IP info
These FAQs are for general guidance only. Specific legal advice should be taken depending on the precise facts in question.
General FAQs
> What is a trade mark?
A trade mark is a sign that you apply to your goods or services to distinguish them from those of your competitors. It is a ‘badge of origin'.
For further information see our brand protection factsheet. (Coming soon.)
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> What is a patent?
A patent is a monopoly right granted by the government to an inventor, who has used her skill to invent something new. For a limited period, the inventor can stop others from making, using or selling the invention where his permission has not been obtained.
The government grants patents since there are clear benefits to society from doing so. The trade-off between a patent owner and the government is that the patent owner discloses knowledge, which is then publicly available.
In the short term, the public gain knowledge of technological developments, and in the long term they will be able to freely use this information once the patent ceases.
For more info see our factsheet on patents.
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> What can be patented?
Products or processes that contain or possess new functional or technical aspects can be patented.
A patent may extend to entirely new products, enhancements to existing products or to a new or improved process for performing an activity. An example of a famous patent is the Dyson vacuum cleaner.
For more info see our factsheet on patents.
> Why should I register my trademark?
A trademark should be registered since it will be easier and cheaper to protect than an unregistered mark, and can be dealt with as 'property'.
If your mark is unregistered, you will only be able to enforce your rights in it if you have an established reputation in the mark and someone has misrepresented their goods as yours, causing you loss. If you have a registered mark, you can take action against them for trade mark infringement even before you have used the mark or established any reputation in it.
Also, a registered mark can be dealt with as any other property and can be licensed, mortgaged, charged etc. This makes it easy to transfer it between businesses, and if you don't want to use it, you can charge someone else for using it by licensing it to them for royalties. A registered trade mark adds value to your business.
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> How do I get a registered trademark?
You can get a registered trade mark in the UK by applying to the Trade Marks Registry, which is part of the Patent Office, and is based in Newport, Wales.
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> What kind of sign can be a trademark?
Words, pictures, smells, shapes and colours can be trade marks.
The sign can be anything that can be represented graphically. Words and pictures are the most common sort of trade marks. Sometimes other things can be trade marks if they can be graphically represented such as, smells (written as a chemical formula), sounds (written as music or shapes of sounds), 3-d shapes (by drawings of them) and colours (as identified by a pantone colour number).
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> What’s the difference between ™ and ®?
These notations signify unregistered and registered marks, respectively.
The ™ signifies an unregistered trade mark. It is notification to the public that you claim your mark as a mark of origin for your business. ® (said as 'R in a circle') is a notice that the mark is registered and benefits from the law relating to registered trade marks.
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> How can I keep my work confidential?
The best way to protect information as confidential is to sign a confidentiality agreement with everyone with whom any confidential information is disclosed.
A confidentiality agreement (or non-disclosure agreement) is a document that, when signed, will allow you to discuss confidential information with other interested parties. The agreement legally binds those parties to keep the information confidential and not to disclose it to third parties.
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> What is confidential information?
What is confidential information? In order for information to be protected as confidential two conditions must be fulfilled:
(a) The information must have the necessary “quality of confidence”. It must not be information, which is in the public domain. With the exception of trivial, immoral and vague information, no restrictions are places on the subject matter that is protected by the law of confidence.
(b) The information must have been imparted in circumstances importing an obligation of confidence, as for example, where you emphasise that the information is to be kept confidential. If the information does not fulfil the first requirement you cannot make it confidential merely by claiming that it is confidential.
The law of confidence can be used to protect a variety of information. Confidential information can include techniques, experimental methods and protocols, technical information, processes, computer software, formulae, discoveries, prototypes, materials, results, drawings, models, data of all types and calculations.
The sort of material protected may be of a technical, commercial or personal nature. The information does not have to be particularly special in any way and even a compilation of already known information such as a list of customers can, when taken as a whole, be regarded as confidential.
What makes such information worth protecting is the fact that time and effort has been expended in gathering, selecting and arranging the information. The information is protected irrespective of the format in which it appears, thus the law of confidence applies equally to information when embodied in writing, drawings, photographs, goods and products or where it has been disclosed orally.
The information need not be fixed or in a permanent form. An objective test should be applied to determine whether information is truly confidential. Simply marking a document with words “PRIVATE AND CONFIDENTIAL” will not suffice if the contents are commonplace and already within the public domain.
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> What is copyright?
Copyright gives those who invest the skill and effort to create original work the right to prevent others copying them.
Getting copyright protection is easy. All original works of an author, set down in material form, have immediate copyright protection. ‘Original' doesn't mean that the work is new, fresh and innovative, but simply that it originated from the author: that is, it is not copied from somebody else.
