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Copyright infringement & licensing design rights


 

Breach of copyright claims: UK copyright law: copyright infringement proceedings: designs registration & infringement: UK intellectual property:


Our copyright infringement & licensing specialist solicitors here handle intellectual property licensing, transfer and litigation. UK copyright law is a key practice area for us. Copyright, registered design & unregistered design right infringement proceedings in the London courts, where infringement claims are best made, need intellectual property law specialists for effective litigation.

These rights relate to form and appearance rather than to technical principles of construction or "ideas". Solicitors here handle applications for registered designs and advise on unregistrable rights which arise automatically in the UK & the EU.

What does copyright cover?

If your business produces any of the following, they will automatically be protected by copyright once they are 'fixed' in some way, e.g. written or recorded:

 

  • literary works, including books, webpages, computer programs and instruction manuals
  • dramatic and musical works, including the music to songs
  • artistic works, including technical drawings, photographs, diagrams and maps
  • films, videos and broadcasts, including those on cable and satellite
  • sound recordings
  • databases, whether paper or electronic
  • typographical arrangement or layout of publications

Copyright covers every medium in which a work exists, including the internet.


Copyright does not protect:

 

  • names, titles, slogans or phrases - though you might be able to register these as a trade mark
  • products or industrial processes - though these may have design right or be eligible for patent protection
  • ideas

Copyright law

 

The Copyright, Designs and Patents Act 1998

Copyright is the exclusive right of owners to control the copying and exploitation of their works by others.  Copyright law in the UK is governed by the Copyright, Designs and Patents Act 1988 (CDPA).  The CDPA has been amended/supplemented several times to take account of EC Harmonisation Directives on:

 

  • Computer programs.
  • Copyright duration.
  • Rental rights.
  • Databases.
  • Copyright and related rights in the information society.
  • Artists' resale right.

Further changes are expected as a result of the Gowers Review of Intellectual Property 2006 and recent advances in digitisation and the Internet, for example, a limited private exception for format shifting.  In addition, the European Commission has proposed an extension in the copyright term for sound recordings and performers from 50 to 95 years, with the introduction of a new claim for session musicians of 20% of record labels' offline and sales revenue.

 

Works not idea

Copyright protects the form in which are expressed not the ideas themselves - Baigent v. Random House (The Da Vinci Code), Nova Productions v. Mazooma Games (2007).  Section 1 of the CDPA therefore declares that copyright subsists in the following types of works:

 

  • Original literary, dramatic, and musical works.
  • Artistic works.
  • Sound recordings, films and broadcasts.
  • Typographical arrangements of published editions.

Certain things may be too insubstantial or intransient to constitute works. Copyright could not be claimed in the word EXXON despite the substantial resources invested in inventing it  Exxon (1982). Live performances are protected by rights in performances and not by copyright.


Infringement of UK copyright

Copyright is infringed by:

 

  • 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.

Civil and criminal liability may be imposed on those who knowingly deal with infringing copies of a copyright work in the course of trade.

 

For a defendant's work to be infringing  Designers Guild v. Williams (2001):

 

(a)  it must be derived from the claimant's work.  Provided the claimant establishes sufficient similarity in the features allegedly copied by the defendant from the claimant's work and that the defendant had access to the claimant's work, the burden shifts to the defendant to show that the similarities are not the result of copying;

 

(b) the defendant must take the whole or a substantial part of the claimant's work. Substantiality is measured in terms of quality not quantity.  It is a matter of impression and depends on the importance of what is taken to the claimant's and not to the defendant's work.      

 

An action for infringement of copyright can be brought by the copyright owner or an exclusive licensee.  Remedies include interim and final injunctions, damages or an account of profits and delivery up and destruction of infringing items.  Additional damages may be awarded in cases of flagrant infringement.


Intellectual property at a glance
  • Patents, trademarks, copyright, designs and trade secrets in their national, EU and international contexts.
  • Trademarks principally indicate the origin of goods or services. They can be protected in the UK through either passing off or registration. The choices for registration are a UK or a Community trade mark or international registration.
  • A registered trademark may afford protection against use of the same or a similar sign for the same, similar or dissimilar goods or services.
  • Patents confer monopoly rights in inventions. The invention must be new, inventive, capable of industrial application and not excluded.
  • Patents must be licensed in accordance with the Block Exemption on Technology Transfer Agreements. They may be subject to compulsory licences and Crown use.
  • Copyright subsists in works not ideas. Related rights include moral rights and rights in performances.
  • Copyright is infringed by taking a substantial part of the claimant's work.  Additional damages are available for flagrant infringements.
  • Database right subsists in electronic and paper databases if a substantial investment is made in obtaining the contents.
  • Designs are protected in UK law by registered and unregistered design rights.  Community designs co-exist with UK designs laws.
  • Trade secrets may be protected by a civil law action for breach of confidence. The information must be confidential, imparted in circumstances importing a duty of confidence and the defendant must make unauthorised use of the information.
  • Intellectual property rights are generally litigated in the High Court. A general pre-action protocol sets out the steps that parties should follow when considering litigation.   
  • Expert evidence can be the key to success in intellectual property cases

What's worth copying is worth protecting

Tristan Morse (solicitor)
tristanmorse@humphreys.co.uk

We offer a fixed charge initial analysis of your case with options and recommendations


Combinations
Solicitors here can supply the energy and depth in intellectual property law which companies, businesspeople and correspondent firms need in a competitive world marketplace to manage their intellectual property rights successfully, including in relation to:
  • internet
  • joint ventures
  • know-how & show-how
  • licensing & franchising
  • litigation, arbitration, mediation
  • media & publishing
  • patents (licensing, transfer & litigation)
  • passing off
  • technology transfer
  • trademarks
  • unfair competition
  • business & company acquisitions & sales
  • computer software
  • confidential information
  • copyrights
  • database rights
  • defamation & malicious falsehood
  • designs (registered & unregistered)
  • employee obligations
  • EU treaty regulations
  • free trade
  • information technology
  • music business
 





Humphreys & Co., solicitors Bristol

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