How to protect your business' intellectual property

28th Nov 2012 | 15:00

How to protect your business' intellectual property

How to protect your patents, designs, trademarks and copyright on the web

The intellectual property (IP) in your business can be its most precious asset, however with the opening up of the Internet to more and more new markets and the rise of sites like Pirate Bay protecting your IP is becoming harder and harder.

The Internet is a great medium for building new markets and growing your business but the ease with which anything digital can be copied in just a few clicks, means businesses that create original content develop new processes, or product designs should take practical steps to protect this work from unauthorised exploitation.

As the world moves increasingly towards knowledge economies, the protection of IP has become a critical component of every business' operations. There are four main types of IP your business can protect:

  • Trademarks
  • Designs
  • Patents
  • Copyright

Ian Fletcher, a former chief executive at the Intellectual Property Office stated: "We live in a knowledge economy. The UK's know-how, creativity and expertise place this country among the most dynamic and creative economies in the world. Today, some 70% of a typical UK company value lies in its intangible assets. Our intellectual property system is vital in protecting the value of many of those assets."

To discover which areas of your business may need IP protection it's a good idea to perform an IP audit. The audit should cover all aspects of IP, including the formal rights, copyright, patents, trade marks and designs, as well as the informal IP which includes technical know-how and trade secrets. It must also include advice on building an IP management strategy. Small businesses can apply to the IPO (Intellectual Property Office) for funding help of up to £3,000 to carry this out in their companies.

As well as pinpointing potential problems the audit will also provide guidance tailored to how to integrate IP management into your business practices including; how and when to rely on confidentiality agreements to protect intellectual assets, licensing strategies and enforcement of their IP rights.

If your business is unsure about how to define the IP that it may hold, the IPO also has a handy IP Healthcheck service that you access via their website. After taking the healthcheck your business can then move forward with any action it needs to take to protect the IP rights that have been identified.

Copyright and small business

For a small business one of the most important components of your IP will be copyright. The main piece of legislation that applies to copyright is the Copyright Designs and Patents Act 1988. Since its inception, the basic regulations have been modified mostly by new EU directives, so always take legal advice if you are not sure about any aspect of copyright as it applies to your business.

Copyright law is similar in all areas of the world thanks to the Berne Convention that protects artistic and literary works from copyright infringement. Also the Universal Copyright Convention that is administered by UNESCO defines the copyright rules that the UK currently works within.

The USA also has an official register of copyrighted material that you might want to use. Visit Copyright for full details of the service, and how a claim of copyright infringement can be made under the Digital Millennium Copyright Act (DMCA).

In the UK we have a similar organisation called the Copyright Service. This service allows the registration of copyrighted material so your business then has proof that you are the copyright owner of the material that may have been copied illegally. This could be a great help in any legal action that you want to bring for copyright infringement. This protection comes at a price of course, but it may be worth the fee if you feel your work is especially vulnerable to infringement.

Copyright has failed to really keep up with changes most notably how digital content can be protected. The Government is consulting at the moment about how the copyright regulations could be updated to take into consideration the digitisation of content from music to books.

In an attempt to combat what has become an increasing tide of digital copyright infringement most notably via file sharing websites, the Government rushed the Digital Economy Act 2010 through Parliament. The Act is one of the main foundations for the delivery of the Government's Digital Britain initiative.

Download factsheets relating to copyright and copyright infringement and the Digital Economy Act You can also download the full 2009 Digital Britain report or a summary of the Digitial Britain report.

How to fight IP theft

Even the smallest of businesses should take practical steps to protect its IP. However, there may be times when your enterprises IP has been infringed. You then need to decide how your business reacts to this alleged theft.

The IPO annually publishes its IP Crime Report that gives details of IP theft and what is being done to combat this. Taking qualified legal advice is essential. If the infringement has taken place outside of the UK, agreements including the Trade Related Aspects of Intellectual Property Rights (TRIPS), which forms part of the World Trade Organisation (WTO) Agreement comes into play.

Dino Wilkinson, Senior Associate (communications, media and technology), Norton Rose (Middle East) LLP commented: "A copyright owner may claim relief by way of damages, injunction or other remedies for copyright infringement in the same way, as they would be available in relation to an infringement of any other property right.

"Usually, a copyright owner would initially look to prevent the copying from occurring (or continuing to occur) by seeking some form of search order, freezing order or injunction. Other remedies that may be available under the Copyright Designs and Patents Act 1998 include orders for "delivery up", seizure of infringing copies or forfeiture. The financial remedies available include damages or an account of profits."

Small business IP protection checklist

To ensure your business has adequately protected its IP, follow this checklist:

  1. Identify the materials that need to be protected via an IP audit.
  2. Check if IP protection is available in all the territories your business operates in.
  3. Register your IP with all the appropriate authorities.
  4. Put in place safeguards to prevent your IP from being infringed including tracking the use of materials your business has licensed.
  5. Develop IP protection policies and communicate these across your business.
  6. Ensure your business is fully aware of the legal options open to it in the event of an alleged IP infringement.

The IP in your business could have taken significant resources to develop so it makes commercial sense to protect this property. The Government has already addressed some of the issues with patent law, and is now turning its attention to copyright and how the digital market has changed what IP means and how these properties need to be protected. If your business hasn't taken any steps to protect its IP, what are you waiting for?

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