NKCC Now Offers Trade Mark Advisory Services

By Prof. Charles Oppenheim Senior Consultant, NKCC

To complement its existing suite of consultancy services and advice, NKCC now offers advice and consultancy on trade marks. There are two types of trade marks – Registered Trade Marks, administered by the UK Intellectual Property Organisation, for which one must apply for registration, pay application and renewal fees, but which gives the owner a powerful monopoly weapon for dealing with those who infringe the mark by using the mark, or something confusingly similar, for the same or similar goods or services in the UK. Other types of trade marks (often called “trade names”) are not the subject of a formal monopoly obtained by application procedures and payments, but can still be protected against so-called “passing off”, where another person or organisations uses the mark, or a confusingly similar one, in a way that damages the owner of mark’s commercial interests. The law of passing off predates the concept of Registered Trade Marks, and in some ways is more flexible than Registered Trade Marks. Indeed, there are far more trade names in use than Registered Trade Marks.

Whether registered or not, trade mark protection can in theory last indefinitely. In some cases, protection can be extended to outside the UK, though the implications of Brexit are as yet unclear for trade marks protected within the rest of the EU.

NKCC is now delighted to offer strategic advice about the commercial opportunities, risks, costs and benefits of registration. We can also advise on the procedures involved, the way to proceed with an application to register and help complete the forms that are necessary for a client to obtain a Registered Trade Mark.

But that is not all. NKCC can also offer advice about whether a Registered Trade Mark is appropriate for a brand, and the likelihood of success with such an application. We offer similar advice for trade names, though in such cases, of course, an application process and fees to be paid are not involved. We also offer consultancy on what to do if a third party infringes a client’s mark, or if a client is threatened with a trade mark infringement action by a third party. also can undertake trade mark searches for a client to ensure there is no pre-existing Registered Trade Mark to the one a client proposes to use. Finally, we would be delighted to advise on how to minimise the risk that a brand name is not subject to challenge by third parties.

Spaces, Images and Teaching Copyright

Last summer, I had the pleasure to present to a number of University Copyright Experts about – Copyright, Licensing and Digital Images: Teaching the teachers what they can use when they teach.

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At the best of times, the relationship between what content can be used under a licence, and what content can be used under an exception to copyright in teaching and learning contexts, can be complex. Since a major part of my work is training, whether running workshops, seminars or training the trainers, I wanted to put together some slides which focussed on issues that academics and researchers could relate to help them understand this complexity i.e. the concept of “spaces and images”.

The attached presentation looks at both the types of spaces teachers and academics would potentially use during the course of their teaching, and then the devices by which they could use content in those spaces.

In terms of spaces, I categorised them into the following:

Private/private = classroom

Private/public = Virtual Learning Environment (VLE), such as Moodle

Public/Public = Website (non commercial)

Public/Public = Website (commercial)

This then provided the base line for examining the types of devices and the ubiquity that would enable image reuse, viewed through the lens of risk, cost and benefit (i.e. copyright as a “business critical issue”).

Thus:

CLA = The Copyright Licensing Agency Licence (CLA) licensed published content can be used with no risk, with great benefit (but with cost), in Private/Private spaces and also Private/Public spaces in compliance with licence terms.

CC = Creative Commons Licensed images and other content has great benefit across all the spaces with no cost. However there is some risk. The recognised risk is based on both the differentiation between licence “flavours” meaning that only some of the licences would enable images and other content to be used across both Public/Public spaces as some are limited to non-commercial uses. Also, there is risk that the person/organisation posting content under a CC licence does not have the authority to do so.

Exceptions  = Exceptions to copyright which enables the reuse of images and other content (particularly not content covered under the terms of a CLA or other licence), have no cost, but some risk (as the exceptions to copyright are defences and NOT rights). Their benefit is limited because of Fair Dealing limitations and spaces for use are limited to Private/Private and Private/Public spaces. The increased risk associated with the use of the exceptions within even the Public/Public Non Commercial space – means that this does not feature as an option because the level of risk in many cases may not be tolerable.

