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Aleck Ncube, Intellectual Property
AN important early step for any electronic (e)-commerce business is to make an inventory of Intellectual Property (IP) assets. Write a list of any patents, patent applications, or innovations that you have made that you think could be patentable inventions.

Also write down anything you think is copyright. This would include software, designs, documentation or technical writing, software scripts, user interface materials, schematics, artwork, web site designs, music, photos, etc.

Copyright protection is automatic in most countries and does not require registration (though registration in the copyright depository, wherever available, is generally advisable). Now write down those distinctive signs or names the company is using, whether registered or not. Such signs enjoy protection as trade and service marks upon registration or, where the law so provides, through use even without registration.

These may include names of products as long as the name is not just a description of the product (for example salt, tissue, good software, fast computers), as well as logos and business names. Write down any trade secrets.

This is information that has commercial value to you, that is not generally known and that a reasonable person could not just figure out. This includes things like product formulas, customer lists, business strategies, plans for technical enhancements to products, etc. Write down anything else you think might be valuable that is intangible.

Finally, write down any contracts that you think might affect the IP assets you have listed such as consulting contract with the design firm that made your web site, a development agreement with a university, a release from your former employer, non-disclosure agreements or employee agreements. Now you may wish to show your list to a lawyer and ask him or her for an estimate on what it costs to get an “IP audit”.

The purpose of the IP audit is to review what IP the business has and determine how to protect, exploit, and enhance its value. Your lawyer should be someone who is knowledgeable about IP and will advise you as to the best ways to use the legal system to protect your IP from use or theft by competitors.
If you do not have access to alawyer, check with the national IP office or business association to see if there are resources to assist you.

How IP relates to E-commerce
There are several reasons why IP is important to e-commerce and e-commerce is important to IP. e-commerce, more than other business systems, often involves selling products and services that are based on IP and its licensing. Music, pictures, photos, software, designs, training modules and systems can all be traded through e-commerce, in which case, IP is the main component of value in the transaction. IP is important because the things of value that are traded on the Internet must be protected, using technological security systems and IP laws, or else they can be stolen or pirated and whole businesses can be destroyed.

Also, IP is involved in making e-commerce work. The systems that allow the Internet to function – software, networks, designs, chips, routers and switches, the user interface, and soon — are forms of IP and often protected by IP rights.

Trademarks are an essential part of e-commerce business, as branding, customer recognition and good will, essential elements of web-based business, are protected by trademarks and unfair competition law. E-commerce businesses and Internet related businesses are based on product or patent licensing. This is because so many different technologies are required to create a product that companies often outsource the development of some component of products, or share technologies through licensing arrangements.

If every company had to develop and produce all technological aspects of every product independently, development of high technology products would be impossible. The economics of e-commerce depends on companies working together to share, through licensing, the opportunities and risks of business.
Many of these companies are SMEs. Finally, e-commerce based businesses usually hold a great deal of their value in IP.

So the valuation of your e-commerce business will be affected by whether you have protected your IP. Many e-commerce companies, like other technology companies, have patent portfolios and trademarks that enhance the value of their business.

IP Issues in website design
One of the basic elements of e-commerce business is the design and function of the business’ web site. In designing and building your web site, the first thing to be aware of is whether you own the web site presentation and content and every aspect of IP in it. You need to know what you own, what you have rights to use, and what you don’t own or have rights to use.

If you are using a consultant or company to design your web site, check out the provisions in the agreement concerning ownership and IP rights. Who owns the website design and text? Check out what obligations the business has to make sure that it doesn’t use any IP that belongs to a third party in the course of its work. If you are using a database, e-commerce system, or search engine or other technical Internet tools licensed to you by another company, check the terms in the license agreement to see who owns the system.

Make sure that you do have a written agreement, and get it checked over by a lawyer before you sign it and before any design, custom work or installation of the site begins. You will need written permission (also referred to as a licence, a consent, or anagreement) to use any photos, videos, music, voices, art work, or software, etc. that belong to someone else. Just because you get material on the Internet does not mean thatit is in the public domain. You may have to pay for permission to use these materials.

Do not distribute or download any content or music on your web site that does not belong to you unless you have obtained written permission from the owner to distribute it on the Internet. Be careful in linking to other web sites.

Links are a great e-commerce tool, and a useful service to your customers, the most careful practice is to seek and obtain permission from the other site before putting in the link. Framing is a practice that is more controversial that linking. This means including large parts of another web site in yours in a way that makes it look as though it is part of your web site. Always get written permission before doing this.

In the next write up, I will focus on internet domain names for SMEs as well as how e-commerce is affected by patents.

Aleck Ncube is an Intellectual Property scholar based in Bulawayo. Feedback on mobile: +263712374408 Skype: Matintas1 Twitter: @aleckncube Alternative E-mail: [email protected]