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Your Idea or Copyright Theft?

by Ana Kocmut-Saunders & Gareth Thompson

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

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Happy International Women’s Day

It’s the 8th of March, which is International Women’s Day, and although we celebrate our rich diversity and inspirational team everyday, we take some time today to stop and recognise the  immeasurable contribution made by the Women of the world.

1918 – Contance Markiewicz – First Woman elected to British House of Commons.

1921 – Edith Wharton – First Woman to win Pulitzer Prize.

1928 – Amelia Earhart – First Woman to fly a plan across the Atlantic.

1973 – Sybil Phoenix – First Black Woman to be awarded a MBE (35 years later in 2008 she was awarded an OBE).

1976 – Mary Joy Langdon – First Woman to become a fire fighter in the UK.

1981 – Baroness young – First Woman leader of the House of Lords.

2006 – Margaret Beckett – First Woman to become Foreign Secretary for the UK.

2017 – Lady Hale – Appointed first Female President of the UK Supreme court.

These are but a mere snapshot of the endless contributions and advancements Women have made throughout our history. We asked a few of the inspirational Women in our own team to reflect on their careers and share their experiences.

Amy Roberts-Rees, Solicitor and Partner: Head of Mental Health Law and Court of Protection Department

Amy has been with CJCH solicitors for 5 years and has been instrumental in growing the Mental Health Law practice, and establishing our Court of Protection service line. When asked what her proudest achievement has been in her professional career, Amy said:

I’m proud to be recognised as one of the leading female solicitors in the area of mental health law in South Wales, as well as having become a partner at the age of 29 to the largest mental health law firm in South Wales. I established the court of protection for welfare department at CJCH Solicitors who now lead in the area for Court of protection cases in relation to Deprivation of Liberty (Dols) and welfare matters. I am also a panel accredited member recognised by the law society in the area of mental health law.

We asked Amy what advice she would give to the next generation of young Women seeking to join the legal profession:

Becoming a solicitor is an aspirational position to obtain, long hours and extensive time in progressing in the area of law you wish to specialise in involves hard work and determination. If you have qualities such as being ambitious, driven and most importantly passionate about your work, your career will flourish. In order to achieve in life you get out what you put in.

Jodi Winter: Solicitor and Partner: Head of Family, Matrimonial and Child care Law Department, and Partner in charge of our Barry office

Jodi’s career in law boasts an impressive array of achievements. She joined CJCH Solicitors in 2013, and prior to this spent 14 years in the Public Sector, with half this time as a Chief Legal Officer.

We asked Jodi what barriers she has had to overcome to achieve success:

Being a female from a working class family in the Rhondda Valley ( of which I am very proud), with an ambition of embarking on what was a predominantly middle class male profession was something that was discouraged by careers advisors at my school. I recall the careers  questionnaire that I completed in 1991 where I clearly set out my preferences to be a solicitor, produced the most suitable job match for me as a librarian! Fortunately, apart from that I have always been supported in my career by those who have managed me, worked with me and for me regardless of gender.

When asked what her proudest achievement was, Jodi jovially commented:

After years of hard graft, part time jobs, study and 30k worth of debt – being admitted to the Roll of Solicitors.

She went on to add:

The second followed on from  that by being made a Chief Legal Officer (in the public Sector) at the age of 28 and then at 38 being invited to join CJCH as partner

Lastly, when asked if she felt that Women have more opportunities within the legal industry now, Jodi said:

Absolutely – there are  more women entering the profession, more female partners and directors. Far more women Judges – after all 2017 saw  Baroness Hale’s appointment as the first Female President of the UK Supreme Court …. YAY!

Amy Palin, Paralegal: Blackwood office, Private Law and Conveyancing

Amy is a recent addition to CJCH having started at the firm in 2017 after completing the Legal Practice Course at Cardiff University. She began with us in our Cardiff office in the Anti-Piracy and Licence Compliance research team, and has since been moved to being a dedicated Paralegal in the Blackwood office on the path to being a trainee solicitor with the firm.

When asked what barriers she has had to face, Amy replied:

Thankfully I do not feel I have faced nor have had to overcome any barriers so far. I do feel that I am very early in my career, and this may be something that is encountered later, however I do not believe or worry that that would ever be something I would experience in CJCH. It is great to be able to work for a firm that clearly holds no prejudice, with so many women holding important positions in the firm, not only several partners but also a senior partner.

Advice Amy would give aspiring lawyers looking to enter the profession:

I would say to not believe it is a profession which is dominated by men, as it may have been in the past, as this is not the case anymore. I also believe it is important to remember that men and women may have different qualities to bring to the profession. I am sure many women have believed they weren’t as outspoken or assertive as their male colleagues and superiors, so would never progress, so think “why should I bother?”. No one should feel that they don’t have what it takes because they don’t fulfill the classic idea of a lawyer, the intimidating “shark” in the big office, that always knows best. I believe times are very different now and as well as considering yourself equal to males in your profession, you must consider yourself equal to your client, so any arrogance or believing yourself as superior is unlikely to be a positive quality for a promising career in law in the future.

