Your Idea or Copyright Theft?

Ana Kocmut-Saunders

“La propriété, c’est le vol!” (All Property is theft!).  So said French anarchist and capitalist Pierre-Joseph Proudhon in 1840.  Proudhon was not actually criticising individual entitlement to privately owned land. He was attacking landowners and capitalists whom he believed “stole” profits from labourers.

When modern day capitalists start up their own business they can quickly, easily and unwittingly ‘steal’ other peoples’ property.  How?  By using or adopting patented inventions or processes, trademarked logos or copyrighted material in their own business offerings or marketing.

Patents and Trademarks are easier to check out to avoid falling foul of them.  You can do that by a simple search of the online registry for each.

Beware and do your due diligence to check it out however.

Big brand retailers and service providers can be very aggressive indeed in their pursuit of anyone allegedly breaching their trademarks

Click here for the the latest reported instance and potential salutary tale.

What about copyright though? 

If material is not patented or trademarked, how do you know that your song, marketing concept, literary feature, clothing design or advertising pitch hasn’t already been created and protected by someone else?

Gareth Thompson

If you create something isn’t it yours?  So what if it’s not?  Does it really matter and should you worry?  Potentially yes if it steps hard enough on a business rivals’ copyright protected toes.

Uber was recently sued by Waymo (Google) for allegedly stealing technical information about itsLiDAR self-driving car system.  Ed Sheeran was recently sued for £16m for ‘stealing’ notes from ‘Amazing’ sung by Matt Cardle in his top 20 hit ‘Photograph’.  Marvin Gaye’s estate successfully sued Robin Thicke and  Pharrell Williams for $7.4m for ‘stealing’ from Gaye’s music to create ‘Blurred Lines.

In the fashion world the number of fashion shops claiming damages from rivals for copycat  designs has increased dramatically.  All Saints attacked River Island for copying items from its men’s and women’s collections.  Jimmy Choo pursued Marks and Spencers on the same basis.  Top Shop was forced to pay an undisclosed sum to French design house Chloe for copying a dungaree *

Original ideas invariably borrow from old ones. Even Voltaire admitted that “Originality is nothing but judicious imitation” **.  So how is a fledging entrepreneur supposed to know when their own inspiration becomes appropriation?  What’s the difference between being legitimately creative and original and illegally copying someone else’s work?  When does an idea become copyright protected material anyway?

Copyright arises automatically when material is first created.  However it has to be recorded not just remain an idea in someone’s head.  Once it is recorded though, any copying or adaptation of it can amount to an infringement.  An example would be lifting or adapting content ‘word for word’ from a business rival‘s promotional material or website to promote your own business.  However creating your own work based on someone else’s similar idea would not be an infringement of their copyright.

If recorded material is in the ‘public domain’ then it can be freely used.  Material published on the internet may be freely accessible to anyone. Perhaps surprisingly, that does not mean it is in the public domain.  Recorded material is only in the public domain if its copyright protection has expired.  How long does that last?  In the UK and for mere mortals, it currently lasts for the life of the author plus 70 years but not always. In the case of JM Barrie’s Peter Pan copyright protection has, (rather like Peter), an indefinite life span.  In JM Barrie’s case that was achieved by a statutory amendment made especially for that purpose in 1987 before it expired.

Different countries have different copyright expiry periods.  In the USA for ‘applied art’ material it can be as (comparatively) short as 25 years.  In Mexico, it is 100 years after the death of the author.  Once it has expired you can freely use, copy and adapt it.  However think twice before incorporating ‘Singing in the Rain’ into the marketing materials for the launch of your new retail umbrella outlet or ‘That’s Life’ for your positive thinking consultancy.  The copyright in the song or lyrics composition may have expired. However the copyright in the recording itself is separately protected. That could make it a highly successful but potentially very expensive launch party.

If there is any doubt about whether material you intend to use is copyrighted, whether anything came of it might ultimately and actually depend on how commercially successful you were.  How do you protect yourself against copyright infringement anyway?

In short create don’t copy or adapt someone else’s material.  Literally start with a ‘blank page’ and just what’s in your head.  Also go online and see what else has been created and recorded.  A simple ‘Google’ or ‘Bing Search’ will be highly informative.  It might be depressing to discover that your unique idea sadly isn’t but far better to be safe than sorry.  If in doubt always acknowledge the author’s contribution.  Apply otherwise to the author for a licence, grit your teeth and pay them a license fee.

If you’re otherwise sure that you’ve created your own original material don’t keep it to yourself.  Cast modesty to the winds and make sure you record and publish it.  Go ahead, be inspired and creative. Feel free to stand on the shoulders of others.  Just avoid picking their intellectual pockets in the process.

* Rachel Shields, Independent

** Daliah Saper, business.com

If in doubt and for safety always ‘look before you leap’ by getting specialist IP advice first.  Consult Ana Kocmut-Saunders, a member of the rapidly expanding IP team at CJCH solicitors.  Ana specialises in intellectual property protection.

CJCH Solicitors Corporate (including IP law) team is lead by Gareth Thompson, supported by Ana Kocmut-Saunders, and offers a obligation free consultation contact for new matters – 029 2048 3181 or e-mail on commercial@cjch.co.uk

CJCH Solicitors to create 71 jobs in Cyber Security with backing from Welsh Government.

CJCH Solicitors have embarked on an ambitious journey to create a staggering 71 new jobs within the Anti-Piracy and Cyber Security speciality in Wales by year-end 2020.  We are proud to reiterate the announcement made by the Welsh Government, revealing their support of our new global IP Anti-Piracy Unit at our Cardiff head office.

