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Businesses operate in increasingly competitive environments, where they must vie for a position in a given market and be recognised as a leader in their field for a particular product. There any many different ways that business can achieve this, often leading to new product developments with innovative and attractive features. However, a problem for any business that aims to be innovative, concerns how best to protect the results of their labours from imitation and reproduction by competitors.
As a result of this concern, most countries throughout the world have developed a series of rules that attempt to protect the results of innovative thinking; and these are generally referred to as Intellectual Property, or IP laws.
The point of this article is to introduce the topic of Intellectual Property laws; give an overview of the different kinds of laws; and how these laws apply to different innovative practices and products.
Intellectual Property is essentially the value that is gained or added to a business or product from a creative process. There are a lot of different kinds of Intellectual Property laws, but they all have the same goal; to allow creative thinkers to benefit financially from and to protect their inventions/ creations.
Most Intellectual Property regimes throughout the world attempt to strike a balance where inventors and business are able to protect and benefit from their inventions and products, but the public are able to enjoy and make use of them at the same time. All of the UK’s intellectual property law is set down in the Copyright, Designs and Patent Act (CDPA) 1998.
The importance of Intellectual Property to a business cannot be overstated. IP laws are designed to try and protect business assets. The kind of IP laws that will be relevant to a business depend on the types of asset a business has. However some of the business assets that will normally merit the protection of IP laws include business brands; photographs; books; computer software; and paintings.
One may question why there is a need to go through what might appear to be a complicated process of using IP laws to protect business assets. An unfortunate reality of operating in the commercial world is that competitors and imitators or ‘copycats’ will attempt to use the products of business that have invested time, money and energy in the development of their brands and products to their benefit. If a business makes use of IP laws to protect its assets, this reduces the likelihood of competitors copying their ideas. In some circumstances, business rivals will still hope to make subtle changes to designs in the hope of avoiding claims of IP infringement. However, some IP laws will guard against even subtly changed products from entering the market.
Following the discussion above, it is important to appreciate how the different kinds of IP laws work, and to the kind of business asset that they apply to.
Most businesses develop and sell different kinds of products in a given market. Modern IP law reflects this reality and a comprehensive set of rules have been developed to protect different kinds of business assets.
Copyright is a kind of legal right that is designed to reward an individual or business for the creation of, and investment in a particular kind of product. In order for a particular kind of work or product to be protected under the legislation, there are very clear requirements that need to be met. The CDPA states that before something will be protected, it must fall within one of the following categories of work; literary, dramatic or musical work, films and sounds recordings, broadcasts, cable programmes or published editions. It is important to note however, that the Act does not allow artistic works, films or broadcasts that were made before 1 June 1957, or cable programmes made before 1 January 1985 to benefit from Copyright protection.
It is the creator or author of a piece of work, which falls within the categories outlined above under the CDPA that holds the copyright. Unlike many other kinds of protections afforded to creative works, copyright does not require any form of application process. Under a number of international agreements, copyright will arise automatically.
Unfortunately the answer to this question can be quite complex, and depends on the kind of copyrighted work;
A Trade Mark is another branch of the IP regime in the UK. They are commonly discussed in relation to businesses, and their brand. One of the ways that businesses differentiate themselves from their competitors is to create a brand or corporate image that identifies it as distinct and unique among its competitors. It is not uncommon that a great deal of time, effort and money has been spent on creating a brand that will be a good representation of a business. However, the brand of a business is vulnerable to imitation by competitors if not properly guarded. This can be achieved by a business registering its brand as their Trade Mark. In law, a business’s brand is its Trade Mark. Examples of this include WHSmith and Nike.
Before a business’s brand can be protected as a Trade Mark, the business will need to apply to the Intellectual Property Office (IPO). Unfortunately, not all applications for a Trade Mark will be successful, as a brand will need to meet certain criteria. Before a brand will be granted protection as a Trade Mark, the IPO will need to be satisfied that the brand is so distinctive that it will differentiate one business and its services or products from those of its competitors.
Assuming that a business brand meets the necessary criteria, it is the business that holds the Trade Mark. However, as mentioned above, a business must apply to the IPO to demonstrate that its brand is sufficiently distinct to warrant Trade Mark protection.
A Trade Mark will last for 10 years once it has been granted. However, it is important to note that where a business wants to continue to benefit from Trade Mark protection, it will have to renew its Trade Mark by again applying to the IPO. There is a cost for applying to renew a Trade Mark; for one kind of product or service that a business looks to protect, this will cost £200. It will then cost a further £50 for each extra kind of goods or service for which protection is sought.
