“We have copyright over our intellectual property” [?]

Last week’s blog post invited you to suggest how IP Draughts might expand its readership while not losing the main purpose of the blog. Alex Kryzhanovski suggested a legal review of clauses found on the internet. He was, perhaps, thinking of our post, Do No Evil Drafting, which reviewed the terms of Google’s patent purchase programme. That article was popular (perhaps because it was critical), so here is another on a similar theme.

Preparing for this article, IP Draughts looked at several sets of contract terms that users of online services must “accept” before they can use the service, but nothing caught his interest. He struggled with the Gorgon of a document that tries to protect Microsoft’s interests in Word across multiple jurisdictions, multiple distribution channels and multiple customer types. The terms are so tedious in their length and tone that no sane person would want to read them, unless they are paid to do so.

Finally, he decided to focus on something plainer and simpler. He found the website of an Australian organisation, the Plain English Foundation, which provides services and training in making documents “engaging and effective”. According to their website, they “edit texts such as …legal contracts, deeds and agreements”.

IP Draughts spent time rummaging around their website terms. In general they are not bad, as one would expect from an organisation that makes a living from producing clear documents. But the quality goes down when the terms focus on IP rights. Consider the following extract from their “copyright policy and intellectual property terms”:

1. We have copyright over our intellectual property

Unless otherwise shown, we own all the intellectual property on our website. This includes all copyrightable material such as our:

  • writing tools, guidelines, checklists, quizzes, examples and edits
  • other resources we make available to you, including our PowerPoint presentations
  • designs, images and branding
  • trademarks
  • inventions including databases, compilations and codes.

IP Draughts struggles with the heading quoted above. If you take the view, as IP Draughts does, that “intellectual property” refers to patents, copyright, trade marks and the like, saying that you have copyright over your copyright is meaningless.

A possible way of making sense of the heading is if you assume that “intellectual property” refers to the written materials and images on the site. IP Draughts is aware that some people use the term “intellectual property” in this way, and use the term “intellectual property rights” or IPR to refer to copyright, trade marks and similar types of intangible property in those materials. IP Draughts doesn’t agree with that usage, but it is sufficiently common that he should, perhaps, let that one go.

On the other hand, the text that follows the heading shows that the drafter is mixing up materials and the IP that protects those materials in a random way, so IP Draughts is not inclined to give the benefit of the doubt. For example, “trademarks” are listed as an example of “copyrightable material”, which makes no sense.

Several further issues jump out at IP Draughts from the above text, including:

  1. Why does the heading focus on copyright when the text that follows mentions several types of IP including trademarks?
  2. Why does the text refer to “copyrightable” materials rather than just copyright works. Under UK and Australian law, copyright arises automatically and it is not subject to registration. Has this wording come from a US source document?
  3. It looks odd to see inventions lumped in with code (presumably software code).

Later in the same set of terms the following text appears:

As part of your purchase agreement with us, you agree:

  • …not to copy, record, stream, distribute or assign our training materials in any form to another person or entity.

The word “assign” jumps out in the list of verbs in this extract. The other verbs refer to acts that might infringe the copyright owner’s rights. Assign is a technical expression that usually means transfer of ownership, presumably of the copyright in the training materials. But other terms make clear, repeatedly, that the Plain English Foundation retains ownership of the copyright. Perhaps the author meant that the user should not “transfer” or “provide” the materials to anyone else.

IP Draughts supports the objectives of organisations like the Plain English Foundation. His point of criticism is that good editing skills can only take you so far when you are dealing with technical subject-matter. The good drafter needs to understand that subject-matter, which in this case is IP law and practice. In IP Draughts’ view, the drafter or editor of Plain English Foundation’s IP terms lacked that understanding, and as a result some of those terms don’t make much sense.

 

4 Comments

Filed under Contract drafting, Intellectual Property

4 responses to ““We have copyright over our intellectual property” [?]

  1. Several academic institutions with whom I work in British Columbia toil under a creaky, province-wide Collective Agreement for faculty that talks about “Copyright and Intellectual Property”. Yes, in the same heading. And it proceeds to include the odd gratuitous reference, “and patent”, under the same heading. Clarifying what these IP provisions actually mean for faculty and institutions never seems to rise up the negotiating list when it comes to bargaining, alas. We are all in the dark!

    • Thanks, Tamsin. My experience is that many universities start off with cruddy documents like the one you describe, but eventually some improve the wording, probably with input from TT or legal professionals.

  2. vrkoven

    Not only does saying you have copyright in your copyright make no sense, but saying you have copyright in your patents and trademarks is just plain wrong. You probably don’t even have a copyright in your patent or trademark applications (scènes á faire and all that).

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