Definitions
1. Intellectual Property (IP) is the term given to the productions of original intellectual or creative activity. Intellectual Property Rights (IPR) are the legal rights that exist in those productions. Various intellectual property rights are relatively well known, such as copyright, design rights, patents and trade marks. Others, less so, such as plant variety rights.
2. Copyright is an unregistered intellectual property right, which arises automatically by operation of law in the UK on creation by a qualifying author. No registration is required. Copyright is literally the exclusive ‘right to copy’ which will be enjoyed by the creator of the work. Ideas are not protected – only the expression of the idea is protected. Therefore there needs to be an element of fixation i.e. the work must exist in some permanent form before attracting copyright.
Literary, dramatic, musical and artistic works, films, broadcasts and cable programmes can attract copyright.
A copyright work must be original. Originality has a relatively low threshold and is not to be confused in any way with whether a copyright work is novel or new. The term 'originality' only refers to the fact that the author must make some amount of effort to produce the work in the first place. The term 'literary' is merely a reference to a written work. Computer software is treated as a literary work and as such is protected by copyright in the same way as literary and artistic works. Sometimes computer programs may also be protected as patents.
For literary works copyright lasts for 75 years from the death of the author (or if more than one author from the death of the last remaining author).
3. Databases are protected in one of two ways:
(a) some databases can be protected as copyright works (see above) when the person compiling the database is judged to have used sufficient skill, labour and judgment in devising the compilation; or
(b) others are protected by a separate Database Right under the Copyright and Rights in Databases Regulations 1997. This lasts for 15 years. Databases protected by Database Right tend to protect the content, as opposed to the organisation and structure of a database. Even so, Database Rights are a valuable intellectual property right.
4. Patents protect original inventions (subject to some exclusions) with industrial application.
Patents are applied for and granted through the Patent Office. They must pass through a rigorous vetting procedure for compliance with the legal requirements, before they are granted. Patents are governed by the Patents Act 1977.
A patent may be granted only for an invention in respect of which the following conditions are satisfied, that is to say -
(a) the invention is new;
(b) it involves an inventive step;
(c) it is capable of industrial application.
There are some exclusions as to what can obtain patent protection (these are not covered here).
One of the most important aspects of patent protection is that an invention must be ‘novel’ meaning that it must be new. Novelty can very easily be destroyed by disclosing the nature of the invention before a patent application is made.
For this reason, an invention or details about it should not be disclosed, for example in a scientific paper, poster, presentation (oral or written) or exhibition before an application is made to protect the invention.
Once granted, a patent confers on the owner a 20-year monopoly and a patent will be infringed even if there is no conscious copying.
5. Know-How refers to practical knowledge, skill or technical expertise. In many cases this may be commercially valuable and can be exploited through consultancy or licensing. It should be protected as Confidential Information.
6. Trade Marks can be registered or unregistered.
The definition of a trade mark is “any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of another”. Registered trade marks are governed in the UK by the Trade Marks Act 1994. There is also a Community Trade Mark which gives a mark protection throughout the EU and trademark registrations can be made in many other jurisdictions. Once registered in the UK, trademark protection lasts for 10 years and can be renewed.
Trade mark registration is not automatic - the Trade Mark registry can refuse to register a mark if it considers that:
(a) it is not capable of distinguishing goods or services of one person from those of another;
(b) it is devoid of any distinctive character; and/or
(c) it consists exclusively of signs or indications which designate the kind, quality, quantity, intended purpose, value, geographical origin or other characteristics of goods or service.
The benefit of having a registered trade mark is that while both registered and unregistered trade marks are protected, infringement of an unregistered trademark only gives the owner a right to sue for passing off. It is more difficult and expensive to bring an action for passing off than for straightforward infringement of a registered trademark; so possession of a registered trademark (if the mark is of value) is desirable.
7. Design Rights under English law can exist in unregistered or registered form. Design rights are in some ways similar to copyright but protect three-dimensional items. Registered designs protect the shape, configuration, pattern or ornament of an article to the extent that they are new and have “individual character”. The main legislation in the UK is the Registered Designs Act 1949.
8. Unregistered Design Right arises automatically by operation of law and, as the name suggests, it does not require to be registered anywhere. Unregistered design right is a proprietary right which subsists in an original design. "Design" for these purposes means the "design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article." Unregistered design right does not subsist unless and until the design has been
recorded in a design document or an article has been made to the design. Unregistered Design Rights are governed by the Copyright, Designs and Patents Act 1988.
9. Moral Rights: Moral rights are not really intellectual property rights but are something which allows authors to assert their rights to be known as the author (the "paternity right") and to object to any derogatory treatment of the right ("the integrity right"). Moral rights are usually asserted where copyright is assigned or licensed and the assertion binds the assignee or licensee.
10. Performance Rights: Rights in performances are given to the performers and to the person who has the recording rights to the performance. A performance is a live performance by one person or a group of people. It could be a live musical performance, such as Dolly Parton, a dramatic performance or a lecture. The definition is very wide in scope.
The consent of the performer is required for any exploitation of the performance.
Performance rights are in addition to copyright and expire after 50 years.
Other relevant terms used in relation to intellectual property:
Assignment is the term given to the outright transfer of ownership of intellectual property from one person to another. It is often, but not always, done in return for a fee. Whilst transfer of ownership of physical property is achieved by delivery of the property from one person to another, intellectual property must often be transferred in a written document which is referred to as an assignment and must be signed by the assignor.
Licence and licensing are the terms given to the permission to use, which the owner of intellectual property may give to any other person. Someone using an intellectual property right without a licence infringes that intellectual property right. The owner may charge a fee in return for the grant of a licence and can impose terms and conditions on its use as part of the licence. There is no transfer of ownership, just a licensing of (giving permission for) use.
There are different types of license as follows:
(a) a non-exclusive licence - the licensor can still use the rights and he can grant any number of licences;
(b) a sole licence - the licensor can still use the rights but can only grant a licence to one licensee;
(c) an exclusive licence - the licensor cannot use the rights himself and only one licence can be granted.
