Website Law

The great thing about cyber-crimes is that they’re so easy to commit.  With a computer and an internet connection, you can commit all manner of crimes from the privacy of your bedroom.  You don’t need shot-guns, bolt-cutters, getaway cars or gangs of desperados.  If you follow the instructions in this post, you can be a master cyber-criminal in no time at all.

(1) Exercise your right to copy

Run-of-the-mill private copying won’t usually turn you into a criminal under English law (whatever FACT might want you to believe).  If piracy is your game, then you need to think big.  Under Section 107(2A) of the Copyright, Designs and Patents Act 1988, there are two main routes to becoming an online copyright criminal:  either you can copy others’ copyright materials in the course of a business, or you can copy their materials to such an extent that the owner is “prejudicially” affected.  In either case, you need to know or have reason to believe that what you’re doing is infringing copyright.  Check out this introduction to copyright to make sure!

(2) Share with your peers

Again, peer-to-peer (p2p) file-sharing won’t earn you that coveted badge of criminal liability in the UK unless you’re acting in the course of a business or prejudicially affecting the owner.  If this strikes you as an unnecessarily arduous path to cyber-criminality, then you’ll have to set your sights further afield. File-sharers in some parts of the globe don’t need to try half so hard to attract criminal liability.  In 2005 Hong Kong made headlines with (reportedly) the first ever successful criminal prosecution of a private file-sharer.  Hong Kong file-sharers can look forward to a large fine and/or a stretch in prison.

(3) Wear a black hat

Section 1 of the Computer Misuse Act 1990 caters for both 1337 hackers and script kiddies, with the offences being defined by reference to the intention of the hacker, rather than the success of the break-in.  The key question under Section 1 is whether you intend to secure unauthorised access to a computer program or data.   The more ambitious black hat, however, may want add liability under Section 2 of the 1990 Act by committing the Section 1 offence with the intent to facilitate the commission of a further serious criminal offence.

(4) Spread infections

If you think bad programming is good programming, then you might try virus writing.  You can either adapt someone else’s code, or if you’re really good (i.e. bad), write your own malware.  The distribution of a virus that harvests victims’ data or otherwise “secures access” to a computer program or data may fall under Section 1 of the 1990 Act.  If you’re more interested in some good old-fashioned computer vandalism, Section 3 of 1990 Act may be of help.  To fall within Section 3, you will need to intentionally or recklessly distribute a computer virus that will impair the operation of a computer, prevent or hinder access to any program or data held in a computer, impair the operation of a computer program or the reliability of data on a computer, or enable any of the these things to be done.

(5) Go phishing

Another favourite cyber-crime is phishing. To be a successful phisherman (or phisherwoman), you need the right bait.  Email, SMS and IM will be the primary tools of your trade, and if your messaging is convincing you might just be able to hook some valuable financial information from your unsuspecting victims.  This will bring you clearly within the ambit of Section 2 of the Fraud Act 2006, which makes it an offence to dishonestly make a false or untrue representation, with the intention of making a gain or causing a loss.

(6) Masquerade

But why stop at phishing?  What better way to use those details that you’ve managed to catch on your hook than to exploit your victim’s online accounts?  Again, Section 2 of the Fraud Act 2006 applies.  An alternative is to supply those details you’ve stolen to others online for use in fraudulent activity.

(7) Defame a character

The blogosphere is rife with anonymous libels.  However, here in the UK, libel isn’t a criminal offence, so you’ll have to bring your actions within the ambit of another jurisdiction’s laws to get a criminal record for defamation.  One jurisdiction which might prove attractive is Singapore, where defamation can land you in prison.

(8) Deprave and corrupt

But while online defamation won’t get you far in the UK criminal underworld, the publication of obscene content in the UK may. Under Section 2 of the Obscene Publications Act 1959, anyone who transmits obscene articles electronically will be guilty of an offence, regardless of any personal gain. Content falling under this term includes any material which, if taken as a whole, may deprave or corrupt its audience.

(9) Put on an unseemly display

Lawyers distinguish between obscene and indecent material.  The laws against indecent materials are concerned with protecting the public’s moral sensibilities from what Geoffrey Robinson QC calls “unseemly displays”.  Material that isn’t considered by the law to be so disgusting as to be obscene, may nevertheless be indecent.   Because websites can be public spaces, the laws on indecency may apply – so get publishing.

(10) Share official secrets

If you have access to official secrets, why not share them with the world via the internet?   You can commit official secrets crimes without having “signed the Official Secrets Act“, although insiders have many more offences to choose from.  If you can get hold of information protected by the act and share it with your friends on a forum or two, you may well get a visit from Special Branch.

