Last week saw the news that Twitter has threatened to sue Meta due to an alleged violation of intellectual property rights. As summarised in this article, Twitter has claimed that their "trade secrets and other intellectual property" has been willfully and unlawfully misappropriated. I can't help but wonder what those other intellectual property rights are and, in particular, whether they are true monopoly rights.
While the Meta / Twitter dispute will likely be decided in a US court (if it does go as far as a courtroom), to make a broad generalisation under UK law, there are two categories of intellectual property rights – unregistered and registered.
Unregistered rights are free and they do not need to be applied for. An example of an unregistered right that you might be familiar with is copyright. Copyright exists for a literary work when the work was first recorded – no application process is needed. There are other types of unregistered rights, for example, design rights and trade secrets. While the cost free nature of unregistered rights certainly makes them an attractive prospect, there is one major disadvantage: unregistered rights do not provide a monopoly right. That is, unregistered rights generally only protect against activity that involves copying. Therefore, to bring a successful case to court, the rights holder must show that the allegedly infringing party copied the entity protected by the unregistered right.
In contrast, while registered rights have a cost and need to be applied for, they typically provide a monopoly right. Examples of registered rights included patents, registered designs and trademarks. As monopoly rights, these rights give the proprietor the exclusive right to do, or use, the protected act / entity. For example, infringement of a patent occurs regardless of whether the infringing party copied, or even knew about, the patent or patented invention. Accordingly, if an infringement case is brought to court, the rights holder does not have to prove that copying has occurred. There are also other advantages to having registered rights. The existence of a granted application clearly indicates that the right exists and what is protected. As a result, registered rights can act as a strong disincentive against copying.
Considering the example of software in more detail, the code behind the software is likely protected by copyright. Therefore, if party A copied software produced by party B, party A could be infringing the copyright. However, if party C independently created some other software that fulfilled the same function, party C would not be infringing the copyright. Therefore, without any registered rights, party B would not be able to take an action against party C. This would be an entirely different situation if party B had been granted a patent. A patent could protect the function of the software and provide party B with a monopoly right to exclude anyone else from using the software.
Briefly returning the Meta / Twitter dispute, one can now see that Twitter's position would be a lot stronger if they were able to rely on registered rights. Perhaps, in time, we will learn more about the "other intellectual property" that Twitter refers to.
In conclusion, while unregistered rights may seem a quick and easy way of providing protection for your intellectual property, a combination of unregistered and registered rights usually provide the best protection.
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