In this report Robert Dennis looks at why the problem of copyright infringement is particularly acute in the creative industries, and the extent of the problem facing independent practitioners in the sector. He asks what steps creative businesses and individual artists can take to protect their work and also looks at a new type of licence that both protects IP but allows artists to create without falling foul of the law.
'Intellectual Property used to be an arcane and boring subject, something for specialists only, but within the past few years it has become a powerful influence on the way everyone has ideas and owns them, as well as on global economic output.'
John Howkins, The Creative Economy
Where's the value ?
Look carefully at the balance sheet of any creative company. You will most probably find listed their iBooks, other kit - and maybe even a Transit van registered in the company's name. But none of this represents the real assets of a creative company. Even the intangible assets of a conventional company, such as its "goodwill" or a track record in supplying widgets slightly cheaper than the competition, cannot be compared to those of a creative industries business.
The true assets of a creative practitioner are the ideas, feelings and imagination which spur them to draw, sing, write or design something completely new and original: in other words, their creative capital.
While it's the case that you can easily secure a building and take measures to protect the tangible assets of your business, by installing a burglar alarm for instance, it's not so easy to defend the products of your imagination and your creativity.
For a start, you can't copyright your ideas - only the expression of those ideas (ie, a graphic design or a recording). And once you've committed your creations to paper or onto a computer you need to distribute them to a wider audience to make any money from them. But as soon as your work exists in an easily portable format - a CD or digital file on the web - it's at the mercy of plagiarists and pirates. Without the considerable legal resources of a large corporation, or the willingness to embark on what can be a lengthy and expensive procedure, copyright litigation is often not an option for a small creative business or individual practitioner.
The problem of copyright infringement has grown alongside - and as a natural consequence of - the increasing economic value of the creative industries. The digital technology which has allowed the easy creation, manipulation and wide distribution of text, music and moving images has also been the means for illegal copying and unauthorised sharing.
While legislation has been framed to protect the interests of the large rights holders, most notably the Hollywood studios and the major music companies, few steps have been taken to pro-actively defend the rights of independent creative artists. The extensions to existing copyright which have taken place in Europe and the US have tended to benefit the larger players, such as EMI, the Disney corporation, or the families of historically successful writers, composers and designers. Extending the length of the copyright period to its current European duration of "life plus seventy" has little practical benefit if the obstacles to bringing a legal action are so overwhelming that the individual artist or SME has to discount the legal option and just accept being ripped off.
While copyright infringement is the main problem affecting the "content" industries (basically film, music, publishing and games) the wider issue of counterfeiting and the misuse of trademarks in the creative industries is becoming a serious threat to investment in new creative products and growing businesses. The European Commission has said that between 1998 and 2002, the volume of fake goods seized coming into the EU grew by more than 800%. The global trade in pirated goods is estimated at £140bn a year, or roughly 5% of total world trade.
In a recent interview for the FT's Creative Business section, Patricia Hewitt, Secretary of State for Trade and Industry, highlighted the efforts the government is making in dealing with piracy and copyright infringement: 'Protecting people's intellectual property rights is vitally important, not just for Britain's creative industries, but for every British industry that innovates. Investors simply won't put the money into companies on the basis of their good ideas if we can't create a legal framework to prevent other companies from ripping them off.' Moves outlined by the secretary of state to counter the problem include the Creative Industries Intellectual Property Rights Forum, a joint initiative between the DTI and the Department for Culture, Media and Sport (DCMS).
Wise Up
So, the problem is huge. What about the solution? As with many things in life, prevention is better than cure. Litigation should always be the final option. But often this can be avoided if creative practitioners know what their rights are and take some practical steps to ensure their IP is adequately protected.
Firstly, remember that copyright, unlike filing for a patent, is automatic: as soon as you create an original work of art, a song or a design it is protected by copyright. You can remind people that the work is copyright by adding the © symbol, your name and the date. This is not strictly necessary, but it is a good habit to get into. The problem comes in trying to prove authorship - it really was you that wrote those lyrics - and also that you did it before someone else says they did. There are a number of DIY measures you can take, such as sending yourself a copy of the work by registered post and leaving the package unopened; but beware: this isn't a foolproof method as envelopes can be tampered with.
A much better solution is to register your work with a recognised organisation. A number of bodies offer a copyright registration service. The UK Copyright Service (http://copyrightservice.co.uk), for example, helps creative practitioners, companies and organisations by providing independent evidence to help prove that a work is original, should a dispute arise.
Book publishers books are required to send copies of a work to the "deposit libraries", such as the British Library. The advantage of having a catalogue record in a deposit library is obvious: it proves the book existed at a particular date, and includes information such as the name of the author. Of course, there is no such obligation on most digital productions, so think analogue before you start reproducing what you've created, and register your work at the outset.
Your best protection against getting ripped off is to know your rights, and be aware of current legislation. Remember that although we operate in a global economy, there is no global law: instead, there is patchwork of national legal systems and treaties. (For instance, the main international copyright agreement, the Berne Convention, which operates in about 150 countries and of which Britain is a member, treats copyright material from a member state as if it originated in that country.) If you plan to export to a particular region or country, it is worth finding out what sort of legal protection your work will get, if any. Digital piracy and illegal downloading, however, are global phenomena that can be almost impossible to trace back to the perpetrator.
Free for all
There are a number of freely available resources for creative businesses, and doing some online research early on will certainly pay you dividends in the long run.
• Intellectual Property (http://www.intellectual-property.gov.uk), the "home of UK
Intellectual Property on the Internet", backed by the Government, is a comprehensive
site covering all areas of IP, although it is not specific to the creative industries.
• Copyright Licensing Agency website (http://www.cla.co.uk) and the UK Patent
Office (http://www.patent.gov.uk/) have some useful information on copyright. (It's worth
noting that most software is actually covered by the law governing literary works, rather
than patents).
• Brandedbylaw (http://www.briffa.com/brandedbylaw) is a service offered by Briffa,
one of the UK's leading IP law firms. Brandedbylaw offers advice and information on all
aspects of protecting IP, particularly trademarks and brands.
For creative businesses in London there now exists a dedicated service with an extensive website covering all the relevant areas of intellectual property, copyright, patents and licensing. Own It, (http://www.own-it.org) is the intellectual property advice service of Creative London, the organisation that champions and supports London's creative industries (http://www.creativelondon.org.uk). Own It offers a unique service to registered users who need legal advice or intervention concerning their IP: a free meeting with a lawyer from intellectual property law firm Briffa. (Please note that there are some restrictions on this service - see Own It's website for details).
© Robert Dennis, Focus West 2004
Please note that this article is for general guidance only.You should consult a lawyer If you require specific legal advice or help.
