It has been a sore point on this forum but this should clear things up for some of you........
This post includes information from Everyday Practical Electronics DEC 2007. It was written by Sara Ludlam of Ludlams Solicitors who is a specialist Intellectual Property lawyer. In this article, specially written for EPE readers, Sara explains how best to protect your design ideas from copyright infringement or theft.
" Budding ideas
Many budding inventors have ideas that they think might be patentable or worth protecting in some way. Electronics manufacturers and designers these days are involved not only with hardware design (eg circuitry and printed circut board layouts etc.) but also the associated software, often involving the develpment of microcontroller source codes that are embedded into controller chips (creating firmware). So what sort of protection is available to individuals or companies seeking to prevent their idea from being pirated by anyone else?
The first thing that I should say, since this is a magazine about electronics, is that most software programs in the UK cannot be protected by patents. It is a contraversial issue in the UK. It is not the case in all countries, as some do allow patent law to protect software programs. This article will only deal with the rights available in the UK.
A patently good idea
Patents give you a 20 year monopoly right in an invention, but it can only be obtained if your invention falls within what is acceptable as an 'invention'. There is a list of what cannot be protected by patent law in the UK in the Patentss Act 1976.
Most new software does not contribute what has been described as a 'technical effect' to the body of knowledge already in the world. It cannot therefore be patented. If you are unsure, you should ask your local patent attorney, but do not tell anyone else about your new software or invention. If you tell people without requiring them to sign a confidentiality or Non-Disclosure Agreement (NDA) first, it is considered to be 'public' knowledge and patent law will not protect it.
Copyright
Copyright is the main form of protection for software in the UK. Unlike patent rights, though, copyright is an automatic right in the UK. It exists automatically on the creation of a new work, without the need for registration(This is not the case in all countries and it is recomended that in the USA you should register and copyright works at the Copyright Registry.) The lack of registration can cause a problem if there is an argument about when you wrote the software and if you really are the first author or creator of the work. It is, therefore, strongly recommended that you always post yourself a copy of the original work(or the earliest copy you have) and date and sign it. Do not then open the envelope, but keep it somewhere safe in case your authorship or the date of the creation is ever questioned.
If someone designs a circuit and draws it out by hand, or with a computer-aided package that work is protected by copyright if it is a novel circuit. If someone else takes the same circuit diagram and redraws it so it looks different then that constitutes copyright infringement. But you may need to have evidence that your copyright work had been copied. If the electrical circuit looks different then you would need to show that the infringer had worked from your original.
Who owns copyright?
So, who owns the copyright in the work? Copyright cannot be transfered to another without a written document assingning such rights, and such a document must refer to consideration having been given for the transfer, and the document must be signed by the assignor. This means that even if you have been paid for your design work, the copyright does not belong to the party that commissioned the workunless you have said so in writting and signed such a document.
This point is a common misconception. It would seem logical that if you paid a third party to, say, write some bespoke software for you, or design a new machine, then once you had paid that software programmer or designer, you would own the copyrigh of that work. This is not the case.
You own the copy of the work you may have been given further to payment or as otherwise agreed. You may also have certain rights to reproduce that work and use it in various situations. But such reproduction rights and right to use the work is limited in scope unless you are the copyright owner in that work, having taken a written asignment of copyright from the creaor of the work. If you have not, then you are using a work under licence. You do not own the copyright of that work.
The licence might be express, if you have agreed terms. for example, the licence might state that that you can only reproduce the work for your emloyees' use, and use it in the UK. Or the licence may be implied where there is no formal agreement, and the law would have to infer terms of that licence from the way in which the parties have behaved. For example, how much would be paid for the work, and has the copyright owner controlled further uses of the work?
Remember that copyright does not need to be registered, as I have explained above, but it does need to be protected if you are to maintain it. So the reader would need to prove that he is the author/ creator of the work and show that he is the first person to design that particular circuit board.If there are no records of creation, this can be a difficult process, so do bear in mind that you should keep rough drafts and prototypes when developing new work, as evidence of your creativity and originality.
Also , be aware that the first owner of a copyright work will be the creator/ author unless the work is created in the course of employment. In such an instannce the work and copyright in the work is automatically the property of the employer.
Damages and notices
You are normally entitled to recover damages for unauthorised use by a third party of your copyright or design right work. (This ai subject to the caveat covered below re. use of notices). 'Damages' is the value placed on the harm done to you by the unauthorised third party use of your work. It is assessed either by an account of the profits made by the third party having used your work, or by the amount you have lost by such unauthorised activity.
It is important if you are the owner of IP rights in a work that you tell the world about it by using 'notices'. In relation to copyright, the notice is the well known symbol (a circled letter 'C' followed by a full stop). Next to this symbol you should put the name of the copyright owner, either an individual or a company, and the date.
If your work has design right protection available to it then a further notice should be published on the work or its packaging: 'Design rights owned by [...].[Date]'
The reason why I say you should always tell the world that the work they are looking at is a copyright or design right protected work is because of'damages'. If a third party uses your work without your authority, and there is no copyright or design notice on it, they may be able to successfully argue that damages are not appropriate because their use of your work was 'innocent'.
If it is shown that at the time of the infringement the defendant did not know and had no reason to believe that the design right or copyright subsisted in the work to which the action relates, the claimant is not entitled to damages aginst the defendant. So, by using notices you are removing any opportunity for an infringer to avoid paying you damages."
