Copyright is a form of legal protection that provides the creator of an original work with exclusive rights of ownership. The protection arises automatically as soon as the work is given physical form and it is not relevant whether the work is published, unpublished or registered with the Intellectual Property Office. It also covers any medium. Therefore, if you record an audiobook version of a book by your favourite author or upload your friend’s photos online, you will be breaching their copyrights unless you have got their permission.


Providing the work is original, the following types of work can be protected by copyright:

  • Dramatic and musical works such as dance or music to songs.
  • Literary works such as novels, song lyrics, newspaper articles. Instruction manuals, particular types of electronic and paper databases and even the layout of the text and typography used in these works.
  • Artistic works such as paintings, sculptures, maps or technical drawings.
  • Broadcasts, films and videos.
  • Web pages and other material available on the Internet including website designs, artwork, logos and graphics.


  • Names, titles, slogans or phrases cannot be protected by copyright but may still be eligible to be registered as trademarks or protected under the common law of passing off;
  • Products or industrial processes also cannot be protected by copyright law but may qualify for patent protection;
  • Ideas are not protected by copyright law as work has to take physical form before protection becomes available (i.e. an idea for the good book cannot be copyrighted, but once the book has been written it will automatically qualify for protection). Therefore, any work that expresses the idea will be protected, unlike the idea.


  • The Copyright, Designs and Patents Act 1988 does not provide the precise definition of the term ‘originality’ which is a matter for the courts to decide given particular circumstances. It is usual for the courts to determine whether or not a particular work is original by referring to the amount of skill, labour and judgment that had gone into that particular piece of work.


In the vast majority of cases, copyright is attributed to the author, creator or collective who created/authored the work in question. Nonetheless, if the work is produced in the course of employment, then the first owner of copyright will most likely be the employer of the individual who created the work, this does not apply to contractors who preserve the copyright over any work provided unless other contractual arrangements between the parties exist.


As an owner benefiting from copyrights you will be able to freely:

  • Reproduce the original work;
  • Prepare any derivative works
  • Broadcast, perform and display the work in public; and
  • Distribute copies whether for free or profit;
  • Grant exclusive and non-exclusive licences for the use of your job;
  • Sue anybody who infringes your copyrights.


Although, generally copyright law is quite strict, the concept of fair use sets out certain actions that will not result in an infringement of the original work. These include:

  • Use of the work for private and research purposes (i.e. use of quotations or excerpts providing that the quoted material is properly referenced and not excessively used).
  • The inclusion of the copyrighted material by the incident (i.e. when you take a holiday photo with a movie billboard somewhere in the background).
  • News reporting and criticism.
  • Recording broadcasts for viewing later at a more convenient time.
  • Playing sound recordings for a non-profit making organisation.


The period of copyright protection depends on the type of copyright work. Literary, dramatic, artistic and musical works attract copyright protection for 70 years after the death of the creator. Similarly, films remain copyrighted for 70 years after the death of the last to die of the first director, screenplay author, and author of the dialogues or composer of the music. Broadcasts and sound recordings are protected for 50 years.


No one has yet been found liable in civil terms or guilty in criminal terms, but the inevitable pleas of ignorance and finger pointing have started already. Aside from the considerable distaste caused by the hacking, it is a reminder of the darker side of human nature and survival instinct are also quite depressing.

In some cases, whilst no judgments can be made at this stage, it would seem surprising if the individuals did not know more than they acknowledge and excuses based on ignorance or stupidity would seem somewhat facile.

As an example of who may be in the firing line, along with numerous others, may well be Daniel Cloke, Head of News International HR and a director.  Due to his senior and integral role in the events surrounding the 2007 internal investigation into the affair, it is difficult to see what excuse he can make for examining 2,500 internal e-mails and finding no “smoking gun”. Mr Cloke may well argue that if the company’s city lawyers, who also saw these documents, didn’t find anything wrong, he was entitled to take their advice and come to the same conclusion and so the game of pass the parcel may continue. It will be interesting to see if such an argument will hold any water if any civil or criminal proceedings are brought against Mr Cloke in the future.

Large parts of commercial businesses in modern economies are technology driven.