The law of copyright protects creative output.  It is a property right which prevents copying and arises automatically even ‘before the ink is dry on the paper’.  In an age of unlimited electronic access to information and imagery of every kind, the danger of infringing someone’s copyright is ever-present.  However, the law on copyright only protects material for a limited amount of time.  The question is: how long?

Literary, dramatic, musical and artistic works

The main legislation on copyright is the Copyright, Designs and Patents Act 1998 (CDPA).

From the enactment of the CDPA until 1 January 1996, all literary, dramatic, musical and artistic works, published or unpublished, enjoyed the economic rights conferred by copyright which lasted for the life of the author plus 50 years.  The 50 years started from the end of the year of the author’s death and the author may be a different person to the owner.

After 1 January 1996, the Duration of Copyright and Rights in Performances Regulations 1995, which implemented the EU Duration Directive, brought the UK in line with the rest of the EU, increasing the period to 70 years post mortem auctoris.  This had the effect of not only extending the life of existing copyright works, but also brought certain out-of-copyright works back into copyright – those in copyright elsewhere in the EU on 1 July 1995.  These are known as “revived” copyrights.

Before the CDPA, literary works enjoyed perpetual copyright for as long as they remained unpublished. These perpetual copyrights which were abolished by the CDPA, and will now expire on 31 December 2039.

For works of unknown authorship, the 70 year period runs from the later of the year of first publication (with the original copyright holders permission) or the year of creation (whichever is later).

For works of joint authorship, the 70 year period runs from the year of death of the last surviving author.

There are a few exceptions to the 70 year rule, one of which is to be found in provisions added to the CDPA which give Great Ormond Street Hospital a right forever to a royalty in respect of public performances, commercial publications and broadcasting of JM Barrie’s Peter Pan.

There are also complexities in the application of the rules to works originating outside the EEA.

There are different rules where the monarch is entitled to the copyright (all works produced by the British government) in a literary, dramatic, musical or artistic work.  New Crown copyright material that is unpublished has copyright protection for 125 years from the end of the year in which the work was created. Commercially published Crown copyright material has protection for 50 years from the end of the calendar year of publication, assuming that that is during the first 75 years following creation.

Where a literary, dramatic, musical or artistic work is computer-generated, the copyright lasts for 50 years from the end of the calendar year it was created as there is no need to attach the work to the lifetime of any particular person.  Care must be taken here, as there is a difference between computer-generated work and computer-aided work.

Entrepreneurial copyrights

Entrepreneurial copyrights are those which, broadly, protect people who invest in creativity e.g. production companies, broadcasters, publishers etc.

With regard to films, copyright lasts for 70 years from the end of the year in which the last of the principal director, author of screenplay, author of dialogue or composer of music specific to the film dies.  If a film does not have any people fitting those descriptions, then the copyright will run for 70 years from the end of the year in which the film is created or, if later, released.

For sound recordings copyright lasts for 50 years from the end of the calendar year in which the sound recording was made if it is never released or 50 years from when the sound recording was released if it is (if it was released with the permission of the copyright holder).

The copyright for broadcasts lasts for 50 years from first broadcast.

Publisher’s copyright in typographical arrangements last for 25 years from the end of the year of first publication.

Exploited copyright works

If a copyright work is exploited by making articles industrially then the term of copyright it enjoys is limited to 25 years from the end of the 1st year in which the articles are marketed. Industrial exploitation means making more than 50 articles. An example of an exploited copyright might be that which subsists in a wallpaper design or an Ikea chair.

There are exceptions to the 25 year rule, including sculptures, wall plaques, medals, and printed matter which is primarily of a literary or artistic character.  So, for example, just because a painting is printed thousands of times on a tea towel, it’s copyright will not expire in 25 years.

Moral rights

The rights of paternity, integrity and artists’ resale rights subsist as long as copyright in the works in question.

The right to prevent false attributions subsists until 20 years after the author’s or director’s death.

It is sometimes thought that a solicitor or trade mark attorney must be instructed to register a trade mark. While this is a misconception, anyone thinking of applying to register a mark without a lawyer would do well to study the legal and procedural issues as there are plenty of pitfalls for the unwary.

The basics

The Intellectual Property Office (IPO) is the official government body responsible for intellectual property rights in the United Kingdom. The IPO will receive and process trade mark applications and where an application is successful, will register the trade mark.

The IPO will consider whether the words, logos, pictures or other signs constituting the trade mark are likely to be seen as a trade mark by the general public. Accordingly, the IPO will object to marks which simply describe goods and services, those which are customary in the line of a trade and those which are not distinctive. Invented words, which are not obviously associated with particular goods or services, will usually be considered distinctive and therefore capable of registration.

Searches

In addition, a trade mark application may be unsuccessful because there is an identical or similar trade mark already on the register, which conflicts with the mark being applied for. The rules on conflicting trade marks are set out in Section 5 of the Trade Marks Act 1994.

