On 26 April 1970 the World Intellectual Property Organisation (“WIPO”) came into force. In 2000 the member states of WIPO designated 26 April as “World Intellectual Property Day” (“World IP Day”). The aim behind this was to increase general understanding of intellectual property (“IP”). On World IP Day 2016, Arezou Seyed-Rezai, a solicitor within the Company Commercial team at Warner Goodman, discusses below the various options available to those seeking to protect their intellectual property.
When WIPO created World IP Day the landscape in which artists, creators, inventors and others in the creative industries operated was substantially different from what it is now. As the technological age continues to develop, creating greater opportunities for creative talents to flourish in, it also brings with it the ever increasing risk of unauthorised copying, loss of rights and infringement of rights.
Social media and the internet has grown exponentially in recent years, to the extent that it is possible for those working in the creative industries to solely publish their works on social media and websites and achieve great success. A business’ brand can now develop a reputation and goodwill purely from online exposure. The downside of this is that it makes it very difficult to control how the work or brand is then used by others. Those operating in such industries should be aware of their rights and take steps to protect them so as to avoid, or at least reduce, the risk of their work being unlawfully copied or their brand being unlawfully used, and for which they receive no recognition or remuneration.
Original expressions of creative ideas, such as words and images are automatically protected by copyright. Copyright does not protect an idea or a method, but it does protect the expression of the idea or method, for example the written down form of the idea. Copyright allows the author of the works to stop others from copying or reproducing their work without authorisation. As copyright protection is automatic there is no need for the author to apply for copyright protection. Copyright lasts for a set time period, usually the life of the author plus 70 years following their death. Some choose to assert their copyright in their works through the use of the © symbol.
Trademarks typically protect a brand name or logo. A registered trademark gives the registered owner of the mark the right to take steps to stop others unlawfully using the mark; it does not confer a positive right to use the mark. The registered mark will apply to specific classes of goods and/or services and permits the owner to take action against any one using an identical or similar mark in respect of identical or similar goods and/or services without permission of the right-holder. Trademarks have to be applied for, and it is possible to have a European Union Trade Mark (EUTM) which gives protection in all member states of the European Union, rather than having to seek protection in each individual state.
The law of passing off has developed over time, and is not underpinned by any statute or other legislation. It does not provide the owner of the goodwill automatic protection such as a registered trademark, but protects the trader’s brand or business from what might be considered “unfair advantage”. For a business to successfully claim under the law of passing off, there are three elements to be proven: first, there must be goodwill and reputation attached to the goods and/or services; second, a misrepresentation by the infringing party to the public which leads or is likely to lead the public into believing that the goods and/or services are actually offered by the claimant; and finally, damage to the claimant arising as a result of the confusion caused to the public. Whereas an action for trademark infringement can only be brought in respect of a registered trademark, anyone who can establish the three elements of passing off can bring a claim. Goodwill must be evident from the outset meaning, therefore, that in most cases the business will have needed to have been trading in order to have developed the necessary goodwill.
Patents provide an inventor with a monopoly over the use of their invention for a set period of time. The patent, and thus the detail of the invention, is published and only the owner of the patent, or others authorised by the owner, can use the invention, until the expiry of the patent at which point it becomes available for the public to use. If the inventor wishes to keep the details of the invention secret, then it may be possible to protect that information through their rights in confidential information (which could include know-how and trade secrets). For information to be considered confidential, it must be confidential in nature, have only been disclosed in circumstances denoting an obligation of confidence, and its unauthorised use would cause harm to the person disclosing it. It is possible to enter into confidentiality agreements, or non-disclosure agreements, which impose a contractual obligation on the receiving party to keep the information confidential.
It is possible to protect the appearance of whole or part of a product by way of design rights. Design rights can be registered or unregistered. A registered design grants the owner of the registration a monopoly over the design. To be capable of registration the design must be novel, of individual character and not prohibited by law. The right must be renewed every 5 years, up to a maximum of 25 years. Unregistered design rights give the designer a right against copying, but the scope of the right is limited in comparison to a registered right.
There are many ways for businesses and those working in the creative industries to seek to protect and exploit their work, and with the ever-changing digital world becoming ever-more important to the success of a business, it is also becoming more important for artistic work and businesses to be protected.