Companies should use trade secret and copyright law to maximize their ability to protect confidential business information.
It is a common misconception to believe that copyright protection requires the use of copyright notice and copyright registration. Under current U.S. law, neither is required.
The use of a copyright notice is not required to create copyright protection, but it is useful to put potential infringers on notice that they should not copy the work. Registration is also not required to create copyright protection, although it is necessary to obtain a copyright registration before filing a lawsuit for copyright infringement. Early registration also provides several benefits. If the work is registered before the infringement, it will be possible to recover up to $150,000 in statutory damages for each infringed work and to recover attorney’s fees. The mere threat of these specific monetary awards can be a strong incentive to stop a potential infringer.
There have been many instances where disgruntled employees have tried to harm former employers by publishing confidential documents online. Here, too, copyright can be an effective weapon to attack the problem. Copyright laws now include a section called with Digital Millennium Copyright Act, or DMCA, which provides the hosts of websites with a safe harbor against infringement claims if they provide a take-down procedure to protect copyrighted works. Using a DMCA take-down demand, it is possible to quickly and cheaply get the website host to remove your copyrighted business information from its site without going to court. The same effort based on trade secret law would likely require a court order.
The optics of challenging the infringer of a copyright can also be more compelling to the infringer. Trade secrets are not registered with any governmental body, so there is no “official stamp of approval” for a trade secret claim. In contrast, it is relatively easy to obtain a federal copyright registration and back your demand letter with an official governmental document.
Here are 10 best practices to consider and implement to maximize your ability to protect confidential business information using trade secret and copyright law:
1. Mark documents as confidential
2. Use a copyright notice
3. Restrict access to confidential information and limit distribution
4. Require nondisclosure agreements before disclosing confidential information to third parties
5. Obtain copyright registration where appropriate
6. Inform employees that business information is confidential and protected by copyright laws
7. Include confidentially provisions in employment manuals and agreements
8. Conduct training sessions to instruct employees on the importance of maintaining confidentiality for business information
9. Include compliance questions regarding confidential information in exit interviews with departing employees
10. Create an effective enforcement policy utilizing trade secret, copyright and DMCA claims.
Copyright may not be the right choice for all of the information you seek to protect, but it should be one of the weapons you consider for protecting your company’s business information. By combining copyright protection with trade secret protection, you can improve your ability to secure and protect your company’s confidential business information from misuse and theft.
About the Author
Mark Partridge is the founder of Partridge IP Law, a Chicago-based law and IP strategy firm (http://www.partridgeiplaw.com).He has worked in intellectual property law for more than 30 years and was named one of the top trademark lawyers in the 2012 edition of The International Who’s Who of Trademark Lawyers.