How to protect your intellectual property and copyright
- 20 Aug 2021
- Markel Direct
When you’re a self-employed freelancer or contractor, it’s important to understand what intellectual property is and how you can protect yours.
By protecting your intellectual property properly, it’ll be easier for you to take legal action if a situation arises where someone exploits yours – for example if someone copies your logo or an original piece of writing you’ve created.
What is intellectual property?
Intellectual property is intangible personal property that you create using your mind. This is usually a collection of ideas and information in a broadly commercial context that the law recognises as having a value, such as a story or an artistic design.
Intellectual property covers:
- Passing off
- Trade marks
Why do you need intellectual property protection when self-employed?
Intellectual property protection stops others from exploiting or infringing your intellectual property rights, for example if someone copies your work. In addition to allowing you to seek a court order stopping the infringement, the law also allows you to obtain monetary damages.
When you’re self-employed, unless you’ve agreed in your contract (generally in writing) to give your client the rights, you’ll own the intellectual property of the work you produce for clients and therefore it’s up to you to make sure it’s protected.
In contrast, if you’re an employee of a company, it’s likely that your employer will own the intellectual property of the work you created for the company while in that job.
Some types of intellectual property protection apply automatically, like copyright while for others, like trade marks, you need to apply for protection.
How can I obtain copyright protection for my work?
Copyright protection is automatic and free. Copyright will protect your work and prevents others from using it or copying it without your consent.
Copyright applies automatically to the creation of:
- Original literary, dramatic, musical and artistic work, including illustration and photography
- Original non-literary written work, such as software, web content and databases
- Sound and music recordings
- Film and television recordings
- The layout of published editions of written, dramatic and musical works (1).
A unique business logo for example will be protected by copyright, as it is considered original artistic work. Copyright protects the expression of an idea, rather than the idea itself.
The length for which copyright applies depends on the type of work. For example, published editions of written, dramatics and musical works are copyright protected for 25 years. For written, dramatic, musical and artistic work, copyright lasts 70 years after the author’s death.
To gain this protection, you will need to prove your right. This could be done in m any ways, for example by having signed and dated copies of your design drawings approved and held by a solicitor.
How can I protect my designs?
If you’re a designer, certain types of designs are automatically protected without needing to register anything, under the ‘design right’ protection. The design must have an original shape or configuration, and so 2-dimensional shapes such as textiles, graphics or wallpaper are, therefore, excluded. The design must not be common place (designs that are well known, mundane or routine are excluded). These unregistered designs last for 10 years from the date of first marketing the article in the UK, or 15 years from creation of the design – whichever is earliest.
This will prevent others from being able to use your designs without your permission.
To gain this protection, you will need to prove your right. Again, this could be, for example, by having signed and dated copies of your design drawings approved and held by a solicitor.
Alternatively, you may wish to apply for a registered design, which is discussed in more detail later on in this article.
What is ‘Passing Off’?
Passing off protects the reputation and goodwill of a business, preventing people from selling goods under the false pretence that they’re the goods of another. Passing off protects the trader against the unfair competition of their rivals and also protects consumers who could be confused as to the origins of goods and services that they are offered.
To bring a successful passing off action you must show three things:
1. That goodwill or reputation is attached to your goods or services.
2. A misrepresentation is made to the public by the defendant.
3. You have suffered damage.
It is only the trader who can take passing off action if there is wrongdoing and action can only be taken against a defendant who is also engaged in trading.
As with copyright and design rights, you do not need to formally register anything to make a claim that someone is passing off their goods or services as yours.
Passing off can be seen as a form of protection for business brand names and logos in situations where they don’t have a registered trade mark.
Which intellectual property protection requires registration?
Trade marks, registered designs and patents all require you to apply and pay for protection.
A trade mark is a mark, brand or sign used by traders to differentiate their goods from those of other traders like a logo or name which many self-employed individuals have to establish their brand.
