Intellectual pursuits

Intellectual property rights affect schools in many important ways. Doug Locke reviews the key areas

This article focuses on: websites and prospectuses; the protection of names and crests; licensing overseas schools; and combatting abusive websites.

Websites and prospectuses
In the absence of a written agreement to the contrary, the designers of a prospectus or website will own copyright in it, even though the school paid for the work to be done. In practice, this means that:
• a school cannot update its website without the designer’s consent; and
• a school cannot reprint its prospectus without the designer’s consent.

These problems can prove expensive for schools because the designers can charge what they like for giving their consent.

The answer to these problems is to sign an agreement with the designers, setting out the school's rights over its website or prospectus. It is rarely a good idea to agree to designers' own terms and conditions as they will invariably favour the designer. Best practice is to sign an agreement before work starts (and before money is paid). However, it is sometimes possible to sign a retrospective agreement before awarding a new piece of design work.

A similar issue arises over photographs. The photographer will own copyright unless he agrees otherwise, and so the school will not be able to reuse his photographs without this consent. This is the case even if the photographer is employed by the school, unless photography forms part of his official duties. Sometimes schools face the inconvenience of an employee asserting copyright in photographs on leaving the school. So if a member of staff takes a lot of useful photographs, it is useful to confirm the position in writing in advance.

Agreements with website designers are becoming increasingly important as websites (and intranets) become central to the operation of schools and to the recruitment of pupils. In particular, we are seeing more schools incorporating online shops into their websites, which gives rise to particular intellectual property issues.

Trade marks
It is now usual for the more prestigious schools to protect their names and crests by registering them as trade marks. Trade mark registrations:
• help protect the school's reputation, and prevent the school being associated with third parties' inferior educational services;
• are essential if a school is considering licensing an overseas school;
• provide income by allowing the school to control who may sell uniforms, clothing and other material bearing the school's name or crest; and
• make it easier to obtain effective remedies if a third party infringes the school's trade marks; often without having to start legal proceedings.
The following two issues sometimes affect applications to register school names and crests:
• school names are often descriptive. For example, the name “Lilliput School” would be descriptive of a school in Lilliput. Trade mark law generally prohibits the registration of descriptive names. This prohibition can be overcome by providing evidence that the descriptive name has acquired distinctiveness through the school's use of it over time. Providing such evidence is invariably successful in overcoming this issue; and
• a school crest can be more complicated than an ordinary logo to register as a trade mark. This is because the application must be approved by the Garter King of Arms, the senior officer of the College of Arms. The Garter King of Arms will object to any application that resembles a heraldic device (including family crests, armorial bearings and emblems) granted by the Crown. This objection can be overcome by providing evidence that the owner of the heraldic device consented to the school's use of its crest.

It is worth knowing about these issues in advance, but they should dissuade a school from considering the benefits of protecting its name and crest.

Licensing overseas schools
The worldwide reputation of UK schools is unsurpassed. An increasing number of the more prestigious schools are planning to exploit, and build on, that reputation by licensing overseas schools.

Typically, the overseas school will be licensed to use the name and crest of the UK school, and will be assisted in replicating the ethos of the UK school. In return, the UK school will receive a proportion of the overseas school's revenue, and it may also receive other types of payment. There are often other important benefits for both sides, including:
• exchanges of pupils and teachers; and
• sporting and cultural links.

These arrangements can be very successful, and provide substantial revenue for reinvestment in the UK school. However, in order to maximise the prospects of both sides achieving their aims, planning is essential. For example, it is important to:
• conduct appropriate research on the overseas partner;
• negotiate a fair and detailed agreement; and
• understand how to repatriate revenue tax efficiently.
In our experience, it is also advisable to keep the project secret within a small project team, in order to minimise disruption and concern among parents, pupils and staff.

Data protection
Schools hold large amounts of personal data:
• names and contact details of (present and prospective) pupils and their parents;
• names and contact details of alumni/alumnae;
• information collected by (increasingly popular) online school shops; and
• photographs and CCTV images.
The law on schools' treatment of personal data is complex, but is based on the principle that they must treat personal data fairly. For example, schools must:
• use personal data only for purposes to which the relevant person has consented;
• retain personal data only for so long as is reasonable;
• respond swiftly to requests from people to see what personal data the school holds about them; and
• not transfer personal data to a third party without the relevant person's consent.
Some of the personal data held by schools (for example, information about pupils' health or religion) is classified as sensitive personal data. The law obliges schools to treat such data with particular care.

Abusive websites
It is sadly becoming more common for pupils, ex-pupils and parents to post abusive material about schools on the internet. This can be very damaging for schools, especially as prospective pupils and their parents use the internet (and not just official school websites) for research.

Sometimes individual members of staff are singled out for unfair abuse, which can harm morale and discipline. Sometimes individual pupils suffer online bullying, often on social networking sites, and the impact of this type of bullying should not be underestimated.

The best course of action depends on the circumstances of each case, but schools should not feel helpless in these circumstances. Often abusive material will be defamatory or will infringe the school's intellectual property rights in some way. In these circumstances, it is possible by acting quickly to have the material removed from the internet before it can do too much harm.

Of course, freedom of speech is an important principle, but this has to be balanced with the rights of schools, teachers and pupils to protection from unwarranted abuse.

Doug Locke is a partner with Veale Wasbrough. Doug can be contacted on dlocke@vwl.co.uk

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