Apart from looking at key messages regarding teaching, I also discussed what happens when content moves between spaces, how and what this does to the level of risk and what can be done to mitigate if not eliminate this risk.

For example, students recording lectures taking place in a Private/Private Space and posting content on Public/Public spaces via social media. In this case, CLA licensed material which may have legitimately been used within teaching in classrooms and VLE’s under specific licence terms, may find itself circulating on the web, which would breach CLA licence terms.

Clearly solutions might include:

  1. Organisational policies about what is acceptable and what is not, supported by staff and student training
  2. Use where possible of CC licensed content in classroom teaching with the expectation that lectures will be recorded and posted on social media.

Another “space shifting” circumstance to be weary of can include the use of content stored on a VLE, and its subsequent reproduction on MOOCs (Massive Open Online Courses).

Solutions here might include:

  1. Clearing all rights in some third party content directly with rights holders for global rights, even for classroom use, with the view that the content may then be used on the web within the context of FutureLearn courses
  2. Use where possible of CC licensed content (without an “NC” restriction) in classroom teaching with the expectation that lectures will be recorded and posted on social media.

This is certainly a good start, I believe in helping teachers who teach copyright, to understand and verbalise the concepts of the spaces which we use to teach, and the use of the content that we use in these spaces. By doing this, we can gradually communicate the complexities of the issues and also consider the use of licensed material and the use of the copyright exceptions within the prism of risks, costs and benefits. Moreover, I believe that by understanding these critical concepts, it helps us to understand how content can move between spaces (whether legitimately or not) and therefore we can put in measures to make the most of legitimately licensed content, sensibly risk appraise the use of the exceptions to copyright, as well as mitigate and potentially eliminate risks of content being used in unauthorised spaces.

© Naomi Korn, 2016. Some Rights Reserved. The information here is licensed for use under a Creative Commons Attribution Share Alike Licence (CC BY SA)

 

Museums, collecting & copyright: An uncomfortable (post) truth?

In a post truth, post Trump, Brexit world, museums, archives, libraries and other cultural heritage organisations have more of a vital role now in collecting, curating and providing access to ephemera and objects than ever before. Indeed, museums in the US are actively collecting signs, placards, posters and objects that protesters have donated or left behind. We are in unprecedented times, and the objects, stories and material culture from unprecedented times must be collected. Since the world of “alternative facts” seems to have heralded an era that leaves us vulnerable to the re-writing of history, our cultural heritage organisations are at the forefront in ensuring that we collect the evidence of times now, so that in the future, this history that we are creating now, cannot simply be erased from the history books, and at the very least, is harder to manipulate and distort.

With this in mind, I’ve been thinking about the relationship of copyright to the collecting policies of museums. What I find interesting is that many of the signs that are regularly used in the protests, as well as the videos regularly posted on friends’ Facebook timelines (You Rock, Randy Rainbow, btw!), are unsurprising more effective if they incorporate familiar phrases and logos, parody existing images and or content, or perhaps caricature specific individuals, behaviours etc. When messaging is often more effective and take up greater, if it shocks and/or uses iconic images, music etc, this is hardly surprising. For example, the recent protests in Brighton 3 days ago against Donald Trump reworded the song “Hey Baby” by Bruce Channel “Hey, hey, hey Donald, I wanna know why you’re such a c**t”. This in itself also opens up issues about libel, defamation etc.

So, if museums are collecting these objects, recordings, material culture of today, where does it leave them tomorrow in terms of copyright? More to the point, should they not collect if the copyright issues inherent in these items means that they are effectively unreproducible?

