About Enforcement/ISP
The IEG is committed to working together with the ISP industry and law enforcement agencies. Since 2001, the IEG has developed great relationships with the ISP industry, providing training sessions, seminars and receptions bringing the creative industries and the ISP industry together. Similarly, the IEG has developed mutually beneficial links with law enforcement, providing training and assistance. Click here for more information on Seminars.
If you are an ISP or law enforcement agency and would like to find out how the IEG can be of assistance to you, please email the IEG info@ieg-uk.org
Below is a guide to Copyright and Trademark law:
Copyright
What is copyright?
Copyright is a form of legal protection, and gives the author, artist, creator or composer of certain works, (or their employer, if the work was created in the course of employment) the right to prevent another person from copying or exploiting their work. These economic rights enable a copyright owner to control the use of their work and to benefit financially whenever their work is commercially exploited.
The purpose of copyright is to allow creators to gain economic rewards for their efforts and so encourage future creativity and the development of new material which benefits us all. Copyright material is usually the result of creative skill and/or significant labour and/or investment, and without protection, it would often be very easy for others to exploit material without paying the creator.
Copyright is an (intellectual) property right which subsists, in relation to a number of specified types of works.
The types of works protected are:
Literary, dramatic, musical and artistic works
Sound recordings, films and broadcasts
The typographical arrangement of published editions.
Copyright comes into existence, or ‘subsists’ when the idea is translated into a fixed, tangible or retrievable format. Copyright is an unregistered, automatic right.
Usually, the person who creates the work is the author and is the first owner of copyright in it – except when the work is made by an employee in the course of their employment. In such a case, the employer will be the first owner of any copyright in the work. These rules may be altered by contractual agreement.
The legislation permits only the owner of the copyright, or a person authorised or licensed by the owner, to carry out certain acts in respect of those copyright works.
The ‘acts restricted by copyright’ include:
Copying; issuing copies to the public; renting or lending the work to the public; performing; showing or playing the work in public; communicating the work to the public or adapting the work.
Copyright can also be infringed by importing, possessing or dealing with an infringing copy; providing the means for making an infringing copy; permitting the use of premises, or providing apparatus for an infringing performance.
Copyright also gives moral rights to the author, such as the right to be identified as the creator of the work, and the right to object to derogatory treatment of the work, and the right not to have work falsely attributed to them.
Permission to use or copy protected material is normally achieved by approaching the copyright owner, but there are a number of organisations that act collectively for groups of copyright owners in respect of particular rights and which may offer “blanket” licences to users. These are called “collecting societies.”
There are certain exceptions to the rights given to the copyright owner. For example, limited use of works may be possible for non-commercial research and private study, criticism or review, reporting current events, judicial proceedings, teaching in schools and other educational establishments, not for profit playing of sound recordings and to help visually impaired people. But copying of large amounts of material and/or making multiple copies may still need permission. Also it is often necessary to include sufficient acknowledgement even where the use of copyright material falls within the scope of an exception.
Duration of Copyright
The precise duration of copyright varies depending on the type of copyright work. Protection in the UK is as follows:
- Literary, dramatic, musical or artistic works – life of the author plus 70 years.
- Films – 70 years after the end of the year in which the death occurs of the last to survive of the principal director, the authors of the screenplay and dialogue, and the composer of any music specially created for the film.
- Sound recordings – 50 years from the end of the year in which it was made or, if published in this time, 50 years from the end of the year of publication. If not published during that 50 year period, but it is played in public or communicated to the public during that period, 50 years from the first of these to happen.
- Broadcasts – 50 years.
- Published editions – 25 years.
Trade Marks.
What is a Trade Mark?
A trade mark is any ‘sign which can distinguish the goods and services of one trader from those of another’. A ‘sign’ can include, for example, words, logos, pictures, or a combination of these.
In simple terms, a trade mark is a badge of origin, used so that customers can recognise the product of a particular trader.
Benefits of trade mark protection
Large sums of money can be invested in “developing” and promoting trade marks to suit a particular product or service and to appeal to a particular market.
Consequently, unauthorised use of a mark by another party can result in a registered Trade Mark owner losing business and goodwill. For this reason the Trade Marks Act gives the owner a remedy through the Courts to protect that business and goodwill against unauthorised use by third parties.
The owner of a registered trade mark may sue for infringement of their mark; and in certain circumstances the deliberate use of a registered trade mark on goods, by another person and without the owner’s knowledge, may provide a criminal offence.
The UK Intellectual Property Office maintains a register of Trade Marks at www.ipo.gov.uk.
Confiscation – Proceeds of Crime Act 2002
Confiscation is a provision aimed at relieving lifestyle criminals of their assets.
This process is based on the principle that an offender who gives reasonable grounds to believe that he is living off crime should be required to account for his assets, and should have them confiscated to the extent that he is unable to account for their lawful origin.
The question of whether a person has a criminal lifestyle is central to the operation of the Act, because it determines whether the defendant is subject to the confiscation of benefit from his particular criminal conduct or his general criminal conduct.
A person may be committed to the Crown Court for confiscation proceedings following a conviction of any offence, indictable or summary, in the magistrates’ court. Where the prosecutor asks the magistrates’ court to do so, the court must commit the defendant to the Crown Court. Where a person is committed to the Crown Court for confiscation proceedings, the Crown Court will also assume responsibility for the sentencing process.
The criminal lifestyle tests, therefore, are designed to identify offenders who may be regarded as normally living off crime. A person has a criminal lifestyle if he satisfies one or more of the tests set out in the Act.
- the first test is that he is convicted of an offence specified in Schedule 2 (which include the Copyright, Designs and Patents Act 1988 sections 107(1) 107(2) 198(1) and 297A) and section 92(1), (2) or (3) of the Trade Marks Act 1994);
- the second test is that the defendant is convicted of an offence of any description, provided it was committed over a period of at least six months and he obtained not less than £5,000 from that offence and/or any others taken into consideration by the court on the same occasion;
- the third test is that the defendant is convicted of a combination of offences amounting to “a course of criminal activity”.
POCA requires a system to be established for the accreditation of financial investigators.
Certain accredited financial investigators will have powers to apply in England, Wales and Northern Ireland for restraint orders and certain ancillary and investigation orders.
The Proceeds Of Crime Act 2002 (References To Financial Investigators) (Amendment) Order 2005 – provides for a member of staff of a local authority who holds an appropriate office to be a financial investigator – if he has been trained as a fraud investigator by the Agency and is involved in investigating fraud.
Criminal Law Act 1977 – Conspiracy
A Statutory conspiracy is defined in Section 1 of the Criminal Law Act 1977.
s1(1) – “…If a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either –
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or
(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible
he is guilty of conspiracy to commit the offence or offences in question”.
Conspiracy can also be a common law offence.
In respect of a common law conspiracy to defraud; to corrupt public morals or to outrage public decency, it is possible for an offence of common law conspiracy to defraud to be charged even where the offence might have been charged under a specific statute (as a result of s 12 CJA 1987 and amendments to s 5(2) of the CLA 1977.