7
ISSUE
36
By. June Okal
F
or a long time, our training and infor-
mation sources have loudly echoed
the need for registration of all forms
of expressions of creativity and innovation.
We have sung this song over and over to all
creatives around us, the need to register and
register.
However, an emerging and prominently
growing school of thought is around adopting
and embracing alternative forms of protection
of this aside from the known and widely ac-
cepted one way. In this article I assess some of
these forms;
m Non Disclosure Agreements (NDAs) - This
is an agreement between persons that pro-
vides that the content of discussion of the
commercial engagement will not be dis-
closed to third parties without consent or
knowledge of the other party.
m Contracts - Contracts are legally binding
agreements entered into by different parties.
In the technology space these agreements
should provide for standard clauses. These
are condentiality clauses, Non-compete
clauses, non-disclosure or licensing clauses.
Some of the unique agreements to include
these are:
m Employment Agreements - between the
employer and employee or a contractor. A
unique additional clause to include in this
would be that of ‘Works for Hire’ to the ef-
fect that all innovative work produced on the
company’s time using company resources
will be deemed to have been developed for
and owned by the company.
m Partnership Agreements between com-
mercial allies who agree to work together
towards the solving of a problem or attain-
ment of a similar solution.
m Investor Agreements - Typically most tech-
nology start-ups or small and medium sized
businesses would require to raise capital
through some form of nancing i.e. debt
capital (borrowing from a bank or other
finance institution or equity capital (giv-
ing a third party a portion of ownership of
the business in exchange for their nancial
investment). Including such clauses would
protect against the risk of the investor gain-
ing access to the creative solution to imple-
ment with another entity or use it contrary to
the terms of the agreement.
m Trade Secrets - commercial value informa-
tion that is publicly restricted to a few indi-
viduals or persons at any point in time. For
instance, for many decades, The Coca-Cola
Company’s secret formula was locked away
in a vault. After Dr. John S. Pemberton in-
vented Coca-Cola in 1886, the formula
was kept a close secret, shared only with a
small group and not written down. Listerine
mouthwash, the NY Best Sellers book list,
KFC Chicken coating recipe, the McDon-
ald’s burger secret sauce recipe as well as
Google’s unique search engine algorithm
are all examples of the use of trade secrets.
m Technical and Security measures - In addi-
tion to the above mentioned, another way to
protect software and mobile apps is through
the implementation and use of strong techni-
cal and security measures which limit access
on various levels. Some of these modes in-
clude: Restricting access to the source code
to a select few entrusted persons; keep pass-
words and maintain logged access codes for
ease of tracing in case of compromise; use
multiple factor authentication; decentralise
functions from one source; and system initi-
ated regular change of passwords as well as
multiple but separate authentication access
points with different individuals where for
instance, to access some information more
than one person is required to enter their
unique combination password.
m Enhanced creation of awareness and ca-
pacity building - Across the board and with
most technology, the weakest point is the
human element. In this case, without a deep
understanding of the value of the protected
information human beings still remain the
weakest link hence the need for more train-
ing on what the value of the information is,
what the risk and harm will be to the busi-
ness if disclosed and the consequences of
such inaction.
A key disclaimer to note is that without reg-
istration of the intellectual property, you do not
have a legally binding leg to stand on. Which
would mean that if a competitor or someone
else in the same eld or interest area is able to
reverse engineer or build the same platform and
they register it, they would have an overriding
and stronger claim than yours.
On the other hand, the costs, time, complex-
ity process as well as bureaucratic engagement
with regulators are factors to consider when
making this decision. Every software and web/
mobile based application is unique, each busi-
ness model distinctive, each group of founders
peculiar and modus operandi isolated to it. As
such, the decision on whether to use IP protec-
tion or rely on one of these other forms of pro-
tection rests on you.
Alternative Forms of IP Protection
EDITORIAL OPINION