A search of the UK trade mark register should be carried out before submitting a UK application to check whether any conflicting marks are already on the register. A search can be carried out at the Intellectual Property Office in Newport or at the British Library’s Business and Intellectual Property Centre in London. However, in most instances, it will be more convenient to search using the IPO’s website.

The European Community Trade Mark register may also be searched. A business may have acquired the right to use a mark in the UK by registering it as a Community Trade Mark (CTM). The Office for Harmonization in the Internal Market (OHIM) is the body responsible for registering CTMs, and a trade mark search can be conducted on its website.

Note: searches of the UK register on the IPO’s website will return CTMs as well as UK trade marks. These are easily identifiable in the IPO’s website search results because the trade mark number is prefixed with an “E”.

It may be possible to apply to register a trade mark which conflicts with an earlier mark, although the owner of the existing trade mark may be notified and may decide to oppose the application.

In addition to checking for registered trade marks, an applicant should consider whether a conflicting unregistered mark is in use. An unregistered mark can prevent the registration of a conflicting mark.

It is, unfortunately, impossible to obtain comprehensive information on unregistered trade mark rights; in-depth knowledge of the relevant industry, trade directory searches and internet searches may serve as good starting points, but they are by no means conclusive.

The UK application process

Once formally submitted, only certain types of amendments are permitted (e.g. restricting the scope of the goods and services covered by the application). Accordingly, it is essential to ensure the application form is completed correctly first time.

An application can be made either in hard copy using form TM3, which can be downloaded from the IPO website, or online using form eTM3. The application will ask for an illustration of the mark to be attached and whether the trade mark is part of a series. A series may include a maximum of six marks.

Under the Nice Classification, goods and services are divided into 45 classes. An application must specify the goods or services to be covered by the the mark. Classes 1 to 34 cover goods, while classes 35 to 45 cover services. A description of each class is available on the IPO website.

The inability to add new goods and services to an application at a later date means it is vital to ensure the classes are correctly identified and listed. Careful consideration must therefore be given to which classes the business currently falls in to, together with future plans for expansion into other areas where the trade mark may be used.

Upon receipt of the application to register, the IPO will carry out its own searches and will, in due course, send a report to the applicant. The IPO may raise an objection if it feels the mark is not really a trade mark. The IPO may also raise an objection if the mark potentially conflicts with an existing trade mark, in which case it will usually notify the applicant of an intention to contact the owner of the existing mark. A single written submission can be made to the examiner to suggest ways in which the application can be taken forward without having to contact the owner of an existing mark and the examiner will then decide whether sending a notification is necessary. Because only one written submission can be made, it may be worth speaking to the examiner on the phone before making the submission.

Another way of dealing with prior rights is to contact the owner of the pre-existing trade mark with a view to obtaining their consent to registration. However, the owner of an existing mark will be within their rights to refuse consent, or to ask for costs associated with dealing with the request.

If there are no objections, or if any objections are overcome, the trade mark will be published in the Trade Marks Journal. A period of two months is set aside for any objections to registration to be made, and this may be extended in some circumstances. If no challenges to the application are received in this time, or if any challenges are overcome, registration is completed and a registration certificate is sent to the applicant.

Costs and time-scales for UK applications

The costs associated with a standard application to register a trade mark are currently £200.00 to register a mark in one class of goods or services, with an additional £50.00 being payable for each additional class. An application for the registration of a series of marks may include two marks before an additional £50.00 is payable in respect of each additional mark up to a maximum of six marks. An online application will attract a £30.00 discount.

In October 2009, the IPO introduced the online Right Start application procedure. This procedure provides additional assistance for non-professional applicants. Telephone assistance is available to assist with the completion of form TM3. Half of the standard fee must be paid upfront. The examination report is then emailed, usually within ten business days, whereupon the balance of the application fee becomes payable if the application is to proceed, although the applicant is free to abandon the application at this point. The online filing discount is not available for Right Start applications.

The IPO will not usually refund application fees if an application is unsuccessful, as they cover the cost of examining an application and other administrative costs.

If there are no objections raised then the entire application process will usually take around six months. Registration will take longer if objections are raised, although the precise time taken will depend on the number and complexity of objections. Time-scales of over two years from making an application to its registration are not unheard of, so it is important to ensure from the outset that sufficient time and resources can be set aside, should the process become protracted.

A word of warning

Whilst it is entirely possible to complete the above steps without the assistance of a solicitor or trade mark attorney, in many cases it may be best to instruct one, particularly where complications may arise.

As with all decisions involving legal spending, you should aim to strike the right balance between costs and risks. It’s always tempting to cut legal fees, but this can be a false economy and the consequences of a faulty application can be disastrous for a business. A good solicitor or trade mark attorney will be familiar with the registration procedure, the best search methodologies and the current law and practice relating to registrability.