Sally Perrett, Solicitor: Child care Law

Sally has been with CJCH Solicitors for two and a half years, and although she represents clients throughout South Wales, she is based in our Barry office. Sally acts, mainly, on behalf of parents in child care proceedings brought by the Local Authorities.

When asked what her proudest professional achievement was:

For me, this would have to be being accepted on to the Law Society Children Panel.

We asked Sally what advice she would give to women starting out in the field:

The Legal profession isn’t easy, however if you work hard the rewards will follow.

Lastly, in reply to whether she thinks Women now have more opportunities within the legal industry now, Sally said:

Yes definitely, there are more women than ever before in senior positions both within the private and public sector and the judiciary. However, they have worked incredibly hard  and made sacrifices both professionally and personally to be there. Hopefully in the future these sacrifices will not have to be so great.

 

We would like to thank each of our team members who contributed to this post, and wish a happy Women’s Day to all.

 

 

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Our offices are closed Friday 2 March 2018 due to weather conditions.

Notice to all our clients: Our offices will be closed today, Friday 2 March 2018, due to the snow and general weather conditions.

Please do contact your solicitors directly via email should you need to get in touch, and in emergencies please use our admin@cjch.co.uk email contact or our 24 hour emergency line +44 (0) 79 6730 5949 for urgent matters.

We will be open again on Monday 5 March 2018.

Thank you for your understanding.

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Fluctuating capacity and how to address future uncertainties of care planning in a section 21A appeal

By Emma Sutton (instructed on behalf of MB) and Rebecca Evan-Williams (CJCH Solicitors). Re-post of article from No5 Barristers Chambers.

31 January 2018

Background

The court had before it an application brought on behalf of MB pursuant to section 21A of the Mental Capacity Act 2005 (‘the Act’) by his RPR, Mrs Claire Reid, to challenge a standard authorisation made in accordance with schedule A1 of that Act; the primary challenges being whether the mental capacity and best interests qualifying requirements were met. So far, so good.

MB had resided in a care home since 2008 and had a diagnosis of moderate learning disability, autism spectrum disorder and complex epilepsy and as a consequence of his diagnoses, required close supervision of daily living and prompting from his carers.

Due to the complexities of MB’s presentation, a number of expert reports were necessary to assist the court to resolve the proceedings and a position was reached whereby the capacity evidence prepared by Dr Michael Layton (Consultant Psychiatrist) and Dr Lisa Rippon (Consultant Developmental Psychiatrist), and their jointly prepared statement, was accepted by the parties. The expert evidence unanimously concluded that MB had the capacity to make decisions regarding his residence and care needs, but lacked the capacity to conduct the proceedings.

By reason of the above, the court accepted that it had no jurisdiction to make best interest decisions regarding MB’s residence and care; notwithstanding his requests to leave his care home and move to alternative accommodation. The court determined (per section 21A(2)(a) and section 21A(3)(a) of the Act) that MB did not meet all of the necessary qualifying requirements in order for a standard authorisation to be in place (the mental capacity qualifying requirement not being met), and on such basis, the standard authorisaation was terminated with immediate effect.

Comment

Mrs Reid, as MB’s litigation friend, fully recognised that MB would (as a consequence of the expert evidence) effectively be removed from the procedural safeguards contained in schedule A1 of the Act. Her status as RPR would also end upon the termination of the standard authorisation.

Although his ‘appeal’ had been successful, careful consideration had to be given prior to the final hearing as to whether the case fell into the ambit where ‘contingent’ capacity decisions were appropriate. The Court of Protection Practice helpfully provides a template order [see pages 2362-2364 of the 2017 edition] for such circumstances and this was brought to the courts attention. However, on the facts of this particular case, it was accepted that there was no identifiable external trigger which would ‘cause’ a loss of capacity – for example, another person who unduly influences P, P resorting to alcohol use, capacity being dependent on a continuance of training/ advice etc.

