Learn Engage CreateModule: IPR for the Creative Industries

"Intellectual property is an important legal and cultural issue. Society as a whole has complex issues to face here: private ownership vs. open source, and so on." - Tim Berners-Lee

This project has been funded with support from the European Commission under the Lifelong Learning Programme.This publication reflects the views only of the author, and the Commission cannot be held responsible for any use which may

be made of the information contained therein.

The Disclaimer!

This training material concerns intellectual property and business strategies only in general terms.

This training material should not be relied upon when taking specific business or legal decisions. Rather, professional advice should be obtained which suits the circumstances in question.

IPR for the creative industries

• Introduction• Case study: the making of a documentary

– Copyright– Confidentiality

• Case study: clearing rights- Trade marks- Licensing- Collective Licensing Societies

• Enforcement

Introduction: IPR for the creative industries

• What are the creative industries?• Why is IP so important for this sector?

IPR for the creative industries

• Introduction• Case study: the making of a documentary

– Copyright– Confidentiality

• Case study: clearing rights- Trade marks- Licensing- Collective Licensing Societies

• Case study: designs• Enforcement

Case study: The making of a documentary

Production company

film maker

film archive

broadcaster

PR agency

Product designer

collective licensing societies

Case study: The making of a documentary

film maker

Film conceptProduction company

Copyright?Confidential!

What is copyright?

• Copyright is always automatic and in most jurisdictions doesn’t need to be registered.

• Works covered by copyright must be original.• Copyright doesn’t protect ideas only the fixation or

expression of ideas. • Copyright grants the author or creator of an original

work the right to copy, distribute and adapt the work (economic rights)

• Copyright grants the author moral rights

Copyright: What is protected?

• Original works: literary, artistic, dramatic or musical works

• Derivative works: i.e. films, photographs, translations, editions, collages, adaptations etc.

• Others: typographical arrangements, sound recordings, broadcasts, performances

Copyright: stop thief!

• It can be protected!• Sign-post your work with a copyright notice• In case of dispute, businesses need to show

evidence they were the original creators of the work

• Other preventative measures: e.g. booby traps

Confidentiality

• Concerned with secrets – does not apply to information already in the public domain.

• Can apply to any type of IP or know-how, eg: drawings, techniques, formulae, and data of all types.

• Circumstances must suggest an obligation of confidence.

• Simply marking a document with ‘PRIVATE AND CONFIDENTIAL’ is not enough.

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Establishing confidentiality• Can be imposed via agreement, but is also

implied into many relationships.• Agreements should be put

in place with third parties before work starts.

• Be careful when sending ideas by email!

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Breach of confidentiality

• Breach if other party uses information for own benefit or discloses without consent.

• Penalties: injunction and (financial) damages.

Important clauses

• Define the confidential information.• Explain clearly the purpose of disclosure.• Limit sharing outside meetings.• Non-disclosure and non-compete clauses.• Set clear parameters for what is and what isn’t

to be kept confidential.

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IPR for the creative industries

• Introduction• Case study: the making of a documentary

– Copyright– Confidentiality

• Case study: clearing rights- Trade marks- Licensing- Collective Licensing Societies

• Case study: designs• Enforcement

Case study: The making of a documentary

film maker

Film archives

Clearing rights

Film clips/sound

Collective licensing societies

licenses

Case study: Clearing rights

• Copyright: ownership and length of protection• Consider exceptions• Trade mark (registered and unregistered)• Get a license for the use of all IP protected elements

in the film• Collective Licensing Societies• Orphan works

Copyright: ownership and length of protection

• The author or creator of an original work automatically owns copyright – even if the work was commissioned.

• The employer owns copyright if the work was created in the course of the employment

• In general, in the EU, the term of protection is the life of the author + 70 years; or for anonymous works, 70 years from publication or creation (if unpublished).

Case study: Clearing rights

• Copyright: ownership and length of protection• Consider exceptions• Trade mark (registered and unregistered)• Get a license for the use of all IP protected elements

in the film• Collective Licensing Societies• Orphan works

Copyright: You may – with caution!!

Permitted acts: Fair dealing• Research and private study (non-commercial)• Criticism or review (with sufficient acknowledgment)• Reporting of current events

Others:• Incidental inclusion• Images of public buildings and sculptures

Case study: Clearing rights

• Copyright: ownership and length of protection• Consider exceptions• Trade mark (registered and unregistered)• Get a license for the use of all IP protected elements

in the film• Collective Licensing Societies• Orphan works

Trade mark (registered and unregistered)

A trade mark has to be capable of

• distinguishing the goods or services of one competitor from another.

• Being represented graphically.

Examples of conventional trade marks

Examples of unconventional trade marks

Registered trade marks

• It’s registered so you don’t have to prove you are the rightful owner

• You can enforce it.• Use ® to show it’s registered.• No limit of protection• Use it or lose it.

