GLOSSARY
Copyright definition
What does Copyright mean?
Copyright is a form of intellectual property protecting artistic or creative works such as books and other written material, drama, music, art, sound and video recordings, broadcasts and software. Copyright protects the expression of information or an idea, not the information or idea itself.
IP & IT
Any property right over certain creative works, which grants exclusive right to the owner.
Copyright is created by the Copyright, Designs and Patents Act 1988 and enables the owner to exclude others from, amongst other things, reproducing, issuing copies to the public, publically performing the work and communicating it to the public.
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Copyright—the international system and enforcement
This Practice Note provides a broad overview of how copyright can be enforced cross-border.An international system of copyright enforcementCopyright is a territorial IP right in that it protects a work in one territory only. As far back as the 1800s, this was recognised as a problem for copyright owners. At that time, it was becoming easier for a copyright work to be copied in a foreign country but there was nothing that the copyright owner could do about it as their copyright was recognised only in their home country and had no validity in any foreign state. There were calls for an international system of copyright to be developed.An international system of copyright enforcement exists established by four conventions.At the heart of the system is the principle of national treatment. This means that a copyright owner will be treated as if they are a national of the territory in which the infringement is taking place and can claim the protection of copyright laws there.Copyright owners wanting to use this international system must be prepared to sue in a foreign jurisdiction with the added difficulties and costs that may be involved.Legal basisThe international system of copyright is established by four copyright conventions. The detailed history of these conventions is beyond the scope of this Practice Note. Negotiations originally began in the
Duration of copyright
Compared to other IP rights, authors are given a long term of protection under the Copyright, Designs and Patents Act 1988 (CDPA 1988) as amended by the Duration of Copyright and Rights in Performances Regulations 1995 (Duration Regulations), SI 1995/3297. The Duration Regulations were implemented in the UK on 1 January 1996.Copyright termThree events dictate the commencement of the copyright term for a work: the author's death; the year of making the work; or the year of first making the work available to the public.The copyright terms for different works are shown in the table below. Where the making of a work has been extended over a period, it is 'made' when it has been completed. Year means calendar year and the period of years starts from 31 December at the end of the year in which the author died, the work was made or the work was made available to the public:ProvisionWorkCopyright period expiresCDPA 1988, s 12Literary, dramatic, musical or artistic works(1) 70 years from the end of the year in which the author dies (in cases of joint authorship, the last author whose identity is known; where the work is of unknown authorship, from the end of the year in which the work is made or made available to the public).
Introduction to copyright and associated rights
This Practice Note is intended for commercial lawyers not specialised in IP. It provides an introduction to copyright and associated rights covering: what copyright is, how it comes to subsist, how to protect it, deal in it, manage it and exploit it. If you are a specialist IP lawyer, see instead the Copyright & associated rights—overview and Copyright disputes—overview and the documents referred to in them.Using this Practice NoteThis Practice Note is broadly grouped into five main sections that cover:•subsistence of copyright (copyright is not a registered right). This section covers the requirement for the work to fall into a qualifying category of works and qualification generally•maintaining copyright covering duration of copyright protection, copyright notices and policies•dealing with copyright in agreements covering: assignments, licences and collective licensing•asserting copyright covering: disputes, copyright exceptions (also known as permitted acts) and defences, and remedies available for those whose rights have been infringed•rights associated with copyright such as moral rights and performance rightsWhat is copyright?Copyright recognises the intellectual creation of an author when a work is created. Copyright is, put simply, a right to copy a work (the copyright owner may also restrict acts other than copying). The law is set out mainly in the Copyright, Designs and Patents Act 1988 (CDPA 1988), which took effect from 1
Copyright in designs
This Practice Note examines the complex relationship between copyright and designs. For more information about designs law and copyright law, see: Design transactions and management—overview and Copyright & associated rights—overview.Prior to the implementation of the Copyright, Designs and Patents Act 1988 (CDPA 1988), copyright was the principal means of protecting rights in industrial articles. One of the intentions behind CDPA 1988 was to limit the application of copyright to industrially commercialised designs and introduce an unregistered design right in the UK (often referred to as 'design right'). For a visual summary of the role of CDPA 1988 copyright provisions, see: Application of copyright law to designs—flowchart below.Authors of artistic works that are applied industrially may not be able to rely on copyright but instead may rely upon design right or registered design(s). However, copyright remains a means of protecting:•original design drawings•rights in designs of three-dimensional objects that are considered artistic works under CDPA 1988•surface decoration applied to industrial articlesRelevant legislation and key cases•CDPA 1988 (as amended by the Enterprise and Regulatory Reform Act 2013 (ERRA 2013))•the Registered Designs Act 1949•the Registered Designs Regulations 2001, SI 2001/3949 (which implemented Directive 98/71/EC)•Lambretta Clothing v Teddy Smith•Dyson v Qualtex•Lucasfilm v Ainsworth•CofemelThis Practice Note contains references to Cofemel and other case law of the Court of
