Copyright and trademark: what each one actually protects

Copyright and trademark are frequently discussed as alternatives, as though a business chooses between them. They protect different things for different reasons, and a single item can be covered by both, by one, or by neither.

Copyright, under the Copyright Act, 1957, protects the expression of an original work. Its justification is authorship: someone created something, and the law gives them control over its reproduction and communication for a period. It is concerned with the work itself.

A trademark, under the Trade Marks Act, 1999, protects a sign because of the function it performs in trade — distinguishing one trader's goods or services from another's. Its justification is not creative effort but the avoidance of confusion about origin. A mark that took ten minutes to draw is protected on the same footing as one that took a month, and a mark that is highly original but does not distinguish origin is not doing the job the Act protects.

A logo illustrates the overlap. As an artistic work it can attract copyright, which is about who may reproduce that drawing. As a mark used to identify goods it can be a trademark, which is about who may use it in trade for those goods. The two rights can be held by different people, which is where a great deal of avoidable difficulty starts.

The Act protects defined categories of work: original literary, dramatic, musical and artistic works, cinematograph films, and sound recordings. Computer programmes are protected as literary works, which is why software sits inside copyright rather than in a category of its own.

The requirement is originality, not merit or novelty. A work does not have to be good, and it does not have to be the first of its kind; it has to originate from the author rather than being copied.

Copyright subsists automatically on the creation of the work in a fixed form. No registration, notice, deposit or fee is required for the right to exist, and this is the single most useful fact in the subject. A photograph, a product description, a spreadsheet template or a piece of code is protected from the moment it is made.

Registration under the Act is available and voluntary. What it provides is evidentiary convenience: an entry in the Register of Copyrights is a public record of the claim, which is useful where ownership or the date of creation may be disputed later. It does not create the right and its absence does not weaken it in principle, though it can make proving the position harder in practice.

Separately from economic rights, the Act recognises moral rights of the author — to claim authorship and to restrain distortion or mutilation prejudicial to honour or reputation — which do not travel with an assignment in the same way.

The durations are structurally different, and the difference reflects the different justifications.

For literary, dramatic, musical and artistic works published within the author's lifetime, copyright subsists for the lifetime of the author and sixty years counted from the beginning of the year following the year of the author's death. Because the clock runs from a death rather than from creation or publication, the term of a work by a living author has no fixed end date.

Other categories are computed differently. Cinematograph films, sound recordings, photographs, anonymous and pseudonymous works, posthumous works, and works of government or of an international organisation are each dealt with by their own provisions, generally on a basis of sixty years from publication rather than from the author's death. The distinctions are set out in the Act, and getting the category right is what determines the calculation.

A trademark registration works on an entirely different model: a term of ten years, renewable indefinitely on payment of the prescribed fee. There is no ultimate expiry, because the reason for protecting a mark — preventing confusion about origin — persists as long as the mark is used in trade.

So copyright is long but finite and a trademark is short but renewable forever. A brand name can be protected indefinitely as a mark while the copyright in the logo drawing runs its own separate and eventually finite course.

This is the section that matters most to a small business, because it is where expectations most often exceed the right.

Copyright protects expression, not ideas. A concept, a method of doing business, a process, a system, a discovery or a factual proposition is not protected, however original. Writing a detailed description of a business model protects the description; anyone remains free to operate the model. The distinction between an idea and its expression is the central line in copyright law and the one that disappoints most claimants.

Names, titles and short phrases are generally not protected by copyright, because they are too short to constitute a work. A business name or a tagline is therefore a trademark question, not a copyright one — which is the clearest example of why choosing the right frame matters.

Facts and data are not protected as such, though a compilation may attract protection in respect of the selection and arrangement rather than the underlying facts.

A style, a technique or a genre is not protected, only the particular works made in it.

And copyright does not prevent independent creation. It is infringed by copying, so someone who arrives at a similar result without access to the work has not infringed — a genuine and frequently surprising limit, and the main practical difference between copyright and a registered right that operates against the world regardless of how it was arrived at.

Ownership rules produce more real problems for small businesses than any other part of this subject, because the default is not what most people assume.

The author is the first owner of copyright, subject to the exceptions in the Act. For a work made by an employee in the course of employment under a contract of service, the employer is generally the first owner, in the absence of agreement to the contrary.

The case that matters is the other one. Work commissioned from someone who is not an employee — a freelance designer, a photographer, a copywriter, a development agency — is not covered by the employment exception, and the creator is generally the first owner of the copyright in what they produce, notwithstanding that the business paid for it. Paying an invoice buys the deliverable; it does not by itself transfer the copyright.

The Act sets out how copyright is transferred: an assignment must be in writing signed by the assignor or their authorised agent, and the Act prescribes what an assignment must specify, including the rights assigned, the duration and the territorial extent, with consequences where these are not stated. A licence is the alternative to an assignment and gives permission rather than ownership.

The practical consequence is specific and common. A business that has paid for a logo, a website or a photograph without a written assignment may hold no copyright in it, and that gap tends to surface at the least convenient moment — during a funding exercise, a sale, or a dispute with the creator.

Because the two rights answer different questions, the first useful step with any asset is identifying which question is actually being asked.

If the concern is that someone will copy a thing you made — photographs, written content, drawings, code, a manual, a video — that is a copyright question, the right exists already, and the practical issues are proving authorship, proving the date, and holding a written assignment where someone else created it.

If the concern is that someone will trade under a name or sign that customers associate with you, that is a trademark question. Copyright will generally not help, because names and short phrases are not protected as works.

If the concern is that someone will use your idea, method or business model, neither right addresses it. What can address it, in a limited way and only between parties who have agreed to it, is contract — confidentiality obligations and the terms on which information was disclosed.

Two limits on this explanation should be stated plainly. It describes the position under Indian law as at the date of writing, and both Acts are amended. And it explains what these rights are, not what should be done in any particular situation — whether a specific work is original, whether a specific use infringes, and whether a specific document validly assigns anything are judgements on specific material, and they belong with a professional who can examine it.