Businesses operating in the creative industries often need to break technological boundaries, in order to survive in such a competitive environment. This normally involves a significant investment in time and expertise. As a reward for a business’s investment, Patents allow new inventions to be protected. To be more precise, a Patent is designed to protect not only a new inventions but also how it works.
If a Patent is awarded to a particular invention in the UK, this protects it under British civil law. This means that no one will be able to make, use, import or sell the invention that is protected by the Patent within the UK, without the owner’s permission
A Patent, like many other kinds of IP right, does not arise automatically. Where a business or individual is looking to protect their invention, they must apply to the IPO. It is important to note however, that not every kind of invention can be protected by Patent. The IPO stipulates the criteria that any invention must meet before it will be considered for Patent Protection at www.ipo.gov.uk.
An invention will only be able to be protected by a Patent where it meets the following criteria;
A Patent can be held or owned by the inventor of the thing that is protected under the Patent. Alternatively, a Patent owner can be the inventor’s employer. However, the situation concerning being employed for the purposes of research and development can become quite complex when dealing with ownership of patented inventions – even where an inventor claims that an invention was made in his or her own time. This will normally depend on the terms of an individuals’ employment contract and specialist advice should be sought on this point.
Patents will last for as long as the owner of the Patent pays the annual renewal fee, to keep the Patent active. Where an individual or business fails to pay the renewal fee, the Patent will fall and an invention is no longer protected. It is important to note that it can take on average, 3-5 years for a Patent Application to be granted. While there are avenues which can be used to go through a faster application process, it is normally a commercial decision for a business/ inventor to make on whether or not this is in their best interests.
Intellectual Property law is a fairly well understood system in the UK. However, of all the kinds of legal protection afforded to the results of one or another creative process, Design Rights are often the most unheard of.
When a product is made or developed it will have a particular appearance, or a ‘Design’. Businesses and inventors will often hope to protect some or all of the appearance of a given product, and this is where Design Rights can become useful. It is important to note that there are two ways to protect the design of a product;
Design Rights are the rights in a products shape and form. Another way of thinking of this kind of Design Rights, to avoid complications, is as ‘unregistered’ Design Rights. As with Copyright, Design Rights arise automatically to the inventor.
The individual or business that created the product and its appearance holds the Design Right. Designs Rights may be sold or licensed to other individuals or businesses.
The answer to this question depends on whether or not the product was marketed to the public. If a product is marketed, Design Rights will last for 10 years from the date on which it was marketed. Where a product is not marketed, Design Rights will last for 15 years following its being produced.
The protection afforded to these unregistered Design Rights does have an important limiting factor. For the last 5 years of either the 10 or 15 years protection afforded to a Design Rights, they will be vulnerable to what is called a ‘Licence of Right’. In law, this means that for that 5 year period, any other business or individual is allowed to pursue a licence to reproduce the products look. However, this kind of arrangement will have to be discussed with the owner of the Design Right before any reproduction can take place.
Registered Designs are a more formal kind of legal protection afforded to products than Design Rights. They give the complete right of ownership over the look of a product. However, unlike Design Rights, a Registered Design must be applied for from the IPO. Registered Designs will only be granted where a look is sufficiently novel, compared to other products already available in a given market.
The individual or business that applies to the IPO to have Registered Design Rights will own them, following a successful application. However it is important to note that Registered Designs, like unregistered Design Rights, can be sold or licensed.
Registered Designs can last for 25 years. However, in order for the maximum protection to be enjoyed, a business or individual will have to pay the renewal fee every five years.
There are certain practical differences between Design Rights that are registered and those that are unregistered. The most important of these arise in the context of disputes regarding infringement. Where a party alleges that their unregistered Design Rights have been not been respected, they will have to prove to a court that there has been an intentional violation of their rights. However, when dealing with Registered Design Rights, in any dispute, the other party is obliged to satisfy the courts that they have not infringed the holder’s rights.
Unlawfully using or copying an intangible asset protected by an Intellectual Property right, without the permission of the owner, is known as infringement. Some use will not amount to infringement if it is covered by an exception. For example, students and non-commercial researchers can reproduce extracts of Copyrighted works without the Copyright owner’s permission.
The Intellectual Property right owner is responsible for enforcing their rights and bringing infringement proceedings in the civil courts against another for unlawful use.
Some types of infringement amount to criminal offences, such as Trade Mark counterfeiting or Copyright piracy.
Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.
