Copyright, Designs & Patents

What is copyright?

Copyright protects the permanent expression of original artistic, literary, dramatic or musical works, sound recordings, film, broadcasts and cable programmes. It subsists in any original work which constitutes the author’s own intellectual creation. The threshold for ‘originality’ is set quite low, so if you have expended effort in creating a work (and provided it has not been copied from an earlier work), then it is most likely protected by copyright.

Copyright entitles the copyright owner to prevent a third party from copying the work without the owner’s permission. It also entitles the copyright owner to prevent a third party from distributing the work, renting or lending copies of the work, performing, showing or playing the work in public or adapting the work.

Copyright arises automatically upon creation of the copyright work and does not require any registration.

How long does copyright last?

Copyright lasts for a period of 50 to 70 years after the death of the author of the relevant work, depending on the nature of that work.

Who owns copyright?

The author of a work is the person who creates it and they are also the first owner of the copyright in the work. This copyright can subsequently be transferred to another person (or company) by assignment (ie. sale). Copyright can also be licensed or mortgaged by the owner of it.

Generally speaking, if the author is an employee and creates the work as part of his/her work duties, copyright is first owned by the employer. However, where a work has been commissioned from a third party, copyright will belong to that third party – unless there is a contract in place which states otherwise. More than one person can own the copyright to a piece of work jointly, but joint ownership can sometimes make subsequent exploitation of the work more difficult.

What does copyright not protect?

Copyright only protects original and tangible creations of work. It does not protect ideas, nor does it protect work that has been copied from an earlier work – originality is key. Equally, independent creation of a work is a complete defence to a claim for copyright infringement.

What are moral rights?

Moral rights belong to the creator of an original literary, dramatic, musical or artistic work and primarily concern the right to be properly named or credited when their work is used, and to have a say in the way the work is treated and shown. Moral rights can be given up but cannot be sold to a third party.

Our copyright expertise

Our copyright lawyers are experienced in helping copyright owners identify, protect and exploit their copyright work. Contact our team of copyright solicitors now to see how we can help.

Registered design rights

Registered design rights can protect the appearance of the whole or a part of a product resulting from the features of – amongst other things – the lines, contours, colours, shape, texture or materials of the product or its ornamentation. This includes complex products (which are made of multiple parts), packaging, graphic symbols or icons.

Registered design rights can protect both three dimensional and two-dimensional designs. Registered design right protection gives the owner the exclusive right to use the design in question for an initial period of five years. That period can be renewed for further periods of five years up to a total of 25 years. Similar rights are also available in the EU.

In order to be capable of protection, a registered design right:

• must be new. This means that the design must not have been made available to the public anywhere in the world (although the designer does have a 12-month grace period after initially disclosing his design in which to file an application); and
• must have individual character. This means that the ‘overall impression’ of the design on the ‘informed user’ is different to that of other known designs.

A design is not capable of registration if its appearance is solely dictated by its technical function, or if the design would be contrary to public policy or morality.

Unregistered design rights

Unregistered design rights protect the shape or configuration of original industrial designs and arise automatically when an original design is made or recorded in a design document. Designs that are commonplace in their design fields cannot be protected.

The owner of unregistered design rights can prevent third parties from copying their design so as to produce articles exactly or substantially to that design. Independent creation is therefore again a defence for an alleged infringement.

In the UK, unregistered design right protection subsists for the lesser of (i) ten years from the end of the calendar year when articles made to the design were first sold/hired out or (ii) 15 years from the end of the calendar year when the design was first made or recorded in a design document. In the last five years of the design right term, however, third parties are entitled to ‘Licences of Right’ in respect of any act which would otherwise infringe the unregistered design right (subject to the agreement of terms for the licence, including for the payment of a licence fee). If the parties cannot agree the terms of a Licence of Right, the terms will be determined by the Comptroller-General at the UK Intellectual Property Office.

Both unregistered and registered design rights are owned by the designer (ie. the creator) of the design, except that any designs created by an employee in the course of his or her employment, will be owned by the employer.

Our IP lawyers are experienced in helping to identify, protect and exploit design rights. Contact our team of design rights solicitors now to see how we can help.

What is a patent?

A patent can protect new inventions, such as a new product, method or process, or a new use for a product. To be patentable the product must have a real-world use; be new; and be inventive over what was already known in the relevant field of technology at the time that the patent is filed.

Patents are typically used to protect products or processes which include new technical or functional aspects. If a new product or process yields advantages over known products and processes, then there is a reasonable likelihood that it is patentable, provided that it has not already been publicly disclosed. It is, therefore, crucial to ensure that anyone to whom the invention is disclosed (before the patent application is filed) has signed a non-disclosure agreement beforehand.

What rights does a patent give you?

A patent can be a very valuable business asset. Once granted, it provides a monopoly, enabling the owner to prevent others from using the invention (in the country where the patent is registered) for a period of up to 20 years, provided the relevant renewal fees are paid. If the invention is a product, it will be an act of infringement to import that product, to make it, to sell it or offer to sell it or to keep it for the purpose of selling it. If the invention is a process, using that process or selling a product made using that process will infringe the patent.

As a result of the wide protection given to patentees, the requirements for registration are very strictly observed, and the process for registration is long. However, once granted, patents can protect first-mover advantage in a market and are one of very few ways to lawfully prevent competition. As such they are powerful and valuable rights.

The right to file a patent vests in the inventor, unless the inventor has the legal status of an employee whose role includes creating inventions (in which case this right is owned by the employer and not the employee).

The inventor (who is usually the owner of the invention) is generally the person entitled to apply for a patent. However, in certain narrow circumstances, the invention will belong to an employee including if it was made in the course of his/her normal duties.

Our patent lawyers can advise on patents generally, including preparing patent assignments and patent licences to help you commercialise your patent, and help you enforce your rights if your patent has been copied or used without your permission. Equally, our patent solicitors can defend you if you are accused of patent infringement by someone else.