GDD730 – Module 2: Week 8: Intellectual Property

Before I start looking at the course content this week, I want to reflect on the team. The feedback we received from the industry expert was that our idea was too conceptual. I think this criticism was constructive as the feedback, coupled with the course focus on metrics, has made the team focus on planning and thinking about the Epics that we can deliver in the remaining time. Kim has also pushed us to think about a thin slice, completing one end to end user journey rather than multiple. Gordon has put himself forward to draw out the high-level journey to create a skeleton framework for all design elements. I think this is an excellent approach as it should be achievable in the remaining time. The criticism regarding the research was that some of it were biased. To address this, I will endeavour to find additional research and proved oppositional information.

A brief overview of the history of Law: 

As part of the course content this week, I have watched a series of video lectures by Dr Micheal Scott providing an introduction to Law with a focus on Intellectual Property.

Judge Sir William Blackstone was the first person to do a comprehensive analysis of English common Law in 1756. Scott argues that it is important to develop an awareness of the Law as a creative and business person. (Scott, n.d.)

Scott asserts that having creative work treated fairly relies on the terms of the contract. He recommends engaging with a solicitor to you should “empower them to protect our intellectual property and indemnify against non-trivial risks of harm or loss that our apps could cause” (Scott, n.d.) . He recommends that you develop an appreciation of the Law in advance of signing contracts or creating releasing apps. (Scott, n.d.)

My Definition of Law Activity: Law is – rules concerning behaviour that govern our society.

Scott shares one possible framing of Law: a social contract “The implicit agreement among members of a society through which they transfer their natural rights sacrificing their freedoms in exchange for protection”. (Scott, n.d.)

Kantorowicz proposed the Law is “a body of rules prescribing external conduct and considered justiciable”. Dame Hazel Glean asserts that Law is concerned with social order, which is backed up by the cohesive powers of the state. There has to be a legal system in place for Laws to exist. (Scott, n.d.)

Before 1066 in England and Wales, life was governed by customs. Law existed, but it was regionalised. Post the Norman conquest, there was a need for unity and evidence-based jurisprudence and defined offences led to the development of Common Law. Under Common Law, cases would be brought to court and presided over by a judge. The judges would use previous cases to inform their judgements. Lawmaking that focused on the Monarchy as protector of the realm. Cases were presented to the King of England in the form of Writs that would prompt actions and define the rights and obligations that were enforceable. Over time this lessened the Monarchy’s power. Other forms of the legal president were introduced, including the declaration of rights in the Magna Carter and establishing a parliament in 1215. In 1258 the crown was no longer able to make new Writs. In 1689 royal powers were annulled. Scott states the importance of understanding that the Law evolves. Judges apply statute and president when making decisions. (Scott, n.d.)

The four sources of Law in the UK today. The Supreme Court and the Royal Courts of Justice, UK Parliament Legislation and retained EU Regulations, the European Court of Human Rights, and common Law.

UK Law operates an adversarial system with a prosecution and defence that are required to present their cases before a judge or jury. Lawyers will argue a case using evidence to prove or disprove guilt. The Jury or Judge must decide that the case has been proven beyond reasonable doubt (Scott, n.d.)

The difference between Civil and Criminal Law:

Criminal Law relates to offences is that are deemed to affect society as a whole negatively. Based on parameters set by Acts of Parliament in UK law. If a person breaches criminal Law, they are subject to criminal prosecution. The cases are brought about by the state (Duignan, n.d.).

Civil Law affects the rights and property of individuals and organisations that may not be protected by criminal Law. Breach of Civil Law would not result in a custodial sentence but may result in awarded financial damages. The cases are brought about by the individuals concerned (Duignan, n.d.).

Most acts brought about in app development are likely to fall into Civil Law.

In Civil Law, the threshold for proving a case is different; it needs to prove the case in the balance of probabilities, which is that the court believes an event occurred, the evidence shows that the occurrence is more likely than not. (Scott, n.d.)

The more serious the allegation, the more evidence will be required, the more unlikely, the stronger the evince is required, that the court is flexible when based on the seriousness of occurrence, the more serious the allegation is, the less likely it is that it occurred. Judgements have to be made in the adversarial system have to find for one side or the other. In Civil cases, the burden of proof falls on the Claimant. (Scott, n.d.)

The 1984 Act outlines where trial by a Jury might be considered: labial or slander, false imprisonment, malicious usage, and fraud (Scott, n.d.).

The key things that I think I should be aware of in my role as a UX Practitioner are breaches of contract, misuse of intellectual property and failure to protect personal data and breaches in privacy. The video has also highlighted the importance of the evidence; therefore, it is the importance that I document my work, ensure that I have Copyright in place and that any legal documentation has been reviewed, and solicitors are involved where necessary.

Distinguish between Copyright, Trademark and patents:

As a UX Practitioner, if working in the creative applications sector, I need to be aware of Intellectual Property Law.

