Digital Content and Intellectual Property
A Law Firm Specialising in Intellectual Property and Information Technology
Amb:IT:ion Project 16 July 2009 Peter Mason

Digital Content and Intellectual Property
• Web 2.0
• Relationships rather than property
• Artists / Contributors
• “Users”
• Third parties
• All of the above?
• Apportioning Risks and Responsibilities

Digital Content and Intellectual Property
• Basic introduction to intellectual property rights
• Agreements with artists for making digital use of
their works
• User terms in digital content businesses
• Forums and monitoring
• Privacy / data protection
• Using user generated content from third party sites
• Web development

Intellectual Property Rights - The Toolbox
• Copyright
• Protects text (including software), dramatic, musical, artistic and
derivative works (e.g. film). Generally not 3-D physical products
• Arises automatically with no registration necessary and is international
• Owned by the author or employer if made in the course of employment
• Any copying of a substantial part is infringement, no matter how many
changes are made
• Assignment by writing only, but licences by writing, terms or implication

Intellectual Property Rights - The Toolbox
• Confidential Information
– What does it protect?
• Information of a confidential nature
• Imparted in circumstances of confidence
– Common law or Contract
– Why is it useful
• It is the only kind of protection available for “ideas” alone.
• It also protects business information like contact lists and
financial information.

Intellectual Property Rights - The Toolbox
• Trade Marks / Branding Rights
• Will users, visitors or just those that hear about it think that the services or
goods come from a common trade source? Will they think the services are
being “endorsed”?
• Prevents use of a similar mark on similar goods such as to cause a
“Likelihood of Confusion”
• Are the potential customers the same? Is it sold through similar
channels?
• How will my customers locate the services? Is brand recognition
important?
• You can’t protect descriptive or generic names

Artist / Contributors Agreement
• Permitted (licensed) use
– Copying
– Publicly displaying
– Making available for on-demand use / download?
– Adapting?
– Licensing for commercial use?
– Licensing on Creative Commons type licence only?
• Payment
– In kind (pooling)
– Royalty on downloads
– Advertising percentage
– Commission on licensing

Artist / Contributors Agreement
• Release / Promotional Commitment?
– Minimum marketing spend
– Minimum amount of content made available
– Position in lists / rankings
• Term and Territory
– Termination linked to minimum targets?
– Targets by territory?

Artist / Contributors Agreement
• Warranties
– As the website operator / distributor you could be liable, therefore...
– Warranties from the artist that the work is there own etc
• Conflicting Contracts / Competitors
– Has the artist licensed their work to anyone else? Is this acceptable
in the future?
– Again, warranties from the artist

Artist / Contributors Agreement
• Special Considerations for Music and Film
– Literary, dramatic and musical works
– Rights in recordings
– Performer’s rights
– Membership of societies

User Terms
• Identification and Registration
• User generated content
– Licence to the website operator to use and edit the content
– Warranty that the content does not infringe other’s rights, breach
confidentiality or is obscene etc
• Limitation of liability for other user’s actions /
internet downtime etc
• Incorporation of Artist type terms?
• Disclaimers on areas of the site accessible without
sign-up

User Terms
• Licence of Content to the User
– Limited to Personal Use etc?
– Adaptation?
– Payment (royalties (for commercial use), subscription, paid-for)
– Creative Commons Licence
– Attribution
– Commercial use?
– Derivatives?
– Share alike?
– Can be adapted for your own use, although then don’t call it
Creative Commons Licence and don’t use their logo
– Choose the right territory and version.

Forums and Monitoring
• The Risks
– Liability for defamation
– Infringement of copyright
– Breach of confidentiality
• The Defence
– A mere portal
– Operator not in pre-publication control
– Act swiftly when notified to take items down
• The Problem
– You can’t know or properly investigate if an item is illegal
– If you’ve been notified, and don’t act you will be liable
– Chilling effect

Forums and Monitoring
• Practical Steps
– Adaptable forum rules
– Monitoring policy for moderators
– Quick take down procedure
– Standard letters and procedure to try to facilitate agreement and
show commitment to trying to protect and enable free speech

Privacy and Data Protection
• “Personal Data”
• Register at the Information Commissioner
• Privacy policy
• Agreements with third party processors

Privacy and Data Protection
• The Eight “Data Protection Principles”
– Process fairly and lawfully
– Data obtained for specified and lawful purposes and processed for
these purposes only
– Data to be adequate, relevant and not excessive
– Data to be accurate and, where relevant, up to date
– Data not kept longer than necessary for the specified purpose
– Data processed in accordance with data subjects rights
– Appropriate technical and organisational measures to keep data
secure and safe
– Data not to be transferred outside the EEA unless the country offers
adequate protections

Using user generated content from third
party sites
• Licence
– from the copyright owner (e.g. photographer, director,
artist)
– consider all relevant rights including rights in recording
and musical or literary composition
• Release
– from subjects or performers
• Consider conflicting contracts
– consider terms of the website the content appears on.
Do they have exclusivity?

Web Development
• Is your website business critical?
– Front end / back end
– Source Code
– ESCROW

Intellectual Property at Work
• Key Times to think about IP for digital
businesses
– Business Start Up
• Contributor’s Agreements / User Terms / Privacy
Policy
• Freelancers
• Trade Mark Registration
– New Website, Brand Design
• Development Agreement
• IP assignment

Briffa
Peter Mason Briffa
Business Design Centre
Solicitor 52 Upper Street
Islington
0207 288 6003
London
peter@briffa.com N1 0QH