The constant number of acquisitions, joint ventures and takeovers in the information technology sector makes the intellectual property an increasingly important topic. Entities participating in the transactions as mentioned above need to protect themselves adequately against being misled or overestimating the value of the transaction. For this reason, they will inevitably need to conduct intellectual property due diligence.

Properly carried out intellectual property due to diligence can be beneficial both to the buyer and the seller. For the purchaser, the results of the proper analysis can be crucial in determining whether or not the transaction is economically viable and in line with the business’ policies and expansion strategies. On the other hand, the seller has an opportunity to compare his or her estimates of the business’ worth with those conducted by the buyer.

Caveat Emptor

Since the doctrine of ‘caveat emptor’ applies to most acquisition transactions it is for the benefit of both parties to properly carry out due diligence. Under the doctrine, the buyer is not able to recover any losses suffered as a result of defects that the seller had not intentionally kept hidden from the purchaser. Therefore, the buyer has to ensure that all facts about the intellectual property are scrutinised. On the other hand, the seller so long as he or she fully cooperates with the buyer and facilitates the buyer’s due diligence does not have to worry about being sued for any post-completion defects.

What to check?

Below you will find a list of essential tips for conducting efficient intellectual property due diligence process. The list is by no means exhaustive, and you should always seek professional advice from legal specialists and accountants before acquiring any business, engaging in joint venture or just entering into an agreement.

Firstly, it is surprisingly common for the buyer to fail to scrutinise basic facts about the intellectual property assets subject to the transaction. Right at the start the buyer should verify the following:

  • Who is the actual owner of the goods in question?
  • Is the asset at issue adequately protected (i.e. not expired)?
  • Is the agreement in question for exclusive or non-exclusive rights?

Secondly, especially when undertaking a full audit during a merger, acquisition, takeover or licensing arrangement where copyright, trademark or patent rights are involved; it is important to at least follow the below checklist:

  • Employ an experienced IP professional who will evaluate the actual value of the IP rights in question. If the estimation does not reflect your expectations discuss it.
  • Fully understand what assets and rights are subject to the transaction.
  • Verify all documentation provided by the seller with particular emphasis on registration documents. Commission an independent professional specialist to verify and confirm the history of the IP rights in question. Ensure that all registration fees have always been paid on time and that at no point has the IP been examined by a third party. It is also important to check for any potential pending disputes and litigation.
  • Request formal disclosure of ownership details for all IP owned by the seller. Check if the seller does not himself or herself own any conflicting intellectual property rights that would put limitations on the acquired IP.
  • Conduct relevant searches to ensure that the IP is not subject to any finance debt arrangements (i.e. subject to the mortgage).
  • For patent rights, it is important to ask for any related patent rights, especially any future improvements to the existing pattern that might have been discovered and subject to patent protection as well.
  • Request details regarding third party interests in the IP in question.

In recent years both the US and the UK, authorities have published troubling data about lack of intellectual property awareness among small business owners. The UK Office of Science and Innovation stated that although corporate institutions were extremely protective and aware of their intellectual property rights, small businesses were lacking in that respect.

The Intellectual Property Office has even launched a brand new scheme – an IP Health Checks pilot scheme to help small enterprises to identify and protect their intellectual property. With the recent changes in the UK making intellectual property lawsuits more accessible to small businesses it is crucial to raise awareness. Below you will find the summary of the recent changes brought into UK IP law and a list of useful tips that can potentially help you identify and protect your IP in a more efficient way. Another useful tool can be found here.

The IP Law Changes

The Government has introduced the Patents County Court (Financial Limit) Order 2011. The Order will make it more affordable and easier for small and medium enterprises to bring lawsuits for intellectual property infringements. The Order implements a new limit of £500,000.00 for damages in the Patents County Court; this means that cases will be likely to be resolved without the need for costly litigation in the High Court. In the past, cases below the £500,000.00 threshold were not automatically allocated to the Patents County Court and exposed businesses to virtually total costs – this put off many small businesses from even considering bringing a claim.

Any IP to protect?

Many small business owners fail to recognise the uniqueness of their products or industrial processes. Intellectual property refers to some different categories of original creations. The protected classes of inventions include both tangible and abstract works and in commercial context mainly include industrial patents, creations and trademarks.