Instead, MB’s fluctuation of capacity was intrinsically linked to his own inherent complex functioning and could not be put into a prescribed ‘box’ of when he would and wouldn’t have the ability to make capacitous decisions. In this regard, the experts said this:

‘Both Dr Rippon and Dr Leighton agreed that MB’s capacity could fluctuate during times of seizure activity but also when his level of anxiety rises and he becomes distressed because of environmental triggers. It was Dr Leighton’s view that these periods could last for several days and he gave the example of the time that MB had become angry with his RPR and had refused to see her for a week. However, what is less clear is whether his capacity was affected over the whole of this period. Therefore, although both doctors agreed that MB’s capacity had fluctuated, what is less certain is how long these periods could last’ (my emphasis)

As MB’s care plan had (for the past 10 years) met his complex needs, and due to the lack of specificity regarding whether and if so, for how long, seizure activity could potentially impact on his decision making, it was not considered appropriate for further exploration to be given to this issue – particularly as the ongoing nature of the proceedings was having an impact on MB.

A further point that required consideration was whether the appointment of an independent advocate (within the meaning of section 67 of the Care Act 2014) to represent and support MB for the purpose of any future needs assessment and the preparation of a care and support plan (etc) was necessary.

This was raised on behalf of MB which HHJ Parry addresses in her Judgment (with reference to the Care and Support (Independent Advocacy Support) (Number 2) Regulations 2014) and emphasised that the order would record ‘the Local Authority’s willingness and indeed, in my view, obligation to consider this ongoing additional support for MB in the decisions that he will now be making on his own behalf’.

Although set out in a recital (which is positive for reference as to the ‘reasonableness’ of future actions) this ultimately relates to a primary issue that the powers of the court do not extend to decisions compelling parties to provide services for P (N (Appellant) v ACCG and others (Respondents) [2017] UKSC 22, Baroness Hale, paragraph 29).

 

 

Emma Sutton was instructed by Rebecca Evan-Williams and Amy Rees-Roberts (Partner) of CJCH Solicitors (Cardiff) on behalf of MB

Claire Reid is a professional RPR and Project Lead for Training in Mind

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CJCH Solicitors – Finalist for Cardiff Life Awards

The Cardiff Life Awards committee made the announcement this afternoon of their finalists across the 18 categories in their award lineup. CJCH Solicitors is proudly nominated as a finalist in the category of Legal and Financial, which is sponsored by FOR Cardiff.

It is an honour to be nominated, and we wish all of the nominees the best of luck for the ceremony on the 15th of March.

 

More information on the event from the Cardiff Life Awards team here.

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Landlord and tenant issues: How long are you willing to wait to recover possession of your property?

By Nerys Thomas.

Generation rent (generation of young people living in rented accommodation with little immediate chance of becoming home owners due to the high cost of property) is an ever-increasing reality within the UK.  Whilst this is good news for landlords, whether they have one rental property to their name or those with large property portfolios, being a landlord can at times be compared to a costly roller coaster experience, especially when attempting to recover possession of your property.

Fundamentally, no landlord can recover possession of their property without the tenant providing vacant possession or the court ordering for the tenant to vacate.  If the tenant does not leave the property following a court order being obtained, landlords must then apply for a court approved bailiff to undertake an eviction.  All of which can become an expensive and time-consuming situation, where the landlord is usually already aggrieved e.g. unpaid rent.        

The Ministry of Justice published statistics in November 2017 surrounding landlord possession proceedings.  It is pleasing to note from this publication that the actual number of possession claims directed to court are slowly reducing, but those claims which are directed to court have seen the time frames for the matters being addressed marginally increasing.  On average, the Ministry of Justice inform us that it could take 11.4 weeks from the filing of a claim at court to getting a possession order.  This means that if your tenant has fallen into rent arrears and you have served the appropriate notice it will take, on average, just shy of three months from filing your claim at court to the matter being considered by a Judge.  That would potentially be three further months where rent is not being paid.

It is detailed in the Ministry of Justice report that it will take on average 41.2 weeks from the date of issuing a claim at court for possession to actually recovering possession, should a tenant fail to adhere to the court order requiring that he/she vacates, and a court approved bailiff is employed to undertake an eviction.  Once again, if the reason for pursuing possession is rent arrears, this time frame is likely to result in an eye-watering debt owed to the landlord.     

Please note that the Ministry of Justice statistics have been collated across England and Wales, therefore the true situation in your local court may vary depending on the court’s workload.  Nevertheless, the figures are a clear warning for landlords to try and protect themselves where possible.

At CJCH Solicitors, we have the experience and knowledge of providing an all-encompassing service in relation to landlord and tenant matters, whether this is to safeguard the landlord prior to entering into a rental agreement; when disputes have arisen or to recover possession and/or rent arrears through the court process.  Should you wish to discuss your situation further or seek assistance with a dispute, contact Nerys Thomas at disputeresolution@cjch.co.uk or by telephone on 0333 231 6405.

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Mental Health law: Support, resources, and insights.

We have come a long way in terms of awareness and support, but Mental Health matters continue to have a stigma and an air of uncertainty overshadowing them. For example, a 2016 survey by Time to Change Wales revealed that 1 in 10 people believe that people with mental health illnesses can never fully recover, and 1 in 7 believed that people with mental health problems should not be allowed to hold public office. People still have reservations about speaking openly and honestly about their personal mental health experiences and challenges.

