IXD302 Week 11 Intellectual Property

What is intellectual property?

Intellectual property refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.

It can therefore be very important to protect your intellectual property as having the right type of protection helps to prevent people from stealing or copying this form of property.

Intellectual property can be anything from a story to an invention to pieces of artwork. This means that when you are completing work for a client that work is your intellectual property until you sell its ownership and rights. It is important to note that when you are working for a company the work you are completing fall into the category of work for hire. This means anything you create is the property of your employer.

Copyright icons on square sheets of paper

Copyright

If something is your intellectual property in the UK this automatically falls under copyright. Copyright is a form of protection that prevents others from using your work without your permission. You do not need to apply or pay for copyright in the UK.

It is worthy of note that you can mark your work with a copyright symbol, this is generally included with your name and year however this does not impact the level of protection the work has.

As stated on the GOV UK website copyright covers:

  • Original literary, dramatic, musical and artistic work
  • Original software, web content and databases
  • Sound and music recordings
  • Film and television recordings
  • Broadcasts
  • The layout of published editions of written, dramatic and musical works.

It is interesting to note that Copyright protections on software only apply from 1992 on.

Copyright prevents your work from being copied, distributed, rented or lent. It also prevents people from performing showing or playing your work publically as well as making an adaptation of your work or putting it on the internet.

There are limitations on how long copyright protections last which typically apply to the years from the author’s death or years from the date of publication. These range from 25 -70 years. It is generally 70 years for most pieces of work however in relation to sound recording copyright restrictions only last 50 years while for typographical it is only 25 years.

You may choose to forgo copyright restrictions and share your work on sites such as Unsplash or Pixels (these relate to photographs). Sharing your work on creative commons gives you a little more control over the permissions you want to give when sharing your work. Here you can create and use a free copyright licence and specify whether on not you want adaptations of your work to be shared, your work to be used for commercial use and if you want others to attribute your work. The advantage of sharing your work in this capacity particularly, if others must attribute your work, is that it gets your name out there which may help to build awareness of your brand.

Copyright is forgone when used under fair use or as inspiration. Scholarly works, news reporting, criticism, teaching and transformative parody all fall under fair use. Inspirational use also must be transformative to the point where the original is not easily recognisable.

Proof of copyright is something important to consider. The only real way to prove copyright is to provide evidence that you have completed substantial work on the project and preferably be able to demonstrate that you have the earlier claim. This will only be possible by keeping iterations of your work. The best way to do this is to save multiple files of work as you progress. These files are automatically date stamped.

Patent

A patent is used to protect peoples inventions. It gives the owner the right to take legal action against anyone who makes, sells or imports the invention without the patent owners permission.

A patent can be expensive and very difficult to get. To get a patent the invention has to meet three primary criteria:

  • something that can be made or used
  • new
  • inventive – not just a modification to a preexisting invention

Image of apple vs Samsung

A well-known example of a patenting war can be found in Apple vs Samsung dispute. The central issues raised and there were originally ruled in Apple’s favour were that Samsung had infringed on the below patents in most devices:

  • bounce-back patent
  • utility patent
  • scrolling and two-finger gestures patents
  • design patent

Design and utility patents included tap to zoom and home screen app grid. This has been appealed several times by Samsung and the original $1 billion ruling has now been reduced by almost half. This demonstrates how while Apple could not patent the smartphone they could petent the features they created in their version of the smartphone.

 

Trade Mark

A trademark is a distinguishing mark that identifies a company or product. It can consist of a symbol, word, or words i.e. a brand. You do not need to register or apply for trademark rights however you do have to apply to register your trademark

 

Registered

A trade mark can be registered to provide additional brand protection e.g. the name of the brand from being used by others.