How well-developed is your brand? Do your customers recognise your logo or name and buy your products because they clearly know that they come from your company?
Is your company involved in any of the following:
Publishing and printing including books, newspapers, brochures or packaging.
Information technology including software or online solutions.
Music industry including composing or recording music.
Entertainment including movies and other audiovisual materials.
Industrial innovations and design.
Is any of your goods or services that you manufacture or plan to provide unique to your company?
Have the above been developed by somebody employed or contracted by your business; or have you licensed them from a third-party on either exclusive or non-exclusive basis?
Companies that provide unique and original products or solutions are likely in the possession of the valuable intellectual property. Even if you have not developed the IP in-house, but contracted your work out to somebody else the IP is still likely to belong to you so long as you have paid for it. If you have obtained a licence to use the IP you are entitled to benefit from it and likely to be responsible for co-operating fully with the owner to ensure that nobody infringes the IP.

Have you done your research by conducting trademark/copyright searches with the Intellectual Property Office? – If not you can search the register for free at the UK IPO’s website.
Do you use contractual arrangements to protect your IP from being disclosed? – You should always ensure that not only your employees are under non-disclosure obligations but foremost anybody who is externally contracted to test the IP.
Do your employees keep logs of any inventions made and are they properly trained and instructed on how to identify original creations?
Have you every registered any intellectual property rights with the UK Intellectual Property Office?
Did you know that you can quickly register your trademark in the European Community at the same time as recording your IP with the UK IPO?

Intellectual property rights are of fundamental importance to national and global economic growth. Illicit trade resulting from the trademark and copyright infringements contributes directly to massive losses in revenue and undermines modern globalised economies.

Particularly, patent violations in the pharmaceutical industry are not only impacting on companies’ ability to grow but also pose a significant health and safety risk to consumers. Both the EU and the US have been developing anti-infringement laws tackling the issues mentioned above. The US International Trade Commission has expressed its concern over the lack of an appropriate legal framework for the protection of intellectual property in China.

The United States

In the US alone nearly 28% of the overall US workforce is directly reliant on intellectual property. The biggest American movie studios, pharmaceutical concerns, car manufacturers and other companies base their business models around copyrights, trademarks and patents. Based on the above information it is estimated that IP-reliant businesses are worth as much as $5 trillion, what amounts to 35% of the entire US gross domestic product. IP has been identified as essential to as many as 75 different industries that directly and indirectly provide employment to 40 million American workers. Furthermore, the above mentioned IP-reliant industries generate 61% of all exports and on average fund 42% higher wages than in other sectors.

The European Union

In the EU, only between 2009 and 2010 in Germany and the UK value of detained intellectual property infringing goods amounted to €1 billion. It is estimated that over 84% of all counterfeit goods originate from China. On the other hand, nearly 93% of all fake drugs and medical products are made in India. The value of intellectual property infringement in the medical goods sector in the EU is estimated to amount to as much as €3.2 million. The margin of customs officers’ error is minimal with only 2.5% of all goods detained being subsequently classified as legitimate.

Digital Piracy

Although, much of intellectual property infringement in physical goods originates from China, digital piracy is common in most Western economies. IFPI/Nielsen estimate that nearly 1 in 4 Internet users globally accesses illegal content every month. Large saturation of infringers can be found in Spain and Brazil where the rate is at over 40%. In 50% of cases the content is accessed through Peer to Peer networks; however some channels such as blogs, private forums, streaming website and smartphone applications are of a rapidly growing concern. In 2008, the creative industries generated €860 billion and provided employment to 6.5% of the total EU’s workforce. The UK and Germany are clear leaders regarding both the revenues generated by and people employed in the creative industries. Both of these markets along with the French have already suffered job losses of approximately 40,000.00 persons. Current estimations in the EU predict that by the year 2015 the losses in creative industries such as music can rise to €240 million and result in 1.2 million permanent redundancies.

Piracy poses an enormous threat to global economies. Virtually all industries in modern Western economies are directly or indirectly dependent on intellectual property rights. Both the US and the EU need to improve their current regimes and, in particular, their ability to tackle piracy originating from abroad. In the digital context, it is crucial to cooperate more effectively with the Chinese authorities to ensure that websites and servers offering free access to digitally pirated content are efficiently removed. Although, current anti-piracy measures in force are effective against infringements relating to physical goods, the Internet is also main distribution channels for most physical counterfeits, and that should be more accurately addressed by the relevant regulations that were not originally designed with the Internet in mind.