Copyright assignment and licensing
Copyright is a property right and may be transferred by assignment, testamentary disposition or by the requirements of law such as on bankruptcy.Ownership of copyright and ownership of the physical subject matter of the copyright works are separate. For example, a sculpture may be enjoyed and admired by the purchaser but it is unlikely that the copyright in terms of the right to reproduce the work will have been transferred at point of sale. If someone wishes to make a copy of the sculpture or otherwise exploit the work, then this has to be expressly or impliedly authorised by the owner of the copyright by the granting of an assignment or licence.Transferring ownership by assignmentCopyright notices are published by the Intellectual Property Office to help explain specific areas of copyright in the UK. For a simple guide to assignment of copyright, aimed at small businesses and individuals who may wish to assign their own copyright to another person or have been asked to assign their copyright as part of a contract or terms and conditions, see the IPO’s copyright notice on copyright assignment.Assignment—formatAn assignment must be in writing and signed by or on behalf of the assignor. It does not need to be in agreement form and may be done in a letter.Where the assignment has been done orally it is
Licensing—Russia—Q&A guide
Licensing—Russia—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to licensing in Russia published as part of the Lexology Getting the Deal Through series by Law Business Research (published: January 2021). Authors: Gorodissky & Partners—Sergey Medvedev 1. Are there any restrictions on the establishment of a business entity by a foreign licensor or a joint venture involving a foreign licensor and are there any restrictions against a foreign licensor entering into a licence agreement without establishing a subsidiary or branch office? Whether or not any such restrictions exist, is there any filing or regulatory review process required before a foreign licensor can establish a business entity or joint venture in your jurisdiction? There are no restrictions on the establishment of a business entity by a foreign licensor or a joint venture involving a foreign licensor in Russia from the intellectual property perspective. Neither are there any restrictions against a foreign licensor entering into an intellectual property licence agreement without establishing a subsidiary or branch office in this jurisdiction. A foreign business entity is free to license its intellectual property subject matter directly or indirectly to the Russian business entity, or create a joint venture with a Russian partner using the appropriate international licensing scheme. Before a foreign licensor can establish a business entity or joint venture in Russia, it has to undergo the following general tests from a
Licensing—Japan—Q&A guide
Licensing—Japan—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to licensing in Japan published as part of the Lexology Getting the Deal Through series by Law Business Research (published: December 2021). Authors: Midosuji LPC—Kozo Yabe 1. Are there any restrictions on the establishment of a business entity by a foreign licensor or a joint venture involving a foreign licensor and are there any restrictions against a foreign licensor entering into a licence agreement without establishing a subsidiary or branch office? Whether or not any such restrictions exist, is there any filing or regulatory review process required before a foreign licensor can establish a business entity or joint venture in your jurisdiction? To establish a business entity or joint venture in Japan, every foreign company has to follow the general requirements, including the filing or regulatory review process under the Companies Act and other related corporation laws. In contrast, to enter into a licence agreement, there are no special restrictions in general against a foreign licensor without a subsidiary or branch office. 2. Identify the different forms of licence arrangements that exist in your jurisdiction. The patent, utility model, design and trademark laws provide for two types of statutory licences: exclusive and non-exclusive. The Trademark Law also covers service mark protection. The statutory exclusive licensee can exclusively use the intellectual property rights (IPRs) and enjoy, specifically, an injunction and other effects
Trademarks—Denmark—Q&A guide
Trademarks—Denmark—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to trademarks in Denmark published as part of the Lexology Getting the Deal Through series by Law Business Research (published: March 2022). Authors: Accura Advokatpartnerselskab—Christina Type Jardorf; Amalie Rosenbaum Petersen 1. What is the primary legislation governing trademarks in your jurisdiction? The primary legislation governing trademarks in Denmark is the Danish Trademarks Act and the EU Trademark Regulation. 2. Which international trademark agreements has your jurisdiction signed? Denmark is a member of the following international trademark agreements and treaties: • the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks 1989; • the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks; and • the Singapore Treaty on the Law of Trademarks. Further, Denmark is a party to the following general treaties and conventions relating to IP rights, including trademarks: • the Agreement on Trade-Related Aspects of Intellectual Property Rights; and • the Paris Convention for the Protection of Industrial Property 1883. 3. Which government bodies regulate trademark law? The Ministry of Industry, Business and Financial Affairs is the government agency responsible for trademark legislation. The legislation is administered by the Danish Patent and Trademark Office. 4. Who may apply for registration? Any private person, legal entity or organisation may apply for registration of trademarks. However, there are certain limitations for collective marks as well as guarantee and certification marks. 5.
