Copyright laws and how to stop people copying your handmade items and designs

Have you noticed that someone on the internet or at a craft fair appears to be copying your handmade items or unique design ideas? Has someone set up a shop with an almost identical name or branding to your own craft shop? Read on to find out more about copyright law in the UK and how you can protect your work or your brand from being copied, as Niall Head-Rapson, director of copyright specialists McDaniel & Co. Solicitors explains the ins and outs of Intellectual Property and copyright law.

How have you dealt with copycats in the past? Have you been accused of copying when in fact you hadn’t copied their work? What are your biggest worries about copyright? Are there any issues you’d like more help with? Leave a comment and we’ll try to cover them in future posts. 

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What is IP?
Intellectual Property or IP, in lawyer’s speak, is a property right that enables the owner to dictate who uses their work. It enables the owner to exclude others from their market or allow them in for a price. The rights can be split into two main categories: rights you need to register at a formal office; and rights that arise automatically and simply require the owner to understand how the right arises and who owns it.

Unregistered Rights
For Folksy folk, unregistered rights are probably the most important and most well known. These are rights that arise automatically and require no formal registration process.  You can’t ‘copyright’ a work – it happens automatically. The rights we are talking about here are Copyright (for art, photographs, text), Database Rights, Design Right (for shapes), Unregistered Trade Marks (protects goodwill) and Trade Secrets (also called confidential information).

Registered Rights
As the name suggests these rights require a formal application for registration. This application is made to an Intellectual Property Office which is run by the government or authority of the territory you wish the right to exist in. In the UK, that is the Intellectual Property Office. All countries in the world have an Intellectual Property Office and in some cases they are also part of an area that has a right which covers more than one country. So in the EU there are Community Registered Designs and Trade Marks, which are single rights that cover the whole of the EU.

What is the difference between registered and unregistered rights?
The main difference between the two types of right is that, if you have a registered right and you think someone is doing something you are doing, then you don’t have to show that they knew about you. But if you rely on unregistered rights, you have to show that there is some form of copying.

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What are Unregistered Rights?
Let’s deal with unregistered rights first.

Copyright
Copyright was conceived to protect the new printing presses that had been established in Elizabethan times. It covers original literary, dramatic, musical or artistic works.

When we talk about ‘original’ we don’t mean that it has never been done before. What we mean is that it is your work that you have put thought and effort into, and that it isn’t copied from somewhere else. The criteria isn’t whether someone else has done something similar, for example using horses in art work. The questions to be answered really are ‘did you do it yourself?’ and ‘did you put thought and effort into it?’ Lawyers talk about intellectual skill and effort and that is what we look for to see if copyright exists.

The other thing you need to know is that copyright is an expression of an idea, not the idea itself, so it only exists when it is recorded in a permanent form – for example as a drawing, CAD drawing, image file, text file.

If you think someone is using your work without your permission, you need to show that they have copied you. Sometimes that’s easy because the person you are complaining about has bought something from you. If the work is so similar then you can rely on an inference that it has been copied. However, if someone is doing something that you are doing but HAS NOT copied you, then there is no infringement.

In terms of who owns the copyright, the person who creates the work is the first owner of the work. They are called the Author. If the author is an employee who is acting in the course of their employment doing what they have been asked to do, then the copyright is owned by the employer (unless something else has been agreed). If you don’t create the work and they aren’t an employee, then a work is owned by someone else. If you want it, you will need an agreement in writing, called an assignment.

Examples of copyright works are artworks, textile designs, wallpaper prints, cards, most jewellery and always text that you create, whether for things like bucket lists or text for your website. This blog post, for instance, is a copyright work.

One question I’m often asked is how you can prove the date when you created the work. There are lots of stories about having to post things to yourself, but what you have to do, if challenged, is to prove the creation date of the work itself. One way is to have your work signed off by someone else; a design book if you like. Alternatively you can use a Design Deposit system such as that offered to A©ID members. This is an independent verification of a date when it was deposited and hence the work must have been created before that date.

Design Right
Design Right protects the shape of an article. This has been clarified recently in a court case over a Star Wars stormtrooper helmet. The Court said that although the helmet was fictional, it had a ‘utilitarian’ use. So it was a design and not a copyright work. So if you make furniture or uniquely shaped furnishings, for instance, then these will qualify for Design Right and not copyright.

So why does it matter? Well, it’s all about the length of time the right lasts for. Copyright lasts for the life of the author and 70 years after their death. Design Right lasts for only three years in Europe and 10 years in the UK. In the UK there is also a rule that in the last five years of the right, you have to let others use your designs as long as they pay a reasonable royalty. Therefore, if a design is important to you, you should consider registering the design (see below). Most countries now have a registered design system whereas not many recognise unregistered Design Right.

Ownership of unregistered Design Rights is the same as for Copyright. If you aren’t the first owner, then in order to own it, you will, as with copyright, need a written assignment.

Database Rights
This is like copyright but covers databases that you create. However they don’t last as long as copyright, only for 15 years.

