Creative Commons Provides Logo For "Public Domain" Marking

Posted on December 21, 2010 by Josh MacFadden

This week in the "in case you missed it" category of copyright news, I wanted to respond to a question that recently came up regarding the process of identifying whether certain works are in the public domain. 

Creative Commons, a not-for-profit organization dedicated to enhancing the free and flexible usage of works intended for the public domain, had previously solicited opinions on a process to designate such works.  In early October, 2010 Creative Commons announced the release of the "public domain mark" (depicted above) which is intended to indicate that users of works so designated can exercise all of the rights of the work's creator (i.e. to copy, modify, distribute, perform, etc.).

While the mark may be useful for creators to designate their works as public domain, any potential users of such content should be wary:  the presence of the public domain mark does not provide a warranty of originality or non-infringement.  

Bottom Line - The User Assumes the Risk.

Those intending to use or rely upon the "public domain mark" to use third party content should carefully review the source material, the Creative Commons database for a form of licence with the creator and, when in doubt, contact the copyright holder or the site where the material was found to confirm the ability to use the material. 

Nevertheless, in spite of taking such steps it is important to note that, without a formal licence agreement (containing appropriate representations, warranties and indemnities, etc.) users of works designated as "public domain" will be assuming a certain amount of risk as to the validity of a creator's claims of ownership and non-infringement so it is recommended that such users consider the potential costs (i.e. infringement claims) and benefits (i.e. access, availability) of using such works versus the potential value of creating or formally licensing original works from a creator. 

 
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Intellectual Property Due Diligence

Posted on September 29, 2008 by Josh MacFadden

“Due diligence” in corporate transactions simply means the careful attention and analysis necessary to accurately investigate and determine the value of intellectual property assets, liabilities, the integrity and vulnerability of those assets, and potential exposure to risks of infringing third party rights and/or the erosion of a company’s trade secrets. 

For any company whose success and competitive advantage relies upon intellectual property rights or when considering a transaction touching upon intellectual property rights (whether they are owned or licensed) due diligence should always be conducted. While the dollar amount involved in the transaction may dictate the depth or level of review conducted, due diligence may result in an adjustment of the value of a transaction and thus appropriate investigations should be conducted as early as possible in order to allow for follow up investigations and adjustments to the agreement.

When reviewing intellectual property rights it will be necessary to review, at a minimum, the subject company’s records and publicly available records to assess the following:

  1. The subject company’s systems for protecting intellectual property generally including patents, trademarks, copyright, designs, trade secrets, etc. including contracts with third parties (i.e. license agreements), independent contractors and employees to review the sufficiency and enforceability of confidentiality and non-compete commitments;
  2. The intellectual property owned, used, licensed and/or being developed by the subject company to determine validity, exposure to infringement and other potential problems, potential liability for infringing a third party’s rights, accuracy of chains of title, pending and/or existing litigation, etc.; and
  3. Contractual arrangements to utilize the intellectual property rights of third parties to assess the grant of rights, limitations on use, the exclusivity of such rights, and most importantly in this context, the transferability of such rights

While conducting such strategic reviews may appear intimidating, the results of due diligence have the potential of providing valuable insight into the scope of rights, limitations on those rights, gaps in protection, the enforceability of such rights and, ultimately, the value of the intellectual property assets to be acquired. Indeed, without appropriate investigation a target for acquisition may be greatly overvalued by the vending party so it is essential to receive the vendor’s claims with scepticism and proceed with your own independent due diligence investigations prior to finalizing the financial terms of a transaction.

 

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