Intellectual Property Rights FAQs
1. What is the difference between Copyright and Intellectual Property Rights?
Intellection Property Rights (IPR) is an overarching term that includes various rights, design rights, performance rights, trademarks, patents and copyright. Copyright exists once an idea is written down or recorded and is an automatic right in UK law. It applies to any original written, dramatic, musical, artistic materials, or a film. Any material to which copyright applies is known as a copyright work.
Copyright normally resides with the creator unless re-assigned for example when a member of university staff or a student publishes and assigns copyright to a third party eg the publisher (for published works), or the university for the purposes of shared IP
2. Do I have to re-assign my copyright if I publish?
Not necessarily. You can negotiate with the publisher to retain certain rights including copyright though different publishers have variable policies. If you choose to publish on the internet or in an open access source (eg open access journal) you should assign a level of protection to your work through a Creative Commons Licence.
3. Is my copyright protected if I place my published work in the institutional repository – Insight?
It depends on the copyright assignation you decided at the point of publication. The university repository is a globally accessible service available on the open web. It can’t give an extra level of protection and relies on the protection you negotiated at the point of publication.
4. What is a trademark?
A trademark generally is a sign or symbol (but can be words, phrases or designs) that create an individual identity to separate the trademark from its competitors.
What are the main types of trademarks?
A trademark can be registered or unregistered. You can actually build up rights in a trademark under common law without it being registered this is known as passing off. However it is easier to enforce a registered trademark which offers a lot more stringent safeguards.
How long does a trademark last?
The validity of a registered trademark depends on the jurisdiction/s the mark is registered in. Typically, most jurisdictions adopt a validity period of 10 consecutive years from the date of registration and the protection is therefore renewable every 10 years thereafter provided the mark was used in compliance with the appropriate trademark laws.
What are the requirements to register a trademark?
The trademark needs to be capable of being represented graphically, distinct and not descriptive, capable of distinguishing goods and services, registered in respect of goods and services and not excluded by statute.
What are the benefits of having a registered trademark?
A registered trade mark:
- may put people off using your trade mark without your permission
- makes it much easier for you to take legal action against anyone who uses your trade mark without your permission
- allows Trading Standards Officers or Police to bring criminal charges against counterfeiters if they use your trade mark
- is your property, which means you can sell it, franchise it or let other people have a licence that allows them to use it.
5. What is a patent?
A patent is a legal monopoly over an invention which is capable of industrial application.
How long does a patent last?
Patents only last for limited periods and in the UK need to be renewed every 20 years.
Should I apply for a patent?
To get patent protection your invention must:
- new, and not known anywhere prior to filing
- have an inventive step, not obvious or a simple adaptation or combination of existing products
- be capable of industrial application and having a technical effect
If your invention meets all these requirements you may be able to apply for a patent and you should refer this to the legal services team.
What happens if I don’t apply?
If you don’t apply you will have no protection over your invention, and anyone will be able to use the design as their own with little legal recourse.
What are the benefits of a patent?
The patent also allows you to:
- sell the invention and all the intellectual property (IP) rights
- license the invention to someone else but retain all the IP rights
- Discuss the invention with others in order to set up a business based around the invention.
6. What do I do if a company or an academic partner wants to share a confidential idea to discuss joint development of that idea?
A non-disclosure or confidentiality agreement (NDA) enables a company or partner to share confidential information with the university, or vice versa, so that we can assess whether a relationship would add value. For example, a company may have come up with a product idea and they want to determine whether our academic expertise can help to test the idea and/or develop a prototype. A NDA is a legal contract between the university and the company or academic partner which protects the confidentiality of the idea and prevents disclosure of confidential information that is not in the public domain.
7. What happens if I breach a non-disclosure or confidentiality agreement (NDA) and disclose the information to a third party?
Once a NDA is signed, the University has entered into a legally binding contract. If the NDA is breached the Company or Partner may take the University to court for damages. If an employee of the University breaches the agreement they may be subject to the University’s disciplinary procedures.
8. If we develop an idea with a company or academic partner who owns the intellectual property?
It is important that intellectual property is considered at the beginning of a relationship with a company or academic partner – so that both partners are protected and benefit from the partnership appropriately. Agreement should be reached in regard to ownership before the project starts (ownership could, for example, be shared). Guidance with regard to ownership and sharing of intellectual property is also outlined in our Enterprise Handbook – search for Enterprise Handbook on staffnet.
9. What’s the difference between foreground and background IPR?
Collaborative projects with businesses and external organisations have three types of IP to be considered and agreed before the project commences:
- Background IPR – IPR relating to the Project owned or created or developed by a party other than during the course of the Project
- Foreground IPR – IPR arising wholly out of the Project which are owned or created on behalf of a Party except for University Foreground IPR
- University Foreground IPR - IPR created during the course of the Project by the University without contribution by the KTP Associate or Company
Background IPR – remains with the party introducing it to the Project.
Foreground IPR remains with the party producing it.
University Foreground IPR – this remains with the University, unless the University agrees to share this. Rights to University Foreground IPR will be granted for use in the field but the partner/Company is not permitted to issue a sub licence without permission from the University. All to be treated as Confidential – i.e. not passed to a third party without permission.
(In a collaborative agreement with a company, the company may own or licence the IP, but the University would normally retain the right to use it for teaching and research).
Supervisors of student work would normally claim background IPR, however this needs agreeing with individual students and projects.
10. Who owns the Intellectual Property when the PhD student is a member of staff funded by the University of Cumbria?
The member of staff is registered as a student with their awarding University – whether Cumbria or another university and is subject to the academic regulations and policies of that university. However your background, may exist in the research you produce. In this instance the award of the university you have registered for takes precedence, but you may need to think about how your employing university could develop your IPR in the future.