How can I protect my ideas when meeting prospective clients?
Published 12.11.09 at 11:23
It is important before entering into negotiations with any third parties or prospective clients to be aware of how your work or idea is or might already be protected by the various intellectual property (IP) rights which exist.
Your ideas may be protected under the law of confidential information.
Information about your idea will be considered to be 'confidential information' if:
- it is of a confidential nature: This means that your idea must be non-trivial, have commercial value and not already be public knowledge before you go to any meeting; and
- it is communicated in confidence: This means that before disclosing your idea to anyone, you must make it clear that it is confidential and must not be discussed with anyone else without your consent.
If your idea meets the above criteria, you will be entitled to prevent anyone else from using or disclosing it without your permission.
Unauthorised use of your idea, whether to gain a competitive advantage or otherwise, may be prevented by an injunction and you may be entitled to compensation. For further details, see: 'What is confidential information?'
You may also have some protection under copyright. However, this will protect the particular expression of your idea as a literary, dramatic, musical or artistic work, rather than the underlying idea itself.
Literary works can include computer programs and databases. Artistic works are any graphic work (eg painting, drawing, diagram, engraving, etching), photograph, sculpture or collage, a building or model for a building, or a work of artistic craftsmanship (eg ceramics, furniture or fashion).
Copyright arises automatically on creation of the work and irrespective of the artistic quality of the work. In addition, for copyright to subsist the author must have put in sufficient labour, skill and judgement in creating the copyright work: the work must be 'original' in the sense that it has originated from the author (rather than in the sense that it is novel).
Copyright lasts for a defined period of time. This is usually for the life of the author plus 70 years. However, the duration of copyright differs for some works, but in all cases is at least 25 years. Copyright gives you the right to take action against anyone who copies your work; it does not give you monopoly protection over your work. If someone comes up with something similar or, indeed, identical, to your work but has done so without copying your work then they too will be entitled to copyright protection and will not infringe your rights.
If your idea or work is a design, it may also be protected as an unregistered design. Like copyright, unregistered design right arises when the design is created, provided that:
- the design is original;
- the design is not excluded (for example, surface decorations are not protected by unregistered design right);
- the designer has used sufficient skill, labour and judgement in creating the design; and
- the designer is resident, domiciled in or a citizen of the UK or; the design was commissioned by a person who is resident, domiciled in or a citizen of the UK, or; if the design was first marketed in the UK.
Unregistered design right provides a mechanism by which the owner of an unregistered design can take action against those who copy the design. The right subsists for up to 15 years and, like copyright, prevents copying of a design.
All of the above rights arise automatically and do not require you to take any formal steps, for example to register your idea. However, there are a number of other ways in which you can provide greater protection for your idea, which do require you to take formal steps. For example, if your idea is an invention you should consider applying for a patent and if it is a design you should consider registering it.
Absent those formalities, there are still a number of practical steps which you should consider before you meet with a prospective client. For example:
- You could draft a confidentiality agreement and ask prospective clients to sign this in advance of the meeting. If confidential information was then disclosed that was imparted at the meeting, the prospective clients would be liable for breach of contract and/or breach of confidence.
- As a practical matter, you should also consider limiting the amount of information that you impart to prospective clients during the course of any meeting to that which is absolutely necessary for the purpose of the meeting.
You should also mark any documents that you provide to the meeting as confidential. Although this is not determinative of the status of the document, it is a useful indication that you intend the information about your idea to be treated as confidential.
Please note that this article discusses the legal position in the UK at the time of publication. It provides general information only but is not to be regarded as legal advice. You must take advice from a specialist lawyer in relation to your specific circumstances. Further, you should seek additional legal advice when dealing with parties based in other parts of the world or works originating from other parts of the world as the legal position may vary.