The factual issues in this case are whether there is any
potential claims available for Jane and Anita, also what type of intellectual
property “right” is involved within the scenario. The owners of these rights
will be recognised and to see whether their rights have been infringed or not.
It is important to discuss if there are any defence or remedies available for
the infringement and whether or not there was a breach of confidentiality at
the meeting.

Intellectual property rights protects your work from being
copied or stolen. These include, Copyright, Patents, Design and trademarks.
Intellectual property is creating something unique and the idea alone is not
intellectual property, for example “an idea for a book doesn’t count but the
words you have written down do”.1

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As this scenario contains copyright and confidentiality it
is essential to differentiate them both. Firstly Copyright is a property right
which protects an ‘expression’ of an idea but not the idea itself”.2

However, in general, Intellectual Property (IP) is a right
which prevents other people from doing something; owning IP does not
necessarily give you the right to do anything yourself”.3

Unlike a patent, there is no need to register copyright in
the UK; it arises automatically. All that is required is mainly that the work
must be original i.e. not copied from another source”.4

The law relating to this is the Copyright, designs and
patents act 1988 (CDPA). Copyrights consists of two categories which are
primary and secondary. “Primary covers literary works, Dramatic, Musical and
Artistic”,5
Secondary works for example, include sound recordings, films, broadcast.
Moreover there is no requirement to register copyright but only if the work is
in a tangible form, and to be the owner of the work proving the originality of
the work is essential. The copyright owner has the right to sell, make copies
of the work. They are entitled to rent or lend the work.  Copyright protection is given to author in section s.9 (1) of “the CDPA 1988, states
that the person who creates the work is the author”.6

However the protection is informal which suggests the work
is protected as soon as it is conveyed in a tangible manner for example
physically formed or published. Also there is no existence of copyright in
trivial works as it is cited in the case of Exxon v Exxon Insurance”, 7single
work was refused copyright. Additionally, a literary work, musical and dramatic
are to be recorded in writing or else it is diverted to s3 (2) CDPA 1988 for a
copyright to exist”.8

Moreover, as Jane and Anita have brought up an idea,
regardless the fact that the written piece of work is secure by copyright, it
does not prevent anyone from using the information within. “Copyright will only
protect the expression in a fixed form of a business idea but not the actual
idea itself. So in this scenario neither will the common law or copyright be in
favour of Jane and Anita in a business idea, however if they would want to
protect their work it must be in a tangible form for example the
advertisements, promo videos a piece of writing or a sound recording”.9

However, more information would needed to be gathered as to
what Reality productions have actually copied, the idea itself is not enough.
Because for example there is no copyright to start up a social network website
however the graphics, and the layout may contain copyright.  Copyrights only protects the manner in which
Jane and Anita have expressed their idea of a television show it does not
protect their idea. However, ‘Reality productions’ maybe prevented from copying
word to word in a way which is similar to Jane and Anita. “The term literary
work means any work, other than a dramatic or musical work, which is written”.10

Furthermore, the concept of ‘originality’ is something that
is new and not done before. Original is defined as “existing from the first
primitive; earliest; not imitative or derived; creative”.11

However the CDPA act does not explain the notion of
Originality but it is elaborated in the case of university of London press ltd
v university tutorial press ltd. There is no requirement that the work should
actually have literary value, but it must be more than de minimis”.
Furthermore, for a copyright to exist in literary, dramatic and artistic it
therefore must be original”.12
To establish originality there must be a sufficient degree of skill,
labour and judgement. Petersen J noted that the work should not be copied and
have originated from the author”.13
university of London press ltd v university tutorial press ltd.

Furthermore, to advise Jane and Anita the concept of
Confidentiality is to be elaborated on, this notion forms part of intellectual
property but it is different from copyright, it may cross copyright if there is
an idea involved. Confidentialities are useful when participating in a meeting
with other parties and it is also helpful when dealing with negotiations.  To qualify for confidentiality the basic
requirements are to be met, these are set out by Megarry J in the case of Coco
V AN Clark (Engineers)

The information must have the quality of
confidence.
It must be imparted in circumstances of confidence;
and,
There must have been authorised use of it to the
detriment of the party”.14

There are
alternative ways which establishes confidential information, however this all
depends on the circumstances and duties and obligations owed by the parties.

