The next question I asked the respondents was whether the organization had officially registered their copyright with the U.S. Copyright Office or their trademark with the U.S. Patent and Trademark Office. Asking about the registration of intellectual property is insight into two things: that there is a desire to claim ownership and the ability to assert ownership of the intellectual property assets. There is more nuance in those two desires than I realized at the time, but more on that after the response data.
The 19 respondents broke down their registrations this way:
Three (3) shared that neither the copyrights or the trademarks are registered with the Federal agencies.
One (1) indicated that the copyright is registered with the U.S. Copyright Office.
Five (5) organizations have their trademark registered with the U.S. Patent and Trademark Office.
Ten (10) organizations have both their copyright and trademark registered with the Federal agencies.
U.S. copyright law does not require registration to provide ownership, but registration is needed for enforcement of the owner’s right to exclude. Eleven (11) of the seventeen (17) respondents that say they have copyright have it registered. Is it significant that six (6) do not have it registered? That’s a strategic question beyond the scope of this question, but I’ve worked with plenty of nonprofits for whom the values of open source are important. In that case, the registration to enforce exclusion would be unnecessary and serve no particular purpose. It’s also been the case that copyright developed with grant funding has unclear ownership, but the use of the copyright indicia is used as a deterrent to other organizations. I’ve also encountered nonprofits that apply the indicia to almost all of their written documents but forgo registration because they don’t perceive the rights to exclusion to have much economic value to the organization, such as with their fundraising materials or marketing materials.
Trademark, generally, is not enforceable unless it is registered. When I designed the survey I was focused only on the national context. It is possible to register trademark at the state level for in-state enforcement, and this continues to be a gap in the data. But, what we do have is still informative. Fifteeen (15) of the seventeen (17) that have trademark have registered it with the U.S. Patent and Trademark Office. So, even if state-level protections would be sufficient, the majority of organizations responding opt for the protections available through national registration.
Diving Deeper into Nuance: Ownership and Exclusion
With much more reflection and practical experience working with nonprofits, it’s become helpful to explain the following. Intellectual property assets are unique. They have two types of rights: rights in ownership and rights in exclusion. And, an intellectual property asset is just that, an asset of the organization. Though the right of ownership intellectual property can be reflected on the balance sheet with other intangibles as goodwill, like brand identities often are. The IP assets might be integral to service delivery and are what underlie the outcomes that funders support or generate fees for service. Rights in ownership are permanent and allow the right to exclude, which is time limited.
The right to exclude, however, makes intellectual property a distinct type of asset. The IP owner can decide if excluding others from the right to use their IP is aligned with their strategy and values. Exclusion can take many forms, can change over time, and/or be nuanced depending on the asset and the goals of the owner. Asserting ownership, a form of the right to exclude others from using your intellectual property assets without permission, sometimes requires formal registration as a way to prove ownership. In presenting this data at various conferences I’ve had attorneys point out that older trademarks may have protection without registration. That is a valid point, but given the nature of my survey pool that seems unlikely to be a major factor in registering trademarks.
What Does this Data Tell Us
Overall, sixteen (16) of the responding organizations have taken the additional steps to legally secure the rights to exclude others from using their intellectual property without permission. Without any other data, it’s impossible to know if the surveyed organizations, because they are classified as social entrepreneurs, are outliers in their knowledge of legal protection and/or their motivations to ensure protections. However, it does not mean that those that have not sought registration lack knowledge of legal protections. One possibility is that they have different values-based or strategic objectives for their intellectual property that make rights to exclusion unnecessary.
These responses also validate my lived experience with some of the organizations that I had worked in prior to graduate school. They also highlight the lack of attention paid to these assets in the sector – if the majority of the respondents recognized and legally protected their assets then the rest of the questions I had gathered during the background research phase were equally important to ask.
You can skip to the summary of all of the responses in the Social Entrepreneurs and Intellectual Property Management paper. Or, read through each of the blog posts tagged as Intellectual Property Data V1.0 for a more recent analysis of the data.