Monthly Archives: May 2012 and copyright infringement – Meltwater for everyone?

The Internet has always been about sharing information. Blogging, RSS feeds, social networks and other social media have added another dimension, and the practice of finding interesting content online and sharing it with contents is more prevalent than ever.  However, the internet is also a crucial publishing platform for many businesses, for whom controlling use of their copyright work is central to survival., a relatively new service which allows users to build online ‘newspapers’, pulls in content from across the web and republishes excerpts and images from other sources.  Finding snippets of other websites on sites we use is a familiar occurrence by now: you often find two or three lines of a newspaper article in your Facebook feed where a friend thought it was an interesting read; Twitter users regularly accompany links with a brief quote; even Google gives you a couple of lines from each site in its search results.  However, has been getting a bad rap of late.  Some commentators have taken a negative view of the service, for example RobertScoble accused it of generating spam, Robert Scoble worries it will litter the internet with re-generated content, and other writers argue it is a risky tool for businesses and can lead their clients to competitors.

Creating good content takes time and effort.  Even finding good content to share takes work, particularly if you want to avoid distributing old news.  For businesses hoping to distribute good content through social networks, and ultimately gain more followers, might seem like a fantastic service.  You type in a few keywords, pick a handful of renowned Twitter users, and apply a filter or two and you can serve up an attractive fix of timely news to your followers every day without lifting a finger.  Right?

Aside from arguments about redundant content, spam or leading customers astray mentioned above, businesses serving up’s ought to be wary of copyright infringement.  Republishing a substantial part of copyright work owned by others, without authorisation, can expose you to liability.  This is an area of heated debate.  Some commentators are taking to blogs and forums to express opinions on whether publishing a gives rise to infringement, and it remains to be seen whether anyone will take action.

In slightly different circumstances, companies like Meltwater, the Newspaper Licensing Agency, and the Associated Press are fighting it out in the courts, both in the UK and in the US (you might be interested in the more in-depth articles Azrights has written on the UK battles previously: Linking and Copyright post Meltwater v. NLA, Managing Risks of Copyright Infringement When Linking post Meltwater v. NLA).

It’s the norm for popular sites which republish content to link to the source, and many writers are delighted to find their material syndicated through social networks and other services, but that shouldn’t give you too much comfort if your grand plan relies on leveraging original work for your own gain.  While some owners might be in favour of these practices now, others are not, and there is a certain fragility to business models which hinge on the decision of rights owners not to enforce them.  That is not to say is in a risky position, just that it is important for businesses to be aware of the issues early on.  For an insight into co-founder Edouard Lambelet’s views on the issues, head over to IP LAW 101 (though bear in mind that the US fair use exception does not translate into UK law, where the defenses against copyright infringement are narrower).

iPad battle in China drawing to a close

It seems the end may be in sight for the ongoing litigation between Apple and Proview International Holdings Limited over ownership of the iPad trade mark in China, but at what cost?

In 2000, Proview applied for the mark in China and markets around the world, but in 2009 when the company was in financial difficulty, the rights were sold to Apple for £35,000 by a subsidiary, Proview Taiwan. Apple was alleged to have misled Proview through the use of a special purpose company, IP Application Development Ltd, claiming the mark was an abbreviation of the name.

It has since come to light that the mark was in reality the property of Proview Shenzen, rather than the Taiwanese subsidiary.  Proview’s lawyer told the court, “Apple meticulously formed a band of lawyers to buy the trademark, but the transacted amount was given to Taiwan’s Proview, not Shenzhen’s Proview,”

Proview threatened to block both the export and import of the iPad, and their attempt to secure a preliminary injunction was resisted. The case as to ownership was heard at the Higher People’s Court in Guangzhou, which has yet to issue its decision. In the meantime, a deputy director of the State Administration for Industry and Commerce, Fu Shuangjian, noted that:

“According to the … provisions of the China Trademark Law, currently Shenzhen Proview is the legal registrant of the iPad trademark”

A Proview lawyer, Xie Xianghui, recently commented that the parties are working towards a settlement, though an agreement is yet to be reached on an appropriate figure.

This is not the first time Apple has faced allegations of trade mark infringement, but the technology giant is generally able to buy its way out of disputes.

