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Is it possible to protect a “concept” or an “organisational model”?

Published in: Intellectual Property
by Arlo Canella
Home > Is it possible to protect a “concept” or an “organisational model”?

At the core of modern economics, the issue of protecting “concepts” and “organisational models” through intellectual property emerges as a topic of fundamental importance.

Knowledge economy and intellectual property.

Intellectual property is a crucial aspect of the modern economy, both in Italy and globally, as it protects the creations of the human intellect: from inventions to design, from software to confidential know-how. In Italy, the legal framework of intellectual property is mainly outlined by the Industrial Property Code (Legislative Decree 30/2005), which regulates patents, trademarks, designs and models, and the Copyright Law, Law No. 633 of 22 April 1941, as amended. At the international level, there are numerous conventions and treaties, including the TRIPS Agreement (Trade-Related Aspects of Intellectual Property Rights), which harmonises the protection of intellectual property between members of the World Trade Organisation (WTO) and the Berne Convention for the Protection of Literary and Artistic Works (also known as the Universal Copyright Convention), adopted in Berne in 1886.

The topics of protection of concepts and organisational models, in the context of intellectual property, are particularly challenging issues. Their importance stems from the growing prominence of the “knowledge economy“.

This term, coined by Peter Drucker, actually underlines the central role of ideas and information in the generation of value. Innovative ideas and efficient organisational systems can be a decisive competitive advantage, yet the legal protection of such intellectual assets raises complex legal issues.

While the protection of technical inventions, trademarks and designs is well established, the protection of initial ideas and organisational systems falls into a grey area, where being able to distinguish between the pure idea and its concrete manifestation becomes crucial. In an era of intense innovative activity and rapid technological change, understanding the limits and possibilities offered by current legislation to protect such assets becomes essential for businesses and professionals.

These issues are of particular relevance not only for their direct impact on intellectual property rights, but also for the implications they have on business strategies, innovation management and the development of new business models. The ability to effectively protect a concept or organisational model can indeed result in a significant competitive advantage, allowing companies to capitalise on innovation and defend themselves against possible imitations.

The protection of "concepts"

In my previous article “The design of “concepts” and “characters” for advertising campaigns: a guide to rights and contracts“, I explored the contractual dynamics and legal implications of creating original concepts and characters, emphasising the importance of fully understanding copyright and how to assign it.

Well, the legal protection of a concept through copyright requires that the underlying idea has been developed and crystallised in a form that makes it identifiable and distinctive. It is not the abstract idea that is protected but the concrete expression of it.

A concept for an advertising campaign, for instance, becomes eligible for protection when it transcends the boundary of abstractness to acquire a clear, detailed, and originally elaborated form, capable of being recognised as unique and owned by the author.

Looking further into this issue, this article focuses instead on the protection of concepts within the broader scope of the knowledge economy. In the context of economic concepts, the approach to intellectual property protection takes on particularly specific nuances.

Although the need for concretisation for formal protection remains unavoidable, alternative strategies such as preserving secrecy until launch and exploiting the competitive advantage granted by the first-entry position play a crucial role (I refer to my article: “Can a business idea be protected?”).

This is reflected, for instance, in keeping the operational and strategic details of a new business initiative or process innovation confidential until its actual market entry.

At the same time, in the case of innovative platforms, especially those based on software such as SasS (Software as a Service) systems, protection takes on a more technical nature and is linked to the protection of the source code and its progressive optimisation on the basis of data.

The focus of rights protection here is more on technical development, the associated databases and the peculiarities of the software that make it operational, rather than on the “concept” itself.

Legal protection through software copyright, patents for computer-implemented inventions, or the safekeeping of source codes, become fundamental tools for preserving the value of innovation.

The protection of an economic concept through the protection of related software also implies careful contractual management both at the development stage and in relation to the licensing and distribution of the software (aspects that help delineate the boundaries of exclusivity and control by the rights holder).

The protection strategy for economic concepts thus differs significantly from that applicable to creative concepts in the traditional sense. The focus shifts from the mere innovative idea to its practical application and the creation of entrance barriers for competitors, either through trade secrecy or through the legal protection of the operational tools enabling the implementation of the concept.

The protection of "organisational models"

In today’s highly dynamic and innovative business arena, the protection of organisational models acquires strategic importance. Given the above considerations, it becomes clear that the protection of such models is not limited to a single legal or technological instrument, but requires an integrated approach that combines several safeguard strategies.

  1. The first pillar of this approach is the protection of corporate information through the careful management of trade secrets and the digitisation of processes. The latter not only increases business efficiency and resilience but also contributes to barriers to entry through the complexity and uniqueness of the implemented systems. In this context, IT security and access rights management emerge as key elements to prevent information leaks and unauthorised access to business-critical data.
  2. The second pillar concerns the protection of business software and platforms that support organisational models. This is articulated through the registration of software copyrights, the patenting of technological inventions (where applicable) and the adoption of technical protection measures such as encryption and advanced cybersecurity systems. The objective is to defend the integrity and exclusive availability of technological solutions that enable the effective implementation of organisational models.

Ultimately, when preventive and direct protection strategies fail, companies can resort to legal protection against unfair competition. More specifically, in cases of commercial free-riding, where a competitor imitates the competitor’s conduct and systematically exploits its initiatives, Article 2598 of the Italian Civil Code offers a flexible legal instrument to counter such practices. This type of action makes it possible to safeguard the organisational models and the entire ecosystem of values and knowledge that characterises the business, provided that the appropriation goes beyond the mere repetition of concepts, economic principles and abstract ideas.

Practical cases and legal recommendations

Legal advice on intellectual property takes the form of a proactive service whose aim is to provide the client with an in-depth understanding of the legal context relating to their situation or project.

This type of approach is crucial for companies wishing to protect intangible assets, such as concepts or organisational models, as it takes the form of strategic guidance on how to manage such assets and maximise their strategic role.

A company that intends to launch a new technology platform, for example, could benefit from legal advice because it would enable it to better understand the various protection options available, moving in accordance with industry best practices.

Legal assistance, on the other hand, is activated when a concrete legal issue needs to be addressed, such as a dispute or contractual negotiation. In these contexts, the lawyer acts on behalf of the client, using his or her expertise to solve the problem or to achieve the best possible strategic result.

For instance, when a competitor imitates another company’s model or systematically reproduces its business initiatives, it may significantly undermine its competitive advantage: legal assistance in such cases may examine actions to protect against parasitic unfair competition or, for example, to act to safeguard other rights.

Preventive legal advice, on the other hand, can prevent such situations or lay the groundwork for defending oneself better (and more efficiently) in the event of an attack.

Given the complexity of intellectual property regulations and the critical importance of adequately protecting innovation, it is highly recommended to seek legal professionals specialised in this area. A law firm with specific experience in IP can offer not only high-level advice and assistance but can also act as a strategic partner.

© Canella Camaiora Sta. All rights reserved.
Publication date: 11 February 2024

Textual reproduction of the article is permitted, even for commercial purposes, within the limit of 15% of its entirety, provided that the source is clearly indicated. In the case of online reproduction, a link to the original article must be included. Unauthorised reproduction or paraphrasing without indication of source will be prosecuted.
Avv. Arlo Cannela

Avvocato Arlo Canella

Managing Partner of the Canella Camaiora Law Firm, member of the Milan Bar Association, passionate about Branding, Communication and Design.
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