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Protect your light-bulb moment from competitors

Written by Zen Terrelonge on Tuesday, 08 May 2018. Posted in Commercial law, Legal

There’s a very fine line between inspiration and idea theft and there’s no shortage of cases to spook leaders

Protect your light-bulb moment from competitors

Stranger Things, the Netflix show, has garnered a cult following worldwide thanks to its unique tribute to 1980s sci-fi films. However, Matt and Ross Duffer, creators of the show, had allegations of idea theft thrown at them in April by Charlie Kessler, a director who claims the inspiration for the smash show was snatched from an idea he pitched to them. The Duffers have denied this.

But it’s true ideas that appear to have taken inspiration from one another can be found everywhere, including the business space. If one brand doesn’t hit the spot, you can guarantee a similar alternative will be available – from Coca-Cola and Pepsi to McDonald’s and Burger King. And when it comes to the tech sector, it gets even trickier as products and services aren’t necessarily tangible. Look at the blue tick verification badge of honour seen on social networks. It’s been a fixture on Twitter for some time but you can also find the seal of approval on Instagram and Facebook now. Idea theft or inspiration? Perhaps coincidence?

In 2017, Waymo, an autonomous vehicle business owned by Google parent firm Alphabet, filed a lawsuit against Uber, the often-controversial on-demand car service. With the latter acquiring a startup launched by an ex-Waymo employee, it was suggested that an exchange of sensitive information was secured as part of the deal. The court battle was settled in February this year as Uber reportedly paid out $245m to Waymo but CEO Dara Khosrowshahi has maintained that the company is innocent and that its self-driving technology was developed independently.

“We do not believe that any trade secrets made their way from Waymo to Uber, nor do we believe that Uber has used any of Waymo’s proprietary information in its self-driving technology,” said Khosrowshahi in a statement.

So where do you draw the line in situations such as this? It just highlights the minefield tech businesses are navigating during the search to make change and impact.

Files, drawings and audio being taken from one business to another by departing members of staff isn’t unheard of. However, England and Wales have copyright and legislation in place to ensure any hard done by businesses are protected in such events – mostly. There’s a caveat to this.

“‘Knowing information’, where that information isn’t reduced to a permanent format can be impossible to protect,” says Elizabeth Ward, founder of Virtuoso Legal, the intellectual-property-law firm. “So quite commonly what employees may take is information stored in their head – and as a result, it can’t always be identified, quantified or protected.”
In the case of an engineer developing software for specific tasks by creating a database from certain sources, the final product is able to be protected, Ward notes. But the details and knowledge within one’s mind is difficult.

“This information is called ‘know-how’ and this broad classification of knowledge is often the source of major controversy,” Ward explains. “Where a key employee has years of expertise and an insight into how and why things work, this knowledge isn’t a protectable right and even though it is of huge value to the business, it can be taken and reused by the employee in a new position.”

In terms of protectable rights, that’s where things get even more complex. Copyright protects specific works, such as literary material, sound recordings or art. In the case of developing a driverless car because you think it’s a good idea, you’re well within your rights to develop your own technology and team to get the job done – using source code from an existing business, however, not so much.

Furthermore, copyright it is not to be confused with obtaining patents.
“In terms of the difference between being inspired and stealing ideas, copyright does not protect an idea, it only protects the way in which the idea is expressed,” says Martin Noble, partner at Shakespeare Martineau, the law firm. “That’s why you’ve got that distinction between copyright and patents. Getting a patent would protect the idea for something if it’s an invention – copyright can’t do that.

”That’s not to write off the power of copyright entirely. For example, the Berne Convention is an international copyright agreement that allows creators to protect their materials at home and abroad. And for further protection, as long as ideas conjured up by entrepreneurs are documented with a paper trail, their work will be granted copyright by default.

“One of the great things about copyright for startups is, if they’re creating new inventions or ways of doing things, such as a new technology, copyright is created and enforceable as soon as it arises,” says Kate O’Rourke, senior counsel at Charles Russell Speechlys, the law firm. “So if I write a poem, I automatically have copyright on that poem because I’ve written it down. If I think about it and don’t write it down there’s no copyright.”

This in itself should act as some comfort to innovators getting those light-bulb moments. For whether you’re a first-mover or think you can do better than an existing entity, there’s always room for fresh innovation – just be ready to face competition when the time comes. After all, as the saying goes, ‘great minds think alike’.

About the Author

Zen Terrelonge

Zen Terrelonge

As editor, Terrelonge can be found on the hunt for all things startup and scaleup – that's when he's not busy talking babies via DADult Life. Whether it's health or hospitality, food or philanthropy, tech or travel, he'll be seeking out the most interesting entrepreneurial developments to run in the magazine and online.

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