Intellectual property

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​What it is

Intellectual property is an umbrella term that refers to the collection of legal rights given to creators to protect the ‘creations of their mind’.

Put another way: if you created it, you own it and others can’t copy it.

Note: intellectual property is a vast subject that arises in many aspects of work and across multiple sectors. This entry provides a high-level overview of the key aspects of intellectual property as it most commonly arises in respect of the creative sector but is not exhaustive.

When it applies

In some limited cases, such as copyright and unregistered design rights, intellectual property rights arise automatically. That is, a creator does not need to take additional steps to register the work to secure protection.

For copyright, these rights arise on the expression of the idea (not the idea itself) e.g. the film not the idea behind it. For unregistered design rights protection is triggered when the design has been made or otherwise recorded in a document.

In all other cases, such as patents, registered design rights and trade marks, registration is needed for protection to arise.

Who/what it applies to

The creator (or any person to whom they have assigned their rights) is usually the owner of intellectual property. However, exceptions to this do arise. For example, subject to the terms of their employment contract, work created during the course of someone’s employment often belongs to their employer.

Intellectual property applies to ‘creations of the mind’. The specific type of protection depends on the work in question, but rights are commonly divided into two general categories:

• copyright (broadly speaking literary and artistic works)
• industrial rights, which include patents, design rights and trade marks (see key legal considerations below)

Core principles

1. Intellectual property rights are designed to protect, and therefore encourage, creative, innovative and inventive work.
2. Creators are granted the exclusive right to utilise their work and to prohibit unauthorised use (infringement) by third parties.
3. The prohibition on copyright infringement helps to encourage investment in creative endeavours while protecting consumers against counterfeit activity.
4. Save for copyright and unregistered design rights, registration is needed to secure intellectual property rights.
5. Protection does not last forever. Depending on the type of intellectual property, rights are granted for a specific period and may require renewal (see FAQs below).

Why it matters (risks/opportunities)

Risks

• Not knowing which intellectual property requires registration risks a failure to register and protection being lost (or not arising in the first place) 
• Some forms of IP protection can be complex and expensive e.g. registering patents
• It can be difficult to know your rights and to navigate a complex area of law, specialist advice is often needed

Opportunities

Intellectual property:

• protects original ideas and work, helping to prevent misuse
• adds value to original work, helping to monetise them
• encourages creative ideas and investment through the ability to protect and monetise work

Key legal considerations/elements

The key types of intellectual property are:

Copyright

Copyright is automatic protection granted to creators of original work preventing unauthorised use of that work. For more information, see our glossary entry on copyright. 

Patents 

Patents apply to inventions that are new, inventive and, in general terms, offer a solution, process or a method of doing something. Patents must be registered and the application process can be complicated and lengthy (lasting years). Patent applications often require specialist legal advice from a patent attorney.    

Unregistered design right

This is automatic protection in respect of the shape and configuration of a (3D) article. The shape and configuration must be ‘original’ (e.g. not copied or commonplace) to qualify.   

Supplementary unregistered design (SUD) right

This provides automatic protection to both the 2D and 3D appearance of a design. This was introduced following Brexit to mimic prior EU protection, although SUD protection applies in the UK only. 

Registered design right

Provided a design (meaning the physical shape of a product, its configuration, decoration and pattern) is ‘new,’ it can also be registered to obtain registered design right protection. Where possible, registration for design right protection is recommended as the scope of protection, and ease of enforcement, is greater than with unregistered design rights.

Trade marks

Tade marks apply to protect a brand’s identity, including product or service names and logos. Words, sounds, logos and colours can all be registered e.g the I ❤️ NY logo. Registration is required for protection to arise.   

Key commercial considerations/elements

Be clear on who owns the creation in question. Where possible, keep a paper trail of who contributed to the work e.g. dated drawings, schematics or drafts.

Until such time as the intellectual property is registered (if registration is needed) keep your work confidential. Use a non-disclosure agreement if you do need to speak to third parties about it.

You can put others on notice of your intellectual property by using the mark ® against registered trade marks and © against work you hold copyright in.

If commissioning a third party to produce work on your behalf, be clear in the commissioning agreement who owns the intellectual property in that work.

Diarise registration renewal dates, being sure to allow enough time for the preparation, submission and processing of the renewal application.

FAQs

Can I trade mark anything as long as it is distinctive?

No. A trade mark cannot be offensive, descriptive (e.g. ‘minty and chewy’ for a peppermint chewing gum; as this would apply to too many other creations), generic or make use of official emblems or national flags that you do not have permission to use.

What if my work falls within more than one category e.g. a design right and a trade mark?

It's quite possible that more than one intellectual property class can apply to your work. In this case, you can apply to register all forms of protection that are relevant.

How do I know if my intellectual property is ‘new’ so that it can be registered?

You can search the relevant public registers (e.g. the trade mark register) to see if someone has already registered your patent, design or trademark.

What is a licence of right?

This means that a patent owner will give anyone a licence (on reasonable terms) to use the patent and cannot refuse to do so (subject to some specific exceptions). However, you still need to agree the terms of that licence with the patent owner.

Do intellectual property rights last forever?

No. Each right lasts for a set period of time and in some cases will need to be renewed (if possible) for continuing protection.

These periods are subject to change, but in general terms:

• copyright duration varies depending on the type of work but generally lasts for 70 years from the author’s death or in some cases from the publication of the work (broadcasts have 50 years protection and the layout of published editions 25 years)
• patents last for 5 years (renewable up to a maximum of 20 years)
• automatic design rights last for 10 years from the date of first sale or 15 years from the date of creation (whichever is first)
• registered design rights last for 5 years (renewable)
• trademarks last for 10 years (renewable)