The Glossary of IP Terms was originally prepared by Sarah Andrew of Arts Council England.
Appropriation
(1) The first step in the act of theft e.g. ‘A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.’ (1968 Theft Act)
(2) An act of cultural practice, e.g. ‘Everyday life invents itself by poaching in countless ways on the property of others.’ (Michel de Certeau, The Practice of Everyday Life, 1984)
Assignment
Passing on the rights of an author/creator, usually for money, always in writing. Moral rights are not assignable under some European legislation, but, in the UK your morals can be transactable.
Attribution
Crediting an author of a piece of work; essential for Fair Dealing.
Author
The author of a work is the person or company that produced it. In the case of employees, it may be assumed to be their employer, if the work was produced as part of their employment. Linked to models of singular genius and authenticity, the author returns from death after Derrida and asserts its copyright.
Collaboration
A tricky concept for lawyers, collaboration occurs where more than two parties contribute to the creation of a format of work. Where this occurs from shared enthusiasms and interests, or most dangerously, friendship, it can lead to messy litigation if the work attracts commercial exploitation. Agreed parameters should be set in advance depending on the relationship between the parties, leading to shared (also called ‘joint’) copyright, e.g. when it is not possible to distinguish one author’s contribution from another’s, or separate copyrights in the different elements of the work.
Collecting Society
Collecting societies are non-profit making private organisations created to enable rights holders to license certain uses of their works on their behalf, such as public performance of music and photocopying of published material. Different societies collect for different creative interests. The following acronyms are useful: DACS (designers & artists), ALCS (authors), PRS, MCPS and PPL (music performance) and VPL (music videos). See a list of the collecting societies on our resources page.
Creative Commons
Creative Commons helps you legally share your knowledge and creativity to build a more equitable, accessible, and innovative world. We unlock the full potential of the internet to drive a new era of development, growth and productivity. Find all the information about CC on their website, here.
Copyright
The group term for the rights connected to the publication and dissemination of original works. Different rights apply according to the nature of the work, which could be literary, artistic or communicative (the latter covers web publication and broadcasting). The rights include reproduction (copying), publication, performance, broadcasting or communicating to the public and adaptation. Moral rights flow alongside the copyright. An author’s permission is needed to use these rights. Read more about copyright on our Copyright Basics page, here.
Derivative Work
A derivative work uses a part or even the whole of another work as an element in its composition. This doctrine assumes the earlier work has a fixed point of origination and raises questions of how original the latter work is capable of being.
Design Rights
An intellectual property right protecting original, non-commonplace, three-dimensional designs of the shape or configuration of products. It is a right to prevent copying, lasting only 10 years after first marketing the product or 15 years from creation of the design. Design rights may be bought, sold or licensed. Find out more about Designs here.
Escrow
In website commission agreements, it is normally the case that the source code which operates the back aspect of the website will belong to the software developer.
The parties could enter into an escrow agreement whereby the source code is deposited with an independent third party such as the National Computing Centre. This would provide for the release of the source code if the software developer becomes insolvent or where they are in breach of any of the terms of the agreement.
Fair Dealing / Fair Use
‘Fair dealing’ was introduced into UK law under the Design and Copyright Act 1988. It is a rigid legal format whose key terms must be observed. Copyright material can only be used under fair dealing for the purpose of criticism and review of that work or the reporting of a news event. The material must be used fairly (see Time Warner Entertainment co v Channel Four Television Corp Plc 1994 EMLR 7 for definitions). It should not be confused with ‘fair use’, a more liberal doctrine under US law, which for example allows parody as a fair use.
Formats
Concepts for works, most commonly seen in television and film, bought and sold for appreciable sums, despite the legal principle that there is no copyright in ideas. See Zeccola v Universal City Studios Inc. (1982) 46 ALR 189.
Ideas
There is no copyright in an idea alone, just the expression of it. However, see formats and also Autodesk v Dyason (No2) (1993) 176 CLR 300.
Indemnity
Parties are likely to want extensive contractual protections in the form of warranties and indemnities. These can provide a means of redress if they subsequently find that they are not getting what they thought out of the agreement. Indemnities are promises to reimburse the other party to a contract for a specific liability or circumstance that may arise in the future. For example, the seller of a painting may indemnify the buyer against any reasonable costs arising from a third party claim to intellectual property infringement. If it turns out that the painting infringed the copyright in another painting then the buyer may have a claim against the seller.
Infringement
Allegation made by copyright holder over use of copyright material without their permission. If a claim is successful it can lead to financial compensation and destruction of infringing works.
Intellectual Property (IP)
A global term for the capitalisation of creative thought processes. It covers a wide range of human activity from patents for inventions, trade marks for brand identities, passing off laws, trade secrets protection, conditional access and data rights management systems, design rights, copyrights and performers’ rights to plant breeders’ rights.
Licence
A document which sets the terms of use of a piece of work agreed between the author or rights holder (‘the licencee’) and intended user (‘the licensor’).
Logos
Logos are signs and signifiers that denote the source of goods or services. Although these may be common words or images, and so may not be protected as copyright due to insufficient originality, they can be registered as trade marks after which their use by other parties becomes actionable. See Exxon Corp v Exxon Insurance Consultants International (1981) 3 All ER 241.
Open Source
A computer programming movement based around programme codes that are both written and
licensed in a way to let other users adapt and develop the programmes without fear of litigation.
It involves commitment to ideas such as free redistribution and non-discrimination between
users and technologies.
Parody
A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule, a risky defence in copyright.
Patent
A system of registration of unique processes, products and inventions. Brunelleschi may have received the first patent from the Florentine authorities in 1421 for a ship-loading crane, but the earliest known English patent was granted by Henry VI to Flemish-born John of Utynam in 1449 for a method of making stained glass, required for the windows of Eton College. See more information on our Patents: The Basics page, here.
Public Domain
Once copyright has expired in a work it is theoretically in the public domain and available for anyone to use, regardless of copyright. However, practices of restricting access can render the concept impractical; cf Sistine Chapel.
Rights Holder
This may be the original author, their relatives if deceased or, if they have assigned their copyright, it may be a publisher or other commercial entity purely associated with exploitation of the work.
Royalties
The capitalisation of the thought processes that created the work, commonly a proportion of the profit from publication assigned to an author on each publication. The amount will be determined by agreement, in accordance with precedence or perhaps the relative bargaining power of publisher, distributor and rights holder. LB (Plastics) Ltd v Swish Products Ltd [1979] RPC 551.
Trade Marks
A trade mark allows traders to protect their brand signifiers in order that consumers can recognise their product. It must be registered, distinctive and not deceptive or contrary to law or morality. Read more about this on our Trade Marks: The Basics page here.
Warrenty
Parties are likely to want extensive contractual protections in the form of warranties and indemnities. These can provide a means of redress if they subsequently find that they are not getting what they thought out of the agreement. Warranties are statements of fact that a particular state of affairs exists at the time they are given. For example, an artist may warrant that all the works he sells are original and are not subject to any intellectual property rights of any third party. If this turns out to be untrue then the buyer may be able to make a claim against the buyer if they have suffered any loss.
Image: Claudine O’Sullivan, Yawning Fox, 2013: www.claudineosullivan.com