CJCH has been at the heart of digital piracy and Intellectual Property compliance in Wales, with an international impact. In 2014, our Intellectual Property practice launched its internal Anti-Piracy and Compliance consultancy. Our team developed a customised solution for our international clients, to protect their work product and recover lost revenues from software infringements.

Ken Skates, Cabinet Secretary for Economy and Infrastructure, said “IP piracy, which can range from copyright theft or infringement to counterfeit goods, is a growing global issue that can cause untold damage to businesses, to their protected and valued brands and the economy. ”

Infringements of this nature are a form of cyber crime which impacts business globally, depriving them of revenue and compromising their intellectual property rights. CJCH have tackled this issue head-on and cultivated a bespoke solution for companies suffering from this invasion.

The purpose of this partnership with the Welsh Government is to leverage our thought leadership and create a central hub for Anti-Piracy and Cyber Security in Wales. We intend to bring global best practice into Wales while developing local talent as well. Our 2020 goal, is to have established 71 new jobs in this field, as well as contribute to making the United Kingdom and global digital community a safer and more secure environment. We will be partnering with local businesses and academic institutions, such as Swansea University, to cultivate development and training programs to support this initiative, with specialist content aligned to business needs.

Stephen Clarke, the CJCH CEO, stated “The modern world of digital liberty and innovation offers greater access to information and narrows the global divide. Unfortunately, the digital economy brings with it a growing sophistication in criminal activity. Without proper defences, digital piracy exposes businesses to uncontrollable risk and vulnerability. Our solution enables us to partner with our clients to establish a proactive (protection) and reactive (recovery) governance model. Our goal is to share this experience with the community and grow the local capability in cyber security.”

As of 6 March 2017, CJCH Solicitors has been awarded a £432 000 grant from the Welsh Government to support our active project to establish this new entity. Our objective is to aggressively drive the development of Cyber Security and Anti-Piracy enforcement in collaboration with skills development and knowledge transfer. Making Wales, and the UK, a more secure and impenetrable digital landscape.

For more information and updates, email us at ip@cjch.co.uk or engage with us via Facebook, twitter or LinkedIn.

Managing IP Infringements for small to medium enterprises

A word from Tony (Senior Compliance & Investigator Consultant)

At CJCH Solicitors we look to the future of commerce to tackle the questions facing international compliance and governance head-on. Through our ongoing efforts to combat software licencing infringements and anti-piracy on behalf of our clients we have identified potential gaps in the capabilities of small to medium enterprises (SME’s), in particular, in protecting their intellectual property (IP) rights. As a result of the sheer volume of web-based IP infringements it is impractical for many SME’s to identify, monitor and control incidents on their own. The skills and resources to combat the risks associated with this commercially damaging crime are simply not readily available to all SME’s or, in some instances, even larger organisations.

Over time we at CJCH have expanded our offering to address these pain points and support our clients where they need it most – a sturdier and more robust solution than that which they can provide for themselves.

Our services include an automated IT capability which can:

  • detect the scale at which your assets are being infringed
  • actively seek their de-listing from host sites
  • track that the delisting has actually taken place

Our process, including the intervention of our law enforcement trained investigators, is proven to achieve results swiftly and accurately, while being scalable to suit individual demand. With our ability to proactively monitor our clients IP assets and, if required, seamlessly transition the matter for legal action, CJCH are at the forefront of IP protective services.


Compliance without borders

CJCH Solicitors is a law firm based in Cardiff, United Kingdom. The firm has grown substantially through a combination of a focused expansion strategy and key merger and acquisition projects. With collective legal experience spanning over 34 years, CJCH Solicitors is focused on dedicated solution development for both corporate and private clients.

The firm has developed a standalone Anti-Piracy and Compliance offering, which is coordinated by its team of experienced solicitors and compliance and research professionals. Compliance is no longer a tick-box function of corporate governance. Rather CJCH sees Anti-Piracy and Compliance as a dynamic element of the modern, digitally-aware organisation both in the UK and globally.

At CJCH we are committed to perfecting our compliance solutions to ensure that no client’s software or intellectual property is utilised without licence. We have grown our sphere of knowledge sharing and best practice development. Having recently hosted Attorneys from a leading American Law firm, our CEO and head of Anti-Piracy and Compliance embarked on a tour of partner firms in the Nordic and Baltic regions to share our compliance processes and learn from their local experiences.

The tour included visits with Njord Law in Copenhagen, a prominent Scandinavian law firm, as well as Sorainen in Latvia which was voted Baltic Law firm of the year for 2016.

(L to R) Stephen Clarke – CEO of CJCH Solicitors; Frederik Lindboe Refsgaard – Legal Assistant at Njord Law; Emma Whitehead – Dassault Systemes Lead Investigator, Baltic Region; Jeppe Brogaard Clausen – Partner at Njord Law.

(L to R) Steve Rees – CJCH Compliance and Enforcement Team Manager; Stephen Clarke – CEO of CJCH Solicitors; Agris Repass – Head of Intellectual Property of Sorainen in Latvia; Emma Whitehead – Dassault Systemes Lead Investigator, Baltic Region. Our objective in Latvia was to discuss our IP enforcement policies for the Baltics and in particular increased use of court procedures and raids on premises where businesses are using illegal software.

As illegal usage and piracy of our clients’ software continues to expand globally, so too does our focus on enforcing Anti-Piracy and Compliance on an international scale. The increased use of court authorised raids in particular has proved very helpful, playing a major part in increasing our recovery rate by over 50% in the recent year from €11.8 Million in 2015 to €18.6 Million in 2016.

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