Entrepreneurship

How Copyright Protects Your Business Interests

Cameron Fleming | 2 March 2022 | 2 years ago

How to protect your business & ideas with copyright

As an entrepreneur, you will undoubtedly come up with some brilliant ideas. These could be tactical moves your business needs to make or a market-disrupting service or product. If it’s a service or product, it is worth your while to protect that smashing idea from the idea-predators always scouring the market. But do you know how to protect your business and ideas with copyright? And is it different to intellectual property law (IP)?

Let’s look at the available protection and the steps you can or cannot take.

Are copyright and IP the same?

IP is a term used to define anything that has been made up, fabricated or created, physically or in the mind. An example of IP is:

  • A design of any sort, e.g. architectural drawing or a textile design
  • An invention, in theory or physically prototyped, e.g. materials or products
  • A brand name or company name
  • Works of literature, e.g. a book
  • Works of art, e.g. a video
You can get the protection of IP by law via copyright law, patenting a product or registering a trademark.

One thing about IP globally is that it is much easier to protect physical assets, e.g. hardware, than intangible assets, e.g. IP.

There are different degrees of protection available globally, and in the United Kingdom we refer to the Copyright, Designs and Patents Act 1988. If your product is going into different countries, then your destination legal team will need to set up local protection.

What is IP?

IP is created through business R&D activities, manufacturing, or creative processes. IP is an umbrella term that covers different subsections that have important differences and purposes, namely:

  • Copyright
  • Trademark
  • Design rights
  • Patents
You can approach the UK Intellectual Property Office for protection of all of the above, but it is not necessarily required for all of them.

What is copyright?

The term copyright refers to anything of an original nature. Its existence, however, needs to be recorded in some form, i.e. written down (dated and signed by a witness), filmed or voice recorded with a date stamp. If you are the originator of work, then you automatically have copyright over that work. Registration is not required in order to activate those rights.

Copyright will protect you against other individuals utilising your creations without your approval. It will also protect you against an individual or company from claiming to be the originator of the IP.

Copyright legislation typically protects:

  • Written works, e.g. web content
  • Literary works
  • Artworks
  • Photography – digital and printed
  • Films – scripts, audio, soundtrack, etc
  • TV production
  • Musical works
  • Sound recordings – this could be non-verbal, non-instrument, etc.
It is important to note that you can’t use the vehicle of copyright law for the protection of straplines, taglines, mottos or slogans. It is also not the right vehicle for protecting logos, business names or product names. It would be better to trademark your Big Boy Burger Buster product name.

Remember, make an effort to investigate from a position of caution first, i.e. first assess whether you are not the party that is about to cause an infringement! Something published in a magazine or on the internet does not make it a free-source item or public domain data. Check first and save yourself an enormous amount of time, money and angst.

What is a trademark?

When you create your company name, as Coca-Cola did, you might also create a funky logo to accompany that name. These are literally your ‘marks’ by which you will ‘trade’, i.e. your trademark. These should be registered to get legal protection.

What are design rights?

The rights of design IP are different subject to them being registered or not. If a design is captured on paper or an item has been fabricated based on the aforementioned design, then the design rights are attached.

If unregistered, design rights protect only the outward form of the design, not the internal workings. When registered, the design in its entirety is protected.

Design rights protect the three-dimensional shape and the manner in which the components are constructed in order to function as the end product. The automatic protection has a lifespan of ten years from when the design was initially sold or fifteen years after its initial creation, whichever deadline is reached first.

What is a patent?

Business inventions or creations are viewed as industrial property, and patents act as protection of this niche area. Patents have a finite time, but the owner can also sell them.

How can I protect my IP?

First, before starting a potentially expensive of paying professionals to design logos, set up websites, print business cards, etc., you need to assess whether your name, logo or product invention is indeed original. If you have unwittingly used someone else’s, you will be starting from scratch again.

This is not an easy task but a necessary one. It would be prudent to have a legal search done. It would also be valuable to have your entire business scrutinised by a third party (legal preferably) to spot something that you didn’t realise was worth protecting. This auditing of your company, no matter how small, will go a long way to protecting you in the future. A big bonus that comes from this type of auditing is that you get a record of intangible assets that you can put on your books. This will be an excellent value-add to your business plan when you are pitching for funding to take your business to the next level.

Confidentiality is a vital element in the protection of company information and while you might need to present it to others, always have your lawyers involved with NDA documents (non-disclosure). It might seem overly formal, but many a brilliant idea has been stolen from a startup that didn’t want to believe in the necessity to “go legal”.

