22 September 2015

The High Cost of Copying in Buttershaw: Absolute Lofts v Artisan Home Improvements

Author Ordnance Survey
Source Wikipedia
Crown Copyright and Database Right

On 14 Sept 2015 a Buttershaw builder was ordered to pay £6,300 in damages to a London loft conversion company for downloading images of the London company's loft conversions from its website and posting them to his own (see Absolute Lofts South West London Ltd v Artisan Home Improvements Ltd and Another [2015] EWHC 2608 (IPEC)).

The parties were not competitors as they were separated by 200 miles of clogged motorway and the only loss that the claimant had suffered was a notional licence fee of £300 for the use of the pictures but the judge awarded the London company additional damages of £6,000 under art 13 (1) of Directive 2004/48/EC on the enforcement of intellectual property rights. His Honour made that award to take account of the defendant company's profits as a result of the infringement which he regarded as "unfair" and also to dissuade others from doing the same. I discussed the case in my case note
Damages for infringing Copyright in Photographs - Absolute Lofts v Artisan Home Improvements 22 Sept 2015 NIPC Law.

The judge made the award because art 13 (1) of the Directive comes into play when an infringer knowingly, or has reasonable grounds to know, that he or she is engaging in infringing material.  In this case there was an aggravating factor in that the defendants were misrepresenting the London company's handiwork as their own but that article can apply in any other case where the defendant knows he is copying without permission or copies anyway whether he or she has permission or not.

There is a widespread myth that if something is on the internet it must be free for anyone to use. Thus photos, videos and text including company's terms and conditions are downloaded and recycled with gay abandon. The number of times that clients have told me this week that their neatly drawn up terms of business have been lifted from a company in the same industry (sometimes even a competitor) does not bear thinking about. It has always been wrong to copy and now it is dangerous because the small claims track of the Intellectual Property Enterprise Court with its fixed costs makes it possible for copyright holders to pursue pirates at minimal cost and risk to themselves.

There is in truth a lot of stuff on the internet that is free to share or use under Creative Commons and other licences but check first.  Most but by no means all of the material on Wikipedia is free to use but click the image first and read the notes that appear on the Wikipedia Commons page. Usually you have to attribute the author and copyright owner and there are nearly always restrictions on use. Very much the same applies to clip art and other material. If in doubt ask the copyright owner for permission to use the material and if he or she says "no" then take your own photo or get a lawyer to draft your own terms. The few hundred pounds a professional will charge you is a fraction of the cost of litigation.

If you are accused of copying then remove the infringing material at once and apologize profusely. If the complainant wants money then take legal advice as a matter of urgency. Don't ignore the demand or you may find yourself in court with sky high costs and court fees.

Similarly, if you think your image, text or other work has been ripped off take legal advice before doing a thing. Some countries like Australia provide threats actions for unjustifiable threats of copyright infringement.

If you want to discuss this article call me during office hours on 01484 599090 or 020 7404 5252 or use my contact form.

20 September 2015

IP and Fashion Seminar - 7 Oct 2015

For nearly 200 years the Leeds City Region formed one of the twin pillars of the British textile, clothing and fashion industries. Overseas competition has diminished those industries and forced them to specialize but products from this region are still regarded as the best of their kind. I proudly recall visiting an area of Kyoto which consisted entirely of cloth merchants where I found that Huddersfield worsted was the most prized of all. The region has always been an important retail centre. Household names such as Marks & Spencer and Montague Burton started in Leeds.

With initiatives such as Lambert's Yard and the Textile Centre of Excellence in Huddersfield the region is striving to restore its pre-eminence in textile and fashion design and technology.  However, it can only do that if its designers, retailers and manufacturers can properly protect their brands, designs and innovation. That is where intellectual property comes in. Shortly after entering office the Coalition government commissioned Professor Hargreaves to review the legal protection for brands, designs, technology and the creative industries and propose changes in the legislation to promote growth.

Hargreaves came up with nine recommendations in his report DigitalOpportunityA Review of Intellectual Property and Growth all of which were accepted by HM government and have now been largely implemented.  On 10 Sept 2015 I discussed how those changes affect the clothing, fashion and textile industries in a full day seminar in London which received very favourable feedback from most of the 20 solicitors, trade mark attorneys and in-house legal advisers who attended the event  (see IP and Fashion Law 12 Sept 2015 IP London) and I am repeating the talk in Leeds on 7 Oct 2015.

In that seminar  I hope to cover the following topics:
  • What sort of IP protection does my employer or client require for his business and where?
  • What provisions should I insert in my employer or client's licence or manufacturing agreement?
  • What should I do if I find copies or lookalikes of my products in competitors' shops?
  • What's Hot? The implementation of s.74 of the Enterprise and Regulatory Reform Act 2013 - John Kaldor v Lee Ann, Specsavers v ASDA and Thomas Pink v Victoria's Secrets;
  • IP basics; terminology, intellectual assets (brands, designs, technology and works of art and literature), intellectual property (trade marks, registered designs and unregistered design rights, patents, trade marks, law of confidence and action for passing off), institutions (Intellectual Property Office, Office for Harmonization in the Internal Market, European Patent Office, World Intellectual Property Organization), Sources of law (treaties and conventions (TRIPs, Paris and Berne), EU legislation, statutes), enforcement. remedies, licensing
  • Advising the designer: types of design, aesthetic design, functional design, design registration and equivalent regimes, TRIPS, Paris and Rome Conventions, Designs Directive, Community Design Regulation, Copyright, Designs and Patents Act 1988, Registered Designs Act 1949, licensing, enforcement
  • Advising the manufacturer; patents, trade marks, designs, licensing, cabbage, summary of laws in China, Egypt, India, Indonesia, Morocco, Pakistan, Thailand and Turkey
  • Advising the retailer: trade marks, passing off, searches, agreements with designers and manufacturers
  • Dispute resolution: High Court, Patent Court, IPEC (multi track and small claims), IPO examiners' opinions, appointed person
  • IP strategy: identifying appropriate rights for particular jurisdictions, selecting and instructing foreign attorneys, watch services.
Rather than read from notes and slides I taught the course by setting typical problems such as
"The day after a royal baby makes his or her first public appearance you want to sell a similar set of baby clothes. How would you set about doing that without being sued?"
"What provisions would you place in a contract with a supplier from Bangladesh?"I got that idea from Ross Burrows of Burrows Law because that is how he taught the public access top-up and litigation courses which I took last year. He built on participants' knowledge and experience which he encouraged us to share. I decided to do the same next time I taught a CPD training course.
Preparing such courses requires a lot more work on the part of the trainer but it aids comprehension and retention. The overwhelming response of the London group was very positive according to the feedback forms.

If you want to attend this course there are still places available but you will have to move fast. You can register on-line or call MBL Seminars on 0161 793 0984.  The course will start at 09:30 and end at 17:15 and thus earn 6 hours CPD. The standard cost is £480 but there will discounts for season ticket and smart plan subscribers. If you want to discuss this course or any other point of IP law call me on 01484 599090 or 020 7404 5252 or message me through my contact form.  I look forward to meeting you.