Trade Marks
Trade Marks cover your brands ie. names, logos, trade descriptors. If you don’t have a registration (see below), then you have to rely on the law called ‘Passing Off’. This is what is called the Goodwill in your business and more particularly your brand. It has its limitations, as your goodwill may be too small for you to do anything with it or you may be restricted to a particular part of the country. In terms of how long the right lasts for, it is as long as you have goodwill in your business or brand.

It is most advisable, if you have important brands and logos, to seek Registration at the relevant IPO. Pretty much every country in the word has a registration system.

Business Secrets or Confidential Information
This is how you do your business. It could be a method of doing business, how you calculate your prices or a method you have of making something. However, the key thing is it must be kept a secret. If you tell everybody, then you can’t argue later that it is a secret. Also if you let people have access to your secrets, you must tell people that it is secret. So if you are going to let someone see your secrets, you need to document that and tell them what will happen if they don’t follow the terms – that means having Confidentiality Agreements with third parties and if you have employees you need to ensure that their contracts of employment deal with the position of them stealing your secrets.

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Make it clear your work is protected by adding the copyright symbol to your listings

Registered Rights

Trade Marks
For Folksy folk this is possibly the most important registered right. A Trade Mark is a badge of origin. It tells the world that the products and service you are offering are yours. By the same token, it allows you to stop people imitating you by trading off your brand.

A registered Trade Mark is one granted by the State, in the case of a UK trademark this is the United Kingdom. In the case of a Community trade mark, it is granted by the official Community Trade Mark office, the OHIM (Office for Harmonisation in the Internal Market). Once you have convinced the State that you should have a Trade Mark it is put on to a public register for all to see. 

Trade Mark registrations are made covering up to 45 different classes of goods and services. A class is essentially the area of business you are going to use your mark. For example, class 24 is for textiles, class 16 for printed materials. You make your application by identifying the goods you sell or the services you offer and then working out which classes they fall into.

If you do not have a registered Trade Mark and someone uses your brand, you can only stop them doing so by taking a “passing off” action. This has drawbacks because it only protects the goodwill in your business. If you are small or newly formed, then a Court may say you have nothing to protect. Secondly, you may only trade in a certain geographical location. Someone elsewhere may take your name and you may not be able to stop them, because your business does not extend to that area as ‘passing off’ is limited in this way, whereas a UK Trademark applies throughout the UK. You also have to show you have suffered damage for passing off. On the Continent, if you do not register and someone else does, you may very well lose the right to use your brand.

With a registered Trade Mark it is easier to overcome all of these difficulties. Of course there is a cost to all of this.  It is as follows:

In order to register a UK Trade Mark in one class there is an official fee of £200. The costs of registering an additional class is £50 official fee per class.

A Community Trade Mark will cover the whole of the European Community. Unsurprisingly, these registrations cost more to obtain than UK registrations. The official fees for a CTM is 900€ if filed online. The difference with a CTM registration is that the initial fees outlined above allow you to register in up to three classes. If you wish to register for more than three classes, the official fees are a further 150€ for each class above three.

Trade marks are renewable every 10 years. As long as you pay the renewal fees then your Trade Mark can last for ever. Trade Mark Number 1 for Bass Pale Ale is still on the register of Trade Marks from 1876.

Registered Designs
A registered design covers, essentially, the shape of an article. It can also cover the colour and surface decoration of a product and it can cover what the product is made of. As explained earlier, the right is much stronger than unregistered Design Right, and if you have important designs that are key to your business you should consider applying for a registered design.

Firstly they last for 25 years, as long as you pay the renewal fees. That’s 15 to 22 years longer than unregistered rights. Secondly, if someone makes something like your product, you don’t have to show that it has been copied at all. Thirdly most countries in the world have a registered design system. Like Registered Trade Marks, if you want protection in a certain country you have to make an application in that territory.

In order to qualify, you must make the application either before the design is shown in public or within 12 months of first doing so.

There is a cost of course. Each country you want protection in charges an official fee for such a registration. To cover the UK you need to apply in either the UK or apply for a Community Registration. However, if you have a number of registrations and are prepared to make them all at the same time, the costs come down.

For a UK application the official fee is £60 but if you make more than one application at the same time the costs for subsequent applications is reduced to £40.

For Community Applications the cost is as follows: for the first application 350€ ; the second to tenth design in any application costs official fees of 175€; thereafter for designs in excess of 10 the official fee is 80€ and our fees will be £35 for each design. If you make the applications individually then the first fee applies each time.

Patents
Patents cover inventions. They cover a concept rather than an expression of a concept. I mention them for completeness but they are probably not the sort of things that Folksy sellers will come across very often.

{Picture credits: Blue Note Collage by Cassia Beck on Folksy.com}


For more information about copyright, these posts might be useful:

Three experts answer your copyright questions
Louise Verity from Bookishly: How I dealt with being copied
Intellectual Property and your work
The Intellectual Property Office Guide to Copyright
Copyright for Knitting and Sewing Patterns

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