For
example, the category of information which was held as confidential in
the Faced Chicken v Fowler case, this was stated as only a subject obligations of confidentiality
due to the relationship an employee
and an employer”.15
In addition, the case of Ocular Sciences Limited v Aspect
Vision Care Limited it was held by the courts that this
category of information would not necessarily attract confidentiality when
passing between two independent contracting parties”.16

Firstly there must be some type of information and contain
some sort of degree of qualities to form part of confidentiality. So in
relation these qualities are not to be trivial as the courts will not grant
legal rights to something which has no importance. It cannot be part of a
common place where it is obvious to figure out the ‘secret’. Confidentiality
cannot be in the public domain as it is very challenging to purse
confidentially once it has lost its identity. This situation opens up defences
which can go against the claimant on the matter of that the secret is not
protected as it has been exposed.

The
circumstances of these meeting are crucial to discover the existence of
‘obligation of confidence’. Because it is vital to understand whether both
parties acknowledged the importance of confidentiality in the meeting. “The
confidentiality agreements are to be taken seriously”.17

And,
obligation of confidentiality can be put forward as an oral agreement, so
within this meeting with Reality production, Jane and Anita may have expressed
their concerns regarding the confidentiality of this meeting and the idea. But
we would need more information to clarify if there was any sort of oral agreement.
However, if the claimant is unsuccessful with their claim, this obligation may
be implied by the courts, where it seems obvious that the nature of this
agreement/meeting was to be kept confidential.

The following
remedies are available for the claimants

•             Damages.

•             Delivery up and destruction of
infringing materials.

•             Account of Profits.

•             Injunction.

 A recent case which indicates the similarity
within the scenario is the case of Anthony Bailey v Keith Graham (2011) Anthony
Bailey and Sylvester Williams alleged Mr Roots (whose real name is Keith
Graham) breached a duty of confidence relating to the secret recipe of the
sauce, and breached an oral agreement regarding its commercial exploitation.
However, Judge Mark Pelling QC dismissed Mr Bailey’s claims for breach of contract
and breach of confidence”. 18

Also in the
case of Seager v Copydex ltd (1967), Lord Denning MR stated: ‘The law on this
subject does not depend on any implied contract. It depends on the broad
principle of equity that he who has received information in confidence shall not
take unfair advantage of it”.19

It would be
in the best interest of Jane and Anita in future Businesses should avoid relying
on oral contracts, they should also avoid 
implied duty of confidences when revealing  information such as in this case ‘secret
recipes’, “with the intention it remains confidential. This case highlights
that information must be sufficiently precise and well-developed in order to
benefit from any implied duty of confidence”.20

When dealing
with confidential information, Jane and Anita should enter into an enforceable “confidentiality
agreement specifically referring to the confidential information they are
seeking to protect. The parties should ensure that such an agreement is in place
from day one, and it can be tailored to specify the remedies if there is a
breach”.21

1 Intellectual
property and your work” (Intellectual property and your work – GOV.UK)
accessed December
20, 2017

2 Jolly
M, Fletcher AC and Bourne PE, “Ten Simple Rules to Protect Your Intellectual
Property” (PLOS Computational Biology)

accessed December 20, 201

3 Ibid

4 Intellectual
Property & Confidentiality A Researcher’s Guide.

5 Copyright,
designs and patents act 1988 (CDPA)

6 Copyright,
designs and patents act 1988 (CDPA) section 9 (1)

7 Exxon
Corp. v. Exxon Insurance Consultants International Ltd 1982

8 Esa,
“Frequently asked questions” (European Space Agency)

accessed January 8, 2018

9 Can
you protect business ideas? | Protecting Intellectual property (IP) |
Entrepreneur’s Toolkit” (MaRS)

accessed January 8, 2018

10 “Literary”
(Welcome to the BCC Website)

accessed January 8, 201

11 Swannell,
J. (Ed.) “The Little Oxford Dictionary” 6th Ed. (1986) Clarendon Press, page
376.

12 Key
Facts: Intellectual Property Book by James J. Griffin and Ying Jin, Originally
published: 2007

13 University
of London press ltd v university tutorial press ltd (1916)

14 (Carruthers
Law)

accessed January 8, 2018

15 Faccenda chicken ltd v Fowler:
ca 1986

16 ocular
sciences ltd v aspect vision care ltd: chd 11 nov 1996

17 Intellectual
Property & Confidentiality A Researcher’s Guide

18 Anthony
Bailey v Keith Graham (2011)

19 Seager
v Copydex ltd (1967)

20 (Carruthers
Law)

accessed January 8, 2018

21 ibid