Posted 20 June 2018
Interview by Indi Davies

Know your ™ from your ©? Introducing the big bad world of intellectual property rights

IP. Copyright. Trademark. They’re like vague acquaintances you see around now and then, but never get to know properly. Well, it’s time to get familiar. Because these days, tales of stolen work are a dime a dozen – be it a photo used without permission, or a copied illustration plastered across a T-shirt in a high-street store. And putting all your energy into making great work is useless you know how to protect it. Over the next few weeks we’ll be diving into the legalities and ways you can protect yourself with Pauline Watkins, Head of Intellectual Property at InnovationRCA, as well as some cautionary tales. But to start, Pauline take us through the basics.

What is intellectual property?

The things you make and create are referred to in legal terminology as ‘intellectual property’ or ‘IP’. The legal rights attached to IP can help you to maximise the potential income attached to your work, grow your profile as a creative, and help resolve disputes about ownership of work and copying.

Provided the work is new and original, IP rights can give the owner of the work the sole right to make, sell, distribute, use and allow others to use their work, in return for payment.

Pretty much everything you create will have some IP rights attached to it. This includes: photographs, films, scripts, musical scores, the layout of your web pages, promotional material, text, the names you give your products, brand elements including logos, your design drawings, packaging design, the external shape of your products and the way a product works.

However, to get these rights, you need to have created something distinctive – they do not protect ideas or general concepts.

Know your rights: How can you cover yourself?

Why do you need to protect your work?
IP rights can help you maximise the amount of money you can make for your work, and give you options if you are copied. If you don’t manage them, you could be vulnerable to others using your work without your permission. Commercially, IP rights can be sold or licensed for a period of time, in return for a payment.

The different types of copyright and IP rights
There are four main types of IP right: copyright, design rights, trademarks and patents. These vary in terms of cost and how they can be obtained. You may also have to decide on the geographical coverage of your rights, and the type of product or service you wish the right to apply to.

Copyright © (this protection is free) applies to the things you write, draw, photograph, film, record, your website content, software programmes and databases.

Design rights (this includes some free protection) protect the external aesthetics of your products, their shape, form, and surface decoration.

Trademarks ™ (some free protection) protect the names you give your products or services, logos and brand elements.

Patents (this is paid-for) protect how products work and are generally relevant to inventions with an industrial application.

If your work is copied
If you rely on free protection, the responsibility will be on you to prove that you came up with the IP first, and that the other party had opportunity to see it. Or, in the case of free trademark protection, you will need to show that you have been negatively impacted by the activity, such as through loss of sales, which can be hard to prove if you are just starting out.

If you do pay to formally register your trademark or designs, the responsibility will be with the other party to prove their work existed before the date of your registration.

What protection is free?

As an emerging creative, budgets will be limited, so the rights you get for free can be very valuable. Such rights are also ‘automatic’ and exist as soon as you create the work – so you don’t have to formally register or apply for them.

For example, copyright is free and in most cases lasts for the lifetime of the creator, then an additional 70 years.

In some locations, including the UK and the EU, you get some automatic and free design protection. Trademarks give an element of free protection called ‘passing off’.

When is it worth paying for protection?

Where you have a defined product design or brand identity, and some evidence of a commercial opportunity, it is worth paying to formally register your IP – especially if you expect to rely on it for a number of years.

If you’re applying for design rights and trademarks, the process is relatively quick and straightforward, plus you can do it all online at GOV.UK.

Trademark and design protection costs
Formal design protection in the UK costs from £50 upwards, and from €350 in the EU.

Trademark protection costs from £170 upwards in the UK, and €850 upwards in the EU.

A lawyer can register these for you, and you will get valuable advice and guidance. However, it will be significantly more expensive.

When do you need a patent?
If you think you have invented something, I would strongly advise using a lawyer for patent protection. The application process is very complicated and time-consuming: an application for patent protection in one country can take two to three years or more, and you have to prove that your invention is substantially different to what is already known.

Legal fees vary, but it can cost from around £3,000 for an initial application. Please also note that all of the above costs will multiply as you seek protection in more than one country or geographical area.

What about when you work in-house?

In general, companies own the IP generated by their employees. You will also be bound by rules on confidentiality, so be careful who you talk to about your work and what you put on social media.

As part of your negotiations prior to starting any job, always read the contract and especially the IP clauses and ask if you are at all unsure.

Or if you’re a student?

Colleges vary in their policies on IP for students and staff, so it’s a good idea to read the college’s regulations. Some colleges are more extensive in their coverage than others. For example, it is possible for them to claim some IP ownership over one of your personal projects if you have made extensive use of college facilities and expertise.

Colleges will also have their own templates for confidentiality agreements (NDAs). They will be keen to safeguard IP, so talk to your technology transfer office or tutor to find out how to get one in place.

If the college owns the IP, you must tell them in advance if you wish to share information about your project or collaborate with an external party. If they own the IP they will need to be the signatory on any paperwork.

Further reading: Brush up on the details!

To get into the finer details of IP, here are a few recommended resources:

GOV.UK contains a very nice overview of IP, plus access to online application forms for formal designs, patent and trademark protection including their cost. It includes template confidentiality agreements, plus you can search the database of existing registered trademarks and designs, to check how original your ideas are.

The EU Intellectual Property Office contains lots of information about IP and links to apply for protection for designs and trademarks across the whole of the EU.

The British Library Business & IP Centre is a wonderful resource aimed at those starting out in business and IP. Their website contains lots of free IP information set in a really practical context.

Artquest contains lots of business and IP advice specifically for creatives with lots of real-life scenarios.

ACID (Anti Copying in Design) is a not-for-profit membership organisation for creatives. It provides tips, advice and guidelines and has a free hotline for members.

Law Works offers opportunities to get free advice from lawyers about specific issues.

Additionally, you could book yourself on a short IP course. The British Library Business and IP Centre in London offer some great courses tailored for small businesses and early stage creatives.

Stay tuned for the ways you can minimise the risk of having work copied, in the second part of our IP advice, next week.

Interview by Indi Davies
Mention Pauline Watkins