AmbITion North West Roadshow – Own It IP Workshop

This is a live blog of the AmbITion Roadshow North West event at the NOVAS Contemporary Urban Centre, Liverpool.  If you spot any errors or inaccuracies or would simply like to contribute to the conversation, leave us a comment!

Duncan Vaughan, Partner at Pannone LLP will be providing tips on the legal aspects of IP protection.

Lots to cover he adds:

Introduction to relevant IP rights
Domain Names

Can’t register a descriptive trademark.  Not allowed to have a trademark that describes too closely the thing being registered.

Registered trademarks – TM (often referred to as Totally Meaningless) meaning that you regard something as a trademark.

Used to protect a brand that hasn’t yet registered a trademark.  It means you intend to protect your trademark.

The process:

Think of your name.

Check to see if the trademark is available within the territories you intend to trade in.

One off payment provides trademark protection in all 27 companies in the EU.

Check that domain names are available and cover prefixes and suffices of what you want. eg., etc etc as well as

Much easier to decide the ones you want and protect all. More expensive to try and get stolen ones back.

Copyright protects literary works, musical works, digital works.  Anything created.

What makes copyright complicated is that you can accidentally create it.  As soon as you write something down it has protection.

This creates problems because things are happening that you didn’t plan.

Example: if you write a song collaboratively, each person who contributes owns the copyright to what they wrote.

Much easier to settle arguments if you have an agreement about who owns what at the start.

The rights owner can restrict exploitation of the work.

Types of ‘Copyright’

  • Copyright
  • Copyleft
  • Creative Commons

Copyright symbols differ for all three: Copyright, Copyleft and Creative Commons.

Copyleft symbol the reverse of the Copyright symbol.

What the Copyright symbol does is just let people know that you are willing to defend your work if need be.

Copyleft –  You give others the right to create using your work provided they let others do the same.

Becoming increasingly common in software.

It gives everyone the right to exploit the work.  It’s share and share alike.

You use your rights as a rights holder to impose the requirement that others share as you do.

Copyleft does not exist as a legal concept. It exists as a licence concept.  It’s simply a wider licence to share.

To use it you sign up to a specific licence, this licence is at the source.

It’s not a question of signing a written agreement, it’s ‘click to accept these terms’.

Creative Commons is a type of Copyleft.  They provide a number of different licences.

Other examples: ShareAlike, GNU.

Creative Commons itself is developed/provided by a not-for-profit company.

Digital Distribution of Creative Content opens up potential liability for:
–    Copyright infringement
–    Defamation

Digital technology makes it really easy to copy content e.g copying images from the web and re-using it.

It opens people to being litigated against.  People looking to bring a case against a company on the basis of copyright infringement can request a piece of the profit.

Keith Richards who owned the copyright to a piece of music that was infringed claimed 80% of the profits made by the band that made number #1 with the content.

Another example: Meta data left in a Word document which was used to justify the Iraq war and uploaded to the Number10 website.  Researcher who wrote the document was contacted by the Guardian because they traced him from the meta data.

For most projects, advisable to get the permission of the rights owner first.

Protecting against liability for defamation – much wiser to provide the option for people to flag up inappropriate content.

If you say you are checking then you are becoming the primary infringer – you are taking their problem and making it your own.

The person who is hosting the content is taking risk.  The people posting on the website less so.

As soon as you find out that there is something inappropriate, you will thus pull it down.

Make sure that in your terms and conditions with your users you retain the right to remove content.

Other thing to consider  with terms and conditions – using Click Terms where users have to ‘click’ to continue.

It means that if any user has ‘clicked’ you automatically have the right to pull down inappropriate content.

Duncan gave another example featuring Demon Internet and someone who had defamtory content posted against them on their website.  Demon Internet allowed it up there for 10 days before taking it down.

Court ruled that Demon became the primary infringer because they took so long to take the content down.

Automatic searches for pornographic content, for example, does not put you in the position of agreeing to moderate the content.