What are subject access requests?

The Data Protection Act gives individuals the right to know what ‘personal information’ an institution is holding and processing about them. So long as no exemption applies, individuals can request and receive a copy of that information.

To access the information and obtain a copy of it, individuals need to make a data subject access request. The application cannot be made over a telephone but must be evidenced in writing (including e-mails and faxes). Dependent on the circumstances and individual requests may vary from very broad in nature (i.e. all information that you hold about me) or very specific (i.e. copy of medical records between 24/04/2010 and 24/05/2011).

What information is classed as sensitive?

Personal data automatically is classed as sensitive if it is about an identifiable, living individual and includes any of the following:

Racial or ethnic origin.
Political opinions.
Religious beliefs.
Trade union membership.
Physical of mental health.
Sexual life.
Commission of offences or alleged offences.
What information can be requested?

Under the Data Protection Act, individuals have the right to be informed of the following:

Whether the data subject to processing is being personal and if so:
A full description of that particular data.
The purposes for which the data is being processed;
To whom the information is being disclosed or will potentially be revealed.
Individuals may also request a copy of the data and information about how decisions about their data are being made.

Format of the Subject Access Request

Under the Act, any request for personal data is classed as a subject access request. Data controllers are entitled to ask data subjects for a fee of £10 to cover the costs of processing the request. The £10 charge does not apply to medical records.

The data controller has 40 calendar days to reply. Before responding, the data controller may also ask the following:

The data controller can ask for the subject access request to be submitted in writing; this is to prevent potential fraudulent access request. A form submitted in writing will help the data controller to satisfy its obligations under the Data Protection Act 1998.
The data controller is also entitled to request the data subject to provide more accurate information about the person concerned to the subject access request, this will enable the data controller to locate the information more quickly. Although, individuals are perfectly entitled to seek all information held about them it is useful when individuals cooperate with data controllers and submit relatively narrow and specific requests.
Once the above have been satisfied, the 40 days response period starts to run. It is prudent to ensure that proper procedures are in place to correctly date the files and keep all correspondence in chronological order, not to miss any deadlines.

Third Parties

When processing data subject requests it is important to give consideration to the following:

Does the data subject request directly or indirectly require disclosure of information about another third party individual?

The Act applies to information about third parties that inevitably forms a part of the initial subject access request. To the maximum possible extent you should always try to fulfil your obligations about data, subject claims without identifying third party individuals.

If it is not feasible to adequately provide the information without disclosing data about a third party, you should refer to section 7(4) of the Act for a list of full considerations that should be taken into account.

Have you obtained third party consent?

The best way of dealing with your obligations under the Act is to get third party’s consent, this is not a requirement and whether or not it is reasonable to ask for approval will depend on particular circumstances.

Section 7(6) of the Act provides further guidance about the factors that should be taken into account when deciding whether or not it would be ‘reasonable in all the circumstances’ to make a disclosure without consent.

Intellectual property enables people to ‘own’ the idea they create, this applies to any creation, whether you are an entrepreneur, an inventor or an artist.

If you have a new idea, the first step is to check whether your creation is already in existence, or whether there is the existing technology that can help with the development of your idea and can be done by using a patents database to check whether this is the case.

The Development Stage

Once you are in the development stage of your creation, you could draw on other people’s expertise that could include using other people’s technology in the development of your idea requiring licensing. The license would grant you the owner’s permission to use the technology, and will also state the conditions upon which you can use this technology. It may be possible to get a license to use works that are protected by copyright, registered trademarks, registered design or inventions that have been protected by patents.

If you discuss your idea/creation with other people, it is advisable to ensure they sign a Non-disclosure agreement before you begin your discussions preventing them from discussing your idea with other.

Pre-Market Entry Stage

One option to protect your technology/creation from the competition is to file for a patent protecting the processes and features of your invention, preventing others from selling or copying your design unless they have permission. A license will also allow you to licence the invention while still retaining the intellectual property rights. If you do not patent your product, anyone else will be able to sell or construct your creation themselves.

