Intellectual property, the intangible property right that exists under law, is too often overlooked by businesses as a non-priority because it is not a tangible physical asset. On the contrary, in our tech-reliant era, intellectual property is crucial to businesses and understanding one’s intellectual property rights (“IPR”) and obligations should be at the core of every business plan.
1. INTERNATIONAL INTELLECTUAL PROPERTY LITIGATION
Intellectual property defines a category of various intangible property rights such as, amongst others, copyright, trademarks, designs and patents, and this legal protection encourages and protects innovation and creativity. As such, companies will aggressively defend their intellectual property rights especially where there is a threat to their brand recognition, customer following and position in the market. For example, Facebook's recent win in China against a company's use of its 'face book' beverage shows how important a worldwide trademark is in an age where the internet has facilitated international customer reach. More recently, the ongoing Yieldify case illustrates the complexities of a patent infringement case when applied to an e-commerce software business.
2. LAWS WHICH CAN NO LONGER KEEP UP
With ever evolving advances in technology, counterfeiters now operate in a mature and international illegal market. IPR infringement has moved from an individual illegally copying someone's work in a secret workshop, to now being carried out by anyone with access to a laptop and internet. The current law on IPR, captured in the Copyright, Designs and Patents Act 1988, reflects an era when the internet was still in its infancy. Merely reading the law is therefore no longer enough; an understanding of up to date UK and EU case law which add clarity and modern interpretation to the 1988 law is essential.
3. AMBIGUITY OF THE FAIR DEALING EXEMPTION
If someone uses another's copyright for reporting current events or for editorial purposes, this is considered 'fair dealing' and not in violation of the 1988 act. This is an established defence to copyright infringement in the UK. The problem with this defence is that it was originally developed for journalists dealing with printed news. The increase of blogging, social media commentary and online forums has created ambiguity on what constitutes fair dealing for the purposes of current events reporting. As such, businesses may need to conduct in depth internal reviews to assess whether they fall within this exemption, before seeking to rely on this defence. This is perhaps especially so following the recent case of England and Wales Cricket Board Ltd v Tixdaq Ltd (2016) EWHC 575 (Ch), where a three stage test was established to determine whether a use was considered ‘fair dealing’.
4. VARIETY OF COPYRIGHT INFRINGEMENT
Ensuring that you do not breach someone’s copyright is not as straight forward as merely avoiding plagiarizing someone else’s work. With businesses reliant on technology in their day to day activities, there are many business actions which may raise copyright questions. For example: (i) are you breaching someone’s copyright when taking information from their publicly available website and using it in your commercial service offering?; or (ii) are you breaching a website owner’s copyright if you did not explicitly agree to their online terms and you use their information in violation of the online terms?; or (iii) are you breaching copyright by directing users through hyperlinks to protected works (2014 Svensson case)? These are just a few examples of issues to consider, and they illustrate how copyright can permeate many aspects of a business.
5. DATA/WEB SCRAPING
Data/web scraping is, in short, a more advanced, automated and large scale method of copying someone’s information. 10 years ago, copyright infringement would follow a manual process of going through someone’s website or documents to copy their information. Nowadays, the market is flooded with software specializing in robotic/automatic crawling and information retrieval – these robots automatically ‘scrape’ information from a website. Some of these robots are programmed with intelligent scripts, meaning that the robot continues to crawl a website and associated links without further manual instructions.
Web/data scraping is of particular concern to businesses offering real time prices and data, which, when taken by someone else and reused, quickly reduces the uniqueness and value of their original information. Whilst the law on data/web scraping remains a grey area in the UK, this is something which will certainly evolve and which businesses should keep an eye on, especially in light of the EU decision in 2015 in Ryanair Ltd v PR Aviation BV (C-30/14).
Ultimately, IPR infringement may result in criminal civil liability, and aside from the costly effects of a law suit, the loss of reputation could be a deal breaker for your business, regardless of whether the final judgement finds you innocent or not.