Whether your business is large, medium-sized or small, and even if you are a one-man, head-cook-and-bottle-washer operation, it’s time for an audit. Not a tax audit, but an intellectual property (IP) audit. 

In this article, I explore why it is so important to know what IP your business has, so that you know how you can exploit that IP for the business’s benefit.  In particular, this article will focus on copyright and trade marks.

Earlier this year, it was reported in an article from Our Today, entitled “MSMEs to use intellectual property as collateral option with new initiatives”, that the Jamaica Intellectual Property Office (JIPO) was looking at how businesses could start using their IP as collateral for accessing loans from financial institutions. This is a huge nod to the fact that IP is extremely valuable. Therefore, when a business creates trade marks, and works that fall within the realm of copyright, such as advertising jingles, these outputs from the business have a value; not just a creative “isn’t this witty” or “doesn’t this look cool?” value, but an actual fiscal value to the business.

Copyright

Copyright in Jamaica is governed by the Copyright Act. The Copyright Act outlines certain categories of works which can be protected, and these include literary, dramatic, musical, or artistic works. Works like novels and stories fall under literary works, while works like dance fall under dramatic works. Musical works would cover things like songs or jingles, while artistic works would include creations such as paintings, drawings, or photographs. 

Under the Copyright Act, copyright automatically vests in a work once it is created; but wait…not so fast, while this is true, registration of one’s copyright, which can be done with JIPO is always advisable. Registration proves to the world that the author (who is also generally the first owner) owns the work. 

Why is being able to prove ownership is so important? If you guessed that, much like other forms of ownership, it allows you to decide what happens to the thing you own, then you are absolutely correct. Copyright ownership grants to the owner, certain exclusive rights including the rights in relation to copying, issuing copies of the work to the public, and performing the work in public. As the owner, you get to make decisions on how the work is used, and exploited for valuable gain, which makes copyright an asset to the business, and where someone interferes with those exclusive rights, the owner can take action for infringement, and be entitled to compensation for the infringement. 

Trade marks

If you were wondering, yes- that logo you have been using which differentiates your business from another business, is a trade mark. 

Trade marks in Jamaica are governed by the Trade Mark Act. This Act provides that a trade mark is essentially any representable sign that distinguishes the goods and services of one undertaking from those of another. Therefore, trade marks are extremely valuable, as they can link a business’s goods and services with the business, and ensure that the customer or potential customer is clear about what that business has to offer.

Just like with copyright, being the owner of a trade mark grants the owner exclusive rights to use the mark, and all the rights and entitlements afforded under the Trade Mark Act. Let’s pause here a second. It is important to note that the Trade Mark Act deals with the rights and entitlements of registered trade marks, and that registration of trade marks is done with JIPO. This is not to say that unregistered trade marks are not protectable in some other way, they are, but, that may be an article for another day. What is important to know now is that registering your trade marks makes exploiting them for gain and policing them in the case of infringement much easier, and therefore, registration is definitely recommended. 

Licensing and Assignment

Another benefit of copyright and trade mark ownership is that, since there are exclusive rights afforded by these IP, a person cannot lawfully use the owner’s work without consent. Putting on the business thinking-cap, if a person cannot use the work without the owner’s consent, but they want to, then as a business, why not let them, and charge them for that use? Queue licensing and assignments!

In both licensing and assignment arrangements, the business, as the owner can decide what rights will be granted to the licensee or assignee (as the case may be) and can decide on other matters such as the duration of the arrangement, how the work or mark may be used, how the arrangement is terminated, and importantly, the fee for such use, and how it is payable.

Audit time

To most, the word “audit” leaves a sinking feeling in the stomach, but an IP audit is nothing to fear, because it is likely to show potential missed opportunities, which could convert to money in the business’s bank account. In the audit process, the business will need to look at its potential IP, and ask some questions along the lines of:

  • ● That song we’ve created can we licence it?
  • ● That logo we designed, is it registered? Can we assign it?
  • ● Do we have any photos sitting down in a box somewhere? Can we let someone else use them and pay us a fee?
  • ● Is there any artwork untouched in a drawer? Can we sell it?

This is not an exhaustive list of questions, and what questions to ask, and the difficulty of the audit process will vary on a business-by-business basis. The key is to start the process by seeking out the potentially valuable IP, then to collate and record them, so the business knows what IP assets it has. This process should be repeated periodically so that important proper records of the Business’s IP are kept and updated as needed.

There is immeasurable worth in IP, and as things progress and continue to modernise, there can be no doubt that IP assets will only get more valuable. Businesses, it’s audit (IP) time!