When a trade mark has been registered legal action can be taken against anyone who uses the brand without permission or creates a counterfeit. A ®  registered symbol can then be placed beside the brand to display that the brand has this level of legal protection. This should prevent/ deter others from using it. Registering a trade mark also makes it possible to sell and license that brand.

it takes approximately 3 to 4 months to register a trade mark and that is only if the trade mark goes unchallenged. To apply to register your trade mark in the UK you must search to see if your brand trade mark has already been taken in the class you want to register under. There are 45 different classes you can register a trademark under these can be divided into two categories goods and services. You can check if your brand is already a registered trade mark here.

Image of Starbucks and Sambuck's logos

An example of a dispute over a registered trade make can be found in the case of Starbucks vs Sambuck’s.

This was not Starbucks first trade mark battle. Sam Buck Lundberg, received a cease and desist letter and reportedly offered her around £400 to rebrand her Astoria base coffee shop which she has named Sambuck’s. Lundberg did not comply with this and due to registered trade mark protection, the case went to court and Starbucks won leaving Lunberg to remove “Buck” from everything in her coffee shop.

NDA Icon

NDA

NDA stands for a Non-Disclosure Agreement. This is a legally binding contract otherwise known as a confidentiality agreement. By signing an NDA you are agreeing that the information that the NDA relates to will not be shared or made available to others.

that establishes a confidential relationship. The party or parties signing the agreement agree that sensitive information they may obtain will not be made available to any others. An NDA may also be referred to as a confidentiality agreement.

There are three types of NDAs, these are unilateral, mutual and multilateral NDAs. A unilateral NDA is a one-way agreement in which the receiving party must treat the information provided by the disclosing party as confidential. An example of this is when a company is hiring a new employee that will have access to sensitive information. In this case, the employee is the only party signing the agreement.

A mutual NDA is a two-way agreement. This generally applies when both parties are exploring a potential relationship such as a partnership or collaboration meaning both sides must share sensitive information. An example of this might be when companies enter discussions about doing business and want to protect their own interests as well as the details of any potential offers or deals. In this instance, the agreement will revolve around not releasing sensitive business information regarding processes or plans.

A multilateral NDA is used when three or more parties are involved in the disclosure of sensitive information. This might apply when one party is disclosing information to several new parties. In this instance, all receiving parties will be required to protect the information. An example of this might be an investor pitch when an individual or company is seeking funding/ investment perhaps from several other individuals or companies. In this instance, the NDA will forbid outsiders or competitors from receiving trade secrets or business plans.

If you are entering into a new venture it is always advisable to have an NDA when bringing new people onto the team or discussing opportunities with businesses or potential investors. If you ever find yourself in a position where someone is refusing to sign an NDA you should most likely walk away.

If you receive an NDA be sure to read it thoroughly before signing! Double-check that there is nothing in the small print that you don’t agree to or may leave you vulnerable financially. It is also important to be aware of an NDA as you move forward in that project. If for some reason you need to release information covered by the NDA to a sub-contractor for example be sure to alert the disclosing party as you may need the subcontractor to sign an NDA also.

splitting up ownership illustration

Investment and ownership

When a company is formed the founding members of the company own 100% of the company. However, as is often the case with start-up founders, seed capital is required to expand the company. Seed capital is a type of financing used in the formation of startups. This generally means giving up a percentage of profits or a profit-sharing arrangement.

It is important to consider the ramifications of giving away too much of your company to gain investment. This may leave you owning less of your company than outside investors. Therefore you should only accept funding when you really need it. If you are in the position of absolutely requiring money to the point that your giving away more ownership of your company than you are comfortable with you can include a ‘buy back clause’ in the agreement that gives you the ability to buy back shares at a fixed rate within a specified number of years. That said it is probably still advisable to avoid giving away more than 50% of your ownership.

Summary

While learning about the legalities of intellectual property is a bit ‘heavy’ it is a very important topic to understand. This ensures that your work is protected and it is good to know your writes and how to protect yourself in relation to keeping iterations, saving copies as you go along and demonstrating your process. It is also great to learn about the different ways to regain ownership when you require investment but don’t want to sell chunks of your company away. This is something I will definitely consider if I am ever trying to start my own company in the future.

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