Intellectual property (IP) is all about a person’s creations, which can be tangible (for example, a physical painting) or non-tangible (for example, software). This does not include mere ideas: any concepts must be materialised or expressed in some way before they receive the protection of the law.
Examples of IP include:
· Brands, logos, symbols
IP law governs and protects the ownership of creative property. You can take ownership of intellectual property if you:
· Are the creator, and your work meets the requirements for protection
· Bought the IP rights from a previous owner or the creator themselves
· Own a brand that is a trademark
IP rights can have multiple owners and these owners can be businesses as well as individuals. These rights can be bought and sold to other people or businesses. It is worth noting that IP created during employment is usually owned by the employer rather than the employee who created it.
IP can be protected in various ways depending on how they were created. Some rights are automatic and some need to be applied for or registered. It is possible that one single item could be benefit from more than one of the protections listed below.
Copyright covers a broad spectrum of creative property, including:
· Original literary, dramatic, musical, and artistic work
· Software and databases
· Sound, music, film, and television recordings
Copyright is granted automatically on the creation of an original work and unlike other forms of IP, it cannot be registered. From the moment of its materialisation, the creator’s property is protected. There is no requirement to pay a fee, and there exists no copyright register to which you must apply. In the case of businesses, where employees create original pieces in the course of their employment, these works become the business’s protected property.
Ownership of copyright allows you to:
· Permit other individuals or businesses to use the copyrighted work
· Permit copying, adaptation, publication, performance or broadcast of the copyrighted work
· Allow (other) businesses to use the work for a royalty or under a licensing arrangement
· Sell the copyrighted work
· Bring a claim against individuals or businesses who copy, distribute (free or otherwise), lend, perform, adapt, or publish your work online or offline.
For these purposes, the work does not need to be marked with the copyright symbol – adding this to your work is entirely discretionary but makes no difference to the protection you automatically receive. However, to be able to licence and sell your copyright, you must write and sign a document to this effect. You can also register your creative work with a licensing body who can deal with the licensing and any collection of fees on your behalf.
Copyright is only temporary. The duration of its protection is finite and depends on the type of creative property in question:
· Literary, dramatic, musical, artistic works are protected for 70 years following the creator’s death
· Sound and music recordings are protected for 70 years following first publication
· Films are protected for 70 years following the death of the director, screenplay author and composers
· Broadcasts are protected for 50 years following first broadcast
· Layout of published versions of written, dramatic or musical works are protected for 25 years following first publication
A trademark is a symbol used to distinguish your ‘brand’. It helps differentiate whatever goods or services you provide from your competitors and allows individuals to recognise and associate with your business. For these purposes, the symbol you use must be your own original and distinctive creation and includes:
There are various restrictions on trademarks, in that it cannot be:
· Describe the good or service it relates to
· A 3D shape associated with the trademark
· Too non-distinctive or common
· Similar to or contain a protected emblem orflag.
Trademark protection evolves when a business begins to trade under a certain name and/or logo and, because of this, achieves a brand identity and reputation. However, unlike copyright, full protection is only achieved through registration. Where a trademark is unregistered, owners are only protected against unauthorised third-party use (‘passing off’) under civil law.
To strengthen protection against infringement, trademarks can be registered at the Intellectual Property Office (IPO). This acts as proof of ownership and will protect its owner for ten years from the date of registration. A trademark can also be protected perpetually by renewing it every ten years. It should be noted that the position in relation to EU trademarks (EUTMs) has changed since Brexit meaning that any EUTM application that had not been granted by 1 January 2021 was not automatically cloned and required registration with the UK within nine months.
Using a registered trademark without permission can result in a civil action but can also constitute a criminal offence, when used for business purposes.
Patents protect novel inventions that may not yet be in the public domain. To obtain protection, they must be registered at the IPO. The registration process for patents can be particularly difficult since you must:
· Carry out an initial search for any existing patents protecting the same invention, to avoid infringement
· Provide with your application a written description and drawing of your invention for explanatory purposes
· Set out the distinctive features of your invention, with a summary addressing the important technical aspects
· Maintain complete confidentiality throughout this process, or risk losing the possibility to have your patent granted. Any individuals you do share information with shouldsign an non-disclosure agreement (NDA) for these purposes.
Registration can be completed online. If successfully granted as a patent, it is important to note that protection only extends to the UK and not beyond. You must seek further protection in other countries orregions.
Like copyright, 2D or 3D designs are protected automatically from the moment of their creation. The remit of a ‘design’ which can be protected includes:
The protection can cover the whole of the design or just part of it. However. the design must not be:
· Make use of protected emblems or flags
The design should not be made public until after registration. Though automatically protected even as unregistered design rights, designs can be registered at the IPO to strengthen this protection. Registration provides five years of protection, which can be renewed for another consecutive five years until the maximum of 25 years has been reached.
Use of an unregistered design without permission can result in a civil action, whilst the unpermitted use of registered designs can result in a criminal offence.
Matters surrounding the registration, protection and infringement of IP rights forms a complex area of law. IP law is hugely important in today’s world, where innovations, designs and brand identities form extremely valuable assets for businesses. This is especially the case for the technology and life science industries, which compete on the basis of new and constant innovation. However, the 21st century brings fresh issues for the owners of IP rights too, with issues such as illegal online streaming becoming increasingly more widespread.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.