8. Designs

This chapter discusses designs law, which is a collection of legal rights that can protect designers of products from having the appearance or shape of their products copied, or give them a monopoly over the commercial exploitation of a shape. Designs law is not about any literary or musical content recorded on a product—that will be protected by copyright. Similarly, the underlying technological ideas may be protected by a patent. In the UK, copyright in designs cannot be used to prevent designs for everyday, functional articles from being copied; only artistic designs can be protected by copyright. Design right protects non-artistic designs and registered designs, and protects designs which are new and of individual character by a monopoly right that lasts 25 years. Registered designs law has been harmonized by the European Union.

6. Trade secrets, confidential information, and the protection of private information

This chapter focuses on the law of breach of confidence, which protects trade secrets and privacy. It is judge-made law, with its origins in equity. The action for breach of confidence now resembles a common law cause of action, but its equitable basis is still evident in the flexibility and discretion the judges adopt in deciding cases. The Human Rights Act 1998 required the courts to implement the right to private and family life. The courts have done this, in cases concerning private information, by extending the law to protect privacy where the information concerned was not secret. This is now regarded as a separate branch of the law. Special considerations also apply in relation to the duties employees owe to their employer both during and after their employment. There is a defence to an action for breach of confidence where publication is in the public interest.

3. Computer programs and databases

This chapter deals with copyright in computer programs and databases for which the EU Software and Database Directives set special rules, which are implemented in the Copyright, Designs and Patents Act 1988 (CDPA). In addition, it deals with database right, also created by the Directive, which is implemented by the Copyright and Rights in Databases Regulations 1997. There are particular defences to copyright infringement in relation to computer programs that allow decompilation and the development of compatible software. Database right is intended to protect the investment in gathering the data into a database; it does not protect data that is created by the database owner. Database right protects against the extraction or re-utilization of the contents of the database for a period of 15 years.

7. Patents

This chapter discusses patents, which are granted for new and inventive technological developments but not for developments in the creative or non-technological arts. Areas on the borderline between technical and other forms of creativity are the subject of difficulty and controversy. Patents last for 20 years from application, but may be revoked at any time on the grounds that the invention does not meet the requirements for patentability. Manufacturing or dealing in products, or carrying out processes, as described in the patent’s claims, infringes the patent. Unlike copyright, where both economic and individual rights are important, the main reasons for the grant of patents are economic, to encourage technological development. Patents are considered essential to many industries such as the pharmaceutical industry, where there is also a strong public interest in the development and accessibility of technology. The law must strike a balance between the public and private interests.

5. Performers’ rights

This chapter focuses on performers’ rights, which give musicians, singers, actors, dancers, and variety performers rights to prevent or give permission for the recording or broadcasting of their live performances and subsequent commercial exploitation of those recordings. Performers’ rights are important for broadcasters and record and film companies which hire performers: they must ensure that the performers give all the necessary permissions in their contracts or the project will not be able to proceed. The rights last for 50 years, or 70 years for EU musicians. The development of sound recording and movie technology meant that it was not necessary for everyone to hire the services of a performer in order to enjoy their performance and this triggered the development of performers’ rights. There are legal provisions protecting some performers against signing away all their rights in these contracts. Performers’ rights have been harmonized by the European Union.

2. Copyright

This chapter defines copyright as arising whenever a work is created under qualifying conditions. The Copyright, Designs, and Patents Act 1988 (CDPA) defines eight types of work that fall under two categories: works that must be original or ‘authorial works’, including literary works, dramatic works, musical works, and artistic works; and works that need not be original or ‘entrepreneurial works’: films, sound recordings, broadcasts, and the typographical arrangement of published editions. Copyright is infringed by copying or communicating the whole or a substantial part of a work—referred to as primary infringement—or by dealing in infringing copies of a work—referred to as secondary infringement. There are some major and many minor defences to copyright infringement including the ‘fair dealing’ defences and the public interest. Many aspects of copyright law have been harmonized by the European Union.

1. Introduction to intellectual property and common themes

This book focuses on intellectual property (IP) rights as they apply in the UK, including rights created by the EU. Legal systems around the world have seen fit to create these rights or causes of action to protect intangible concepts such as inventions, literature, brands, designs, and so on. It is said that IP protects the products of the mind, but that does not really apply to brand protection or to the protection of some types of information. As IP rights are so diverse, the theoretical bases for legal protection vary and are dealt with separately in their relevant chapters. However, there are some common approaches, namely, the neo-classical micro-economic theory, rights-based, and other approaches. Common legal topics are dealt with here as they affect more than one IP right. Particular issues flowing from them will be mentioned in the following chapters.

9. Passing-off and trade marks

Passing-off is a common law cause of action that protects traders with goodwill in their business against misrepresentations made by their competitors which confuse customers as to the source of goods or services. The typical passing-off scenario is where a trader, by the use of a brand name, logo, slogan, or packaging, deceives customers into thinking that its products or services are associated with another trader. Trade marks can be registered for signs or symbols that identify products or services as coming from a particular trader, so to be registrable a trade mark must be distinctive of a trader’s goods and not similar to any earlier registered mark, or a non-registered mark that is in use. Registration of a trade mark gives substantial advantages over relying on passing-off. The law of registered trade marks has been harmonized by the European Union.

4. Moral rights

There are two different types of rights labelled as ‘moral rights’ in the CDPA: rights for authors referred to as the rights of paternity and integrity; and other rights of all individuals: the right not to be falsely attributed as author of a work; and a right of privacy in privately commissioned photographs and films. These protect non-commercial aspects of the relationship between authors and their works. Thus, they cannot be assigned, and may be enforced even after the author has assigned or licensed their economic rights, and even against the owner or licensee. The rights last as long as copyright does and pass to the author’s beneficiaries on death. Different countries have implemented the Berne rights in different ways. Authors’ moral rights were introduced in 1988 to implement the Berne Convention; the UK does not protect them as fully as other countries, particularly civil law countries.