Legal protection of databases in the UK
Legal protection of databases in the UK UK database right Under the Withdrawal Agreement (see Article 58), database rights that existed in the UK or EEA before 1 January 2021 (whether held by UK or EEA qualifying persons or businesses) continue to exist and can be enforced in the UK and EEA for the rest of their standard duration. From 1 January 2021, new databases made by UK citizens, residents, and businesses are not eligible for protection in the remaining EEA Member States and new databases made by EEA citizens, residents, and businesses are not protected in the UK. The UK has also created a UK-only database right effective from 1 January 2021. This is available to UK citizens, residents, and businesses and gives protection only in the UK. In the EU/EEA these databases need to be expressly protected via licensing agreements, by contract such as website terms and conditions or by technological methods such as encryption. Copyright protection for original databases is not affected by the UK’s exit from the EU and therefore may, where appropriate, be relied on for protection of the structure of the database but not the contents of the database. This Practice Note deals mainly with UK database right but also, in some parts, sets out the position under EU law. References to Directive 96/9/EC (the EU Database Directive) are made throughout this Practice
Internet of Things (IoT)—key legal issues
Internet of Things (IoT)—key legal issues The Internet of Things (IoT) is the term given to everyday objects (not just traditional computing devices, such as laptops and smartphones) which are connected to the internet. Other language used in connection with the IoT include: connected devices, smart objects, the internet of services, machine-to-machine (M2M) technology, sensor networks, the network of networks and pervasive computing or ubiquitous computing. IoT can be applied to objects as diverse as running shoes, buildings, cars, fridge-freezers and drones. Using embedded technology, such objects can communicate and interact over the internet, with each other, the user, the service provider and/or their environment, and they can be remotely monitored and controlled. This Practice Note provides an introduction to IoT technology and considers the following issues: • The technology behind the IoT • Identifying the legal issues • Application programming interfaces (APIs) • Telecommunications and electrical equipment • Intellectual property—overview • Intellectual property rights ownership and licensing issues • Competition law • Consumer protection • Liability and fault • Compliance requirements • The appropriate contracting model • Legal issues of the future This Practice Note does not consider data protection, privacy or cybersecurity. These issues are addressed separately in Practice Note: Internet of things (IoT)—data protection, privacy and security. The technology behind the IoT The introduction of internet protocol version 6 (see: LNB News 27/05/2008 64), the availability of cheaper electronic technology, the ubiquity of connectivity (access to the internet, particularly
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Intellectual Property Rights (IPR) Schedule
The ScheduleIntellectual Property Rights 1 1.1 [ Copyright works Description of Copyright work Nature of work (eg literary, artistic, databases, etc) Date of creation of work (if already created) [Insert details] [Insert details] [Insert details]
Intellectual property rights ownership clause
1 Definitions 1.1 In this clause: Background Intellectual Property means any and all Intellectual Property Rights that are not Foreground Intellectual Property, owned or controlled by the relevant party or licensed to the relevant party prior to or outside the Project but required for the purposes of the Project or for the proper use of the Technology; Foreground Intellectual Property means all Intellectual Property Rights and other matter capable of being the subject of intellectual property rights that is conceived, first reduced to practice or writing or developed in whole or in substantial part in the course of the Project; Intellectual Property Rights means copyright, rights related to copyright such as moral rights and performers rights, patents, rights in inventions, rights in confidential information, know-how, trade secrets, trade marks, geographical indications, service marks, trade names, design rights, rights in get-up, database rights, databases,[ data exclusivity rights,] [ approvals,] [ utility models,] domain
Systems integration agreement—pro-supplier
Systems integration agreement—pro-supplier This AgrEement is made on [date] Parties 1 [insert name of supplier], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Supplier); and 2 [insert name of customer], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Customer) (each of the Supplier and the Customer being a party and together the Supplier and the Customer are the parties). Background (A) The Customer wishes to procure software, [hardware], software configuration and development services, installation services and other related services. (B) The Customer has agreed to procure the Services from the Supplier and the Supplier has agreed to provide the Services to the Customer on the terms and conditions of this Agreement. The parties agree as follows: 1 Definitions and Interpretation 1.1 In this Agreement the following terms have the following meanings: Acceptance • means that: (a) the Customer confirms in writing that the Software has passed or is deemed to have passed the relevant Software Acceptance Tests; and/or (b) the Supplier confirms in writing that the Supplied Hardware has passed or is deemed to have passed the relevant Hardware Acceptance Tests, as the context so requires, and Accept shall be construed accordingly; Acceptance Criteria • means the criteria to be satisfied to demonstrate that: (a) the Software Acceptance Tests have been successfully completed as determined pursuant to
Software support agreement—pro-customer
