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Enforcing Intellectual Property Rights

July 2, 2009 by Roy Johnson

guide for businesses, innovative and creative individuals

Anybody involved in a creative project – particularly where a number of people are involved – knows that an early question will always be raised: “Who owns the intellectual property rights?” Or you could be selling widgets, only to find that another company has started doing the same thing. Can you sue them – or are they more likely to sue you? The product can be a manufactured object, it could be a service, or an ‘intellectual asset’. It could be designing a company web site, running a training course, writing a product guidance manual, devising a manufacturing process, or putting on a television programme.

Enforcing Intellectual Property RightsHistory is littered with cases of people who assumed that they had the rights to something they had written or produced – only to find the profits from their labours taken by somebody else. This book is a straightforward guide to all the information and legal advice you will need to guard your rights to intellectual property. It’s written by a practising barrister who specialises in giving advice to individuals and small businesses. Jane Lambert is obviously committed to helping people in the creative industries, and this is even reflected in the fact that she takes the trouble to write a book on legal matters in a style which is readily understandable – and quite entertaining.

She starts with two useful glossaries of intellectual property terms – moral rights, passing off, intellectual assets, and the differences between copyright and patent. These are followed by quite an engaging scenario in which someone seeks legal advice on the copyright to household decorations which are being made in China and imported.

The explanations being given illustrate how an apparently simple case is fraught with all sorts of legal complexities. It’s amazing to learn how different laws and conventions apply to different types of product. Copyright for imaginative fiction is seventy years after the author’s death for instance, whereas for industrial design it’s twenty-five years, and a patent only lasts for twenty.

Jane Lambert is a big fan of the Internet, and full web addresses are given for all her sources of information. She explains the common cases of protecting brands and domain names, as well as trademark infringement – against which the UK legal system offers quite strong protection. However, it’s important to realise that the law may differ in countries outside Europe and the USA, and that in some places copying somebody else’s work may not be regarded as illegal.

Having explained the rights in IPR, she then goes on to cover the resolution of disputes which arise in the courts over issues of ownership. And even though she earns her living in a practise which specialises in such cases, she warns against using the system unless it is absolutely necessary – both because it is so expensive and because disputes can often be resolved outside it. She also explains how the whole system of civil procedures was reformed ten years ago (by Lord Chief Justice Woolf).

But if you really do want to prosecute a case she explains the procedure – which usually begins with a ‘cease and desist’ letter. It should not begin with any form of threats or bullying – because such actions can themselves result in prosecution.

The legal system now requires both claimant and defendant to show that they have done everything to seek resolution and not made matters worse. In the event that agreement cannot be reached, there are a number of forms of arbitration and adjudication which can be followed.

And if all else fails, and you end up in a court of law, she explains how court cases are conducted, who decides what, and how the best cases can be made. As she explains as an aside, many people falsely believe that the success of a case depends up some form of brilliant court room oratory (as in movies). But the truth is more prosaic: it depends largely upon a well-researched and carefully prepared case – which costs time, money, and skill.

But in the event that you might need them, she also offers some templates for standard letters used in making claims and defences – as well as tips on preparing your strongest case. This is a sane, humane, and very readable account of a very complex set of issues. Anyone contemplating an entry into this arena would do very well to prepare themselves by taking her advice.

© Roy Johnson 2009

Intellectual Property Rights   Buy the book at Amazon UK

Intellectual Property Rights   Buy the book at Amazon US


Jane Lambert, Enforcing Intellectual Property Rights, London: Gower, 2009, pp.164, ISBN: 0566087146


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Filed Under: e-Commerce, Media Tagged With: Business, Copyright, e-Commerce, Intellectual Property Rights, IPR, Media, Publishing

Intellectual Property and Open Source

July 4, 2009 by Roy Johnson

a practical guide to protecting code

The Open Source movement makes software available free for people to use or even to pass on to others. This flies in the face of normal commercial practice, where people jealously guard their intellectual property rights. Traditional laws support these rights – so when new open source projects come into being, often as a result of work done collectively, it can be difficult to disentangle issues of ownership and control. This is equally true for the written word as well as for digital code.

Intellectual Property and Open SourceVan Lindberg’s new book is an amazingly thorough guide to the whole business. He explains the legal niceties without resorting to too much jargon, and supplies practical support materials in the form of sample licences and agreements. The first part of the book has eight chapters giving an introduction to intellectual property law, then the second part is six chapters offering an intellectual property handbook for developers, particularly those working in the field of open sources.

He warns that it’s a book of general principles, not specific advice, for the very good reason that cases of copyright, patents, and intellectual property rights are very case specific. Nevertheless, he does discuss lots of instructive individual cases, and I imagine that anybody with a need to know in this complex field of legislation will find what he has to say both instructive and chastening.

He explains the law on copyright, patents, and inventions by comparing it to computer programming, which it turns out to resemble remarkably closely. One new ruling (or code) is bolted on to that which already exists, and the whole statute grows by a process of accretion.

As a layman, it’s interesting to learn that you cannot patent an idea – no matter how original an invention it might be. You can only patent the proof that it can actually be realised and turned into something useful. And even the term ‘useful’ is coded – as his example of a patent dust cover for dogs illustrates. It can be used – even though the idea itself is quite barmy.

On Open Sources he explains that software is free as in ‘free speech’, not ‘free beer’ – but this distinction will mean little to everyday users who are happy to download a program that works well without having to pay for it.

The picture becomes clearer when he explains the success of various Open Source projects – FireFox, Linux, Apache – many of which have formed the basis for successful business ventures. The software itself is free to use and distribute, but companies have legitimately made money from offering services in support of its use.

He’s very good at explaining the complexities of rights developed whilst you are in somebody else’s employment. In brief, you’ve very little chance of succeeding, and he even includes some tragic cases of people who have lost lawsuits on works patented before and after they have been in somebody else’s employ. If there’s a barely-hidden message here, it’s ‘stay away from legal contests’.

As a rule, employees should assume that any intellectual output they produce whilst employed will be considered proprietary information and subject to the company’s proprietary information agreement (PIA). It doesn’t matter if the invention is in a completely different area of technology, or completely unconnected with your work; it still may be covered.

Even if you wish to make your work available free to the public, there are a number of different licenses to choose from, offering a sliding scale of ownership and control – such as public domain, open source, and reciprocal. The general advice he gives is not to attempt writing your own.

One thing is for certain. It’s potentially a very complex area both technically and legally. The law works on a basis of precedence, and you can bet that if a legal tangle emerges, it will be judged on similar occurrences in the past, even though your technology might be brand new.

All sorts of additional complications arise because of the special nature of software development. Does the author of a ‘patch] (a small-scale solution to a problem) have copyright over it when it is added to a big project? Can you combine two open source programs and claim copyright over the result? What about reverse engineering?

I would have welcomed a glossary and a webliography, but it’s to O’Reilly’s credit that they publish books like this – because although it might have a fairly limited readership, it raises lots of important issues and simultaneously makes available the information for dealing with them.

© Roy Johnson 2008

Intellectual Property and Open Source   Buy the book at Amazon UK

Intellectual Property and Open Source   Buy the book at Amazon US


Van Lindberg, Intellectual Property and Open Source, Sebastopol (CA): O’Reilly, 2008, pp, 371, ISBN: 0596517963


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Filed Under: e-Commerce, Media, Open Sources Tagged With: Copyright, e-Commerce, Intellectual property, IPR, Open Sources, Publishing

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