Intellectual Property: What freelancers need to know (Part 1)

In our increasingly digital economy, Intellectual Property is at the heart of almost every business, whether it’s your own creative freelance operation or your typically online creative industry client (or any other outfit), who engages you as a self-employed provider of services.

But what is ‘IP’? Well, Intellectual Property includes trademarks, design rights, copyright, database rights, and patents, writes Charlotte Gerrish, founding partner of boutique law firm Gerrish Legal.

In this three-part guide exclusively for FreelanceUK, I will demystify all of the above.

• Part 1 will reveal your IP / copyright risks and how to fight them;
• Part 2 will explore trademarks, design rights and ownership, and
• Part 3 will look at monetising your IP and assessing IP under that other big acronym of our time -- the GDPR (the General Data Protection Regulation).
,

Firstly, why all this IP-stuff matters if you’re a freelancer or small start-up business. According to the European Intellectual Property Office (EUIPO), small and mid-sized enterprises which own IP rights have 17% higher revenue per employee than SMEs that do not own any intellectual property rights at all.

So, protecting intangible property such as inventions, brands and creative or original work is crucial for all freelancers who must ensure that their creations are properly protected, therefore enabling them to exploit their works for financial compensation. Or actually, even just to be acknowledged as the originator of the work for reputational purposes in your given sector.

Freelancers, remember though: nobody will check that a freelancer or small business’s ideas are protected for them; the onus is on you the freelancer or small business to ensure that proper protection is in place, and that no one is using your valuable assets against your will!

What are your IP risks?

When freelancers and start-ups are looking for clients, business partners or even investors, the freelancer or start-up often needs to share their ideas with third parties. It is really common for freelancers to share their creations and concepts with potential clients, as well as a copy of their portfolio – often a treasure trove of IP. Start-ups are also frequently invited to pitch their ideas for opportunities to push their business forwards. Sharing original ideas is a risk, but often a necessary one. Quite often, the deal or investment – or whatever the reason you’ve pitched -- won’t get signed and sealed unless you share your works with your potential business partner.

So what is the risk? Well, when you as a freelancer share your works and ideas with the public, including with your clients or prospects, it often happens that these third parties will take your ideas and innovative concepts and simply run with them -- without including you in the picture. This tends to happen, wrongly and unfairly, because the client already has the financing and structure in place to implement the project, based on your ideas, on their own.

What practical steps can you take to combat your IP risks?

-Keep (relatively) schtum!

It might sound obvious but it’s so important it’s worth stating -- try to avoid revealing too much! Whilst this is often hard, when you are keen to show your portfolio and initial ideas for a client, make sure that you don’t give them everything, so that they just cannot run off and implement your ideas themselves!

For example, avoid giving too many detailed business plans or concepts, and just provide the really essential information in outline or skeleton form to enable to you to satisfy their interest and secure the deal. Of course, this might sound obvious, but it is so often not put in place ‘on the day,’ in practice, by keen freelancers and eager start-ups, whose pursuit to succeed overtakes their ability to protect themselves.

-Non-disclosure agreements

Before you actually start doing business with anyone, if you are likely to be giving away any information about your business secrets, ideas, creations or innovations, make sure you get a Non-Disclosure Agreement (also called an ‘NDA’ or Confidentiality Agreement) in place before you start the in-depth discussion phase.

Why? Well, an NDA protects any information you share with the person that has signed it from any unauthorised disclosure. Make sure that the NDA is signed by both parties before you reveal anything, and certainly before you share your most valuable information with any third party.

Freelancers, remember: it might seem excessive or over the top for you as a freelancer to ask your prospective client to sign an NDA, but they really are a standard business tool. It will also convey to the prospective customer that you are a bonafide business, serious about protecting your assets.

If your would-be client pushes back or refuses, you have to ask yourself ‘why?’ Is it because they plan on taking your ideas without engaging you? Essentially, like all contracts, an NDA sets out the promises and obligations of each party, and so you are only asking your client to do what they have no doubt verbally promised to do -- use your ideas in good faith, and keep you in the financial loop!

Let’s get legal

While the practical steps above can prove helpful; the law is also behind you to ensure that your Intellectual Property (IP) rights are properly protected against being exploited without your consent.

But freelancers, remember: A mere idea is not capable of being protected by an intellectual property right.

So yes, it often surprises people, but an idea itself cannot be protected by IP. You need to make sure that you have taken the necessary steps to ensure that the idea has sufficiently materialised, to be able to seek IP protection, and this will depend on the type of idea and right that you are dealing with, which will begin to explain here in Part 1, below, but will outline further in Part 2.

Copyright

Copyright allows the author or the works to protect them -- whether those works are literary, artistic or even technical (such as source code, for example), provided that the necessary legal conditions for obtaining copyright are satisfied.

Copyright applies to qualifying works automatically once the work is created in a tangible form, for example, once a photograph exists, once a design has been created on a paper or in an electronic format, or once a text has been put to paper.

In most countries, there is no need to register your copyright in order for it to exist (although if you are working in the USA, there is a copyright registration regime in addition to the automatic copyright which arises without registration). The most important thing is to make sure that you note the date on which your work was created, and that you can evidence this, so that you are able to claim priority should anyone use your works later.

Sometimes referred to as ‘Poor Man’s Copyright”, there is the method of using a postal service to ensure IP rights. It involves potential IP owners sending a registered letter to themselves in a sealed envelope that will be dated by the postal service, to evidence that the material has been in their possession since a particular time.

Freelancers, remember: this is a perfectly sound and cost-effective method for your copyrighted materials, or for unregistered designs -- as I will delve into in Part 2, to be published on FreelanceUK shortly.