Software support agreement—pro-customer This Agreement is made on [date] Parties 1 [Insert name of supplier], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Supplier); and 2 [Insert name of customer], a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Customer), each of the Supplier and the Customer being a party and together the Supplier and the Customer are the parties. Background (A) The Supplier is [the licensor of certain software applications]. (B) The Customer is [insert details of Customer’s background/background to the relevant transaction]. (C) The Supplier has granted a licence to the Customer[, members of its group] [and certain authorised third parties] to use certain software applications and agrees to provide support and maintenance services for such software on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Authorised Third Parties • means any third party (including agents and contractors) engaged to provide services to the Customer or to any Customer Affiliate including any supplier to whom the Customer or any Customer Affiliate has outsourced any part of its business; Business Day • means a day other than a Saturday, Sunday or bank or public holiday in England; Commencement Date • means the date of this Agreement; Confidential Information • means any and all confidential information (whether in oral, written or
MVNO agreement
MVNO agreement This Agreement is made on [insert date] Parties 1 [insert name] a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Supplier); and 2 [insert name] a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (MVNO) (each of the Supplier and the MVNO being a party and together the Supplier and the MVNO are the parties). Background (A) The Supplier is a mobile network operator in the Territory. (B) The MVNO is a mobile virtual network operator in the Territory. (C) The Supplier has agreed to provide wholesale mobile electronic communications services to the MVNO for resale [on a pre-pay basis OR on a post-pay basis OR on a pre-pay and post-pay basis] in the Territory in accordance with the terms and conditions of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Account Manager • means the primary point of contact for each party as notified by each party to the other on or before the date of this Agreement (or in accordance with clause 20.3); Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Business Day • means a day other than a Saturday, Sunday or bank or public holiday in England; Charges • means any amounts that have been paid
Sales and marketing agency agreement for services—exclusive—pro-principal
Sales and marketing agency agreement for services—exclusive—pro-principal This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Principal); and 2 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Agent), (each of the Principal and the Agent being a party and together the Principal and the Agent are the parties). Background (A) The Principal supplies the Services (as defined below). (B) The Principal wishes to appoint the Agent as its exclusive agent in the Territory (as defined below) for the [marketing OR marketing and sale] of the Services on the terms of this Agreement. (C) The Agent has agreed to [market OR market and sell] the Services in the Territory on the Principal’s behalf on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement, unless otherwise provided: Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Agreement • means the main body of this Agreement, its schedules and appendices, as each may be amended from time to time in accordance with their terms; Bribery Laws • means the Bribery Act 2010 [and associated guidance published by the Secretary of State
Executive service agreement
Executive service agreement This Agreement is made on [date] Parties 1 [Name of company], a company incorporated in England with registered number [number] whose registered office is at [address] (the Company); and 2 [Name of employee], of [address] (you). The parties agree: 1 Definitions and interpretation 1.1 In this Agreement the following expressions will, unless the context otherwise requires, have the meanings set opposite them: Basic Salary • the meaning given to it in Clause 8.1; [Board • [the directors of the Company present at a meeting (i) of directors of the Company or (ii) of a duly appointed committee of directors of the Company[, such meeting to be convened and quorate in accordance with the articles of association of the Company and the Companies Act 2006] OR the directors of the Company present at a meeting of directors of the Company[, such meeting to be convened and quorate in accordance with the articles of association of the Company and the Companies Act 2006] ];] [Chief Executive • the [chief executive] of [the Company OR [insert name of Group Company]] as appointed by the [Board OR Group Board] from time to time;] Commencement Date • [[date] OR the date specified in Clause 3.1] (notwithstanding the date of execution of this Agreement); Competing Business • the meaning given to it in Clause 27.6; Confidential Information • the meaning given to it in Clause 18.1; [Control • the meaning set out in section 995 of
Trade mark assignment—pro-assignor
Trade mark assignment—pro-assignor This Agreement is dated [insert date] Parties 1 [insert name] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Assignor); and 2 [insert name] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Assignee) (each of the Assignor and the Assignee being a party and together the Assignor and the Assignee are the parties). Background (A) The Assignor is the [registered] owner of certain trade marks. (B) The Assignee is [insert description of the Assignee’s background/background to assignment or relevant transaction]. (C) [On [insert date] the Assignor submitted an application to the [United Kingdom Intellectual Property Office OR European Union Intellectual Property Office] to register a proposed trade mark.] (D) The Assignor agrees to assign its rights in those marks [and in the application for the proposed trade mark] to the Assignee and the Assignee agrees to accept the assignment in accordance with the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Affiliate • in respect to any entity, means any other entity that directly or indirectly Controls, is Controlled by, or is under common Control with that entity; Business Day • means a day other than a Saturday, Sunday or public holiday[, on which clearing banks are open for non-automated commercial business in
