IP Briefing Note – Copyright & Intellectual Property Law

Copyright is a critical area of intellectual property law because it confers the exclusive right to prevent others from doing what the copyright owner is entitled to do. IP is intangible property, which means that it cannot be touched. Intellectual property is a legal term that encompasses copyright, design rights, patents, trade marks, service marks, goodwill, and registered designs. It is a growing area of concern for businesses of all sizes. Since the advent of the Internet, the most critical areas of intellectual property in the British economy in the twenty-first century are arguably copyright and trademarks.

What Exactly Is Copyright?

Quite literally, copyright refers to the author’s or creator’s exclusive right to copy or use another person’s work. It occurs whenever an original work of art is created. It entitles the copyright holder to prohibit others from using the work or to permit others to do so on terms acceptable to the copyright holder. The laws governing this intellectual property right vary by country; in the United Kingdom, copyright generally lasts for the author’s lifetime plus 70 years; after that, anyone may use the work without seeking permission. The detailed laws are more complicated, so do not consider using material created by someone else without seeking expert advice, even if it is 70 years after the author/creator died.

Protecting Your Intellectual Property

So, how do you acquire copyright and protect yourself from infringement? Nothing. The most widespread misconception is that you must take proactive measures to acquire copyright in the United Kingdom. Indeed, you own the copyright to your creations at the time the work is completed. The issue is establishing that it was created by you and not someone else. However, it is critical to remember that any material created during the course of your employment automatically becomes the property of your employer.

Copyright Material Protection

The following straightforward steps will establish when you created the disputed intellectual property work:

In an envelope, place a copy or photograph of the work (possibly in digital format on disk or CD-Rom); address it to yourself.
Mark the envelope in such a way that you can identify the contents without opening it when it is returned to you;
Send the envelope via “Special Delivery” mail; do not open it when it arrives by post; keep it somewhere safe from theft and damage.

Proving Intellectual Property Ownership

Bear in mind that the envelope will not assist you in proving your case if it has been opened, as it could have been filled with anything at any time. You must determine the potential value of your work and whether the additional expense of either purchasing your own fireproof safe or paying someone else to store it for you is justified (e.g. your bank).

You must consider the issue of copyright protection and other intellectual property rights in a practical context – there is little point in incurring all the expense and trouble if the work is unlikely to be of value to another. Additionally, it is critical to remember that protection does not grant you copyright if you copy someone else’s material, regardless of how unintentionally – copyright infringement does not have an innocence defense.

Contrary to popular belief, you are not required to register copyright, and there is no official public register, but you can always register for a small fee with the privately operated “UK Copyright Service”: www.copyrightservice.co.uk (email: information@copyrightservice.co.uk).

Explicitly Addressing Copyright Issues

Although the author or creator of the work typically retains copyright, what happens when the work is created by an employee in the course of his/her job or when a client commissions the work? In both of these instances, the issue of copyright ownership may become ambiguous.

Copyright in Employee-Produced Material

While certain terms are implied into an employee’s contract of employment, it is critical that the contract of employment clearly states that copyright in all works produced by the employee will belong to the employer – this allows the employer to enter into contracts with clients that may extend beyond the employee’s employment period, and without it, contractual chaos would ensue. Consider the case of an employee of a computer software company who develops a program for a client of the employer – clearly, the employer would be in an impossible position with the client if the employee left (or threatened to leave) and took the copyright with him/her.

When a client commissions work, the creator typically retains copyright, but trade practices may require that it be transferred to the client. To avoid costly disputes, the terms agreed upon with the client should specifically address this point.

If the terms state that copyright is transferred to the client, the client will then have unrestricted reproduction rights to the work. Copyright can be compared to a multi-layered cake that can be cut into pieces and distributed. In other words, the copyright holder may retain copyright but permit (or “license”) another party to use the copyright in whole or in part. Licenses may be granted for the entire cake or for specific components (i.e. rights) – the components may be defined by reference to time, purpose, and territory.

For instance, a freelance graphic designer was commissioned to create artwork for posters and flyers for a low-budget theatre production at a small venue. He was asked to perform the work at a discounted rate in order to keep costs down. He was willing to do so but was concerned that if the play were to transfer to the West End, they would have struck a real bargain with him. He was able to agree (in a brief contract letter) that his client could use the artwork for the productions only while they were running at the smaller venue, requiring the client to negotiate its use elsewhere. This meant that if the play was successful, the designer could receive a more reasonable reward for his efforts. Indeed, it was and was transferred to the West End, earning the designer money.

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