There are several inter-playing issues at stake here. The relationship between legalities, ethics, standards and obligations and risk management – to name a few. In terms of copyright, however, the UK’s recent commitment to reform copyright laws in 2014 in favour of a more enlightened copyright regime, provides some respite. Certainly regarding the collection of objects, stories and content associated with the current protests, without seeking permission from the makers (who probably would never be located) museums would be able to make preservation copies of these items once the items became part of their collections (unlimited digital copies), but also they would be able to provide digital access to images of these items via dedicated terminals on their premises for walk-in users. Arguably, the new copyright exception for parody, caricature and pastiche, would also limit risks associated with the very collecting of items which were using and/or based on copyright works created by others. Subsequently, in the future, the Quotation copyright exception, would enable museums to reproduce extracts of published protest ephemera, like videos posted on YouTube etc, in association with exhibitions, publications, activities etc. There is certainly enough here for museums even with the most restrictive and administratively cumbersome collecting policies to feel reassured that they could reproduce and use, now and in the future, print and/or digital items associated with the protests.

However, there is more to this than just the applicability of the UK’s copyright exceptions. There is a fundamental issue here that even if we could not find copyright exceptions to enable us to feel safe to collect works which pose copyright concerns (orphan works, infringing others copyright etc etc), we should not be using copyright, or indeed other legal issues such as libel and/or defamation etc, as an excuse not to collect certain works. With the rights of individuals, safeguarding of social justice, religious freedoms and other human rights at stake, our museums, our libraries, our archives, have vital roles to play to safeguard records of these rights and preserve evidence of responses to potential breaches of these rights. Collecting comprehensive records of our present, is the history by which we try and learn from, and from which we try to make sure erosions of our liberties do not happen again. Our cultural heritage organisations are placed at the heart of our community and societal values, and we need to step up and make sure that what we do is what we are here to do. We need to operate within the law, but we also need to be pragmatic and have sensible and proportionate approaches to risk that enable us to collect with our copyright eyes open. We collect, we safeguard  – we are the custodians of our nation’s cultural heritage – no excuses.

© Naomi Korn, 2016. Some Rights Reserved. The information here is licensed for use under a Creative Commons Attribution Share Alike Licence (CC BY SA)

 

NKCC Ltd – January News

2017 has certainly started with a bang for NKCC Ltd!

flip-chart

Team Updates:

I’m thrilled to welcome my friends and colleagues to NKCC Ltd. Prof. Charles Oppenheim, Alex Dawson and Amalyah Keshet join as Senior Consultants, whilst Liz Bowers and David Bell, both formerly from the Imperial War Museums, also join NKCC Ltd. Their respective skill sets enhance the consultancy services that NKCC Ltd is able to offer. Charles, Alex and Amalyah are the leaders in their respective fields. Liz’s many years of publishing and brand licensing  expertise ensure that NKCC Ltd can offer comprehensive end to end copyright, rights and licensing services, whilst David offers exemplary rights research and clearance skills, as well as Image Library experience.

Project Updates:

Apart from existing clients and project work, I am delighted that NKCC Ltd has been awarded a major rights clearance project for the Royal Academy of Arts. David Bell will be working with me on the project which starts on 1 Feb 2017 and runs until the end of November 2017.

Training Updates:

I’ve just returned from running two fabulous copyright workshops for the Royal Armories in Leeds. A Copyright Essentials Course on Day 1. and a Copyright Advanced Course together with a copyright surgery on Day 2. Thanks everyone for all your wonderful participation and laughing at my jokes!

Next week, I will be running in-house copyright training for the Chartered Institute of Insurers. On Thursday, I’m up to Liverpool to run a copyright workshop for the National Museums of Liverpool, followed by a copyright workshop for librarians and archivists at Unilever. Ethel Bilborough will be with me all the way 🙂

Lots more copyright training and conferencing coming up over next few months too. Please do get in touch for a touch if you would like to discuss your training requirements with me.

How we can help you?

Now that the team is bigger NKCC Ltd can offer more services to an international clientele. Please do feel free to contact me directly if you would like a confidential chat about any support or services that we can help you with.

Copyright Training & Development

Happy New Year everyone!

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Courtesy, British Council

2017 is going to be another bumper opportunity to skill up on a variety of copyright, licensing and rights-related topics through a range of copyright workshops, seminars and conferences I will be participating in/running up and down the country. Please email me naomi@naomikorn.com if you would like to attend one of these, require any further information or would like to enquire about a specific training course for you or your organisation.

