmer's retaining the source code, or having it held in escrow, and allowing access to the purchaser only on certain specified conditions. From the standpoint of the purchaser, however, such conditions can be devastating. It is generally important that the purchaser be able to copy the software onto other computers, to de-bug and update it and to alter its function as business circumstances dictate.

On behalf of the purchaser, one would seek to negotiate copyright ownership and possession of the source code. Trade secrets exist in almost every business. Under the traditional, common-law definition, they consisted of virtually any information beneficial to the business, developed by the company through the expenditure of time and effort, unknown to others in competing businesses, and which gave an advantage to the company over such competition. Under the recently enacted Florida Uniform Trade Secrets Act "FUTSA" , a trade secret is any information including, but not limited to, formulae, patterns, compilations, programs, devices, methods, techniques, or processes which meets two criteria:.

According to the legislative history of the FUTSA, this definition is intended to expand the scope of protectable trade secrets to allow a business to protect, due to its potential value, information which it does not presently intend to utilize or which it has not or cannot presently fully develop.

Intellectual Property

In addition to information such as computer programs, formulae, and methods of production, trade secrets can also include customer lists, source lists, and the like. If a company wishes to protect information as a trade secret, it must implement sound measures to protect against its disclosure. Under the common law, it was wise to do so not only in order to maintain competitive advantage, but also to bolster arguments of protectability should trade secret litigation become necessary. Under the FUTSA, in order to even meet the threshold qualifications as a trade secret, information must be the "subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Even under the common law prior to the enactment of the FUTSA, courts would not protect the claimed trade secrets of a business which failed to take adequate precautions against unauthorized discovery. On the other hand, courts did not then, and do not now, expect a business to turn itself into an "impenetrable fortress" as a prerequisite for relief against misappropriation of trade secrets. While absolute secrecy is not required, there must be a substantial element of secrecy so that a third person would have difficulty in acquiring the necessary information for manufacturing the product without resorting to the use of improper means of acquiring the secret.

Thus, "heroic measures" to preserve secrecy are not required. The FUTSA codifies the common law doctrine of "relative secrecy", requiring that a business owner make reasonable efforts under the circumstances to maintain secrecy. The security measures to be taken are many and varied, but key among them are contractual agreements restricting access to and disclosure of such information, each of which are discussed in detail later in this section. Before taking any such protective security measures, a company must first identify its trade secrets.

The threshold inquiry is the first of the two criteria in the definition in the FUTSA, discussed earlier: namely any information which derives "independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons" to whom it might be valuable. Once a company has identified its trade secrets, they must be subject to "efforts that are reasonable under the circumstances to maintain [their] secrecy" in order for courts to protect them.

Data Assets – Protecting and Driving Value in a Digital Age

Therefore, the company must determine the appropriate measures for the protection of its various trade secrets. It is vital to specifically identify what matters are to be protected as trade secrets and to tailor security measures to protect only that information. If the security measures are overly broad, they often will become too burdensome to employ on a consistent basis.

Failure to employ security measures consistently can lead to loss of trade secret protection. When the security policies are in place, a reliable security officer should be appointed to implement them. This position should be held by a high level executive or employee. First, the security officer must be knowledgeable of the company's inner workings and its trade secrets, and must be able to make accurate decisions regarding the secrecy and importance of trade secret materials.

Second, the security officer must have the authority to command respect and enforce compliance with security measures. Finally, the security officer must be familiar with all contracts and agreements in which the company is involved, containing restrictions to protect the company's trade secrets. All documents which contain confidential or proprietary information should be identified and reassessed at regular intervals to see whether the information they contain has ceased to be confidential or has become obsolete. For example, new product designs, which are obvious from the exterior shape of the product, cease to be secret when the product is marketed.

However, prior to marketing the design, maintenance of new designs in secrecy may be vital to the company. All confidential documents should be marked with an appropriate proprietary information notice, such as:. The information disclosed herein is proprietary with XYZ Company and shall not be duplicated, used or disclosed, nor shall the articles or subject matter contained herein be reproduced, without written permission of XYZ Company.

A notice similar to the one above has been used on drawings provided to a vendor.


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It should be noted that if the evidence establishes that a document was otherwise treated as a confidential document, the failure to apply a proprietary legend will not prevent a court from finding that a document is entitled to protection as a confidential document. On the other hand, it should also be noted that if your company does establish a policy of stamping confidential documents with a restrictive legend, the failure to follow this policy may be interpreted as a lack of intention to protect a trade secret. Confidential documents which must be submitted to the government for any reason should be marked to ensure that they are not inadvertently released to others under the Freedom of Information Act.


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There are specific exemptions under the Act for trade secret information, and the document marking should specifically refer to the exemption. For example: "Subject to exemption b 4 of 5 U. Confidential documents should never be left in open view or unattended even when they are in use.

Any new product designs should be kept in a locked drawer or cabinet, and the design area should be locked at night. Similarly, secret processes and formulas should be kept under lock and key.

Rule 1: Get Professional Help

Courts are impressed by such precautions as a locked box for blueprints and locking the area where the documents are kept at night. No copies of confidential documents should be made without authorization from an appropriate member of management. All copies should be treated with the same care for confidentiality as the originals. When multiple copies of a confidential document must be distributed, the whereabouts of each numbered copy should be tracked in a log book.

Another common investigative technique is rifling through garbage bags. In each area where confidential documents are located, an individual should have responsibility for marking them properly, keeping them under lock and key, monitoring their removal and return to locked files, not releasing them without authorization, overseeing copies, maintaining the log book of numbered copies of each document, and disposing of them properly.

This individual should know to advise the security officer when a departing employee is the possessor of any confidential information, so that the security officer may be certain all such documents are surrendered upon the employee's leaving the company. The security officer should monitor the practices of each such individual periodically, discussing problems with and reminding him or her of procedures to be followed.

Documents containing technical information prepared for outside release should be screened before release to ensure that they do not disclose trade secrets of the business. These documents include advertisements, sales brochures, hand-outs for trade shows, newspaper press releases, articles to be submitted to technical or trade journals, and training and maintenance manuals intended for unrestricted release to customers.

The company may receive an inquiry for information about a product so that the inquirer may determine whether the product will meet the inquirer's requirements.