IP and The Creative Industries

Current Situation In The UK

Staying Ahead
In today's world, the chances are strong that the music playing will be British, that the books in the bookshop will be British, that the software and the designers will be British - that is how we are known, as exporters of culture and ideas. Britain no longer gives boilers and iron girders to the world, we give colour and life and dynamism through art, imagination and cultural innovation.
Stephen Fry, quoted in Staying Ahead: the economic performance of the UK's creative industries (2007, The Work Foundation)

Downloadable from: http://workfoundation.net/research/publications/publicationdetail.aspx?oItemId=176

The Creative Industries

They are a real success story, and a key element in todays knowledge economy. All of this is, of course, founded on original creativity the lifeblood of these industries. The most successful economies and societies in the twenty-first century will be creative ones. Creativity will make the difference to businesses seeking a competitive edge, to societies looking for new ways to tackle issues and improve the quality of life.
(Chris Smith, The first UK Secretary of State for Culture, Media and Sport in 2001) Smith wrote that he wanted "a society in which every child has experienced creative and cultural activity, has access to training to develop their creative talents, and has the opportunity - for those that want it - to work in the creative industries".

Growing, Managing, Responding

The Creative Industries Mapping Document, published in November 1998, was the first attempt to measure the economic contribution of the Creative Industries to the UK and to identify the opportunities and threats they faced. Since then UK governments and various partner organisations have made proposals and suggested legislation which affects, for example, skills and training, finance for creative ventures, intellectual property rights, and export promotion. The document lead to various studies, surveys, interventions and ultimately legislation, including the Digital Economy Act 2010.
Downloadable from: http://www.culture.gov.uk/global/publications/archive_2001/ci_mapping_doc_2001.htm

The UK....
Has the largest producers of TV and radio content in Europe, with only the US generating more value from TV exports; Is also second only to the US in the global film market, with increasing box office receipts: 30 of the top 200 films at the world box office in 2001 2007 were based on stories and characters created by British writers, generating 14 billion at the worldwide box office; Has the largest publishing industry in Europe; Has the largest number of computer games studios in Europe and is the third largest producer in the world; Leads the worlds ranking for advertising excellence.
Strategic Skills Assessment for the Creative Media Industry, December 2010, Skillset

Employment In The Creative Industries

How Big?
The Creative Industries (CI), excluding Crafts, accounted for 5.6% of Gross Value Added (GVA) in 2008. Software & Electronic Publishing accounts for the most GVA out of all the Creative Industries (2.5% in 2008). CI have grown by an average of 5% from 1997 to 2007 compared to 3% for the whole of the economy. CI in the UK contribute a greater proportion of GDP than any other nation according to an OECD study. Exports of services from the UK Creative Industries totalled 17.3 billion in 2008, equating to 4.1% of all goods and services exported.. In the summer quarter of 2010 (July September), creative employment totalled just under 2.3 million jobs. This consisted of just under 1.3 million jobs in the Creative Industries and just under 1 million further creative jobs in businesses outside these industries.
Creative Industries Economic Estimates, 9 December 2010. Dept. for Culture, Media and Sport.

What Are The Creative Industries

Advertising Architecture Art and Antiques Computer Games Crafts Design Designer Fashion

Film and Video Music Performing Arts Publishing Software TV and Radio.
As defined by the UK Department for Culture, Media and Sport (DCMS) http://www.culture.gov.uk/

Intellectual Property Rights

The means to communicate, share and collaborate between human beings on a global scale has never been easier. Ideas, information, knowledge and cultural values can be transmitted digitally with an ease that would have been unbelievable less than a generation ago. The very ease of digital communications makes it potentially much easier to violate the intellectual property rights of authors, creators and the owners of intellectual works. The rate of change in the world is accelerating. After many centuries of gradual development we are now in the steep part of an exponential curve of change.
(Based on The Interactive Media Industry, Intellectual Property Rights, the Internet and Copyright: Some Lessons from the TrustDR Project. University of Ulster) (UU) Online at http://trustdr.ulster.ac.uk/outputs/trustDRAimWb.php

What Are They?