Whilst a company like Apple can generally afford to settle in most cases, it is important to remember that small businesses often lack the funds to tackle disputes.  This case illustrates how important it is to ensure you are on a strong footing from a legal perspective before investing in a brand.

As technology analyst, Andrew Mok suggested to CNN, hopefully this dispute will increase the awareness of the value of intellectual property.

Why it’s a mistake to disregard intellectual property rights

Intellectual Property Rights are often marginalized in entrepreneur circles because they are not properly understood. So, it didn’t surprise me recently, when a prominent, well-respected figure in the business community, dismissed IP rights as too expensive to secure and too expensive to defend. His advice was that if you’re a service based business, publish your ideas and ignore intellectual property protection.

His comment was particularly noteworthy as he helps business owners to build extra value in their businesses by identifying and better exploiting their intangible assets. Intangible assets represent a significant value of a business, yet balance sheets do not reflect them due to traditional accounting principles with their focus on capital assets.

It’s true that acquiring rights that a business doesn’t need is an expensive encumbrance. So all businesses should put in place a clear IP strategy, and recognize that IP rights are a means to an end, not an end in themselves.

Forthcoming book: Legally Branded

I have written a book, Legally Branded, to address the confusion that exists around intellectual property rights in the business world. It will be published in the next few months, so in the meantime, I want to make two comments.

The term “Intellectual property” refers to a number of different rights: copyright, designs, patents, trade marks, trade secrets and so on. These are intangible assets, but there are many other intangible assets, such as the network connections a business has, that are not capable of legal protection as intellectual property. The speaker was possibly thinking about patents as they can indeed be costly to secure.

Not all patents are equally worth having. In some cases it may be best for a business not to register a patent. For example, Coca Cola might have been able to patent its recipe 100 years ago, but instead opted to keep it as a trade secret. While a patent would have expired long ago, opening up opportunities for competitors, by controlling access to the recipe Coca Cola retained its recipe as a unique selling point, and might continue to do so indefinitely. However, sometimes the right decision may be to file for a patent, and get a monopoly over your concept. Patents can be extremely lucrative, as is regularly made clear by colossal deals such as the recent assignments between AOL, Microsoft and Facebook.

IP Rights should not be neglected

Securing ownership of intellectual property rights, where these are available should always be considered as a conscious choice, rather than neglected. Often there is no huge cost involved to secure ownership, such as with copyright or trade marks, and having such IP rights gives a business more freedom and more customers too in certain cases.

As for the expense of defending patents or any other IP rights, most IP rights are never litigated or defended, because most IP rights are never infringed. In fact, registering your rights is often the best way to avoid costly litigation.

One way to think of IP ownership is like an insurance policy – premiums are always a waste of time and money until something goes wrong. Then suddenly they are vital.

IP Rights are at worst like an insurance policy

Which brings me to my second point: would you feel it a waste of time and money to insure against burglary, flooding, fire, or theft, because you doubt these disasters would befall you? Acquiring IP rights, such as trade marks to protect a brand, could at worst be compared with insurance against burglary and theft given the widespread tendency to copy in business. Trade marks are a key means of protecting your business against unfair competition.

To disregard the principles of trade mark law by choosing legally ineffective or weak names, or failing to register your brand name, is to miss out on valuable legal protection against theft by copyists.

Whether you are a service or product based business, trade marks (or service marks as they are sometimes referred to for service based businesses) are a powerful way to preserve the unique value you generate from publishing your ideas. And knowing how much to hold back is also important, and comes from understanding what protection the law of intellectual property affords in any particular situation.

Although securing your IP at the outset might cost money it can cost far more in lost opportunity, or disputes later on to put matters right if you don’t register your rights, or choose legally ineffective names.

It’s not enough to dominate the search engines

Take for example, the notion that you don’t need a trade markable name because you dominate the search engines with your descriptive name. The internet is changing constantly, and is likely to be transformed over the next 3 years as new Global Top Level Domain (GTLDs) are introduced, and the impact of social media is felt. To stop others enjoying the benefits of your hard won success, whether online, via adwords, emails or by other means offline, nothing beats having a distinctive name. Trying to claim passing off when you are using a generic descriptive name is expensive and of dubious benefit.

So, the least that any business with ambition should do, is to take advice on how it might use IP rights to protect and enhance the value it generates. A good starting point is to read my book.