As mentioned earlier, another important part of protecting your intangible assets is proof that the idea is yours – so documenting it is a necessary step. You will be amazed at how difficult this can be when done retrospectively. Sometimes, the idea is stolen before you have fully finished formulating it, and you might have been waiting till it was fully formulated before committing anything to documents and the filing cabinet. Risky decision.

Documenting your idea, concept, service or product can be in the form of:

  • Digital communication, e.g. emails, texts, virtual meeting recordings
  • Drawings and sketches
  • Notes, including those on restaurant napkins
  • Anything that refers to the creation of the IP
  • Ensure all of the above is dated

International Protection

If you think it is prudent, then go ahead with the registration of the IP with the Intellectual Property Office reasonably soon. If it is a patent you are applying for, be warned that this can take anything from four to six years versus other IP registration, which is swifter. Patents for environmentally beneficial IP is expedited.

As mentioned earlier, different countries have different requirements, and if you believe international protection will be worthwhile in the long term, then get your legal team to arrange relevant international:

  • Trademarks
  • Patents
  • Design registrations

How do I protect my copyright?

Copyright protection is not obtained via registration or the submission of a “patent” type form. Your work will be protected automatically. You can add the copyright symbol to your work, but it is not necessary by law. It is perhaps a good reminder to the viewer.

Copyright protection lifespan is different per category, for example:

Written, literary, dramatic works – 70 years from date of creator’s demise

Musical and artistic work – 70 years from date of creator’s demise

Recordings of sounds or music, films – 70 years from publication date

Broadcasts – 50 years from date of initial broadcasting

Published layouts – 25 years from the first date of publication

[Sub-Header] Protection of your IP starts with you

The protection of your IP is partially assisted by law, but the law is there as a last resort. The primary care must start with you.

It is important to understand that whilst IP is an original thing that you have “come up with”, the idea of “that thing” is not protected by UK IP legislation. The things that are created from that idea are, however, protected. This is why you should document your idea right through to the thing, service or product that it will produce ‒ dated and filed away. This creation could be a new invention like photovoltaic windows, but it could also be the name of your product, your logo, the type of service you supply or even the shape or industrial surface design of your product.

As sure as the sun rises in the morning, your newly launched item will be at risk of being copied – whether out of malice or just sheer love of your amazing invention. And as with everything in the world today, the chances of your invention being copied exponentially increase when the internet is added to the mix.

Share the information only if necessary and when presenting, keep it at a high level. Give access on a very ‘need-to-know’ basis, and computerised access to it must be checked regularly. If possible, don’t store all the key information on one server and try not to give anyone access to all the parts without your involvement, i.e. access must be requested from you.

Issue confidentiality agreements and make sure you see the signed originals returned.

Have a digital team that can search for online breaching of IP rights, which is growing by the day. Regular checks would be prudent.

Breaching a patent or design right is deemed a civil matter. However, with copyright and trademarks, they could be deemed a civil matter or criminal offence subject to the details of the offence.

Examples of copyright infringement:

  • Making copies of the work
  • Issuing copies of the work to the public
  • Renting or lending the work to the public
  • Performing, showing or playing the work in public
  • Communicating the work to the public
  • Adapting the work or doing any of the above in relation to an adaptation
  • Authorising any of the above acts

Software, Intellectual Property and the law in the UK

UK business owners are not alone when it comes to protecting software code. Legislation is scrambling internationally to catch up with technology and its cross-border nature. Therefore, there is a lack of clarity within IP legislation around software codes.

When seeking protection of it, you would look at the copyright and patent law vehicles.

Copyright is the simplest one to use as it’s automatic and the cover for is for a longer period. It is imposed retroactively and has less protection than patent law. Having said that, patent protection is the tougher one to land.

Copyright applies to coding as follows:

  • The coding is written, and thus it is seen as an original written work
  • The graphics that the UX and UI designers, for example, create are artistic work
  • Any sounds, music or audio created is a musical work
  • As in a gaming program, any moving images are seen as film
And on goes the list, but you can see that it could get quite convoluted.

Can I patent my coding?

You probably spotted in the copyright list the absence of the function being listed. This is because copyright was not created for the protection of function.

Function, process or outcomes would need patent protection and this would be in place for twenty years. You will need to proceed with a patent registration which is executed via a patent lawyer. An indication of legal costs would be approximately GBP 4,500. To register the patent, you are required to pay up to GBP 280 for each patent.

This is not a cheap process by any means, and if your application fails, you have to start from scratch. Therefore, it is really worthwhile to use an experienced patent lawyer.

Conclusion

IP infringement does seem to be rife worldwide, and it would be prudent to build up financial resources to deal with the legal cases relating to it. Some high-end brands like Gucci have teams of up to twenty lawyers per continent that they are present on. This type of cost must be built into the cost of your product and should be included in your business plan.

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