If you believe your invention is patentable, then you will need to apply for a patent. It is possible to apply online with the Intellectual Property Office. If you choose to apply by post, a completed application will include an abstract summarising the features of your creation, a completed Form 1 and a description of your invention, which includes any sketches/drawings.

If your production is creative and unique, you may consider design registration. This protection lasts for 25 years, as long as you renew your protection every five years this will give you monopoly protection over your creation, protecting the appearance of the design. It costs £60 to apply for design registration. One advantage of having design registration is that it is relatively easy to enforce, as there is no need to prove your design was copied intentionally.

You should be aware of the fact that artistic and original works are cover by copyright automatically.

Market Entry Stage

If you cannot manufacture your product/creation yourself, and, therefore, need to outsource this, you can protect your creation by ensuring the manufacturers sign a non-disclosure agreement.

Additionally, if you have a patented product, you will be able to licence out this technology to other companies, which could bring technological and financial benefits.

If You Are Starting a Business

It is not enough to register your business’s name with Companies House, as this will not protect it from being used by others. To ensure you have full protection if your idea against the use of your company’s name, it is advisable to register it as a trademark. A brand needs to be renewed every ten years to remain active. Registering for a trademark can be done quickly online.

If your business has a website, it is important to be aware of the fact that if you sub-contract the task of designing your website to someone else, they will keep the copyright of that work. If it is part of your contract with them for them to assign that copyright to you, then they will no longer own the copyright. If you have any original information on your website, it is worth adding the date and owners name along with the copyright symbol (©) at the bottom of the page.

Digital marketers are not impressed with the EU’s new ‘cookie law’ and the vast majority don’t see any positive aspects to this e-privacy directive that is set to come into play on 26th May 2012.

A recent survey carried out by Econsultancy asked over 700 digital marketers for their opinions on the new cookie law and, it has to be said, the response was not particularly favourable.

The aim of the directive is to cut out unregulated applications of behaviour tracking technology and increase regulation on particular aspects of privacy and e-communications. The law will require website owners to ask the site user’s permission before they drop or read cookies on their browsers.

So what are cookies? Cookies are small chunks of data which are stored, by a website, in a browser and then returned to that same site via the browser. Cookies were designed with the intention of enabling websites to remember certain actions performed by a browser on that site and, depending on the cookies used, can remember that information for the duration of the session, a week, a month or even several years.

There are a variety of cookies being used, including the secure, the Http Only, the session, the persistent and the third-party cookie and, whilst not all of them are bad, they can be used, in the wrong hands, to collate extensive records of a user’s browsing histories and even for hacking into user’s accounts and it is this privacy issue that is the cause for concern.

However, cookies play a huge part in the world of digital marketing; one example of a cookie would be the use of an online shopping cart or basket where the cookie enables the shopper to store the items they wish to buy while they continue to browse the site.

Another example would be when you go to log into a secure online account, you tap in your email address, and your password is remembered. It is perhaps here that we can see the potential for hackers who will only require an email address to gain access to an account.

The Information Commissioner’s Office (ICO) has published some guidance for website owners within the directive on what steps should be taken towards compliance with the new law and this includes:

Carrying out an audit of all cookie usage on their sites
Assessing the intrusiveness of each cookie used
And, depending on how intrusive the cookies are, choosing an appropriate consent mechanism
In the directive, the ICO give some examples of invasive cookie use and provide some options for consent mechanisms but even they admit they aren’t really sure what compliance with the new law is likely to look like in the light of day.

While some website owners have begun, with much reluctance, to put plans in place in an attempt to comply with this somewhat confusing new law only 18% of the 700 digital marketers who took part in the survey believe that the directive is a positive step for the internet.

67% of the participants admitted that they were aware of the date when the new directive will come into play, and 57% said they had read the instructions. However, 46% have yet to carry out a cookie audit on their websites, and many don’t intend to at all.

One marketer who took part in the survey stated that his entire business model relied on tracking transactions on his company’s websites; he claimed that his business wouldn’t exist without the use of cookies, and he fears that if he follows the directive his business will only disappear.