Sales and marketing agency agreement for services—non-exclusive—pro-agent
Sales and marketing agency agreement for services—non-exclusive—pro-agent This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Principal); and 2 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Agent), (each of the Principal and the Agent being a party and together the Principal and the Agent are the parties). Background (A) The Principal supplies the Services (as defined below). (B) The Principal wishes to appoint the Agent as its non-exclusive agent in the Territory (as defined below) for the [marketing OR marketing and sale] of the Services on the terms of this Agreement. (C) The Agent has agreed to [market OR market and sell] the Services in the Territory on the Principal’s behalf on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement, unless otherwise provided: Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Agreement • means the main body of this Agreement, its schedules and appendices, as each may be amended from time to time in accordance with their terms; Bribery Laws • means the Bribery Act 2010; Business Day • means a day other than a Saturday,
Share purchase agreement—pro-buyer—corporate seller—conditional—long form
Share purchase agreement—pro-buyer—corporate seller—conditional—long form This Agreement is made on [insert day and month] 20[insert year] Parties 1 [Insert name of selling corporate entity] incorporated in [England and Wales OR [insert country of incorporation] OR with registered number [insert company number] whose registered office is at [insert address] (the Seller); 2 [Insert name of purchasing corporate entity] incorporated in England and Wales OR [insert country of incorporation] OR with registered number [insert company number] whose registered office is at [insert address] (the Buyer), and 3 [Insert name of guarantor entity] incorporated in England and Wales OR [insert country of incorporation]] with registered number [insert company number] whose registered office is at [insert address] (the Guarantor) [(each of the Seller, the Buyer and the Guarantor being a Party and together the Seller, the Buyer and the Guarantor are the Parties).] Background (A) The Company (as defined below) is a private company limited by shares and is incorporated in [England and Wales OR [insert country of incorporation]]. Details of the Company are set out in Schedule 1. (B) The Seller is the legal and beneficial owner of the Sale Shares (as defined below), being in aggregate the entire allotted and issued share capital of the Company. (C) The Seller has agreed to sell and the Buyer has agreed to purchase the Sale Shares on the terms of this Agreement. (D) The Guarantor
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Quantum, in an intellectual property claim, is often difficult to predict at the time a claim is being issued. What are the practical options for those seeking to issue a claim in the High Court?
Quantum, in an intellectual property claim, is often difficult to predict at the time a claim is being issued. What are the practical options for those seeking to issue a claim in the High Court? What is the problem? In an intellectual property (IP) claim, it is often difficult to predict quantum at the time the claim is issued. Why does the problem arise? The difficulty in predicting how much is likely to be recovered in an IP claim should liability be established is, not least, because the extent of the infringement may not be known to the claimant at the time of issue and may only be revealed in subsequent disclosure which is obtained or otherwise in the course of proceedings. In addition, very often claimants have the option of seeking quantum representing either their damages or an account of the defendant’s profits which is an election made at a later stage in the process after some additional disclosure (essentially the proceedings are split into liability and quantum stages). Ordinarily, the claimant will have little idea about the details of the defendant’s business and what profit the defendant may be making, particularly at the point the claim is issued. What are the practical consequences? It is necessary when issuing a claim to give an indication of the amount which is being claimed by the claimant. This is for a number
Does UCTA 1977 apply to service contracts?
Does UCTA 1977 apply to service contracts? Unfair Contract Terms Act 1977 (UCTA 1977) In general, the Unfair Contract Terms Act 1977 (UCTA 1977) is primarily concerned with liability as between businesses. It provides protection to varying degrees in respect of specific types of liability. It does not deal with all types of liability (for example the law on penalty clauses is not covered by UCTA 1977), nor does it provide rules on the fairness of contract terms generally. To determine whether UCTA 1977 applies, it is therefore necessary to consider both the type of contract and the nature of the liability in question, and to consider both of these factors in light of the various provisions for application and exemption within UCTA 1977. UCTA 1977, s 1(1)(3) provides: ‘(3) In the case of both contract and tort, sections 2 to 7 apply (except where the contrary is stated in section 6(4)) only to business liability, that is liability for breach of obligations or duties arising— (a) from things done or to be done by a person in the course of a business (whether his own business or another's); or (b) from the occupation of premises used for business purposes of the occupier;’ However, this must be read subject to the provisions of UCTA 1977, Sch 1 (section 1(2)) which provides that UCTA 1977, ss 2 and 3 do not extend to: ‘(a)
What are non-fungible tokens (NFTs)?
