The essence of both patent and copyright is that a creator/inventor gets legal protection and exclusivity within broad limits, in exchange for some form of publication/public disclosure. Similarly a patent is invalid if prior art exists, but only if the prior art meets certain criteria.

Clearly, putting ones book on amazon or ones own website, suffices for copyright, and putting the design on ones website suffices for prior art, to prevent someone else patenting the same implementation of an idea. Equally, if not published (the creator keeps it secret, doesn't show or tell others), then copyright doesn't begin or run.

But what counts as publication/disclosure for these purposes? Suppose a creator doesn't want to publicise something (a work or implementation), but wants to gain the protection allowed by law. What could they do to minimise actual public knowledge in detail, without being considered to have not actually published?

Examples to give an idea (not limited to these, just off the top of my head): suppose they publish the implementation details in a very obscure language, or on a website that is public but has no links from elsewhere on the web, or is briefly published then removed (and was not indexed on web searches while publicised), or only one copy is sold, and that sold via an outlet that means it's unlikely to really be read, or just 100 copies are sold, but all burned on purchase, or...?

I appreciate the answer will be different for copyright and patent, I'm interested in both really, as the question seems applicable to both.

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    There are two distinct questions here. The laws governing patents and copyrights are very different in this regard. You may want to edit your question to address only one or the other. – rhymes_with_dorange Dec 12 '18 at 18:08

Prior art status has nothing to do with the specific inventor having access to the reference. It does have to do with the public having access. At least in the U.S., there is much splitting of hairs over whether or not something qualifies as prior art. The example often given is the single dusty copy of a thesis in a little-used language shelved in an obscure university library. Assume it can be proven that no one has ever looked at it. It is prior art if it is filed or cataloged by subject; it is not prior art if the only way it is cataloged and shelved is by author's name.

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  • Very helpful example, in trying to understand how literally to take "publicly", and in providing a specific legal frame for it, at least for patent law. Thank you! – Stilez Dec 16 '18 at 8:42

It is not correct to say that:

if not published (the creator keeps it secret, doesn't show or tell others), then copyright doesn't begin or run.

Under the Berne Copyright convention, a work is copyrighted as soon as it is "fixed in tangible form" which includes written on paper, or stored as a computer file on a disk. Unpublished works are fully protected. Thai has been true in the US since 1978 (the effective date of the 1976 Copyright act (17 USC)).

For prior art, I believe that either one must show that the challenged inventor had access, or that people in the field generally had access.

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