Designers and copyright

Be it a copyright, trademark or patent, ideas have a monetary value. Briffa solicitor Silas Brown explains all to Graeme Aymer.

The protection of intellectual property rights is critical to our work, to software companies, and to designers everywhere. Nothing's more annoying than to see someone using your creation without permission or mimicking your style. We all know that illegal downloading of software occurs but it is a crime punishable by law and also has a negative impact on the entire industry. So what can be done to protect your work and ensure you don't accidentally subject yourself to IP infringement?

The Gowers Report last year brought some important updates to copyright laws and we are frequently asked by illustrators and designers how to best retain copyright on their work. Even when you're taking photos for background and reference, you should be wary of what actually gets used in your creations.

For an update on the current legal situation, we turned to Silas Brown from Briffa, a leading law firm specialising in copyright, trademark and intellectual property cases.

What does the Gowers Report mean for web designers and graphic artists today?
Silas Brown: The Gowers Report, a government review of IP legislation, was not heavy on changes to the copyright laws, but what it did say is that there should be changes to the legislation to give tougher penalties for online infringement of copyright. The other thing that it said is that there should be greater support for digital rights management (DRM), whereby graphic designers, web designers and people who put digital content online should be supported in using methods to stop infringements happening in the first place.

So things like making it impossible to save an image by right-clicking it off a website, putting up JavaScript warnings saying "This is a copyright work", and using things like digital watermarks, either visible or in the background source code. I expect to see more of that kind of thing in the future if new legislation is brought out.

So regarding IP-based law as it now stands, what should design professionals be aware of?
Studios or agencies that don't have large budgets, in particular, should keep good records of what copyright works they create, what images, what photographs, etc, and who created it. This should be independently verified by, perhaps, having copies datestamped and stored at an independent place, like with a lawyer or a bank or somewhere like that.

Also, ensure that in any contracts for the production of digital content - for example, if you hire a web designer to design your website - the content that is created on that website is assigned and properly transferred to you, or however you want to arrange it.

Site copyright is quite a point of contention, isn't it?
Yes, exactly. Most disputes arise in that sort of context, from uncertainty about what was agreed.

I think the best tip is to ensure that designers providing a service have a set of standard terms and conditions drafted that they can use each time for each client for every job that they do. That way there's not a whole rigmarole of going through negotiating contracts and all that sort of thing. It's simply, "Here's our terms and conditions of service and included in that is a proper, legally drafted provision relating to copyright, IP, ownership and those issues." Then they're properly ticked off.

Is it reasonable for a designer to retain copyright of a client's site?
My personal view is that I don't think that's reasonable in any circumstances. Ultimately it's just a loophole of the law that allows a service provider to own the copyright in something that they've usually been paid quite reasonable sums to create.

I think it should only be in rare circumstances that you retain the copyright in that. However, that's just my opinion and there's a whole school of thought out there that says that's the way the law is and you should actually use it to your advantage.

Some might say that the copyright passes to the client only after they've paid the designer for the job.
Ultimately in such circumstances you're saying that you're going to assign copyright, but you link it to ensuring that you get paid for your services. I would definitely advise using that point as a way to ensure that designers get paid properly. That's very important.

What else can you recommend in terms of copyright protection, particularly for sole traders?
Well, it's all about evidence because you can't register copyright as you can a trademark. So you need to be in a position that if you have a challenge to copyright, you can provide evidence like who created it, when it was created, and any development and research that went into it.

Actually, there are certain things that you can do so that you make it almost automatic: a way of working by dating every draft that you produce and by setting up a proper fling system. Also independent storage of copyright works, date-stamping and that sort of thing doesn't cost a large amount of money. You're talking maybe £100 a year. That's not a significant amount.

That's logging it with, say, a lawyer or a bank?
Yes. Several [firms] have services like that. We have one. As and when you create your copyright works, you send it to us on a periodic basis, and we simply date-stamp it and store it here.

It's also worth noting that insurance is quite important in that circumstance as well because if your copyright is challenged, nobody else but you will have to enforce it. To enforce it you need to bring legal action and legal action costs money, so it's very sensible to have some sort of IP insurance. That would provide a 'fighting fund' for legal fees in the event of an infringement of copyright or other IP.

How easy is it to get IP insurance?
Very. The best thing to do is to talk to a mainstream insurance company, anybody who provides your insurance for other things, and ask them to refer you to a specialist IP insurer. Most insurance companies will have specialists that they use.

Are copyright registration companies worth it?
I've been quite interested to see the development of this, because it's a sort of competitor to businesses like ours. But, I saw one recently that was exceptionally misinformed about copyright. That led me to believe that people are setting up these online services because they can make a bit of money out of it, but I don't think they really understand copyright law.

Secondly when you want independent evidence if you've got a dispute, you want it to be from a respected source that is clearly recognised, so a law firm registered with the Law Society is likely to provide better evidence than some dodgy outfit you found on the internet.

What does the law say about using photographs of buildings that you have taken?
It's very clear, actually. There is specific legislation in the Copyright Act that those are not copyright works. You can take a picture of a permanent building in a public place and reuse that reproduction how you wish without infringing any copyright.

Of course, there is a limit to that, so non-permanent fixtures - a piece of art, for instance, that's only up for a few weeks or months - would not be included. So if you're taking pictures of something like that, it would be a copyright infringement if you didn't get permission.

Or if you're taking pictures of promotional material - adverts on billboards, or signs for shops that are trademarks - then you should avoid it, because they're a problem.

So if you're in the middle of Piccadilly Circus and you wanted to take a picture of all those signs, what would be the legal position?
You can take a picture of the overall view of it, because each of the trademarks there are incidental to the overall picture and there's no copyright in the buildings' architectural design from that point of view. But if you focus on a single trademark sign, you're beyond the bounds of what you should be doing.

What are the consequences of using pirated software?
If you knowingly use pirated software, then it's definitely copyright infringement by you, not just the pirate. Theoretically, you can be sued for that. It's just not best practice: if you want to be a legitimate business, you wouldn't use pirated software. Commercially, can you represent yourself as being a legitimate business that's going places if you're using pirated software?

Sometimes software companies take large group actions against a large number of people, so they'll gather information about who's taken software and then bring an action against 10,000 offenders. There's every chance you'll get caught up in that if you're one of those people.


The Design Council: a great primer on everything you need to know about intellectual property is available from the Design Council.

The Intellectual Property Office: formerly the Patent Office, the IPO is a great government-backed resource for all questions regarding trademarks, patents and copyright.

Ownit: a free online IP resource for UK creatives.

Briffa: we've spoken to them; you can too.

The Gowers Report: we've talked about it, so if you're serious about learning the government's position on all things IP, have a look for yourself.