The Law and the Creative Industries - New and Exciting Paths - Protection and IP Rights





21.07.18



The creative industries are undergoing a fundamental transformation! This transformation may offer unique opportunities to look at new options, explore innovative ideas, employ new approaches, decide upon taking strategic directions and approaching exciting paths.





Photo by Jimmy Chang on Unsplash



This article argues that in this era of transformation, where creativity, innovation and knowledge, technology, digitisation and robotisation and knowledge exist and develop and are fast becoming powerful means of fostering development gains, the creative and cultural industries potentially offer more resilient, inclusive, and environmentally viable paths to recovery and governments can play a crucial and catalytic role by putting in place the policies, laws and regulations, and institutions needed to strengthen their cultural and creative industries and benefit from the creative economy.


In other words, the creative economy is a concept centered on the dynamics of the cultural and creative industries, the players therein and the potential of "creative assets" to generate growth and development for a sustainable future. In other words, the interrelation among creativity, culture, economics and technology has the potential to generate income, jobs and export earnings while at the same time promoting social inclusions, cultural diversity and human development. (UNCTAD Creative Economy Report 2008).


Attempting to define the Creative Industries

The term "creative industries" was barely known twenty (20) years ago. It is of relatively recent origin, emerging in Australia in 1994 with the launching of the report, Creative Nation. Three years later, it was found in the decision of the newly elected British Labour government headed by Tony Blair, to establish a Creative Industries Task Force (CITF) as a central activity of its new Department of Culture, Media and Sport (DCMS) which built upon the function of the earlier Department of National Heritage.


The "Creative Industries" definition from the UK DCMS is based on an Economic/Industrial approach which distinguishes between core and peripheral industries (as opposed to other definitions given at times which are based on different approaches and/or models and/or methodologies such as those providing that creative industries are differentiated according to their branches of activity: production functions vs. distribution activities, i.e. the Cultural Content approach and Branches of Activity approach) and defines as creative those industries which have their origin in individual creativity, shill and talent and which have a potential for wealth and job creation through the generation and exploitation of Intellectual Property.


The above definition, according to the main DCMS categorization may include the following sectors (plus few other which were added by the writer):

-Advertising

-Architecture

-The Art and Antiques Market

-Communication Industry

-Crafts

-Design

-Engineering

-Fashion

-Film and Video

-Interactive Leisure Software

-Internet of Things (IoT)

-Music

-The performing Acts

-Theatre, Musical and Dance

-Publishing

-Software (of any kind or for any purpose)

-Television and Radio

-Video and Computer games


The definition, being the first of its kind, was widely adopted by other countries. However, since then, the UK has taken the lead role in mapping, developing and promoting the creative industries/sector through a variety of carefully drafted policy initiatives, strategies and measures and today it has the largest creative sector in the EU.


The importance of Creative Industries and its relation to Intellectual Property Law

Indeed, creative industries can make substantial contributions towards national economic growth through the exploitation of the creative skills of their workforce and the generation of Intellectual Property.


Intellectual Property is the catalyst that transforms creative activity into creative industry and value. The law grants rights to creators in order to provide them with incentives to create and disseminate their work. Therefore, knowing, protecting and exploiting your rights as creators is vital and essential. It is only through understanding what rights you own in your work, how you can ensure that you are identified as your work's creator and the meaning of protection and exploitation of your work that you can make a living and not only, in your particular sector and in the creative industries and continue spending time to create new works.


However, in practice it is rather difficult for the creators themselves to recognise and understand their intellectual property rights and assets and protect them due to the complexity of the Intellectual Property Law especially when it comes to agreements (including Licensing and Assignment)that need to be signed between the creator prior to any exploitation of their intellectual property.


Intellectual Property is not one thing

Intellectual Property is not one thing. Copyright, patents, designs and trade marks are all types of intellectual property protection. So, it is a variety of rights which may apply to different aspects of works such as:

-the names of your products or brands

-your inventions

-the design or look of your products

-things you write, make or produce


Explaining registered and unregistered Intellectual Property rights

Some of these rights may arise automatically at the moment the work is created, whereas others may require application to the relevant authorities for their registration. Usually these authorities will probably be of certain country thus the registration will be made within certain geographical boundaries with each right usually subsisting only within the country/jurisdiction which actually granted it.