Authorship and ownership are distinct from each other. Intellectual property can be bought and sold. If work is created under an employment contact, the employer is the owner. The property is not always transferred to the commissioning party if a contractor develops work after being commissioned and paid for. Ownership is dependent on the terms within the contract. (Scott, n.d.)

The four key intellectual Property Laws:

Copyright – intellectual Copyright granted to a creator to protect them from unauthorised copy. Commercial exploitation or use of work in circumstances that might be immoral (1988 Copy right design and patent act). If others use the work without explicit permission from the person that holds the Copyright, it is a copyright infringement. There are some exceptions relating to private, educational use of the work. If the work is used in one of the exceptional cases, there must be a fair acknowledgement, and it must not affect the market for the original work. (Scott n.d.)

Deliberate infringement for commercial gain, known as piracy cases, can be brought in both Civil and Criminal Law. (Scott, n.d.).

Visual assets that create as a UX Designer, such as interfaces, are covered by copyright law under artistic works. Electronic work is included in copyright protection (Scott, n.d.).

Copyright protects the work, not the idea (the tangible from in that the idea has been expressed). This has been established through the president. To gain Copywrite, it must be deemed that the tangible expression of an idea in work is original (Scott, n.d.) .

Copyright is time-bound, typically 70 years after the author’s death (Scott, n.d.).

If your work is covered by Copyright, you are also entitled to Moral Rights, which are the moral right to attribution, the moral right to object to derogatory treatment of work. Also, the moral right to object to false attribution and the moral right to privacy of certain photographic works and film. (Scott, n.d.).

Trademark – Protect the creator under the signs which they trade their creations. The 1862 Merchandise Marks act made it a criminal offence to use another Trademark with the intent to defraud. However, the introduction of the 1994 Trademarks Act means that cases are usually brought under Civil Law. The holder can use the Trademark to brand their goods and show that they are the creator. (Scott, n.d.).

Patents – Are used to protect your invention; this covers “something that can be made or user, something new, inventive – not just a simple modification to something that already exists” (Copyright, Designs and Patents Act 1988, 1988).

Design Right: This property right protects the shape or configuration of the whole or part of the article. (Intellectual Property Act 2014, 2014).

Consider how the various developments in Law impact your practice.

One of the other things interesting about the course content this week is that Law is continually changing and evolving. I had to look up the changes to EU Regulations and as Britain is no longer part of the European Union. This illustrates that understanding the Law is not static, and I should be trying to stay up to date with changes. Some EU regulation and Law has been carried over into British Law. McDonagh, who has written a paper on UK Patent Law and Copyright Law After Brexit, believes that both the EU and Britain will seek to retain a regulatory convergent and cooperation regarding IP (McDonagh, 2017).

  • Suppose I engage in work as a freelancer or in a consultative capacity. In that case, I will carefully review the contract to understand if I will retain ownership of my work or if it will be automatically transferred to the commissioning party.
  • Register my Copyright with legal expertise and mail a copy of the work to myself and have a copy of the work held by my lawyer.
  • If I need a Trademark, I will apply online at the Intellectual Property Office. If I have a Trademark, the onus is on me as a holder to protect it and pursue any infringements. I would also need to actively use the Trademark as they can be removed if not used and contested. The Trademark can be applied to the exchange of goods and provision of services in the commercial sphere. (Scott, n.d.)
  • If I wish to patent something in the future, I will search published patents and seek legal help. The government website advises that this is the most expensive form of protection and is a lengthy process. Therefore, I will try to utilise the automatic protection afforded by Copyright and Design right before applying for a patent. (Intellectual property and your work, n.d.)

Sources:

GOV.UK. n.d. Intellectual property and your work. [online] Available at: <https://www.gov.uk/intellectual-property-an-overview/protect-your-intellectual-property&gt; [Accessed 22 August 2021].

Legislation.gov.uk. 1988. Copyright, Designs and Patents Act 1988. [online] Available at: <https://www.legislation.gov.uk/ukpga/1988/48/contents&gt; [Accessed 22 August 2021].

Legislation.gov.uk. 2014. Intellectual Property Act 2014. [online] Available at: <https://www.legislation.gov.uk/ukpga/2014/18/contents&gt; [Accessed 22 August 2021].

Duignan, B., n.d. What Is the Difference Between Criminal Law and Civil Law?. [online] Encyclopedia Britannica. Available at: <https://www.britannica.com/story/what-is-the-difference-between-criminal-law-and-civil-law&gt; [Accessed 22 August 2021].

Dr Scott, M., n.d. A Brief Introduction to English Law. Available at: <https://flex.falmouth.ac.uk/courses/913/pages/week-8-law?module_item_id=54501&gt; [Accessed 22 August 2021].

McDonagh, L., 2017. UK Patent Law and Copyright Law After Brexit-Potential Consequences.

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