2020-08-26
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Copyright and licensing in practice – some things to remember

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Posted by Laura Steel on 26 August 2020

Laura Steel - Commercial Lawyer
Laura Steel Solicitor

Summary transcript

Can you give us a brief introduction to what you will be talking about?

I will be talking about copyright and some things to watch out for.

I will also be talking about licensing in this context.

What is copyright / how is it created?

Copyright is a type of intellectual property right. 

It is an unregistered IP right which arises an automatically on creation of the relevant work.

The work must original in order to qualify for copyright protection. Originality means that the author must have created the work through their own skill, judgment and individual effort and that it is not copied from other works.

Copyright seeks to protect the form of expression of ideas and not the ideas themselves. It is important to appreciate that copyright law is intended to prevent copying of a physical thing like a book.

What does copyright protect?

Copyright protects literature, artistic works, photographs, music, dramatic works, software, databases, films, radio and television broadcasts, sound recordings and typographical arrangements of published editions.

What are some things to remember about copyright?

There are three key things:

  1. What IP will be relevant – background vs foreground
  2. Who will own the IP
  3. Who is creating any copyright - employees vs third parties (consultants)

What is a licence?

  • Licence = right to use the licensed materials
  • Licensor = the person granting the licence
  • Licensee = the person receiving the licence
  • Royalties =  payment of fee in return for right to use the licensed materials
  • Sub-licence = a further licence
    • The licence is the original right to use licensed materials between the licensor and the licensee. A sub-licence is a license granted by the licensee to a third party - so it’s a further licence under the authority of the original licence.

Are there different types of licence?

There are three main types of licences:

  • A non-exclusive licence grants the licensee the right to use the relevant IP, but means that the licensor can also use the same IP and allow any number of other licensees to use the same IP.
  • Sole licence - the licensee and the licensor can use the IP. The licensor does not have the right to grant any other licences.
  • An exclusive licence means that nobody other than the named licensee can use the licensed rights. Importantly, the licensor is also excluded from exploiting the relevant intellectual property rights.

What’s the best or worst type of licence?

It depends on who you are. If you are the licensor you should always exercise caution when granting an exclusive licence - you might not want to grant an exclusive licence for a long time and therefore be locked out of using the IP yourself - so that is something to consider.

If you can’t own the relevant IP then arguably the best licence for you to obtain is a broad, flexible, sub-licensable licence rather than a restrictive short term licence.

Is it always better to own the relevant IP rather than licence it?

If you can get a licence which means it is as if you own it, i.e. you can sub-licence to anyone, you can use the IP for broad purposes and the licence is forever, then ownership is not such a big issue.

What are your three key takeaways?

  1. What IP do you really need?
  2. Ownership vs licensing
  3. Employees vs consultants

Please contact us if you have any issues or questions around copyright or licensing. 

About the author

Laura Steel

Solicitor

Laura provides commercial legal advice to businesses across a range of sectors

Laura Steel

Laura provides commercial legal advice to businesses across a range of sectors

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