Copyright and Trademarks
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Intellectual Property (IP) law does not protect an idea alone and the idea must be reduced to a physical object or expression of the idea. IP law protects new and novel things, although "novelty" is defined differently in different IP legislation. IP law creates a temporary monopoly for the owner of the IP rights which can then be exploited. We will see how these basic tenets are dealt with in each of the four cornerstone areas of IP law: design rights, patents, trade marks, and copyright.
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Copyright
(Unless otherwise specified, this content is based on information provided by Alison M. Ross of Pinsent Masons. More information on IP law and guidance on website design and e-commerce can be found at Pinsent Masons' free online resource Outlaw.com)
Copyright is governed by the Copyright, Designs, and Patents Act 1988. It exists in original literary, dramatic, musical or artistic works and protects them from being copied, published or broadcast without the owner’s permission. It therefore covers material such as literature, art, music, sound recordings, films, broadcasts and even databases. However it does not protect ideas or such things as names or titles. In order for copyright to arise, it is necessary that sufficient skill, judgement and labour were expended in producing the copyrighted article.
In the UK, there is no requirement for copyright to be registered. In certain jurisdictions, (ie the USA) there is a central register and there are certain deposit procedures to be followed in order for the copyright to be enforceable. It is important that a record of all works entitled to copyright be recorded and dated in case you need to take action against copyright infringement. Copyright arises automatically and immediately in the UK as soon as a record is made of the copyright material – as soon as anything is written down or otherwise recorded. The length of copyright protection depends on the category and jurisdiction of the protected work. For literary, dramatic, musical or artistic works, copyright expires 70 years after the end of the calendar year in which the copyright owner dies. Generally, the author (or creator) of a work is the owner of the copyright.
However, in the UK, where the author is an employee then the owner of the copyright in the work will be the employer, provided the work is produced in the course of employment. A person who commissions a work, for example computer software, a corporate brochure or letterhead design, will not own the copyright in the work unless ownership is assigned from the author – or the author’s employer to the person who commissioned it. 'Originality' is a much lower requirement than the 'novelty' requirement for patents. It must be shown that there is independent skill, judgement, and labour in creating the work. Even if two works are almost identical, they will still be original if they have been created by their respective authors independently.
The automatic UK copyright is easier for the copyright holder since the formalities of registration are avoided, however the owner of the copyright is always then responsible for proving his ownership and that the right indeed belongs to him. The most difficult aspect of copyright is proving the date on which it was created, therefore the most frequently used method of recording the date is to deposit works with a solicitor or in a bank vault, or posting material back to yourself via recorded delivery. By keeping a receipt of the deposit or to post the material in the original unopened envelope with the date stamp, a chronological record can be built up and produced as evidence if required.
A copyright owner may mark his material when it is published with the international copyright symbol © followed by the name of the copyright holder and the year of publication. This is not essential in the UK, but may assist a copyright owner in the event of infringement proceedings, and it is useful for the copyright owner to enforce his copyright in foreign countries. It will let others know when the term of protection started and hence whether it is still covered by copyright, and indicate who to approach should they need to ask permission to use the work.
Infringing Acts
(Unless otherwise specified, this content is based on a University of Edinburgh lecture on Intellectual Property given by Chris Martin (Out-Law.com).)
Copyright is infringed by any third party who copies, issues copies, rents or lends, shows, plays, broadcasts, or adapts a copyright work without the permission of the copyright owner. Consent is not required in limited circumstances where certain acts are an exception to this rule – for minor infringements, for making temporary copies, for review or criticism, incidental use and educational use, for libraries and archives, where works are permanently situated in a public space, and where use is in the public interest.
Occasionally, there defences can be use in situations that are described as “permitted acts”, such as educational copying (which involves copying a limited amount of the work), the decompilation of computer programs, and fair dealing. Permitted acts generally relate to a non-commercial purpose such as private study, or to criticism, reviews, or reporting current events.
Copyright and Information Technology
Computer Programs
Copyright protection was extended to computer programs in 1992. It allows for protection for the lifetime of the author plus 70 years. Infringing on the copyright of a computer program involves the copying of a “substantial part” of the program, based on a qualitative rather than quantitative test. Users must abide by lawful use of copyright protected computer programs, which includes making back up copies, de-compiling a computer program to create independent, inoperable non-compiling program, adapting for lawful use – i.e. correcting errors – and observing, studying, or testing to determine underlying ideas.
Internet
The Copyright and Related Rights Regulations 2003 modified the concept of broadcast and broadcasting with regards to the development of the internet and restricted permitted acts, essentially limiting user rights (i.e. research exemption only for non-commercial research). It also provided new measures for the protection and enforcement of copyright and performers' rights based on technological measures to prevent unauthorised copying (not computer programs). The Copyright and Related Rights Regulations 2003 also saw the extension of reproduction and public communication right in digital context (transient reproduction). However, new challenges have arisen with the development of “Web 2.0” activities such as Facebook and YouTube, and there still exists a need to obtain rights clearances in these instances.