Other businesses intend to wait and watch to see what happens to other companies before following suit and complying. There is the risk of being prosecuted by non-compliance but many companies are of the opinion that ‘you are damned if you do and you’re damned if you don’t’.

A new fear for website owners is that at present their users probably know tor don’t care about cookies but, with the new ‘cookie law’ making headlines and issues of privacy and tracking being rammed down their throats, they may start running scared. Where does that leave the majority of online businesses?


A somewhat stringent set of rules regarding advertising, due to be put in place for the 2012 Olympic Games, are expected to have an affect on not only the athletes Taking part but also on ticket holders and many UK businesses too.

The aim of these rules is to protect the Games’ sponsors who have, essentially, paid for the event, but many are worried that the severity of the restrictions could have a negative impact on London’s economy.

Despite the UK already having a set of legal protections in place for copyright holders and brands the International Olympic Committee (IOC) have demanded their own set of rules which has led to participating governments having to introduce tailor made legislation as an added blanket of legal protection.

Specific legislation in place

The Olympic Games and Paralympic Games Act was passed in 2006 and this Act, alongside the Olympic Symbol Act 1995, gives the Games and sponsors a level of protection which goes above and beyond all the contract and copyright laws already in existence, with any breach of these Acts treated as a criminal offence.

This added legislative protection means that anyone who isn’t a sponsor will not have the right to use images or wording which could lead to the false interpretation that their company is, in some way, linked to the Olympic Games.

This includes the use of any of the two words from the list below used in conjunction with each other:

‘Games’, ‘Twenty-Twelve’, ‘2012’ and ‘Two Thousand and Twelve’.

Even just the use of one of these words in conjunction with words such as ‘Summer’, ‘Gold’, ‘Silver’, ‘Bronze’, ‘London’, ‘Sponsors’ or ‘Medals’ may well be considered a breach of the Acts.

It seems that many non-sponsor businesses will be walking on eggshells this July.

Are things not being taken a little too far? For example – last year the organisers of an event entitled the ‘Great exhibition 2012’ were threatened with legal action by Locog (London Organising Committee of the Olympic and Paralympic Games) because the numbers ‘2012’ were used in the title.

A little petty don’t you think? And perhaps Locog thought so too because they later withdrew their objection but it didn’t stop them from interrupting a recent photo shoot with Sally Gunnell.

The photo shoot was intended to promote easyjet’s new flight routes from London’s Southend Airport. So why was it interrupted I hear you ask, simply because a Union Jack flag was draped over Sally’s shoulders and Locog thought this bore too closer resemblance to a similar pose of Sally’s in 1992 when she won Olympic Gold in Barcelona.

That was 20 years ago, is anyone really going to remember Sally’s exact stance?

Whilst Locog are just trying to protect their sponsors they are putting non-sponsoring businesses in an awful predicament with many of those businesses being forced to seek legal advice to find out how they can stay on the right side of the ‘Olympic Law’.

What should have been an economic boost is now actually causing many small business owners to quake in their boots. These small businesses can’t afford to buy rights to specific advertising or create their own flashy advertising campaigns to promote their businesses and are having to watch their every step in case they inadvertently advertise too close to the mark and end up being prosecuted.

Is this really the way Locog should be behaving?

In a couple of months it will all be over but what’s the betting that, if Locog get their way, it will be many years before some business owners are back on their feet after being sued to the hilt for using a picture of a medal and the date ‘2012’ in their shop window.

Let’s take a look at some of Locog’s stringent regulations.

Rules for athletes participating in the Olympic Games:

Athletes cannot make any comments on social networking sites regarding other participant’s activities
Athletes cannot post any video or audio content on social networking sites or YouTube of either the athletes’ village or the interior of any Olympic venue
Athletes will not be allowed to ‘Tweet’ or blog about what brand of energy bar or breakfast cereal they have been eating unless that brand is an official sponsor of the Games
Rules for non-sponsor businesses

Non-sponsor businesses are not allowed to offer tickets to the Games as part of a company promotion
They cannot use images which could make the public think they are in some way linked or in association with the Olympics
Nor can they use phrases such as “Help us to make it a Gold 2012” or “Supporting our athletes at the Olympic Games 2012”