ChatGPT is, undoubtedly, a remarkable tool that is revolutionising the way people work. But, like a lot of technology it has its pitfalls - we’ve all seen the headlines about bias, misinformation and students using it to generate work. We asked it what the top five questions people were asking about intellectual property in the UK, to provide the answers and then asked our expert IP attorneys what they thought.
- What is the difference between a trademark and copyright in the UK?
For the first most popular question, the question itself is interesting. ‘Trademark’, one word, is an Americanism. In the UK we use ‘trade mark’, two words. Our marketing team have found in their SEO and analytic work that the Americanism is commonly used by people using Google in the UK, and given that ChatGPT responses are in English (US), it will reaffirm this common mistake. Trade Mark Attorney Amanda Mack also found it surprising that this was such a popular question - it’s not one she’s been asked during her 30 year career. An indication, perhaps, that people are doing their own online research before seeking professional advice.
The answer ChatGPT provided was a basic definition and could be a helpful starting point, but it failed to mention the key practical difference that most people need to understand: Copyright automatically subsists when a work is created, whereas to properly protect a trade mark in the UK it needs to be registered at the UK IPO via a formal process. The AI tool also didn’t underline that either right can be a valuable asset, capable of commercial exploitation, and should involve a professional advisor from the outset to avoid common pitfalls. “The bottom line,” Amanda commented, “is that this is a basic definition and a reasonable starting point for further research/understanding but, as you would expect, it is neither comprehensive nor detailed.”
- How do I register a trademark in the UK?
ChatGPT provided another basic answer, but perhaps the most useful as a starting point for research. A major omission by the AI tool, however, was a failure to mention the classification system and opposition process.
There are 45 classes of goods and services, and navigating the classification system is one that Amanda says often trips up inexperienced users. “It’s possible to mis-classify your products or services if you’re not careful, or to claim too narrow or too broad. Too narrow a claim will limit the usefulness of a trade mark registration, and too broad a claim can invite unnecessary conflict with other trade mark owners.”
Amanda also notes that the phrase “Once accepted, the trademark will be registered…” is potentially misleading. A trade mark application accepted by the UK IPO is then subject to a publication and open to opposition by owners of earlier marks that they consider conflict with the publication. A significant minority of applications are opposed, and in many cases, it is possible to resolve issues, but this definition omits to mention that the market has a proactive role in policing the registration of potentially conflicting trade marks. It is, therefore, important to consider the market and assess whether clearance searches need to be carried out, prior to adopting or registering a new trade mark.
An attorney would go much deeper into discussing this system with a new applicant, explaining the registration landscape in greater detail and considering common pitfalls. “Here, the bottom line is again, this is an answer which addresses the question posted in very basic terms. It would perhaps be more useful to have carried out a normal internet search as this would more likely signpost the more comprehensive information available at the UK IPO. We would always encourage people to review the resources available at the UK IPO before, or alongside, taking specific legal advice.”
- How long does a trademark registration last in the UK?
The most specific question generated the most specific answer – so there’s a lesson here in keeping your questions specific. An attorney may give more useful elaboration, such as having to monitor and keep your registrations up to date. If you change address, expand your range of goods or change your logo you should also audit and update your trade mark portfolio. Having a professional representative on record to handle your renewals can avoid inadvertently allowing registrations to lapse or renewing registrations that are no longer relevant.
“The answer ChatGPT provided also does not fully explain the use requirements. In theory, you can renew a trade mark that you are not using, but it can still be cancelled by a third party. Again, it’s up to the market to police this so the value and usefulness of your asset will be considerably decreased if it is not used for the goods for which it is registered,” Amanda said.
- What type of inventions can be patented in the UK?
ChatGPT is not technically incorrect in its answer, but it also doesn’t appear to have any added value over what a simple Google search would return. Patent Attorney and former IPO Examiner Suzanne Gregson said, “Stating that an invention must be ‘inventive’ doesn’t provide much guidance; it’s referring to the requirement that to be patentable an invention must have an inventive step, which means that the invention must not be obvious to a person skilled in the art when considered in view of anything that was known before the date that a patent application for the invention was filed.”
