Learning Lessons from Cartographers to Protect Intellectual Property

Most businesses will have copyright-protected works as a part of their overall IP portfolio.  For some, these works may be the core of their business, such as literary works or other documents, music, art or software code.  How can these businesses effectively protect themselves against copyright theft and infringement?

 

Copyright Infringement and Independent Creation

For a work to attract copyright protection, it must be original.  This does not mean that the work is new.  Rather that it originated from the author who displayed reasonable independent labour, skill and judgment to create the work.  In other words, the author didn’t copy the work from another source.

It is possible for two authors to independently create very similar works.  Provided they did not copy from either each other (or from someone else) then there would be no infringement of copyright.

For copyright infringement to occur, the following need to be satisfied:

  1. There needs to be a valid copyright in a work and ownership of it
  2. The alleged infringing work needs to show a level of objective and striking similarity to the copyright-protected work – a clear resemblance
  3. There needs to be a causal connection between the two works – facts that suggest that copying of the copyright-protected work is likely to have occurred in the creation of the infringing work
  4. There should be copying of a “substantial part” of the copyright-protected work – this is based on quality rather than quantity, as well as the relative importance of the copied elements to the copyright-protected work

Any evidence, or that lack thereof, to support an independent pathway of creation will be important in deciding a case of copyright infringement.  This is where copyright traps can be particularly useful, especially for establishing a causal connection between works.

 

Copyright Traps and Paper Towns

Copyright traps are an established technique to address infringement and plagiarism across a range of works.

The practice involves including a small or trivial item of false information within a work, or details and design features that are unique to the work, and are thus highly unlikely to originate at random in a separate work from a third party.  The latter are often used to ensure the integrity of the original work and the information it contains are not compromised nor misleading to the end user.  In both scenarios, these traps provide a strong causal link to demonstrate that copying had occurred.

Within the discipline of cartography (map making), the use of “paper towns” is the inclusion of a non-existent town, or other unique details such as road widths, on a map.

A famous example is the fictitious town of Agloe in New York State, USA.  Included in maps drawn by the General Drafting Company in 1937 as a copyright trap, an actual hamlet with a general store, gas station and two houses, was eventually built on the site (although it has now long since been abandoned).

In another case from the early 2000s, the UK’s Ordnance Survey (national location and mapping agency) won a £20m compensation from the UK’s Automobile Association (the AA) for the unauthorised copying of its maps in the publication of various atlases, town plans and maps by the AA.  In the conclusion to a long running dispute, the Ordnance Survey were able to demonstrate evidence of copying based upon specific style features and design elements included in their maps, which also subsequently appeared in the AA maps.

 

Applications to Other IP Rights

The principle behind copyright traps and “paper towns” can be applied to a number of IP rights to guard against theft and infringement, and to provide important evidence to resolve disputes.

The technique has applications in documentation relating to trade secrets to detect the leakage of the information to third parties.  Within software development (a field of particular relevance to the tech industry here in New Zealand), the practice of embedding a unique identifier within a piece of code is known as “watermarking”.

Such traps can be a standard inclusion within documentation, software code and other works.  Alternatively, they be applied on an ad hoc basis to investigate suspected ongoing theft or infringement by introducing a change or false information and seeing if it is propagated by the alleged infringer.

Proving IP theft and infringement can be difficult, time-consuming and expensive.  Provided the use of “paper towns” and copyright traps do not lessen the quality or integrity of the product or service you provide, then this is a strategy to consider in order to protect your intellectual property.  They can provide you with valuable evidence and put you in a strong position to stop the theft of your IP and the subsequent damage to your business.

Alistair Curson

 

References

Bainbridge D. (2012). “Intellectual Property”. 9th edn, Pearson Education Limited, Harlow, England.

Clark A. (2001, March 06). “Copying maps costs AA £20m”. Retrieved April 02, 2020, from: https://www.theguardian.com/uk/2001/mar/06/andrewclark

Curson A. (2019, August 06). “Copyright – Originality”. Retrieved April 01, 2020, from: http://adcpatentsearch.co.nz/IP_Analytics_NZ/?p=231

Fasthoff Law Firm. (2016, November 27). “Anatomy of a Copyright Infringement Case: Defenses to Allegations of Copyright Infringement”. Retrieved April 01, 2020, from: https://www.fasthofflawfirm.com/anatomy-copyright-infringement-case-defenses-allegations-copyright-infringement/

Grundhauser E. “Agloe, New York”. Retrieved April 03, 2020, from: https://www.atlasobscura.com/places/agloe-new-york

Hamilton J. (2010, July 08). “What is software watermarking?”. Retrieved April 03, 2020, from: https://jameshamilton.eu/research/what-software-watermarking

Interlego A.G. Appellant v Tyco Industries Inc. and Others Respondents [1989] AC 217.

Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273.

McDonald A. (2019). “Copyright Law”. Retrieved April 01, 2020, from: https://www.amcdonald.co.nz/information/copyright-law-barrister/

New Zealand Copyright Act 1994, s16. Retrieved April 01, 2020, from: http://www.legislation.govt.nz/act/public/1994/0143/117.0/DLM345923.html

New Zealand Intellectual Property Office. “Copyright: Ownership and Protection”. Retrieved April 01, 2020, from: https://www.iponz.govt.nz/about-ip/copyright/ownership-and-protection/

O’Connell D. (2020, March 27). “Trade Secrets & Paper Towns”. Retrieved April 01, 2020, from: https://www.linkedin.com/pulse/trade-secrets-paper-towns-donal-o-connell/?trackingId=UPyO0WRnS6GZYnDa8PrRLw%3D%3D

Ordnance Survey. (2020). “About us”. Retrieved April 02, 2020, from: https://www.ordnancesurvey.co.uk/about

Wikipedia. (2020, March 13). “Agloe, New York”. Retrieved April 03, 2020, from: https://en.wikipedia.org/wiki/Agloe,_New_York

Wikipedia. (2020, March 02). “Fictitious entry”. Retrieved April 01, 2020, from: https://en.wikipedia.org/wiki/Fictitious_entry

Wikipedia. (2020, March 26). “Ordnance Survey”. Retrieved April 02, 2020, from: https://en.wikipedia.org/wiki/Ordnance_Survey

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