20 January – Copyright and the Digital Age, Libraries & Information East Midlands, Leicester (All day)

6 February – Copyright Essentials, Association of Pall Mall Libraries, London (All day)

7 February – Copyright for School Librarians, CILIP School Libraries Group, London

7 February – Copyright and Digitisation: Feminist Library Talk, London (6:30 – 8:30PM)

10 February  – Copyright Issues and Digitisation, Norwich

10 March – Museums & the Law – Copyright: Rights, Risks and Process, Manchester

22 March – RTA: Copyright Law and Licensing for Schools & Colleges, London (All day)

3 April – Research Excellence & Publishing: Open Access, Data, Copyright, Impact. UCL, London (All day)

7 April  – CILIP Copyright Conference, London (All day)

17 May – CILIP copyright workshop, Cambridge (morning)

9 June – BIALL (British and Irish Association of Law Librarians) Conference: Copyright session, Manchester

Further dates will be added through the year

Cultural exchange of copyright issues and opportunities in Chinese and UK Museums

I’ve just returned from China having participated in the two day UK-China Museum Commercial Enterprise and Copyright Protection and Utilisation Training at Guangdong Museum funded by Arts Exhibition China and the British Council as well as the 2nd Guangzhou International Exposition on Copyright Trade Museum of Cultural Relics. It’s been an amazing honour and privilege to have met colleagues from across museums in China, and discuss with them shared copyright issues, challenges and opportunities. I was part of a small British Council delegation, also including John Walker, Director of Commercial Enterprise, Tyne and Wear Museums and Archives, and Anne Buky, Licensing Consultant, and our role was to present a UK perspective on copyright, business development and brand licensing to senior representatives from about 100 museums across China at the first event, and a similar number at the second event.

img_1584Courtesy of the British Council

Even though the UK and China have slightly different copyright laws, the underlying principles are very similar. During the training and subsequent discussions, I was able to refer to four of my current and recent clients, the Imperial War Museums, the Museum of London, Historic Royal Palaces and the Royal Academy of Arts in order to draw on practical examples and share how I’ve worked with them to identify, manage protect rights and therefore better use and exploit their collection items.

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Courtesy of the British Council

During the sessions, I outlined some shared challenges and opportunities faced by UK and Chinese Museums relating to copyright which include:

  • The duration of copyright in collection items will last for the lifetime of the creator plus a number of years after their death (China = 50), (UK = 70). This means that if the creator of the these items is either still alive or been dead for a short while, copyright will still be active in these items.
  • The volume of collection items owned across China and the UK, ranging from all type of objects and all types of ages, means that copyright will affect at least some items.
  • Many items will include layers of rights that will require identifying and clearing  – we spoke about Ethel Bilborough’s Diary, owned by the Imperial War Museums as a good example from the UK.
  • How the ownership of copyright by the creators and after their death, their rights holders will mean that any kind of web use and/or commercial exploitation will require permission.
  • Many museums across China and also in the UK will own older relics and other items which are long out of copyright, or in some instances, were never in copyright. However, any designs, illustrations, photos, films, digital media items etc commissioned by museums from external professionals, will require the use of contracts and within these, appropriate clauses to ensure that the museum has all the rights to use the resulting work in whatever ways they want.
  • Copyright is a critical business issue, and the identification, clearance and recording of rights need to be factored into the costs, benefits and risks of any project, and particularly those where the desired outcome is commercial enterprise.
  • Finally, by developing policies, procedures, tools, systems to record rights and permissions, and staff training and development, museums across China and the UK can learn from each other about how they can support positive staff attitudes, behaviours and practices relating to copyright. This will reduce risks of infringement and optimise opportunities for commercial exploitation.

I had such a wonderful time meeting new colleagues and sharing perspectives on UK copyright practices in China and learning about Chinese copyright issues. I am indebited to the British Council for inviting me and Art Exhibitions China and the British Council for arranging such an amazing cultural exchange. I do hope that there will opportunities to return to China in the future and continue to share ideas with colleagues from across Chinese Museums.

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