There is no copyright in ideas or concepts, but rather in the expression of these ideas. For example, a general theme for a TV programme has no copyright, but once it is made or written down, the recording of the TV show itself, the images of fictional characters, the script and the music will all benefit from protection by copyright.
It is important that what is created is put into material form. For example, if someone creates a new song but doesn't write it down or record a performance of it, they have no copyright protection. 'Material form' does not have to be writing on paper, but can include saving it onto a disk or hard drive and recording it on a tape or CD.
See the 'intellectual property info' section within the directory on this website for numerous links to relevant copyright info on the web.
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> What does © mean?
If you can obtain copyright protection just by writing something on paper why does the following, for example © Jo Smyth 1970, appear on books, drawings etc?
The use of the copyright symbol does not create copyright protection but it is important to put it on creative works, for three reasons:
• It shows who the author is, when the work was created and that the author is asserting their copyright;
• It puts others on notice that they are not entitled to copy the work without the author's permission;
• It is a statement that all legal formalities have been complied with to allow copyright to exist in the work.
Remember, copyright protection not only exists in drawings and music, but also sculpture, fashion garments, three dimensional work and works generated by computer programs. A building and a model of a building can also be the subject of copyright.
It is often said that to get copyright protection you should post a copy of your work to yourself in a sealed envelope. This does not give you copyright protection, but rather it helps in proving the date the work was created.
There is no system for creative works to be registered in a central database. If you can show that your work was created before someone else's, this can obviously be highly significant when you are trying to show that they could have copied you. The best advice, is simply to always keep your rough drafts, sketches, scribbles and notes which lead to the final work that you completed, as all of these will be subject of copyright. Put the copyright symbol on these, as they have their own copyright and they help to show the date of creation of the final work.
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> What sort of things can I claim copyright in?
What works will qualify for copyright?
The following are the main areas:
• Literary works, such as books and poems. This also includes computer programmes or anything expressed in writing;
• Dramatic works, the most typical of these being plays, but it can include dance and mime choreography and scripts for films;
• Musical works, this applies to any musical composition, excluding any words or actions that may accompany it;
• Artistic works, original works of art with aesthetic elements will gain protection;
• Broadcasts, sound recordings (that is the actual CDs, LPs, minidisks, tapes) films, cable programmes, typographical arrangements (that is the type setting on a book, the way it looks on the page);
• Photographs;
• Sculptures, collages, architectural works; and
• Databases and computer generated works.
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> How long does copyright protection last?
Copyright protection lasts for up to 70 years from the date of the death of the author, or in the case of sound recordings, films, broadcasts and cable programmes, for 50 years running from the end of the year in which the work was created.
> What are moral rights?
Moral rights are a special set of rights which belong exclusively to authors of literary, dramatic, musical or artistic works and to the directors of a film. They are designed to protect the artistic sensibilities of such authors. They do not apply to works created during the course of employment. Moral rights cannot be transferred but they can be waived and authors are usually requested to do so.
Moral rights give the author and director:-
· The right to be identified as the author (as long as the author or director asserts their rights);
· The right to prevent or object to the derogatory treatment of their work. There are also moral rights for all individuals, not just authors or directors, which are:-
· The right not to have literary, dramatic, musical or artistic works falsely attributed to them;
or · The right of privacy in photographs which they commission for private or domestic purposes e.g. wedding photographs.
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> What happens to copyright if I put my work on the internet?
The laws of copyright apply equally to works on the internet as they do in the off-line environment.
As a result, it is an infringement of copyright to place a book, graphics or song on the internet without the owner's consent. There is always a certain amount of risk involved in placing your work in an environment that facilitates copying. However, by marking your work with proper notices and by regular surveillance of your competitors, the risk of loss due to infringement should be minimal.
Various aspects of a website will be protected by copyright. Firstly, there is copyright in the 'look and feel' of the website -that is, the artistic aspects of the website, or otherwise known as the 'front end'. The copyright in the front end is an amalgam of the various copyrights in the text, drawings, video clips and music which makes up the whole website.
There will also be copyright in the software which powers and operates the website, known as the 'back end'. It is normally the case, in website commission agreements, that the commissioner will own the front end, however the software which operates the back aspect of it will belong to the software developer, who will license it out to the commissioner.
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> How do I copyright my work?
Your work will be protected by copyright automatically once you've created it. Unlike in the USA, there is no formal copyright registration scheme in the UK. It is desirable to use a copyright notice along the lines of "Copyright © [name of artist] [date] All rights reserved" whenver your work is reproduced and/or displayed (where this is practical on aesthetic grounds). You should also try to keep records showing when you created the work.
If you are creating an electronic work (eg Internet art) and/or your work consists of a collection of 'found' or other images your work may also benefit from copyright as a compilation or benefit from database right protection.
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