The question is “Is that the right interpretation?”   On the face of it an iTunes download is not a “record sold” and Aftermath would have had to licence iTunes a “master” to reproduce the original song(s).  But they would have also had to supply a “master” and licence their CD manufacturer to create the CD’s.  Is the role played by iTunes any different from that played by the CD manufacturer in these circumstances?

The underlying issue is that many manufacturing and distribution agreements do not take full account of the ownership and licensing of intellectual property, (whether that be in songs or widgets) nor do many of them address the issue of technical developments and future technology.  I am sure that Eminem can afford very high quality legal advice but that has not helped his production company here as they have ended up embroiled in lengthy and costly litigation on the back of a poorly worded agreement.  It may seem tedious and costly to settle a legal document before any monies have been paid in royalties but the risk of losing your potential income from an invention,  design or song copyright is worth the effort.

Some companies and individuals are sending out unsolicited invitations to applicants and owners of UK trade marks and patents inviting them to apply for entry in various (sometimes official sounding) publications and “registers” in return for payment of a fee.  These are often in the form of invoices.  These are not official registers and are not connected to the IPO.

Other companies are offering (for a fee) to file Community Trade Marks based on the existing UK mark or application.  Often that offer and the quoted fee does not include “hidden” costs and fees or exceeds what would be quoted on the open market in the UK for such work.

If you receive a letter or invoice you are not sure about either check it carefully or send it to us to check it out for you free of charge.

The case is also a good example of contract variations being examined at a much later date and sloppy drafting coming back to haunt the parties.  It is often the case, where the parties fail to state the precedence of conflicting clauses or vary the contract but don’t delete the entire original clause by the variation, that changes or conflicts can give an entirely different complexion to the arrangement.

Before you take the step to vary or terminate a contractual arrangement relating to software or intellectual property of any nature then it would be wise to consult your specialit IT/IP lawyer to ensure that any changes are made in your favour.  If you want to know more about this specific case BMS Computer Solutions Ltd v AB Agri Ltd [2010] EWHC 464 (Ch) and how it could affect your business give us a ring on 07787 283749 or contact us by email sarah@touchstonels.com.

Most data centres offer high levels of encryption and multi-layer locationing of data (splitting your data into smaller packets to store in different locations thereby giving the hacker less chance of obtaining threads of information) together with multi-duplication of data in different physical locations, so avoiding risks of fire or other physical destruction.  Do ask the supplier whether duplication is within the same facility or within a ten mile radius of the original.   Ensure that you understand how your data is given a security barrier both during the transmission to the data centre and after it arrives there.

As for recovery of data either during or after the end of the arrangement do you have any method for checking the content of the data recovered against the known uplift?  Do you have to demand return of your data at the end of the relationship and if so is there a time limit?  How are data back-ups made and how easy would it be to bring about a total recovery if there was an energy supply failure at the data centre?

Ask the questions and ensure that your terms of supply cover all these points to have peace of mind.  Make sure you are comfortable that the contract terms reflect the promises that have been made.

The truth is it is far better to raise any “difficult” issues during contract negotiations as falling out over them later on can be very costly.  If you realise that more than mere advertising puff has crept into the negotiation when it is clear the situation cannot sustain it, then raise it, as it is far more likely to be resolvable if the parties are still working closely together to achieve a common aim, than when they have fallen out due to failure or delay.  If a particular requirement is very important to you get it down in writing, better to be said than left unsaid and uncertain.  The purpose of a contract is to set out commercial and legal terms but it must be a workable document which each party understands and fairly represents their rights and obligations.

So what is the legal status of Image Rights?  Denis Bergkamp and David Platt won their argument to entitle them to set up offshore companies to licence image rights to their club (Arsenal) but with new requirements for non-dom disclosure and the need to recoup all the public finance possible this investigation (and possible court action) could have far-reaching affects in football but may also bring to light the reality of rights afforded to sporting personalities regarding their images and answer the question as to whether they fall into the arena of proprietary rights subject to intellectual property protection.  I will be watching this with interest.

If you are a provider of services you must make the following information available to your customers:

Your name, legal status and geographical address (together with telephone or email details – or other methods by which you may be contacted “rapidly” and “directly”).  If you are registered in a trade or similar public register, the name of that register and your registration number.  Particulars of any regulator if you are subject to an authorisation scheme in the UK or any other Country in the European Economic Area (EEA) (EU plus other Countries in this group).  Your VAT number, if registered.  Any professional body or similar institution to which you are registered, your professional title and the Country in the EEA  in which that title was granted.  Your general terms and conditions, the existence of terms concerning the competent courts and the law applicable to any services provided, the existence of any guarantees not imposed by law, the price of the services, where this is fixed or pre-determined, the main features of the service, if not clear from the context of the instructions.  If you are obliged to carry professional indemnity insurance then you must provide information about your cover, contact details for the insurer and territorial coverage.  Finally you must include contact details where customers can lodge complaints about your services.

Most businesses already provide all this information as “good practice”  but it is worth just checking your terms and website content to ensure you comply.  More guidance is available from the Department for Business, Innovation and Skills (http://www.berr.gov.uk/whatwedo/europeandtrade/europe/services-directive/legislation/page51283.html. 

There are some service businesses that are exlcuded from compliance (including those providing financial services, credit, insurance, electronic communications, transport and healthcare).