On Wednesday 7 October 2020, I was delighted to be on the panel for a webinar masterclass organised by Krissi Boakye of AH Innovations, to help people navigate the wonderful world of start-ups, side hustles and content creation. The event was hosted by Chipo Kureya, a thought leader, activist and actor, who asked me several questions about the importance of intellectual property (IP). Here I expand on the answers I gave during the webinar, with a hopefully helpful table summarising the key intellectual property rights, and lists on how to make money from, and protect, your IP.
01. What is intellectual property?
We all know that a notebook is an everyday, household item that can be bought, held, touched, and sold: it is a tangible piece of property. But when something is written down in that notebook — whether it is an artistic drawing, a musical score, or a piece of creative writing — the content itself becomes so much more than a few ink lines on paper. But how can we protect that content? How can we legally recognise its value and worth?
At law, intellectual property (IP) is a special type of property that includes creations of the human mind. The main purpose of IP law is to encourage the creation of a wide variety of intellectual goods and content, and to give the creators a way to make money from their work.
02. Why is IP important to entrepreneurs and creatives?
Creativity and technology are exceedingly important in today’s economy: many start-ups and entrepreneurs are focused on new and interesting ways of doing things, or otherwise use digital services and platforms to make money. These businesses are typically heavily focused on IP! Remember: IP is an asset for its owner and has a commercial value attached to it. Good, interesting IP can encourage investors, excite employees and collaborators, and — perhaps most importantly — attract customers!
A podcast is a form of intellectual property, which will have copyright protection! Photo by Kate Oseen via Unsplash.
03. What are the main types of intellectual property rights?
IP rights will arise when you develop new products or manufacturing processes, but also when you make creative endeavours of a literary, artistic or dramatic nature. Some rights are automatic, whereas others require an application and/or registration, and rights can differ substantially from country to country. Here are some of the main IP rights, as under the laws of the United Kingdom, with relevants links to the UK Government’s Intellectual Property Office (IPO). Importantly, having the right, however, is different from being able to effectively protect it. Protection of IP rights is discussed at point 5 below.
HOW DO YOU OBTAIN THE RIGHT?
The exclusive right to copy the whole or a substantial part of artistic, dramatic, literary and musical works or sound recordings, films and broadcasts, usually for a limited time (typically for the life of the creator plus 50 or 70 years).
Registration Required? NO.
Copyright arises automatically, and is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself.
Generally the author (or creator) of a work is the first owner of copyright in it. However, this is not the case for employee authors of literary, dramatic, musical, artistic and film works. In these cases, subject to any agreement to the contrary, copyright vests in the employer.
A trade mark is a word, slogan, logo, letters, or other mark used to distinguish ownership. The trade mark differentiates goods and services from those of others.
Registration Required? YES.
Registering a trade mark gives the owner the statutory right to the exclusive use of the mark in connection with the goods or services for which it is registered.
The registration process takes about 4 months if no-one else files an objects. There are strict rules about what can, and cannot, be trade marked. For example, you must choose something that is highly distinctive and not simply descriptive. You can read more about those rules here, on the IPO website.
A registered trade mark is a valuable commercial asset, relatively easy to protect and enforce, a deterrent to infringers, and capable of indefinite renewal.
An unregistered trade mark or ‘common law’ trade mark is an enforceable mark created to signify or distinguish a product or service. It is legally different from a registered trade mark granted by statute.
(Note: U.S. English combines the word to be trademark.)
Registration Required? NO.
In the UK you may be able to stop someone using a similar trade mark to yours on their goods and services even if you have not registered it, however this is often difficult to do. This is known as a claim for “passing off”, which you can read about here on the IPO website.
Moral rights recognise an creator’s interest in controlling the use of their creative work.
Moral rights include the rights of:
1.) Attribution, meaning the right to be credited as the author, and the right to object to false attribution;
2). Integrity, meaning the right to control some modifications to and destruction of a work; and
3) Privacy, meaning the right to object to private films and photographs being published.
Registration Required? NO.
Moral rights are related to copyright laws. They protect non-economic interests in literary, dramatic, musical and artistic works and film, as well as some performances. Unlike economic rights like copyright however, moral rights are personal to the rights holder (creator or performer) and cannot be sold or otherwise transferred. However, rights holders are often asked to waive these rights.
Patents provide inventors with a legally protectable monopoly over their inventions and protect new and inventive technical features of products and processes. They last for a limited period, which is 20 years in most countries.
Registration Required? YES.
To qualify for patent protection, an invention must be new, involve an inventive step, be capable of industrial application and not specifically excluded from protection.
To obtain a patent, it is necessary to file an application for a patent, which takes around 5 years to obtain. Patents are expensive to obtain and maintain, and also involve public disclosure of the technology. Doing so might enable a competitor to develop a competing product.
Know How and Confidential Information
It is possible to protect information which is sensitive to your business, through rights in confidential information. This includes know-how and trade secrets.
These are not strictly IP rights as such, but they can protect sensitive technical and commercial information.
Registration Required? NO.