Data Protection Act 1998

Personal Data
Sensitive Personal Data
Data Subject
Data Controller

Most companies do not comply.  Most that do have a sensitive business reason to comply.

If you make an honest effort to comply you are automatically doing 90% more than your competitors.

How it works is that it protects data.

Data – Anything stored electronically is protected.  For others a ‘relevant filing system’ required.

Personal Data – data that is biographically referenced. Email address and names on a piece of paper not covered.   However data including sex, address etc applies.

Sensitive Personal Data – things that are more sensitive than names or addresses e.g. medical history,  sexuality.   The way the Act works is that it makes more work for people capturing Sensitive Personal Data.

Data Controller – as soon as you are collecting email address on your website you become one.

When you collect data tell the Data Subject the Purpose of the data you are collecting, get their Permission to use the data for that purpose.

Only use that data for that purpose, don’t keep it for longer than you need.

Don’t keep it indefinitely.

Hence tick box requiring you provide permission to continue to emailing people etc.

Or alternatively, the inertia marketing tactic –don’t tick to continue receiving.

For sensitive data you have to provide a physical opt-in.

You need to be aware of data crossing boundaries.

Data involving relevant contact details being shared with other providers is valuable.

You can’t unilaterally change the purpose for which you collected the data.

Privacy in Electronic Communications legislation – you can only send email information to people who have given you permission or have previously used your services.   You must give people the right to opt out and a way to do so.

Only applies to electronic communications.

Paper based communications don’t apply.

Data security

You must take into account the likely level of harm likely to come about if the data falls into the wrong hands and the level of investment required to protect it from this.

Duty of care required for personal data quite high.

If it only cost £60 to encrypt some data you are expected to do it.

Names and addresses in an Outlook application not protected if access is not password protected.

Social Security numbers for instance would require a decent level of encryption.

Question from the floor:

Q: When computers are obsolete how do you destroy them?

A: There are companies who offer indemnity protection whilst offering a data clean up service.

The only way to destroy a hard drive to dunk a it into a bucket of hot salty water, he was told by an IT person.

Q: Is it legal to contact people using a mailing list when not for commercial purposes.  Is it acceptable within Privacy legislation described above?

A: Yes.  Only have to consider Data Protection requirements e.g. requesting permission first etc.

Q: Dealing with Domain name expiry

Grace periods 6 months after which someone else is free to buy your domain name and use it. However once expired can find a way of reclaiming a domain name.

Passing Off Action protects people from have someone else sell goods in your name which may apply when a domain name has expired and is purchased with the sole intention to benefit from your reputation.  Expensive legal process however.

Easiest thing is to keep it renewed.

Q: How long is it worth keeping information about data collected and in what formats?  Is hard copy required?

Data Subject Access Request means that someone can request any info you collected from them.

Keep data for as long as you need and in a format that allows you to evidence it if asked.

Ensure that you have the relevant consent.

Provisos in the Act to cover operating as a business.

Q: Creating CDs and DVDs from public performance, licence required to use it?

Not if it’s your work.

If a 3rd party owns the work then you would need their permission.

What about duplication and distribution?

Still fine if it’s your work.

Q: What rights do deaf artists have in reproducing work? (I think that’s what was asked)

You need the permission of the rights holder to perform anything.  Deal with the Performing Rights Organisation who will sell a licence to you to perform it.  This is media companies e.g. BBC operate, have to buy licence for the right to use a piece of content.

Q: Increasingly funders are asking arts organisations to collect information about people accessing performances. How is this impacted by the Data Protection Act?

Fine to collect data from attendees if you anonymise it when you pass it on.

If it’s just statistical data it’s fine. Remove connection with the real person.  Provide stats not personal details like names.

Q: If you’ve collected that data and given people the option to provide their name and they did is it still covered?

No, still must anonymise to protect.

Next: Why Tweet? Twitter participation masterclass.


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