What are non-fungible tokens (NFTs)? What is an NFT? A non-fungible token or ‘NFT’ is a unit of data, which certifies a digital asset as being unique. NFTs are stored on the blockchain, providing the NFT’s owner with traceable proof of ownership. See Practice Note: Blockchain—key legal and regulatory issues. Each individual NFT is inherently unique and irreplaceable and can, in some instances, be worth a considerable sum. It may be useful to conceptualise NFTs as digital collectables, much like any tangible piece of original art. Cryptocurrencies such as Bitcoin and Ethereum are fungible, and therefore mutually interchangeable just as traditional currency. In contrast, each non-fungible token has a unique set of characteristics and cannot be exchanged like for like. NFTs can be used to represent a wide range of digital assets to include audiovisual files, photographs, music recordings, GIFs, documents, and memes. NFTs were first used in 2014 and gained some mainstream attention in 2017. By mid 2021, there has been a significant increase in awareness due to certain high-profile sales (see Value, below). What’s the position on ownership of NFTs? Every NFT must have an owner. The record of ownership is a matter of public record and easy for anyone to verify because it is stored on decentralised ledger technology—the blockchain. The NFT can represent ownership of any type of digital file. For example, in March 2021, the American
In writing a memoir, person A has written to the original author of a letter to ask permission to include a quote or quotes from that letter, but the author has failed to respond to the request for permission. In those circumstances when would including quotes from personal letters in a memoir constitute fair quotation?
In writing a memoir, person A has written to the original author of a letter to ask permission to include a quote or quotes from that letter, but the author has failed to respond to the request for permission. In those circumstances when would including quotes from personal letters in a memoir constitute fair quotation? A copyright owner is not required by law to give permission for the use of a work, if contacted by a prospective licensee. Copyright, Designs and Patents Act 1988 (CDPA 1988) gives the copyright owner exclusive rights in the UK to carry out various acts in relation to the copyright work. Activities set out in CDPA 1988 carried out by those other than the copyright owner, without permission, may infringe the owner's exclusive rights and constitute copyright infringement. For further detail, see: Copyright disputes—overview and Practice Note: Copyright infringement. However, there are a number of specific exceptions (also called permitted acts) to copyright infringement. In October 2014, a new right of quotation was introduced which broadened the provisions in CDPA 1988, s 30 to permit quotation from a work not only for the purpose of
Can a company have moral rights?
Can a company have moral rights? Moral rights The Berne Convention art 6 bis states that, independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work, and object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his/her own work, that would be prejudicial to his/her honour or reputation. Moral rights are therefore personal to the author. Sections 77–79 of the Copyright, Designs and Patents Act 1988 (CDPA 1988), provide that the authors of copyright literary, dramatic, musical or artistic works and the directors of copyright film works have the right: • to be identified as author or director (the right of paternity) • to object to derogatory treatment of work (the right of integrity), and • not to have work falsely attributed to them as author or director Exercising moral rights For further detail on exercising moral rights, see Practice Note: Moral
If an artist commissions artisans (a ceramicist and metalworker) to do parts of a work for him and then he sells the final piece, are there subsisting copyrights in the works done by each of the artisans (which would need to be transferred to him by contract)? If so, given that the artist's resale right can't be waived, would they have to be compensated under the rules or directives on a qualifying sale of the composite item? Would a qualifying sale of the composite item be the first sale given that the artisans were already paid for their contribution? And how will an artist's resale right work after Brexit?
If an artist commissions artisans (a ceramicist and metalworker) to do parts of a work for him and then he sells the final piece, are there subsisting copyrights in the works done by each of the artisans (which would need to be transferred to him by contract)? If so, given that the artist's resale right can't be waived, would they have to be compensated under the rules or directives on a qualifying sale of the composite item? Would a qualifying sale of the composite item be the first sale given that the artisans were already paid for their contribution? And how will an artist's resale right work after Brexit? Where an artist commissions artisans (for example, a ceramicist and a metalworker) to do parts of a work for him and then sells the final piece: 1. Are there subsisting copyrights in the works done by each of the artisans (which would need to be transferred to the artist by contract)? Potentially, there are subsisting copyrights in the works done by each of the artisans. The artists and artisans may be ‘joint authors’. This will however turn on whether the work carried out by the commissioned artisans is, in terms of originality, of ‘the right kind of skill and labour’ (Fylde Microsystems Ltd v Key Radio Systems Ltd), and of a sufficient amount. This will depend on the
How do I approach using content originally generated by users of social media channels?
