In these difficult economic times businesses are increasingly looking to their intellectual property rights to give them a competitive edge. All business will own copyright works in one form or another. This article highlights the top ten facts you never knew about copyright (or did know but have forgotten!) and gives some tips on how your business could make the most of this valuable asset.
- Copyright does not protect ideas as such. It protects the expression of ideas. Copyright will therefore arise automatically as soon as the design is drawn or the document is written. There is no requirement to register the copyright at the Intellectual Property Office.
- Because copyright is not a registered right it can sometimes be difficult to prove that you own it for the purposes of an infringement action. It is important to keep an ‘audit trail’. For design drawings for example, all drafts should be retained indefinitely and clearly marked with the author’s name and creation date.
- You should as a matter of course include © [business name] [date] on every copyright work. The work will still have copyright protection without this but it acts as a useful warning that you own copyright in the work and that action might be taken if it is copied.
- If your employee creates a copyright work in the course of their employment, then you as employer will own it. You do not need a term in the employee’s contract to this effect although it is good practise to include one.
- There is no requirement to compensate an employee that creates a copyright work for you. You get the work for free. This is different from patents where you must compensate an employee who devises an invention that is of outstanding benefit to your business.
- Copyright can be exploited for profit. It can be sold (assigned) or licensed in exchange for ongoing royalty payments. Copyright is, therefore, a useful revenue-generating asset. You should instruct a lawyer to draft a licence for you to ensure that all the legal protections your business needs are incorporated into the agreement.
- If you commission a third party to create a copyright work for you they will own the copyright in it, not you. It can be expensive to acquire the copyright at a later date so this issue should be dealt with at the outset.
- Copyright is not a monopoly right, which means that you can only bring infringement proceedings against a business that has copied your copyright work. If they produce something which is the same independently, you will not be able to stop them using it.
- To succeed in copyright infringement proceedings you will need to show that a ‘substantial part’ of your work has been copied. This is a qualitative and not a quantitative test so the copying of just one key paragraph of a document or one significant aspect of a design drawing could be enough to be copyright infringement.
- If you succeed in an infringement action you will be awarded compensation in the form of damages (based on your losses) or an account of profits (based on the infringer’s gains). You can choose which you would prefer. Obviously, it makes sense to choose the one that will give you the greatest amount of cash!
Copyright can be a valuable IP right but it is often under-rated and under-used. It can give your business a competitive edge, generate revenue and, in conjunction with a breach of confidence and database claim, help your business to protect its trade secrets. Businesses should carry out an IP audit to identify all of the copyright it owns and take advice on how that copyright might be exploited to maximum effect.