Your primer on IP - the important bits you really need to know in four minutes
Wednesday, June 20, 2018
Everyone knows Intellectual Property (IP) is big business. It is what drives our tech savvy and communications obsessed society. It is worth hundreds of billions a year in the UK alone. But be honest, do you really know what intellectual property is? Here is my get-ahead guide to de-mystifying IP rights.
Everyone knows Intellectual Property (IP) is big business. It is what drives our tech savvy and communications obsessed society. It is worth hundreds of billions a year in the UK alone.
But be honest, do you really know what intellectual property is?
It is no shame if you don’t. In my experience most people have only a hazy idea – and this goes for many lawyers too.
Time and time I am asked about copyrighting an invention or earnestly told that someone has just patented their name.
So here is my get-ahead guide to de-mystifying IP rights. Even if you only read the next section you will know more than most of the population and be able to correct your colleagues when they get things wrong.
After that I will do a slightly deeper dive on Copyright.
What are our IP rights?
- Copyright – protects creative works
- Patents – protects inventions
- Trade marks – protects brands
- Design rights – protects shapes and appearances.
Then there is another one which is not strictly an IP right but is important so I am going to include it:
- Confidentiality - protects transmission of information.
Generally IP rights are:
- Worldwide through international treaties and conventions and the World Intellectual Property Association (WIPO)
- Dealt with on a territorial basis.
- Literary, dramatic, musical and artistic works – in other words what you think of as creative works. A novel by J.K. Rowling, a play by Caryl Churchill, a song by Adele or a photograph by Martin Parr.
- Sound recordings, films/videos, broadcasts, typographical arrangements (the layout of a book) – in other words the ways in which the creative works are distributed and these are known as ‘derivative’ works.
- Computer programmes/code, databases – an oddball one if you ask me!
Different copyrights can be ‘layered’ in the same work. For instance in the 2017 Churchill biopic Darkest Hour there is copyright in the film (which goes to the five producers and the director Joe Wright) then there is copyright in the music composed by Dario Marianelli and copyright in the screenplay by Anthony McCarten. In copyright parlance the latter two are ‘underlying’ works in the film itself.
Copyright also needs to be:
- Original – this is not in the sense of ‘unique’ but rather ‘originated’ in other words it has been created by someone not copied – the work has been ‘originated’ by the author.
- In a fixed form. This could mean written down or recorded in almost any way. If you remember the old phrase “there is no copyright in an idea” then you’ve got it and can nod sagely at this point. In other words, the most brilliant song is not protected by copyright if it is not recorded – so be careful if you compose in the bath. Maybe invest in a water-proof marker?
- In the UK the author needs to be a citizen of the UK, EU, EAA or one of the countries covered by reciprocal protection through the WIPO treaties (which is pretty much everywhere in the world except Iran, North Korea and a few others).
- Reproduction, distribution, public performance, rental and lending, communication to the public (online), adaption. In other words a very wide range of rights. The owner of the copyright can exercise almost total control over what happens to the work – except for the exceptions – see below.
- Arises on creation of work and does not need to be registered in the UK. I will repeat that – it does not need to be registered!
- Duration for original works and films is for the life of author(s) plus 70 years.
Exceptions to Copyright
As you might expect, given the comprehensive control over a work granted to the owner of the copyright, there are also exceptions to allow for a limited amount of use of the work.
In fact there are numerous exceptions but in the UK the most important one is fair dealing.
If you want to use a copyright work and don’t have or can’t get permission from the owner you need to know about fair dealing.
Fair dealing covers
- Research and private study
- Criticism, review, quotation and news reporting
- Caricature, parody or pastiche.
How much you can take from a copyright work depends on many different factors. However, it is not true that there is a set number of words that you can take safely or even a set percentage, that’s not to say that the amount that is taken isn’t a factor. What does matter is the importance of what is taken from the work as a whole, the part it plays in the new work and perhaps most crucially, whether the new work is going to take away sales or audience from the old work – in effect replace it.
This publication is for general information only and is not intended to provide legal advice.