In a bid to raise awareness, the CJCH Solicitors mental health department have shared insight into some of the information we believe people should be aware of when it comes to mental health law.

We asked Craig Mills, a solicitor in the mental health law department to answer a few important questions:

What the aim of mental health law is?

The Mental Health Act protects the rights of people with mental health challenges, not only when someone is detained in hospital but also when someone is being treated for their ailments within the community under the Act. People should only be admitted to hospital against their wishes when it is essential to their health and safety or the protection of others.

What should people be aware of when it comes to matters relating to mental health?

Personal rights are an important thing for people to be aware of. There has been a lot of mental health advocacy recently and people need to be aware that it can affect individuals in a number of different ways  (Read a recent article in BBC News on South Wales Police wanting mental health lessons for youths). It can sometimes be difficult to identify when/if people are suffering from mental health problems, but it is important that everyone is aware that help is available. There are a number of mental health charities that can provide support.

Here are some links to assist with finding the right support for you or your loved ones:

For an example of how these matters are impacting people in Wales, you can read this recent article about three people’s personal struggle with mental illness which was shared for World Mental Health day.

For more information or assistance with a mental health legal issue, contact our team via email: mentalhealth@cjch.co.uk ; to telephone: 0333 231 6405.

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Misconceptions we hear about Divorce

Much like politics, the topic of divorce is often widely discussed but not always fully understood. As specialists in family law, the CJCH team of expert solicitors are often faced with the many myths and misconceptions surrounding matters of relationship breakdown and divorce. Jodi Winter (Family Law Partner) and Sarah Perkins (Family Law Solicitor) address some of the common issues raised by new clients, who might have benefited from seeking assistance sooner, if they had the correct information.

Jodi Winter: People sometimes assume that what they see on TV or in the news is how things actually work. It is important to note that media representations are often dramatised. For example, there is no such thing as a “quickie” separation or divorce. In non-contentious divorces, the judge’s ruling and the Court process might be concluded quickly, but there is a requirement for specific criteria and processes to be satisfied and completed before it gets to that point. On the other hand, some people assume a divorce will take years and be ridiculously expensive so are put off starting the process. A divorce could be processed in as little as 4 months, but it will often take far longer to negotiate, agree and conclude the financial settlements. You need to consider a divorce from two perspectives, the first being the legal attachment to one another, and the second being the financial attachment.

 

Sarah Perkins: Aside from the timeline, there are other questions raised which can be misunderstood. Who gets the house? Who gets the kids? What if my spouse won’t agree to a divorce? Can’t we just list irreconcilable difference as our reason? The short answer to these questions are that they are case specific. The best way to ensure you have the correct information is to seek advice at the earliest opportunity and give your solicitor all the information they need.  You will then receive expert advice on your own particular circumstances.  The notion of irreconcilable differences (i.e. no-fault) is not currently a part of the law in England and Wales. You would need to show that your relationships have irretrievably broken down, with specific facts of proving such.

 

Jodi Winter: The financial aspects of the matter are what often take the most time to negotiate, which is often why it is best to get advice on a pre-nuptial agreement before you get married. Again, pre-nuptial agreements can be misconstrued but they provide a fair and considered starting point which is often upheld by the court if constructed properly. The same goes for agreeing child contact once the divorce is underway. Address the matter as early as possible and come to an agreement that you are both happy with, otherwise the court will decide for you.

The CJCH Solicitors Family Law team specialise in supporting and navigating the difficult situations that arise at the end of a relationship. You’re not alone, Jodi and Sarah are here for you. For more information and contact, please see here.

Announcements

Winner: Public Law Team of the Year 2022 – Wales Legal Awards

We are proud to announce that the CJCH Court of Protection team was named the Public Law Team of the Year in the 2022 Wales Legal Awards. Recognising the work they do with individuals who lack the capacity to act in their own best interests.

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Winner: Cardiff Life Awards 2019

With a dedicated focus on service excellence, and a passion for innovation the CJCH team was the proud winner of the best Legal and Financial Business of the Year in Cardiff for 2019!

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CJCH Solicitors appoints new Board member

Wales top 20 Law Firm and 2018 Financial and Professional Services Firm of the Year in the Cardiff Business Awards - CJCH Solicitors, has announced a major promotion in their leadership team welcoming Jodi Winter to their Board.

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Winner: Cardiff Business Awards 2018

CJCH Solicitors has experienced unprecedented growth and achieved important milestones over the last few years, all of which have culminated in the first half of 2018 being a prosperous year for us at the Firm and winning the Financial and Professional Services of the Year award.

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