To be protectable, the information in question must satisfy three tests:
1.) it must be confidential in nature;
2.) it must have been imparted (shared) in circumstances in which an obligation of confidence (secrecy) arises; and
3) its unauthorised use would negatively impact the person who imparted it.
If the discloser tells anyone about it without authorisation from the imparter this is a breach of confidence and the imparter can take legal action against the discloser.
Other types of intellectual property rights include industrial design rights (both registered and unregistered), database rights, plant and seed varities, and trade dress.
04. How can you make money from your IP?
Intellectual property is, generally speaking, like most other forms of tangible property: it can have more than one owner, belong to people or businesses, and be sold or transferred.
There are several ways to make money from your IP:
Assignment (transfer): You can assign (legally transfer) your IP ownership to another person or business, much like you would sell anything else. Payments are typically a one-off lump sum, and you lose your ownership rights in the IP.
Licence: You can maintain ownership of your IP, but allow others to use it in specific, limited ways. This is similar to the concept of renting or hiring a car, for example. Payments can be one-off, or structured on a monthly or yearly recurring basis, or even as a commission or royalty based on certain percentages of profits.
Franchising: The most popular form of franchising is called ‘business format franchising’, which involves a person (franchisor) granting another (franchisee) the right to trade under the name of the franchisor. The franchisor gives the franchisee a business plan and marketing and advertising materials, and in exchange the franchisee gives the franchisor a fee – typically a percentage of its turnover.
Research & Development / Consultancy work: You can create intellectual property specifically for the benefit of someone else, for example a software company or a fashion house. In exchange for the IP you create for them, they will pay you a consultancy fee.
Determining which is the best way will depend on your unique circumstances and objectives. Speaking to an intellectual property lawyer or business advisor can help point you in the right direction.
Intellectual property rights protect the output of human intellect and creativity. They go to the heart of scientific innovation, and literary, musical, artistic and dramatic endeavours.
Photo by Patrick Robert Doyle via Unsplash.
05. How can you protect your IP?
Just because you have a legal intellectual property right, doesn’t mean that your content is safe and secure from a practical perspective. Think of owning your house. Signing the deed and becoming the legal owner is just the first step to protecting your home — you need to make sure you have a proper door that locks, and maybe even a security camera!
As a young company, you will be trying things out and focusing on increasing output, while at the same time seeking exposure. This can occur before adequate protective systems and procedures are in place, leaving you and your ideas vulnerable to theft and misappropriation. So, in addition to registering your IP (where applicable), some ideas for protecting your IP include:
Confidentiality: Keeping your IP a secret, especially before it is registered. If your ideas need to be discussed with others, enter into a confidentiality agreement (also known as a non-disclosure agreement). The IPO has template NDAs you can download. Having an agreement that prohibits co-founders or employees from taking ideas to another business after they leave is also common (usually this prohibition lasts only for a few months or a year, as longer periods might be unlawful).
Be strategic with your roll outs: Where possible, it may make more sense to release new ideas and designs in a staggered way, instead of publishing or sharing everything at once. Quick cycles can make it more difficult for your competitors to catch up.
Be clear about who owns the IP: In the same way that ‘joint control’ of the television remote can sometimes lead to arguments, just imagine the complexity that arises when trying to share IP! Contracts should clearly set out who owns what IP to minimise confusion, and this includes employment and consultancy agreements, too.
Enable technological safeguards or use watermarks: You may wish to disable copy/pasting or right-click/save-as features on your blog. Although this will not prevent screenshotting, it can act as a deterrent and works well for text (my masters’ thesis, for example, is online here but the .pdf is locked). For images, a discrete watermark or using your logo can also disuade people from stealing your content. Digital rights management systems and various watching services are also available.
Scoop up your brand name across platforms: As soon as I started tweeting @KelseyFarish, I knew it made sense to register the domain name, too. Sadly KelseyFarish was already taken on Instagram, so I’ve had to go with KelseytheMediaLawyer. The moral of the story? As soon as you start using a name, grab the username or domain where you can – and always do a search before commiting yourself to a new name for a brand or product!
Use notices on your website and email signature: Although there is no legal requirement for owners of IP rights to mark their goods with details of their rights or use notices, the practice is best practice. Doing so warns potential copycats that the rights are yours, and may help you to obtain damages (£££) in an infringement lawsuit.
Have an up-to-date IP inventory and do regular health checks: In the midst of your flurry of content creation, do not forget to keep a list of your IP assets. This doesn’t need to be super detailed, but it’s always useful to know what platforms your IP is on, what contractual relationships you have, and any infringement actions (whether informal or legal) you have taken. Occasionally, do a search for similarly-named products to your own, or check out your competitors to see if any of your content is showing up where it shouldn’t be!
The information here is provided for general informational purposes only, and does not cover all of the aspects of intellectual property law. It should not be construed as legal advice. You should not act or refrain from acting on the basis of anything on this website without seeking legal or other professional advice. If you have any questions or comments, please do get in touch by leaving a comment here or dropping me a note.
Featured photo by Mika Baumeister via Unsplash.