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Copyright can prove to be a minefield

Glyn Mon Hughes looks at the complicated issue of intellectual property rights

NEW inventions always attract their fair share of green-eyed glances. How many people say "I could have done that", or "I wish I'd thought of that". And there will be a fair proportion saying, "I thought of that first". That's where disputes start. Who thought of what first? Who had the initial idea? Who owns that idea?

In a nation renowned for inventive prowess - Britain invented things which revolutionised life in the last century: television, telephone, computer, the jet engine - there's plenty of scope to claim one person got there first. Yet, in a striking survey from the Patent Office, more than 70% of British businesses risk losing intellectual property rights when signing deals with other businesses.

Ignorance or complacency means that 40% of businesses surveyed think they automatically own the copyright if they ask a sub-contractor to develop software for their business, while an additional 30% of businesses simply do not know who owns it.

Few seem to know ownership of the copyright actually rests with the sub-contractor unless the commissioning business clearly states in a written contract before work is carried out that ownership is theirs.

Intellectual property specialist Paul Tomlinson of Chester-based solicitors Aaron and Partners said: "Many businesses do not fulfil their potential by failing adequately to protect key assets. "The benefits of intellectual property protection are immeasurable and many companies can lose their rights without knowing it. "Protecting intellectual property and establishing agreements from the outset can effectively avoid potentially damaging situations."

Dafydd Davies, chief executive of Bangor-based BIC Innovation, said: "Companies, whether buyers or sellers, contract someone to do something and neither side is clear who owns what. "The classic case is with photographers. Most people think, once the job is done, they own the pictures, but they don't. Copyright rests with the photographer. If you wanted exclusivity, you'd have to negotiate that as part of the fee, and if you want to own the copyright then you'd negotiate to pay more.

"It is generally the same in areas that include graphics, marketing and so on."

Francis McEntegart, a lawyer at Liverpool firm Brabners Chaffe Street, has worked with many clients in the creative industries where protecting your copyright is often critical to success. He said: "If you take musicians, for example. They are often keen to wins contracts with record companies but the mistake they often make is they can sign away the copyright to their work.

"Once they have signed such an agreement then they have lost that copyright for years." He points out that once you have produced a piece of work then copyright is automatic - there is no need to register. However, he adds that if it is ever disputed then evidence would be required.

"Copyright protection is instantaneous but one way of providing evidence that the work is yours is to put it in an envelope, post it to yourself and then store it somewhere safe. "If what you have is simply just an idea then you don't automatically get copyright protection. In that case it is very important to ensure confidentiality when discussing it and to make sure that you don't tell the wrong person." Lack of understanding of IP and the potential ramifications of a major dispute need to be understood. "All businesses need to be aware how to handle intellectual property because they all own some and should value it," said Lawrence Smith-Higgins, head of marketing at the Patent Office. "When you sell a business or have it valued, it is often assets such as trade marks, copyright, patents and design registrations which command a great deal of the value. You cannot afford to let these assets slip through your fingers from lack of knowledge." Those trade marks are highly powerful tools. Sportswear designer Nike, for instance, makes nothing, but contracts its business to manufacturers all over the world. Yet it is instantly recognisable in shops, as the tick logo commands instant attention. ..TEXT: The same is true for the golden arches of McDonalds, the lime green of the bags of Marks & Spencer, and so on. Pass any one of those off as your own, and a writ will land on your desk.

Miles Rees of the patent office agrees that secrecy is a vital part of IP protection. "If you have an idea, you must keep it secret," he said. "If you are working with people on developing an idea, you must have confidentiality and non-disclosure agreements firmly in place. It's hard to do, but it must be enforced" In the UK, protection does not come about until a patent is applied for, while in the USA, the first person to invent a product is protected. That is something that is not always recognised by businesses. There is no initial filing fee for seeking a patent, though 70% of inventors go through a patent attorney. Since a patent lasts 20 years, it's vital to think of the benefits to the public as well as to the inventor, and investors. The wording of such a document is vital and can cost up to £5,000. "Once a patent is applied for, the clock is ticking," said Rees. "The application is examined thoroughly and all databases are searched on an international basis."

"I didn't know" is not a phrase businesses, therefore, can afford to use. IP is becoming ever more jealously guarded.

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