Intellectual Property Rights (IPR) describe the legal status and protection that can be claimed for information and knowledge. Intellectual Property (IP) is concerned with the results of human creativity. IP law exists to provide protection and to encourage development of ideas into assets. Intellectual Property Rights include: Copyright Moral Rights Patents Trademarks and logos Registered Designs Design right Ideas or know-how Database Rights
(UU)

Copyright 1
Copyright protects original literary, dramatic, musical and artistic works, as well as sound recordings, films and broadcasts. Brochures and training materials are protected, as well as photographs or drawings. Software code is protected by copyright as a literary work. Copyright is an unregistered right, which means it arises automatically on creation of the work in a fixed recorded form. Copyright does not protect ideas, though it protects the way an idea is expressed (for example in written form). It gives the copyright owner control over use of the copyrighted work, including any copying or distribution.
South East England Development Agency (SEEDA) http://www.enterprisehubnetwork.co.uk/magazine/13/article.html

Copyright 2
There is no legal requirement to incorporate a copyright notice. However it is advisable to do so. A suitable form of copyright notice is: [name of copyright owner] [year of publication] etc. Copyright vests in the creator of a work. However a work created by an employee within the scope of his employment will vest in the employer. It is important when commissioning a work from a third party to ensure that copyright ownership is contractually transferred. Defence might include research and private study, criticism, review and news reporting, incidental inclusion, education, public administration and the making of back up copies of software. (SEEDA/IPO)

Moral Rights
These are rights the author has as the creator of the work. They are not economic in nature - they cannot be sold or bought. They stay with the author even if copyright has been sold or given to someone else. They can pass on to others after the author has died. They can be waived in writing. The main moral rights of the author are: 1. The right to be identified as the creator the right of paternity' 2. The right not to have their work subjected to derogatory treatment' the integrity right' 3. The right not to have work falsely attributed to them. In order to use a work lawfully, it is therefore necessary to respect the moral rights of the author. (UU)

Patents 1
Patents protect inventions. In return for disclosing their inventions, patent owners receive a limited monopoly, which is presently 20 years (subject to payment of renewal fees to the UK Patent Office). To be patentable, an invention must be: 1. New it must not have been made available to the public before the date of application. 2. Involve an inventive step it must not be obvious to a person skilled in the art. 3. Be capable of industrial application. 4. Not be excluded by law e.g. scientific theories, business methods.

Patents 2
The specification must disclose the invention clearly enough for it to be implemented by a person skilled in the art, and must set out the patents claims. Obtaining and protecting a patent can be time consuming and expensive, and you should always get specialist advice. A UK patent provides protection only in the UK; there are various international schemes. Inventions made by employees in the course of their employment will generally belong to the employer. Companies that commission inventors should expressly state who owns rights in the invention as a condition of their involvement. Proprietors should mark the number of the patent application or registration on the products. . (SEEDA/IPO)

Trademarks 1
Trademarks protect trade names, company names and logos. Common law rights in unregistered trademarks can be acquired by building up a reputation over time. Unauthorised use can then sometimes be prevented by the law, but it can be difficult to win such a claim. It is safer to have a registered trademark. To register a trademark in the UK, you must apply to the UK Trademarks Registry, which will examine the application to ensure it meets certain requirements. Other businesses or individuals can oppose your application if they believe the new mark is too similar to their own
(SEEDA/IPO)

Trademarks 2
Once registered, a trademark is valid for 10 years and can be renewed indefinitely. The owner can prevent others from using identical marks for identical goods and services; and similar marks for similar goods and services if this would cause confusion. It is also possible to register a mark internationally, either by making national applications or using one of the procedures that facilitate international protection, such as the Community Trademark (valid throughout the EU).