The term “industrially applicable” might also benefit from further explanation; it means that the invention is capable of being made or used in any kind of industry, including agriculture. However, the answer provides examples of a fairly narrow list of technical fields to which patents can relate.
When answering question about what is patentable, it can also be useful to explain what is not. Suzanne explains, “we often get enquiries from people who would like to patent things that are simply not patentable. This might be because they relate to things that are instead protected by another type of intellectual property right, or because they relate to subject matter that is explicitly excluded from patentability that include, among others*, discoveries, scientific theories or mathematical methods, playing a game or doing business, or a programme for a computer. That said, these inventions are only excluded to the extent that the patent application relates to these things ‘as such’. This means, for example, that a computer program that provides a technical effect to a technical problem could be patentable, whereas a computer program which merely processes data would not be patentable and may instead by protected by copyright.”
A patent attorney would provide more detailed explanation on any of the above catering specifically to the level of experience and needs of the client. “It would be interesting to see how ChatGPT would deal with any follow up questions!” Suzanne concluded.
- Can I use copyrighted material for educational or personal purposes without permission?
“ChatGPT is broadly correct, although it misses some important points.” Patent Attorney, Max Bertrand points out. There are exceptions to copyright infringement relating to use of copyrighted material for educational or personal use that mean that the copyrighted material can be used without permission of the copyright owner. However, these exceptions are generally fairly narrow and have specific requirements depending on the nature of the copyrighted material.
Exceptions to copyright infringement may arise in a number of areas relating to education, but the most prominent of these are for the purposes of criticism or review, quotation, research for a non-commercial purpose and educational uses for instruction and examination. “In most cases, the copying of the material must be accompanied by a sufficient acknowledgement of the copyright owner, unless this is impossible for practical reasons,” Max explains. There are also multiple provisions relating to lending of copies by libraries and archives.
Each of these exceptions require the demonstration of “fair dealing” to apply, which assesses a number of factors to consider whether the use of the copyrighted material was “fair” to the copyright owner. These factors include how much of the copyrighted material is used (for example, copying large sections of a book is less likely to be considered fair than a paragraph), whether the copyrighted material has previously been made available to the public (use of unpublished material is less likely to be considered “fair dealing”), whether the use of the material has altered or changed the material in any way and whether the use of the copied material interferes with the “normal exploitation” of the copyrighted material that may financially impact the copyright owner. The consideration of multiple factors means that “fair dealing” typically has to be considered on a case-by-case basis.
Exceptions to copyright for personal use arise in copying for the purposes of personal study, but also in a number of areas relating to digital copies. For example, recording a TV programme to watch later or making copies of copyrighted material that you own legally, such as music on a CD or an e-book, to devices or personal storage that you own is generally allowed. However, it is still copyright infringement to share those copies with others without the copyright owners permission.
“It is also important to note that, in some cases, these exceptions do not apply where a licensing scheme exists, although through schemes such as creative commons, licenses can be obtained for certain works without payment of a large license fee or subscription.
Additionally, whilst these exceptions apply to work that currently has copyright protection, the use of copyrighted material may be performed freely where copyright has expired or where the copyright holder has given permission for that use.
This is not an exhaustive list of exceptions to copyright infringement, and each exception has further considerations that will apply on a case-by-case basis.”
ChatGPT is programmed to be concise, neutral and diplomatic. Its answers are very general, not technically incorrect but fail to mention important facts to consider. It’s good to see that it notes that, “It’s always best to seek professional legal advice for individual cases concerning intellectual property rights in the UK.” We agree, IP rights are complex and not readily compressed into generalised summaries. Hopefully, most people will realise that they may need more specific, detailed advice and a good ongoing relationship to manage and develop their IP in addition to using ChatGPT as a research tool.
*Such subject matter includes discoveries, scientific theories or mathematical methods; literary, dramatic, musical or artistic works or any other aesthetic creations whatsoever; schemes, rules or methods for performing a mental act, playing a game or doing business, or a program for a computer; and the presentation of information.