Unregistered Intellectual Property rights

COPYRIGHT for example, a critical type of Intellectual Property right for creative industries, is an Intellectual Property right which arise automatically and/or comes into existence the moment the work is recorded. In other words, it does not require registration. Copyright protects the owner of the property rights in literary, dramatic, artistic, musical works and films against those who would copy or otherwise use the works in their original form. It also grants the exclusive right to use, lend, or permit others to make copies or adaptations of the works they create. It, therefore, acts as incentive for the creators to continue to create new work.

  • PERFORMACE rights, are Intellectual Property rights which also do not need to be registered. These rights protect the exploitation of live dramatic, musical or literary performances usually by way of recording them or making recordings available.

  • DESIGN can be registered and also unregistered. UNREGISTERED DESIGN right protects designs for making objects again from the moment the design is recorded.

The LAW OF CONFIDENCE protects confidential information (trade secrets) against disclosure or use by a person who received the information in a confidential relationship.


Registered Intellectual Property rights

Registered Intellectual Property rights protect a range of things:


A PATENT is an exclusive right granted for an invention – a product or process that provides a new way of doing something, or that offers a new technical solution to a problem. A patent provides patent owners with protection for their inventions. Protection is granted for a limited period, generally 20 years.


A TRADEMARK is a distinctive sign that identifies certain goods or services produced or provided by an individual or a company and protect them against use by others in relation to similar goods and services. Trademarks may cover names, slogans, symbols and images (and in some countries colors and smells). In other words, a Trademark helps consumers to identify and purchase a product or service based on whether its specific characteristics and quality – as indicated by its unique trademark – meet their needs.


REGISTERED DESIGNS or INDUSTRIAL DESIGNS mainly refer to an ornamental and/or aesthetic aspect of an article and briefly they protect decorative designs such as unique shapes, configuration and also colour or composition of 2D and 3D designs and are most often used for application to manufactured objects.


Useful Chart Types of protection

Types of protection

The type of protection you can get depends on what you’ve created. You get some types of protection automatically, others you have to apply for.


Automatic protection

Type of protection


Examples of intellectual property:

-Copyright

-Writing and literary works, art, photography, films, TV, music, web content, sound recordings

-Design right

-Shapes of objects


Protection you have to apply for

Type of protection

Examples of intellectual property


-Trademarks

-Product names, logos, jingles

-Register designs

-Appearance of a product including, shape, packaging, patterns, colours, decoration

-Patents

-Inventions and products, e.g. machines and machine parts, tools, medicines


Keep these types of intellectual property secret until they’re registered. If you need to discuss your idea with someone, use a non-disclosure agreement.


Using more than one type of protection

More than one type of protection could be linked to a single product/service/creation/work , e.g. you could:

-register the name and logo as a trade mark

-protect a product’s unique shape as a registered design

-patent a completely new working part

-use copyright to protect drawings of the product


It is obvious that all creators wishing to succeed in their effort to create and generate income from the commercial exploitation of their rights need to rely to a greater or lesser extent on Intellectual property Law and the way they are using it for their protection and benefit.


The intellectual property system helps strike a balance between the interests of innovators and the public interest, providing an environment in which creativity and invention can flourish, for the benefit of all. Together, these creators and companies and their Intellectual Property rights and agreements in place within the market place, make, indeed, the most of the Creative Industries.


Strengthening the Creative Industries

There is no doubt that, Creative industries are among the most dynamic sectors of world trade. As mentioned at the beginning of this article, Governments can play a crucial and catalytic role by putting in place the policies, laws and regulations, and institutions needed to strengthen their cultural and creative industries and benefit from the creative economy.


Governments who haven't looked seriously into their creative sector must do so, starting by examining their current intellectual property legislation, tax, legal and fiscal policies (mainly the need for financing mechanisms and legislation and a framework to support creative SMEs and to attract investors) and institutional framework and their current organizational structure/s in place to support the creative sector. By fostering the development of productive creative capacities, cultural entrepreneurial skills and trade opportunities, conducting meetings and exchange views and ideas between the Government ministries and Stakeholders and reach strong consensus.


To review all institutional mechanisms available and provide for new such mechanisms, if necessary, to raise awareness and educate accordingly in order to provide an enabling environment for promoting the use and safeguarding of Intellectual property rights and ensuring enforcement of those intellectual property rights timely and effectively to ensure the development and promotion of creative and cultural industries.


In this way the Creative and Cultural Industries will boost the number and quality of jobs, generate income, increase trade in creative products, promote cultural diversity and development, while at the same time, substantially contributing to the Creative Economy and the national Economy in general as the ultimate goal.