Quite often, business data can be characterized as intellectual property. But you want to share your data with the world, or maybe just customers or clients. This can be tricky. Improper, premature, or unlawful disclosure of certain intellectual property can be damaging and detrimental to your business. So, how do you protect it?
As you have read here on Privacy and Data Security Insights, data privacy is concerned with properly handling one’s personal data – ensuring you get consent, provide notice, and meet applicable regulatory obligations. Another concern should be whether or how data is shared with third parties. However, it is essential to remember that some data, depending on the content, may be considered and protected as intellectual property.
Many questions come to mind when dealing with the overlap of data and intellectual property.
- Is your data considered a trade secret?
- Does it hold commercial value?
- Is it sufficiently creative to constitute copyright?
- Is your idea useful or novel?
- Has your data been published to the public?
- Should you/must you share it with third parties? And if so, how do you do it safely?
Trade Secrets. To be considered a trade secret, the data must be (1) commercially valuable, (2) secret, and (3) protected by reasonable measures ensuring the data’s secrecy. The Coca-Cola® recipe, for example, is possibly the most famous trade secret of present day. Rumor has it that only two individuals know the secret formula for the highly acclaimed carbonated beverage. Unauthorized disclosure of such well-guarded data could subject one to civil and criminal remedies. Such protection for these secrets can last forever, so long as the data is kept secure and secret.
While the infamous Coca-Cola® ingredients are a well-known trade secret, more non-conventional secrets could be a client list, an algorithm contained in software code, financial information, or a chemical formula, to name a few. Your data may qualify as a trade secret under the statutory definition. Protecting it will adequately help you shield and grow your commercial power.
Copyright. For data to be considered a copyright, it must be (1) an original (“at least a modicum” of creativity) (2) work of authorship that is (3) fixed in a tangible medium. Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 346 (1991). The creative bar for copyright originality purposes is low and is intentionally so. The grey nature of copyright allows for flexibility in dealing with creative works.
Most think of copyright protection in the most common of media, including books, music, or motion pictures. However, the potential protections don’t end there. Copyright may extend to architectural works, graphic designs, website compilations, and, yes, even data.
With respect to data, many aspects may be copyrightable. Specifically, the manner and form of any skill and judgment, selection and arrangement, and creativity used when compiling data may be worthy of protection, even if the content, itself, is not. For example, generally, facts and utilitarian language are not eligible for copyright protection, but the original and creative manner in which you present it to the public may be.
Chances are you spend a significant amount of time and resources on the branding and presentation of your data. Copyright allows you to protect those compilation works. Once placed in a tangible medium, copyright ownership automatically vests in the work’s author, barring any work-for-hire or employment circumstances or other agreements stating otherwise. An owner is afforded exclusive rights to the work, including but not limited to the right to copy, display, perform, and create derivative works. Such works are protected for the life of the author plus 70 years. Any party that exercises a right that belongs solely and exclusively to the owner without the owner’s authorization may be liable for copyright infringement.
So what happens when you share your data? In efforts to commercialize your data, you are likely sharing it with third parties to effectuate a purpose. In sharing your data, you will want to have proper agreements in place to address many potential issues, a few of which are listed below:
- Who owns the data;
- Who is authorized to access or use the data;
- For what purposes can the data be used;
- Can the data be modified;
- Do you need to give proper recognition or credit when using the data;
- Are there proper intellectual property symbols that should be used;
- How will the data be delivered or exchanged; and
- Who owns derivative creations,
And there are many more, and this is by no means intended to be an exhaustive list.
The best way to monitor, protect, and commercialize your data is through data and intellectual property license agreements that set clear guidelines, restrictions, and expectations on the handling, sharing, and management of the data. Failure to police, protect, or properly handle your data and intellectual property may have significant consequences.