Despite the UK Government commissioning the Hargreaves Review of Intellectual Property and Growth in 2010 to ensure the UK has an IP framework best suited to supporting innovation and promoting economic growth in the digital age, there is still a marked lack of awareness in the business community about intellectual property and what it means.
Digitalisation is creating new rules for many industries, and challenging business models. The impact of the internet on intellectual property law is substantial, making the subject relevant to all businesses not just for those in the creative industries.
In the industrial age IP occupied a less central role than it does now when the new currency is intangibles such as information, brands and know-how.
There would be fewer business failures if more start-ups were aware of IP, and the successful ones would enjoy more spectacular success if they took digital IP advice on board when implementing their ideas, particularly when choosing a name, and creating technology platforms.
This article explains why using the word ”˜revolution’ in this context is not far-fetched. On the contrary, society hasn’t caught up quickly enough with the revolutionised role of IP law in the digital economy.
The scale and importance of IP
We live in an economy where more than 70 per cent of businesses are in the services sector, providing knowledge-based products and services. In a world where reportedly 70-80 per cent of corporate value is attributable to intangibles this means there are few areas of commerce that are not impacted by IP.
IP is the foundation of any business and needs early attention by all businesses with ambition.
One problem it suffers from is that people associate IP with costly registrations – of patents, trade marks, and designs. Copyright either gets overlooked, or presents a trap for the unwary because the copyright rules lead to some surprising results. Often people have a false sense of security believing that if you commission someone to do work for you, then that means you own the rights to the end product. In fact that is not the case.
Copyright, know-how and other types of trade secret all require good contracts and processes in place if a business is to be adequately protected.
While in the industrial age you might have got away with infringing on other people’s IP because nobody was likely to find out about you, now that everything is out in the open, it is no longer possible to ignore copyright and trade mark issues, even if you are a small start-up.
As a paper by the World Intellectual Property Organisation (WIPO) puts it, “intellectual property is a “power tool” for economic development and wealth creation”. Today IP is a driving force on so many levels – it is “a resource of limitless potential available to everyone” (WIPO, 2003).
Changes in legal practice
Another way in which the digital revolution has had tremendous impact on IP is that it has altered the skills and knowledge required to be an IP lawyer in the digital economy.
In the early days of the industrial revolution there were just patent agents as a profession. The separate profession of trade mark attorney emerged later.
Traditionally, these professions have been entrusted with IP registration work, while specialist IP solicitors and barristers handled copyright, or IP litigation work.
Nowadays solicitors tend to register IP rights too, while many patent and trade mark firms also provide litigation services. So, IP tends to be a fragmented area of practice, and increasingly the boundaries between the traditional professionals are breaking down.
Additionally, as IP is entwined with business, many IP services are offered not by the legal professions but by those with backgrounds in business or engineering or marketing. They offer IP valuation and commercialisation services outside the regulated sector.
The widespread ownership of smartphones, and the trends in society towards a sharing economy, peer to peer lending, crowd-funding, use of big data, apps, and more, mean that the skills needed by an IP lawyer are quite different to what they traditionally used to be.
What often falls between the cracks in the current climate is copyright advice, particularly in technology related areas like websites. If your IP lawyer does not understand the online dimension it can be difficult for them to offer effective advice around name choices.
Indeed the technological advancements that are transforming our lives mean that the web will be the only facet of many businesses. So the new breed of IP lawyers need to stay abreast of new developments, and emerging technologies in order to advise not just on the law, and legal documentation, but also on other aspects of doing business online.
Therefore, the right lawyer to advise a business in the digital world will be one with a good understanding of the web and technology.
Online businesses and IP
Before the web and the digital revolution, most businesses had to have physical trading premises which customers could visit, such as a high street store. The web provides a more cost effective way to market and sell products to customers. You can postpone obtaining office space until your concept is proven. The fact that it is so easy to start-up online is a trap for the unwary.
Building a great platform, choosing a name and branding strategy requires much thought and planning, and must involve a competent IP lawyer on the team. Lack of awareness of the need for early IP advice is the only reason why people do all this before consulting a lawyer experienced in IT and IP law. What is involved in an online start up is directly related to intellectual property. Business is now all about intangible assets.
For physical products, the internet is an important distribution channel. Therefore, online businesses need lawyers who not only help them identify and protect their IP, but also understand the online space. If your business is online, then your lawyer needs to be able to advise on the impact of the web and social media upon it – which includes advising on names, copyright, and other IP issues. The current division of responsibilities between the professions sits uncomfortably with this new world order.
The increasing value of names
Names are key when developing a business. Names are also one of the main ways in which the law protects businesses against unfair competition. Despite the powerful protection the name of the underlying business can provide, many SMEs either don’t really find this protection exciting, or don’t understand that the very choice of name involves legal considerations.
Brands and trademarks are also misunderstood by many start-ups, who sometimes say that they don’t need to take such issues on board because they are likely to be bought out by a business that will not want to use the brand they develop.
What might have previously been regarded as an esoteric specialist subject is now mainstream as a result of the web. Nowadays SMEs are exposed to a global audience in ways that simply did not occur in the industrial era. We have more businesses today than we’ve ever had before, and because you can market to a global marketplace, it is important to pick names which can help you to stand out, while not infringing on the rights of others. It should be a name which creates valuable IP – and that means it must be distinctive and capable of being trademarked.
Despite the central relevance of IP in today’s “knowledge economy” educators of future lawyers still treat the subject as a specialist area.
Without IP training, tomorrow’s lawyers will be no better equipped than general commercial lawyers are today, to advise businesses on copyright, names, websites and internet related legal issues. These are intrinsic to the needs of businesses nowadays. Advice on them should be available through every commercial lawyer. Only then would clients of a law firm receive the rounded advice they need on IP law.
Shireen Smith founded Azrights, an intellectual property law firm to provide the A to Z of IP/IT commercial services (www.azrights.com). She is author of the book Legally Branded. Her new book Intellectual Property Revolution highlights the new threats and opportunities of IP in today’s digital economy.
The intellectual property revolution has begun! What do you know about it? Intellectual Property Revolution is a book explaining how to successfully manage your IP assets, protect your brand and add value to your business in the digital economy.
For more information visit www.shireensmith.com.