Imagine this common conversation when a new client approaches us:

Client: “Can I copyright my invention? I’ve created an ice cream machine that makes the best ice cream!”
Us: “You can copyright the drawings of your machine, but you can’t copyright the invention itself. You’ll need a patent to protect that.”
Client: “Really? Isn’t copyright enough?”

The answer is no. Copyright alone won’t protect your invention. This confusion is quite common because most people are more familiar with copyright than patents. Terms like “copyright” are frequently used in the entertainment industry, especially in music and movies. We often hear about copyright disputes between artists, but patents rarely make the news unless there’s a major lawsuit involving big tech companies. This leads many to assume that patents and copyright are the same. However, while both fall under intellectual property (IP), they protect very different things.

What is Copyright?

Copyright protects original works of authorship, such as literary, artistic, musical, and software creations. Examples include books, songs, software code, and films. However, copyright does not protect ideas, methods, or inventions. It only protects the expression of those ideas, such as a written book or a recorded song. For instance, if you write a song and save it on a USB drive, the recording is protected by copyright, but the idea or concept behind the song is not.

What is a Patent?

A patent protects inventions or technological processes that meet three criteria: they must be novel, inventive, and industrially applicable. Patents can cover new machinery, pharmaceutical compounds, or innovative devices. They can also protect processes, such as a new method for manufacturing a product. Unlike copyright, which protects how something is expressed, a patent protects the functionality and concept behind an invention.

Difference between Copyright and Patent

While both copyright and patent are types of intellectual property (along with trademarks and industrial designs), they protect different aspects of creativity and innovation:

Copyright protects the expression of creative works like writings, music, and art. It does not protect the ideas behind them.

Patents protect the concept or functionality of an invention, preventing others from making, using, or selling it without permission.

Here are some key distinctions:

Duration: Copyright lasts for the creator’s lifetime plus 50 to 70 years, depending on the jurisdiction. Patents typically last 20 years from the filing date but require annual renewal fees to stay in force.

Scope of Protection: Patents offer much stronger protection than copyright, as they grant exclusive rights to make, use, or sell the invention. Copyright cannot stop someone from creating a similar product if they don’t copy your exact work.

Automatic vs. Formal Application: Copyright is automatic once the work is created. However, for added protection, you can register it with the IP office. Patents, on the other hand, require a formal application and a thorough examination to confirm that the invention meets patentability criteria.

Common Confusion About Copyright and Patent

To clear up the earlier conversation: if you want to protect the technical drawings of your ice cream machine or the instruction manual, copyright is the right tool. But if you want to protect the machine’s unique functionality, such as a special feature that adds flavors to the ice cream, you’ll need a patent. So, can you copyright your invention? The answer is no, copyright only covers the artistic representation, not the invention’s technical aspects.

Copyright or Patent: How to Decide?

Here’s a quick checklist to help you figure out whether copyright or a patent is more appropriate for your creation:

Final Thoughts

Understanding whether copyright or patent protection is right for you is essential. Relying solely on copyright to protect an invention could lead to missed opportunities, as only a patent can provide market exclusivity and enforceable rights over the functionality of an invention. Copyright is limited to the expression, not the technical aspects, of a work.

In some cases, you may need both types of protection. For example, with software, you can use copyright to protect the code and a patent to protect the inventive concepts that solve a technical problem.

If you’re unsure, it’s always wise to seek advice from IP consultants. In today’s fast-paced world of technology and innovation, protecting your intellectual property is critical to ensuring that others don’t profit from your hard work.

©DR .TAN JIAN HONG OF NBS INTELLECTUAL SDN. BHD.
(PATENT EXECUTIVE)
ALL RIGHTS RESERVED