Unregistered trade marks

• ‘Common law’ trade marks• Arise automatically on creation• Little harmonisation in the EU• Protection is limited• What it protects• Duration

Case study: Clearing rights

• Copyright: ownership and length of protection• Consider exceptions• Trade mark (registered and unregistered)• Get a license for the use of all IP protected elements

in the film• Collective Licensing Societies• Orphan works

Licensing

• All IP rights are assets that have a value

• Like any other property, they can be sold, rented, left in a will, given away…

• License agreements are contracts between the owner of the property (the “licensor”) and the party that is granted user rights (the “licensee”)

Licensing agreements are contracts

• verbal (informal)• written (formal)• implied (informal)

Key clauses

• Duration• Exclusive/non-exclusive• Territory• Field of usage• Payment• Termination clause

License Agreement

Parties:……………………………………Definitions:………………………Obligations:…………..Royalties: ………………Duration:………………

Some notes on licensing• A licensee may use IP rights without infringing

the licensor’s IP right• Corporate copyright• Mass licensing of software• Cross-licensing• Digital rights• Compulsory license• Creative Commons

Case study: Clearing rights

• Copyright: ownership and length of protection• Consider exceptions• Trade mark (registered and unregistered)• Get a license for the use of all IP protected elements

in the film• Collective Licensing Societies• Orphan works

Why do we need collective licensing societies?

• Make it easy for copyright work to be copied and used in public without infringing the right of the author.

• Authors are spared the hassle to collect licensing fees from individual members of the public, who would like to copy their work.

• They may play an important role in digital rights management in the future

Copyright: Collective Licensing Societies

Collecting society

Users(e. g. radio stations, book-editors, TV-Broadcast stations etc.)

Right holders(e. g. authors, performers, publishers, producers, etc.)Transfer of

rights management

Grant of licences

Remuneration

Licence fees

What else do they do?

• Surveillance of users, legal measures against non-paying users.

• Protection and promotion of authors’/copyright owners’ rights.

• Social insurance for authors• Compulsory levies on hardware and blank media (e.g.

blank CDs, copy machines, faxes, PCs, etc.) for private and personal use (commercial use is charged extra)

Who needs to contact them?

• Companies

• Copyright holders

International umbrella organisations

• CISAC: Confédération Internationale des Sociétés d’ auteurs et Compositeurs

• BIEM: Bureau International des Sociétés gérant les Droits d’ Enregistrement et de Reproduction Mécanique

• IFPI: International Association of Records Industries• GESAC: Groupement Européen des Sociétés d’

Auteurs et Compositeurs• EVA: European Visual Artists

Case study: Clearing rights

• Copyright: ownership and length of protection• Consider exceptions• Trade mark (registered and unregistered)• Get a license for the use of all IP protected elements

in the film• Collective Licensing Societies• Orphan works

Orphan works

• Work in copyright whose owner is unidentified or untraceable making it impossible to get consent to use the work

• Legislation yet to be defined

• Due diligence search necessary

Case study: The making of a documentary

Film maker

Production company

Broad caster

License agreements – don’t forget digital rights!

IPR for the creative industries

• Introduction• Case study: the making of a documentary

– Copyright– Confidentiality

• Case study: clearing rights- Trade marks- Licensing- Collective Licensing Societies

• Case study: designs• Enforcement

Case study: The making of a documentary

PR material

Production company

Broadcaster

PR Agency

Ideas and designs

Trade marks: Protection step by step

• Research

• Examination for conflict

• Identify appropriate protection

• registration

Case study: The making of a documentary

briefs

Production company

PR Agency

Product designer

Product designs

Design right: what is it?• Protects outward appearance of a product – or a

part of a product• An asset with an economic

value – and a right to stop others from copying

• Registered and unregistered rights, offering different levels and terms of protection

Ownership and enforcement

• Keep records – copying is difficult to prove.• Owned by the designer unless created in the

course of employment or, in some countries, when commissioned.

• Design rights can be licensed/exploited.• As with copyright, infringement can be

primary or secondary.

Should you register?

• Prolonged protection: up to 25 years for registered designs

• A monopoly right• Commercial use

IPR for the creative industries

• Introduction• Case study: the making of a documentary

– Copyright– Confidentiality

• Case study: clearing rights- Trade marks- Licensing- Collective Licensing Societies

• Case study: designs• Enforcement

Enforcement: Where to begin• Registering or recognising IP rights is only part

of the story• You may also need to defend and enforce

them – and that can cost money• Litigation isn’t the only way• Remedies• Criminal vs civil

Enforcement: Avoiding problems

• Reduce the risk of infringement: – Register– monitor – Enforce

• Mitigate the consequences– Collect evidence– Work with customs (if counterfeiting applies)

References to Pearltrees• Pearltrees is a visual and collaborative curation tool which

will provide you with much more in-depth information on this module’s topic.

• Specifically please visit: http://www.pearltrees.com/learnengagecreate/intellectual-property-rights/id12742876

Any questions whatsoever?

Thank you for your attention!

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Further extensive material, case studies, exercises, links and more can be found on www.lec-project.eu

This project has been funded with support from the European Commission under the Lifelong Learning Programme.This publication reflects the views only of the author, and the Commission cannot be held responsible for any use which

may be made of the information contained therein.