Own-It IP Presentation by Peter Mason, Briffa.

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Peter Mason, Briffa, www.briffa.com. An Intellectual Property masterclass on behalf of own-it.org at the AmbITion Roadshows, England 2009.

Peter Mason, Briffa, www.briffa.com. An Intellectual Property masterclass on behalf of own-it.org at the AmbITion Roadshows, England 2009.

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  • 1. Digital Content and Intellectual Property A Law Firm Specialising in Intellectual Property and Information Technology Amb:IT:ion Project 16 July 2009 Peter Mason
  • 2. 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
  • 3. 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
  • 4. 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
  • 5. 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.
  • 6. 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
  • 7. 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
  • 8. 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?
  • 9. 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
  • 10. Artist / Contributors Agreement • Special Considerations for Music and Film – Literary, dramatic and musical works – Rights in recordings – Performer’s rights – Membership of societies
  • 11. 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
  • 12. 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.
  • 13. 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
  • 14. 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
  • 15. Privacy and Data Protection • “Personal Data” • Register at the Information Commissioner • Privacy policy • Agreements with third party processors
  • 16. 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
  • 17. 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?
  • 18. Web Development • Is your website business critical? – Front end / back end – Source Code – ESCROW
  • 19. 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
  • 20. Briffa Peter Mason Briffa Business Design Centre Solicitor 52 Upper Street Islington 0207 288 6003 London peter@briffa.com N1 0QH