IP and the working archive Issues arising from the use of Mass Observation Elizabeth Dunn Gaby Hardwicke - Solicitors & Trade Mark Attorneys

“IP can allow you to own things you create in a similar way to owning physical property. You can control the use of your IP and use it to gain reward. This encourages further innovation and creativity.” UKIPO website

“Creations of the mind – creative works or ideas embodied in a form that can be shared or can enable others to recreate, emulate or manufacture them.” USPTO

“That area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill.” Intellectual Property David J Bainbridge

Requirements for IP Protection 1.An element of novelty 2.Possibility of commercial exploitation 3.Cannot protect a mere ‘idea’

Justification of IP rights “The basic reason for intellectual property is that man should own what he produces, that is, what he brings into being. If what he produces can be taken from him, he is no better than a slave. Intellectual property is therefore the most basic form of property because a person uses nothing to produce it other than his mind”

Justification of IP rights “The basic reason for intellectual property is that a person should own what (s)he produces, that is, what (s)he brings into being. If what (s)he produces can be taken from him/her, (s)he is no better than a slave. Intellectual property is therefore the most basic form of property because a person uses nothing to produce it other than his/her mind”

IP Rights z Patents z Designs z Trade Marks z Copyright

Patents z Protect Inventions which: (i) are new (ii) contain an inventive non-obvious step and (iii) are industrially applicable z Against Any exploitation by any third party z Owner The registrant z Duration 20 years

Design z Protect Aspects of the appearance or configuration of 2D and 3D graphics and objects which are novel and have individual character z Against Copying for unregistered design and production of identical designs in the case of registered design right z Owner The first person to record the unregistered design or the registrant of the registered design

Trade Marks z Protect A sign which serves to designate the origin of particular goods or services z Against Any use by a third party for commercial purposes z Owner The registrant of the mark z Duration 10 years renewable indefinitely for periods of 10 years

Copyright z Protect “Original work of literature, art, music, sound recordings, films and broadcasts” z Against Copying z Owner By the first author of the work or employer of author z Duration Life of the author plus 70 years

Misconception z Copyright must be registered z Only ‘literary’ or ‘artistic’ masterpieces can be copyright works

Rights as an author z To own copyright in original work z To prevent the acts prohibited in the Copyright Design and Patents Act 1988 in relation to that work z To be credited as author z To object to derogatory treatment of the work

Steps to take z Keep good dated records of the development of any work z Use © symbol on any published work with your name and the date the work was produced

Copyright belonging to third parties Infringement of a work is by: (a) copying (b) issuing copies of the work to the public (c) performing, showing or playing the work in public (d) broadcasting the work (e) making an adaptation of the work

Misconception If it is less than 5% of the work I am OK.

What is copying? z A ‘substantial’ part of the work z An issue of ‘quality or quantity’ z A question of fact

When is copying permitted? z Fair dealing- for research or private study, criticism, review and news reporting. z Where a quotation is made and properly attributed provided that quotation does not comprise a substantial part of the work from which it originates.

Who owns what? z Copyright is owned by the author of the work, the employer of the author or the assignee of the work z Ownership in copyright DOES NOT in general pass with ownership of the work z Exception is specific provision in a will z Assignments of copyright must be in writing z Exclusive licences must be in writing z Non-exclusive licences can be verbal and can be implied from the circumstances

Example Record of an interview z If an exact record is made of the interview copyright in the interviewee’s words will belong to the interviewee z If a substantial part of those words are quoted directly by the interviewer copyright is infringed z If the ideas used by the interviewee are used in a resulting piece of work there is no infringement.

Data Protection Act 1998 Personal data must be: (a) accurate (b) not held for longer than is necessary for the purposes for which they were collected (c) not processed so as to cause damage or distress (d) accessible by the data subject (e) not disclosed without consent

Exemption for research history and statistics z Data collected for other purposes may be further processed for research z Data subjects need not be given access to data held for research if they are not identifiable from any results z Data held for research may be disclosed if the disclosure is for the purposes of the research

Summary z It is always better when collecting data to ensure that data subjects consent to their data being processed for the purposes of research and any resulting publication z However, if data subjects are not identifiable from the resulting work personal data may be processed for research purposes z Data protection rules are complicated and specific and should be examined in detail on every occasion – do not rely on a general assumption that the research exemption will apply.