Database Rights
(Unless otherwise specified, this content is based on information provided by Alison M. Ross of Pinsent Masons. More information on IP law and guidance on website design and e-commerce can be found at Pinsent Masons' free online resource Outlaw.com)
As a general principle there is no right in information itself, although information can be protected by restrictions of confidentiality and as trade secrets. Although not one of the four main IP rights, for the sake of completeness in relation to website design, a comment should be made about IP rights in databases.
A database is legally defined in the Copyright, Designs and Patents Act 1988 as "a collection of independent works, data or other materials which (a) are arranged in a systematic or methodical way, and (b) are individually accessible by electronic or other means.” A database is protected as such. Compilations of data which do not fall within this definition may still be protected under copyright as a literary work. However, there will be a requirement for originality.
Therefore, for example, a database of factual information which is arranged in chronological or alphabetical order may be a database by definition but it would probably not attract copyright protection as well, since the selection or arrangement of the contents would not be the original work of the author. By contrast, the selection or arrangement of, for example, the contents of the Yellow Pages directory is likely to qualify for copyright protection as a database.
It is important to remember that a database itself may be an asset which can be bought, sold or licensed. As with data protection, where the database includes personal data it is important to ensure that that information is collated properly at the outset. A buyer of the business and its databases will want assurances that the information can be validly used within the business and can be validly transferred to the new owner.
Trademarks
Trade marks are governed by the Trade Marks Act 1994, and refer to any sign which can be represented graphically and which is capable of distinguishing the goods or services of one trader from another. A trade mark may consist of words, designs, numbers or shapes.
A trade mark is usually the single most valuable marketing tool which any company, regardless of its size, will have. The aim of the trade mark is to create an association in the public mind with that particular company; this is the value of the label and the branding associated with that label.
Examples:
- Word marks - Nike, Coca Cola, Chanel, HMV
- Logos - Nike swoosh, Mercedes star, the HMV dog, Lloyds TSB black horse
- Slogans - "Just do it", "It’s the Real Thing", "I'm Lovin' It", "Don’t leave home without it"
- Colours - Duracell black and copper
- Shapes - Toblerone triangle, JIF plastic lemon
Trade marks are registered in the UK through the UK Patent Office. The registration of a mark is made for a particular set of 'classes' of goods and services and these classes define the scope of the protection for that mark.
Trade marks do not have to be registered in order to operate, although the registered trade mark obviously affords greater protection. If a trade mark builds up enough of a general trading reputation and goodwill through general use, then it will be protected to a certain extent from others who try to use it.
However, the difficulty with unregistered trade marks is proving the history of its use, when it was first used, where and how it was first used, etc.; whereas by contrast, the owner of a registered trade mark can immediately prove his ownership of the mark and has an automatic and immediate right to stop someone else from using the trade mark.
Certain marks are not permitted to be registered. Marks which are not distinctive, which are solely a description of the product, or are already part of the customary language or trade cannot be registered. These include marks like Scotch whiskey and gramophone, aspirin, and elevator. Marks can also be refused by the Patent Office on grounds of morality.
A mark will not be registered as a trade mark if it conflicts with an earlier trade mark which has already been registered in the UK. The Patent Office will refuse to make the registration if the proposed mark is identical or similar to an earlier trade mark, if the proposed mark is used on similar or identical goods as the earlier mark, and if the registration of the proposed mark is likely to cause public confusion. This assessment is always made by the trade mark officer on a case by case basis for each new mark that is proposed.
Benefits of Trade Marks
What does a trade mark owner gain from the registration of a trade mark? The owner gets the exclusive rights to use the trade mark as it is registered for a period of 10 years. The registration is renewable on a rolling 10 year basis, but the mark must be used commercially within the first 5 years of the registration date, otherwise it can be challenged and removed from the Trade Marks Register. Following registration, the trade mark owner can use the mark himself, sell it, or he can licence the mark to others to use in return for a licence fee. The owner can sue anyone else who may be infringing his mark if it is used in the UK without the trade mark owner's consent.
Large international businesses will build up a portfolio of trade marks in all the countries in which they operate or in which they want their brand protected worldwide. These kind of companies will consider European Community trade marks and international registration procedures for certain marks as these procedures help to streamline the process of registering one trade mark in a number of countries on a global scale.
Further Information
- The UK Patent Office publishes guidance on patents, trade marks, designs and copyright, and can answer queries relating to the registration procedures.
- The government website maintained by the DTI contains general information about IP law: www.intellectual-property.gov.uk.
- Detailed trade mark advice and details for trade mark agents can be obtained from the Institute of Trade Mark Attorneys.
- Further information on data protection and privacy can be obtained from the Information Commissioner's Office.