Registered Designs
Registered designs protect designs meeting certain criteria. They can be made up of the whole or a part of a product resulting from the features of the lines, contours, colours, shape, texture or materials of the product. Threedimensional designs can be protected. The design need not have artistic merit. To be registrable a design must: 1. Have individual character and 2. Be new and not previously disclosed to the public anywhere in the world. Registered designs confer a 25-year monopoly in the design, subject to renewal fees. Applications must be made to the Designs Registry.

Design Right 1
The Design Right protects the appearance of products with no aesthetic appeal. All or part may be protected. The shape can be protected while its get-up (eg colour) cannot. Protection doesnt require registration and lasts for the lesser of 10 years from the end of the year in which it was first marketed or 15 years from creation of the design document. For protection a design must: 1. Comprise an aspect of shape or configuration of the whole or part of an article 2. Be original and not commonplace 3. Be recorded in a document or be the subject of an article made to the design 4. Be created by a qualifying person, or first marketed in a qualifying country by a qualifying person.

Design Right 2
The owner has the exclusive right to reproduce, for commercial purposes, the design or the design document. A person who does either without the owners consent infringes the right. The owner of a design right is the creator, except where designs are created under a commission (unlike copyright) or where designs are created by employees in the course of employment. Owners assert the right by marking goods and packaging with the words Design Right, their name and the year of first marketing. Remedies for unauthorised use include injunctions, both preliminary and final, damages or an account of profits, delivery up, costs.

Know-How
Know-how is the nebulous element of technical knowledge that cannot be reduced to paper. It's not strictly IP. It might be intellectual, but it is not property. Its protected through contractual obligations. It is vital because it may involve: 1. Lead time" over competitors, allowing a company to get to market faster 2. Competitive edge" in some element of a business either from secrets or key people 3. Institutional knowledge or processes that create an advantage 4. Consultancy 5. Licensing
(Osborne Clarke International Lawyers)(OC)

Database Rights
Intellectual property rights generally protect creative works, rather than mere information. There is an exception. Under English law, it is possible for the maker of a database within the EEC to claim database rights where it has made a substantial investment in obtaining and verifying the contents of a database. These rights protect companies which compile databases such as telephone directories and marketing databases, where otherwise no legal protection would exist Some recent cases shows that the database right is limited in scope, so companies need to seek current legal advice before relying on this right.
(SEEDA)

We Have Been Here Before...

The creation of the printing press revolutionised human communications and caused the same problems. This was followed by legislation to protect the intellectual property of the authors and publishers of books in the form of the Statute of Anne in 1710. Then, as now, this was accompanied by claims that illegal copying was causing great harm to the authors and publishers. The coming into force of the Statute of Anne marked a historic moment in the development of copyright law. It granted publishers of a book legal protection of 14 years with the commencement of the statute. The 14 year copyright term could be renewed for another 14 if the author was still alive after the first term expired.

The Electric Telegraph

The introduction of the electrical telegraph in the first half of the 19th century made reliable high-speed communication available for the first time in human history. As Tom Standage points out in The Victorian Internet (1999) , At the time, sending a message to someone over a 100 miles away took the best part of a day the time it took a messenger travelling on horseback to cover the distance. This unavoidable delay had remained a constant for thousands of years: it was as much a fact of life for George Washington as it was for Henry VIII, or Charlemagne, or Julius Caesar. (UU)

The Knowledge Economy

For the last two hundred years, neo-classical economics has recognised only two factors of production: labour and capital. This is now changing. Information and knowledge are replacing capital and energy as the primary wealth-creating assets, just as the latter two replaced land and labour 200 years ago. In addition, technological developments in the 20th century have transformed the majority of wealth-creating work from physically-based to "knowledge-based." Technology and knowledge are now the key factors of production.
Thomas B Riley, Executive Director and Chair, Commonwealth Centre for Electronic Governance. (Riley) Online at http://www.egovmonitor.com/features/riley07.html