How do I approach using content originally generated by users of social media channels? Practice Note: Social media and user-generated content examines the legal risks associated with leveraging social media and user-generated content and provides practical guidance about how parties engaged in such activities can mitigate those risks. Increasingly, businesses are encouraging consumers to contribute material to branded social media platforms and incorporating these contributions into consumer-focused advertising and marketing campaigns. Social media content submitted by consumers is termed 'user-generated content' or 'UGC'. Enabling consumers to
What is the EU law on data scraping from websites?
What is the EU law on data scraping from websites? What is scraping? Web scraping is a process by which website data is extracted (ie copied) using a web scraping program. Websites are typically coded in HTML and a range of different web scraping programs have been created which interface with the HTML code to collect copies of the data for use elsewhere. Another type of scraping relevant to website operators is screen scraping. In very basic terms, this involves deploying a program to complete forms on third party websites and then extract the output/results from those forms. Often the program will simulate a human operator to obtain the outputs (which is why websites sometimes set ‘challenge responses’ such as Captcha, requiring the user to enter a code shown on the screen to determine whether that user is a human operator or a program). Some price comparison websites use screen scraping programs. What is the relevant law? Some of the law in this area is derived from, or is, European Law. Although other laws may be relevant, those of primary relevance are: • Copyright • Database right • Data protection • Computer misuse The issues in each of these areas are highlighted below. Copyright Generally speaking, a website will include and be comprised of copyright-protected works. These may include literary works (such as news articles and HTML code) and artistic works (such as photographs and graphic
How do I protect my copyright?
How do I protect my copyright? Understand copyright subsistence Copyright recognises the skill and labour expended by an author in creating a work. It is not so much about ideas as about the way they are expressed. In the UK, copyright is not a registered right: it arises automatically: the first step in protecting it, is to identify if it subsists in the relevant work. The subject matter must also be a work and the author of a work must qualify for protection. See Practice Note: Copyright—subsistence and qualification. For the kinds of works protected, see Practice Note: Copyright―protectable works. Use copyright notices Mark your work with a simple notice including the copyright symbol, eg © Copyright Lexis®Nexis 2013. For more detailed notices, see Precedent: Intellectual property notices and Do I need to use trade mark and copyright notices?. Do I actually own the copyright? Make sure you are the owner. As author/creator you are not always the owner of copyright, although you are usually the first owner of copyright unless you are employed, in which case your employer is. See Practice Note: Copyright—authorship and ownership. Where work is jointly created, formal (written) agreement is crucial for the protection of the copyright work in the
What fees are payable in the Intellectual Property Enterprise Court in relation to key stages of proceedings?
What fees are payable in the Intellectual Property Enterprise Court in relation to key stages of proceedings? Every case in the Intellectual Property Enterprise Court (IPEC) is different, including subject matter, complexity, and value. For that reason, it is always difficult to exactly predict the fees that a party will incur in the IPEC for each key stage. Nevertheless, some helpful guidance in estimating the fees payable can be found in the Part 45 of the Civil Procedure Rules 1998 (CPR). Under the CPR PD 45, the IPEC is subject to strict caps on the costs which the winning party can recover for each key stage, as well as the total amount it can recover. According to CPR 44, ‘costs’ include fees (ie solicitor fees), charges, disbursements, expenses or remuneration, unless expressly stated otherwise. These costs caps can assist both claimant and defendant in determining their budgets for each stage of the proceedings, in the knowledge that if their costs exceed that amount, that it is unlikely to be recoverable from the other side. In an ideal scenario, their representatives will keep within the costs caps, although this is not always possible depending on the complexity of the case. Section IV of the Practice Direction sets out the maximum amount of costs which the court will award for each stage of a claim, as well as the
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TMT weekly highlights—30 June 2022
Welcome to this week’s edition of the TMT weekly highlights: a hand-picked summary of news analysis, updates and new content from across the technology, media and telecoms sectors. These highlights focus on key topics including new technologies, software, cloud computing, internet, outsourcing, music, film & television, publishing, defamation and telecoms.
