Guide to Intellectual Property Laws

Considering the highly competitive environments where businesses need to operate on a daily basis, they constantly need to battle for market leadership and struggle to obtain recognition for a particular product they have developed. The competitive market often leads to the development of innovative features, but many companies struggle with maintaining their original concepts protected against imitation and reproduction by competitors. This is why Intellectual Property (IP) laws were created, to help those who have a vision over something to maintain their rights over their products or ideas.

What is Intellectual Property?

Intellectual property represents the value added to a product or business from a creative process. While there are different types of IP laws, all of them aim to help inventors or businesses to obtain a financial benefit from their creation. The UK IP law is set down in the Copyright, Designs and Patent Act (CDPA) 1998.

What counts as intellectual property?

IP is something unique that someone has created. An idea alone is not considered IP. For instance, if you have an idea for a book, it will not be protected by IP law, but the words that you write will. You are considered an IP owner if you have either created it, and it meets the requirements for a patent, copyright or design or you bought intellectual property rights from their previous owner. You can also have a brand considered a trademark such as the name of a well-known product.

What are the types of IP?

Just as there are laws that were designed to protect physical property against theft, laws were designed to protect intellectual property. This concept includes different types of invention, original creation, brand name and design. The laws basically protect these concepts for a certain period of time, by preventing unauthorised use. The property rights can be transferred between parties and even mortgaged in some situations. The forms of intellectual property include copyright, trademarks, patents and designs.

What is copyright and who owns it?

Copyright is a legal right that is awarded to an individual or a business for the creation or investment in a particular product or work. To be protected by the legislation, a particular product or work will need to meet very clear requirements. In fact, the CDPA states that in order for something to be protected, it must fall under one of the following categories: dramatic or musical work, films and sounds recordings, literary work, cable programmes, published editions or broadcasts. Do keep in mind that the Act does not include cable programmes that were made before 1 January 1985 and films or broadcasts made before 1 June 1957. Naturally, the creator or the author of a particular piece of work is the one who owns the copyright and he or she does not need to follow an application process to obtain these rights, as there are international agreements which state that copyright will arise automatically.

How long does copyright last?

Literary, musical, dramatic or artistic work: According to the CDPA, the copyright lasts for seventy years from the death of the author or creator of those works. If the author is unknown, copyright will last seventy years from the date on which the work became available to the public.

Sound recordings: Protection of sound recording lasts for 50 years from the end of the year when it was made. Should the sound recording be published within this time frame, copyright protection will last for 50 years from the end of the year in when it was published. If the recording is not published, but it is played in public during the 50 year period during which copyright protection applies, the protection will last for 50 years from the date on which this happens.

Broadcasts and cable programmes: In this case, copyright protection lasts for 50 years from the moment of the first broadcast. However, if a programme is repeatedly broadcasted, it will not generate a new copyright period.

Films: Copyright protection lasts for 70 years from the end of the year in which death occurs of the last to survive the creators of the screenplay and dialogue, the principal director or the creator of any music that was specially created for the film. For instance, if a team of 5 people works to create a movie, and the last surviving member of the team dies in June 2000, the 70-year protection starts from 31 December 2000.

What is a Patent?

A patent is an intellectual property right, granted to the inventor by the country's government as a territorial right, for a certain period of time. To obtain a patent in the UK, you will have to make a formal application to the Intellectual Property Office, because unlike copyright protection, patents do not arise automatically.

Once a patent has been awarded to an invention in the UK, it is protected under the British civil law, meaning that nobody will be able to use, make, import or sell that invention without the owner's permission. Patent protection is usually granted for technical innovation that is both novel and inventive. However, this protection is not applicable to any type of innovation and usually, artistic and non-technical innovations are not patented. An invention must meet the following criteria to qualify for a patent:

• It must be new and inventive lead in its construction or operation that is not obvious to someone who works in that particular field;
• It must be cable of being put to practical use in industry. This is the reason why many artistic innovations are not patent protected.

Who owns a patent and how long does it last?

The Patent is held by the inventor of the thing that is protected under the patent. It can also be owned by the employer of the inventor, but these situations are often more complex and depend on the terms of each individual's employment contract. It usually takes between 3 and 5 years to obtain a Patent and it lasts for as long as the owner pays the annual renewal fee. If the individual or business fails to pay the renewal fee for a particular patent, the invention will no longer be protected.

What is a trademark?

Even though traditionally, trademarks were any word or logo that designated the origin of goods or services, these days the law has come to recognise that many other things can serve this purpose. Companies have actually registered jingles, smells and even the shape of goods as trademarks. To be granted a trademark, you need to prove that the thing you are trying to protect under this law is distinguishable from those of other parties. Moreover, trademarks which consist of anything other than logos or words must be cable of being represented graphically to be able to register them. To obtain a trademark, a business needs to apply to the IPO and prove that the brand is sufficiently distinct to fall under the Trademark protection.

How long does a trademark last?

A trademark is valid for 10 years. A business can renew its trademark, but it will have to apply again to the IPO and pay the necessary costs.

What are design rights?

A design represents the elements of an article which give it its particular appearance such as shape and contours. In the UK, designs are protected in two ways:

Registered designs - this offer a person or a company complete right of ownership over the look of a product. The visual features can include contours, colours, shape, textures and even ornamentations that give it a unique appearance. To obtain a registered design, you will need to apply for it at the IPO. Keep in mind that these rights can be sold or licensed. Registered designs can last for 25 years, but a renewal fee will need to be paid every five years for a business to enjoy the maximum protection period.

Design right - these are the rights for the shape and form of a product and much like copyrights, they arise automatically to the inventor. For a clear distinction between the two types of designs, these can also be known as unregistered design rights. The owner of these rights is the individual or business that created a particular product, and its appearance holds the Design Right. These rights can also be sold and licensed to other businesses or individuals.

A design right lasts for 10 years from the date on which it was marketed or 15 years from the date it was produced if it was not marketed. However, these rights do have an important limiting factor. For the last 5 years of the 10 or 15 year protection, they are vulnerable to the "License of Right". This law allows any other business to pursue a license to reproduce the look of the product, provided that they discuss with the owner the arrangement before any reproduction can take place.

Obtaining intellectual property rights

Intellectual property laws can be obtained by automatic derivation, application or by buying or licensing the IP.

The steps to apply for IP rights are as follows:

• File application;
• A search will be carried out to verify originality
• An examination is carried out;
• Objections are either raised and are dealt with or are not raised
• Registration is granted.

Automatic Derivation

When an original work is created such as a design document, drawing, prototype or anything else rights will arise automatically. However, these rights are usually limited to the prevention of a misrepresentation or a reproduction being made.

Buying or licensing IP

Buying or licensing intellectual property rights usually involves some negotiations that include what particular rights are being licensed or bought, the geographic scope and limitations or those rights, how long can the rights be licensed and what costs will the new owner need to pay.

Even though many businesses and individuals have never thought about IP rights and many of them believe this to be an expensive and time-consuming process, most of the time this is not the case. Proper exploitation of IP can offer value to a business, generate revenues and offer a competitive advantage in certain negotiations.