Competition
Knowledge and expertise can be transported instantaneously around the world, and any advantage gained by one company can be eliminated by competitive improvements overnight. The only comparative advantage a company will enjoy will be its process of innovation -- combining market and technology know-how with the creative talents of knowledge workers to solve a constant stream of competitive problems -- and its ability to derive value from information. We are now an information society in a knowledge economy.
(Riley)

First Steps
In summary, to succeed in the knowledge economy, governments need to: 1 Develop programs to create a climate to nurture knowledge workers; education is the key in this process, starting with front-end entrance institutions to higher education institutes; 2 Invest in online connectivity to embrace as much of the citizenry online; 3 Invest in technology to build infrastructures; 4 Build programs to stimulate innovation and creativity;
(Riley)

More Steps
5 Enact legislation to create security and confidence for businesses to operate in the growing knowledge economy; 6 Develop new information laws which extend the information rights of the citizen not just to information held by government but to information held in the private sector; 7 Create web sites within government with information that will assist businesses, entrepreneurs and citizens as a whole seeking to engage in knowledge-based economic activity. 8 Work to bring about cultural change in institutions to adapt to the new economy emerging in the world.

Digital Britain
Among the goals of the Digital Britain report, which was published in Nov. 2009 was:

To enable Britain to be a global centre for the creative industries in the digital age, delivering an ever wider range of quality content, including public service content, within a clear and fair legal framework.
Report available at: http://www.culture.gov.uk/what_we_do/broadcasting/6216.aspx

In Relation To Rights...
In relation to rights, the Government believes piracy of intellectual property for profit is theft and will be pursued as such through the criminal law. The civil infringement of taking someone elses intellectual property or passing it on to others through file-sharing without any compensating payment is considered wrong. However, the Government also believes, and the evidence suggests, that most people, given a reasonable choice would much prefer not to do wrong or break the law. The objective of the Governments policy is therefore threefold. Firstly, to provide a framework that encourages the growth of legal markets for downloading that are inexpensive, convenient and easily accessible for consumers.

Technical Measures
Secondly, through encouraging suitable information and education initiatives, to ensure that consumers are fully aware of what is and is not lawful. And thirdly we aim to provide for a graduated response by rights-holders and ISPs so that they can use the civil law to the full to deter the hard core of users who wilfully continue unlawful activity. The Government intends to provide initially for Ofcom to have a duty to secure a significant reduction in unlawful file sharing by imposing two specific obligations: notification of unlawful activity and, for repeat-infringers, a court-based process of identity release and civil action. The Government is also providing for intermediate technical measures by ISPs, such as bandwidth reduction or protocol blocking...

Considerable Losses
Creative industries have indicated they suffer considerable losses from unlawful peer-to-peer file-sharing. The BPI claim P2P file-sharing costs the UK music industry 180m pa (2008) while IPSOS gives a loss in the UK for TV and films of 152m (2007). Figures are not available for the losses from unlawful file-sharing in other content industries such as publishing, business software or computer games but we do know that all are suffering significant losses. It is clear that the scale of unlawful activity is a major concern for those contemplating investment in innovative content models that rely upon any form of payment.

The Digital Economy Act, 2010

The Digital Economy Act contains provisions to curb illegal peer-to-peer (P2P) file sharing by introducing a system in which digital rights owners (DROs) send Copyright Infringement Reports (CIRs) to Internet Service Providers (ISPs) and the ISPs in turn send notifications to the subscriber. Digital Rights Owners (DROs) will detect infringements of their own copyright, through specialist companies who obtain copies through P2P of material owned by their clients. They record the IP addresses of the parties providing the material. The ISP of the subscriber can be identified from this IP address.
From Mott MacDonald P2P Report. http://interactive.bis.gov.uk/digitalbritain/wp-content/uploads/2010/04/Mott-MacDonaldP2P-Final-Report.pdf