Commercial weekly highlights—30 June 2022
This week's edition of Commercial weekly highlights includes: news of the Court of Appeal judgment in Credico Marketing Ltd v Lambert and others which allowed the appeal in part against the QBD court’s earlier decision that the restrictive covenants in the appellant’s trading agreement with the respondent marketing organisation were enforceable, analysis of the Commercial Court judgment in Gama Aviation (UK) Ltd v MWWMMWM Ltd which upheld the novation of the agreement between the parties, analysis of the Advocate General’s opinion in Rigall Arteria Management v Bank Handlowy w Warszawie concerning an agent’s entitlement to commission on repeat transactions, and analysis of the Commercial Court decision in AIG Europe SA v John Wood Group which upheld an exclusive jurisdiction clause in an insurance contract.
Dispute Resolution weekly highlights—30 June 2022
This week's edition of Dispute Resolution weekly highlights includes: analysis of a number of key DR developments and key judicial decisions including the long awaited judgment in Osbourne v Persons Unknown (are NFTs property?) as well as that of the Court of Appeal in AIG Europe SA v John Wood (anti-suit injunctions to support contractual agreements); dates for your diary; details of our most recently published content; and other information of general interest to dispute resolution practitioners.
IP weekly highlights—30 June 2022
Welcome to this week’s edition of the IP weekly highlights: a hand-picked summary of news analysis, updates and new content from the world of IP. These highlights focus on the key rights of copyright and associated rights, database rights, trade marks and passing off, designs, and patents as well as covering issues relating to confidential information, know-how R&D and IP disputes all mainly from a UK and European perspective.
Sheeran recovers costs despite defendant’s criticisms of pre-action conduct (Sheerans v Chokri)
TMT analysis: This case involved a judge considering the arguments of the unsuccessful defendants as to why they should not be liable to pay the claimant’s costs. The judge rejected each of the defendants’ arguments and ordered them to pay the claimants all of their costs. The judge’s examination of the claimants’ alleged failure to engage in pre-action correspondence and failure to provide appropriate disclosure throughout the course of the litigation will be of interest to practitioners who deal with claims for copyright infringement. In particular, the case is a useful example of how costs may be assessed when a defendant alleges failure to comply with pre-action protocols in a situation where the claimant is seeking a declaration of non-infringement of copyright following the defendant’s initial allegation of infringement. It is also a useful guide to a judge’s approach to costs in the face of perceived failures in disclosure by the successful party. Written by Andrew Scott, senior associate at Brodies LLP.
Copyright in characters (Shazam v Only Fools The Dining Experience)
TMT analysis: The High Court found that a character may be a protectable literary work under UK copyright law and addressed the little-used defences to copyright infringement of fair dealing for the purpose or parody or pastiche. The ruling concerned the character of Derek ‘Del Boy’ Trotter from the well-loved TV show Only Fools and Horses (OFAH). The defendants, who created the unofficial ‘Only Fools the Dining Experience’, was found to have infringed the copyright subsisting in the OFAH scripts and the character Del Boy. The judgment is only the second case to have applied both the UK and EU copyright tests for subsistence of copyright to a work which does not naturally fit within one of the UK’s closed lists of ‘works’ under the Copyright, Designs and Patents Act 1988 (CDPA 1988). It has potential to lead to more claims of copyright infringement in respect of well-known characters which have been used without consent across a wide range of different media. Written by Simon Clark, partner and Maria Ryan, trainee solicitor at Bristows LLP.
IP weekly highlights—23 June 2022
Welcome to this week’s edition of the IP weekly highlights: a hand-picked summary of news analysis, updates and new content from the world of IP. These highlights focus on the key rights of copyright and associated rights, database rights, trade marks and passing off, designs, and patents as well as covering issues relating to confidential information, know-how R&D and IP disputes all mainly from a UK and European perspective.
TMT weekly highlights—23 June 2022
Welcome to this week’s edition of the TMT weekly highlights: a hand-picked summary of news analysis, updates and new content from across the technology, media and telecoms sectors. These highlights focus on key topics including new technologies, software, cloud computing, internet, outsourcing, music, film & television, publishing, defamation and telecoms.
IP weekly highlights—16 June 2022
Welcome to this week’s edition of the IP weekly highlights: a hand-picked summary of news analysis, updates and new content from the world of IP. These highlights focus on the key rights of copyright and associated rights, database rights, trade marks and passing off, designs, and patents as well as covering issues relating to confidential information, know-how R&D and IP disputes all mainly from a UK and European perspective.
TMT weekly highlights—16 June 2022
Welcome to this week’s edition of the TMT weekly highlights: a hand-picked summary of news analysis, updates and new content from across the technology, media and telecoms sectors. These highlights focus on key topics including new technologies, software, cloud computing, internet, outsourcing, music, film & television, publishing, defamation and telecoms.
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