How to protect intellectual property as a self-employed professional

As a self-employed freelancer or contractor, understanding what intellectual property covers, and how to protect your work, is essential. Intellectual property protection enables individuals to protect their creations, some of which are automatically acquired with other rights and protection requiring registration.

Read our article below, created in collaboration with Markel Law, to understand what intellectual property is and the types of intellectual property protection you can acquire.

What is intellectual property?

Intellectual property is intangible personal property that you create using your mind. This is usually a collection of ideas and information in a broadly commercial context that the law recognises as having a value, such as a story or an artistic design. Intellectual property covers:

• Copyright
• Trade marks
• Patents
• Designs
• Passing off

Why do you need intellectual property protection when self-employed?

Intellectual property protection prevents others from exploiting or infringing your intellectual property rights, for example if someone was to copy your work, as it allows you to seek a court order to stop the infringement and obtain monetary damages. The Guardian emphasises the importance of intellectual property protection for small businesses as disclosing business plans, pitching new ideas and proposing new designs to clients or investors increases the levels of risk.

When you are self-employed, unless you have agreed in your contract to give your client the rights, you will own the intellectual property of the work you produce for clients, and therefore it is up to you to make sure it is protected. In contrast, if you are an employee of a company, it is likely that your employer will own the intellectual property of the work you created for the company whilst in that job.

Some types of intellectual property protection apply automatically, such as copyright, while for others, for example trade marks, you will need to apply for protection.

Automatic intellectual property protection

Copyright

Copyright protection is automatic and free – it protects your work and prevents others from using it or copying it without your consent.

According to GOV.UK, copyright applies automatically to the creation of:

• Original literary, dramatic, musical and artistic work, including illustration and photog-raphy
• Original non-literary written work, such as software, web content and databases • Sound and music recordings
• Film and television recordings
• Broadcasts
• The layout of published editions of written, dramatic and musical works

Copyright protects the expression of an idea, rather than the idea itself, for instance, a unique business logo will be protected by copyright as it is considered original artistic work.

The length for which copyright applies depends on the type of work. Published editions of written, dramatics and musical works are copyright protected for 25 years, whereas for written, dramatic, musical and artistic work, copyright lasts 70 years after the author’s death.

To gain this protection, you will need to prove your right. This could be done in many ways, for instance, by having signed and dated copies of your design drawings approved and held by a solicitor.

Design rights

If you are a designer, certain types of designs are automatically protected under the ‘design right’ protection, without needing to register. The design must not be commonplace (designs that are well known, mundane or routine are excluded), and it must have an original shape or configuration, therefore any two-dimensional shapes such as textiles, graphics or wallpaper are excluded. Online firm, Crunch, advise how unregistered designs generally last for 10 years from the date of first marketing the article in the UK, or 15 years from creation of the design – whichever is earliest – to prevent others from using your designs without your permission.

To gain this protection, you will need to prove your right, in a similar manner to copyright protection, by having signed and dated copies of your design drawings approved and held by a solicitor.

Alternatively, you may wish to apply for a registered design, which is discussed in more detail further on in this article.

Passing Off

Passing off protects the reputation and goodwill of a business, preventing people from selling goods under the false pretence that they are the goods of another. This intellectual property protection protects the trader against the unfair competition of their rivals and protects consumers who could be confused as to the origins of goods and services that they are offered.

To bring a successful passing off action you must show three things:

1. Goodwill or reputation is attached to your goods or services.
2. A misrepresentation is made to the public by the defendant.
3. You have suffered damage.

It is only the trader who can take passing off action if there is wrongdoing, and action can only be taken against a defendant who is also engaged in trading.

As with copyright and design rights, you do not need to formally register anything to make a claim that someone is passing off their goods or services as yours.

Passing off can be seen as a form of protection for business brand names and logos in situations where they don’t have a registered trade mark.

Intellectual property protection requiring registration

Trade marks, registered designs and patents all require you to apply and pay for protection through the Intellectual Property Office (IPO). Although a cost is required to register, having this protection in place can be invaluable for some self-employed professionals.

Trade marks

A trade mark is a mark, brand or sign used by traders to differentiate their goods from those of other traders, such as a logo or name which many self-employed individuals use to establish their brand.

Other examples of trade marks include:

• Labels
• Words
• Domain names
• Packaging
• Smells
• Sounds like jingles
• Shape of goods
• Other distinguishable features

For a trade mark to be protected, it must be registered, otherwise you will need to rely on the law of copyright and/or passing off. Small Business UK shares how essential it is to put the registered symbol next to your brand, slogan or its tagline once the trade mark has been issued as this will show that it is yours and you are able to take legal action should someone attempt to use or replicate it.

Registered designs

If you have designed something, you might wish to have the look of your design registered to prevent others from copying it. This can include the appearance, physical shape, configuration or decoration of your design.

Registering your design gives you the right to stop others from using your design for up to 25 years, although you will need to renew your design registration every 5 years.

As mentioned earlier in this article, certain designs are automatically protected, however, registering them makes taking legal action against infringement and copying easier, and protects your design for longer.

Patents

A patent protects something you have invented and allows you to take legal action against anyone that uses your invention without permission.

To obtain a patent for your invention, it needs to be all of the following:

• New
• Something that can be made or used
• Inventive - not just a simple modification to something that already exists

Patents cannot be acquired for things like literary or artistic works, and are often difficult to procure, as well as costly to apply for.

Frequently asked questions

Can you use more than one type of intellectual property protection on the same piece of work?

The different types of intellectual property protection discussed in this article do overlap. GOV.UK use an example on their website of how the different types of protection can work together to protect a single product:

• Register the name and logo as a trade mark
• Protect a product’s unique shape as a registered design
• Patent a completely new working part
• Use copyright to protect drawings of the product

What should I do if someone has breached my copyright?

If you believe someone has breached your copyright or infringed your intellectual property, it is your responsibility to act.

In the first instance, it is best to seek legal advice from an intellectual property professional, such as a solicitor, to advise you on the best course of action. At Markel Direct, we provide our customers with free access to a 24-hour legal advice helpline – providing them with immediate access to an experienced team of qualified solicitors at no additional cost.

Knowing who to turn to for expert legal advice can be difficult when you’re working for yourself. For customers, the team at Markel Law are on hand day and night to help with any business-related legal queries – you can find out more about this legal support service, here.

What happens if I accidentally breach copyright law?

Unintentional breach of copyright is increasingly common and is often an easy error to make.

For example, if you use an image on your website or on your social media channels with no credits, you could be faced with a breach of copyright claim. If the copyright owner’s claim is successful, you could be left paying for expensive compensation and legal costs. Holding professional indemnity insurance from Markel Direct can cover the costs of this unintentional infringement of intellectual property rights. Find out more about professional indemnity insurance, here.

Discover help and guidance for self-employed professional, here, or learn more about our freelancer and small business insurance solutions.

Please note: This article provides guidance for information purposes only. It should not be relied upon wholly when making or taking important business decisions – always seek the services of an appropriately qualified professional. The views expressed by websites referenced to are limited to those of the websites, and do not necessarily reflect the views of Markel Direct.