Other examples of trade marks include:
- Domain names
- Sounds like jingles
- Shape of goods
- Other distinguishable features
For a trade mark to be protected, it must be registered, otherwise you’ll need to rely on the law of copyright and/or passing off.
What’s the difference between copyright protection and trade mark protection?
Copyright usually protects the original artist of work whereas trade mark registration generally protects the brand or organisation who registered it.
While copyright infringement is more concerned with the unauthorised use of someone else’s work, which could be a piece of writing, a drawing, a design, a photograph etc, trade mark infringement is concerned with misuse of specific registered trade marks, such as brand names and logos, and which causes damage to a brand, takes advantage of its reputation or causes confusion to consumers (3).
I think someone has breached my copyright, what should I do?
If you believe someone has breached your copyright or infringed your intellectual property, it is your responsibility to take action.
In the first instance, it’s best to seek legal advice from an intellectual property professional, such as a solicitor. They’ll be able to advise you on the best course of action. At Markel Direct, we provide our customers with free access to a 24-hour legal advice helpline – giving them immediate access to an experienced team of qualified solicitors at no additional cost.
Knowing who to turn to for expert legal advice can be difficult when you’re working for yourself. The team at Markel Law are on hand day and night to help with any business-related legal queries.
You can find out more about this legal support service here on the Markel Direct website.
If you’ve designed something, you might wish to have the look of your design registered to prevent others from stealing or copying it.
This can include the appearance, physical shape, configuration or decoration of your design.
Registering you design gives you the right to stop others from using your design for up to 25 years although you will need to renew your design registration every 5 years.
As mentioned above, certain designs are automatically protected however getting them registered makes taking legal action against infringement and copying easier as well as protecting your design for longer.
A patent protects something you have invented.
If someone makes, uses, sells or imports your invention without your approval, a patent means you’re able to take legal action against them.
In order to get a patent for your invention, it needs to be all of the following:
- something that can be made or used
- inventive - not just a simple modification to something that already exists.
Patents cannot be gained for things like literary or artistic works and are often difficult to obtain as well as being costly to apply for.
How can I register a trade mark, design or patent?
To get a registered trade mark, design or patent, you need to apply for registration through the Intellectual Property Office (IPO), which you will need to pay for.
Though it comes at a cost, having this protection in place can be invaluable for some self-employed professionals.
Markel Direct clients also have access to the Markel Law Hub. There you’ll find more guidance on how to register your intellectual property in the UK and beyond, plus more guidance generally on the areas discussed in this article.
The Markel Law Hub is an online resource of over 1,300 legal and business guides, templates and content written and created by a team of expert solicitors and other experts.
Through the Law Hub, you can instantly download ready-made contracts, policies, procedures and guidance you can use to run your business with confidence - without paying expensive legal fees.
If you buy your business insurance with Markel Direct, you can access the Markel Law Hub for free.
Can you use more than one type of intellectual property protection on the same piece of work?
The different types of intellectual property protection discussed in this article do overlap. GOV.UK use a good example of their website of how the different types of protection can work together to protect a single product:
- Register the name and logo as a trade mark
- Protect a product’s unique shape as a registered design
- Patent a completely new working part
- Use copyright to protect drawings of the product” (4).
What if I accidentally breach copyright law?
Unintentional breach of copyright is increasingly common and is often an easy error to make.
For example, if you use an image on your website or on your social media channels, with no credits, that despite being from a stock image library had some small print terms and conditions stating that you have to provide photo credit details with the image or that it cannot be used for advertising, you could be faced with a breach of copyright claim.
If the copyright owner’s claim is successful, you could be left paying pricey compensation and legal costs. Holding professional indemnity insurance in these situations might prevent you from having to pay these costs out of your own pocket.
Professional indemnity insurance from Markel Direct can cover the costs of unintentional infringement of intellectual property rights. As an IPSE member, you can get 10% discount off Markel Direct business insurance. To find out more, click here.
- Markel Law Hub
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