own-it ip presentation by peter mason, briffa

Amb:IT:ion Project 16 July 2009 Peter Mason

Digital Content and Intellectual Property

A Law Firm Specialising in Intellectual Property and Information Technology

• Web 2.0

• Relationships rather than property• Artists / Contributors

• “Users”

• Third parties

• All of the above?

• Apportioning Risks and Responsibilities


• 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

• 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.



• 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 recognitionimportant?

• 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


• 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?


• 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


• 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

Solicitor

0207 288 6003

[email protected]

BriffaBusiness Design Centre52 Upper StreetIslingtonLondonN1 0QH