Act early and strategically — know the value of your Intellectual Property (IP), and the best way to protect it for your advantage.
These were among the pearls of wisdom shared at Up Your IP, a seminar for Design industry practitioners recently in Edinburgh. Organised by ICC and Creative Scotland and co-sponsored by CREATe, the day was the first of a series that aims to improve awareness and action on IP for Creative Industry enterprises. The second event, on September 11 2014, will focus on IP for Theatre organisations, and a third event, on September 25, will address IP for Digital Creatives. In November, the partners will release a suite of guidebooks addressing IP in Scotland’s Creative Industries (for details of the upcoming events and guidebooks, please contact firstname.lastname@example.org)
What is IP, and who owns it? There are a variety of definitions, general and specific, according to Philip Hannay of Cloch Solicitors, but at its most basic, IP is the expression of an idea. And if that idea or the expression of it has value, you should consider it a resource to be protected and potentially exploited, says Dids Macdonald, CEO of Anti Copying in Design (ACID). “IP to me is about ownership and it’s about use and it is permission to use it.” Establishing ownership is getting easier thanks to upgraded legislation such as the Intellectual Property Act 2014 but it boils down to this formula, says Euan Duncan, a solicitor at MacRoberts LLP: if you employ contracted designers, you own your employees’ design IP; if you are a consultant designer or run your own business, your IP rests with you.
Once you’ve clarified what IP you own, move swiftly to building an IP strategy — the plan that takes account of the market conditions, how long your idea is likely to be valuable, and the reality of your resources for protecting your IP and pursuing infringements. “For designers ideas are free but protecting them is not,” says Scott Jarvie of Jarvie-Design. “The difficulty is choosing which ones to pursue. So your business strategy is intertwined with your IP strategy.” He recommends asking yourself questions such as, what do you want to achieve with your IP? How much money and time can you put into its protection? What is the commercial value of your idea? And are there other obstacles preventing you from realising that potential? Your IP plan should be preventative, positive, proactive, and savvy, says Dids Macdonald: “If you don’t want people to copy you, say so” through your strategy and the way you communicate it.
Most important, know your options for protecting your intellectual assets, and which ones are appropriate for your business strategy, says solicitor Ken Peter of K.W Peter. The tools for protecting IP in the UK take several forms: There are Patents, which protect the form and function of products and processes; Design Right, which address the visual appearance of the whole or part of a product; Copyright, which protects any expressible form of an idea or information, but not the idea or information itself; and Trademarks distinguish the goods and services of one company or designer from those of another. Both Patents and Registered Design Rights can be expensive to obtain and even more costly to defend if infringements arise, so they may not be the solution for everyone.
Indeed the vast majority of UK designs remain unregistered, Dids says, but ACID recommends registering wherever possible. There are strong reasons for protecting your intellectual capital–not only is it the blueprint for your creative production, but IP can be a key asset for securing funding, attracting investors, and negotiating partnerships. Patents enable recoupment of investment in R&D , and trademarks support branding, an important way to tell your company’s story in the market, according to Dr. Nicola Searle, an economist at the Intellectual Property Office. Further detail of the different forms of IP protection, plus a variety of business support services, are available from here.
You can share, license, transfer or sell your IP through a number of different legal agreements, such as non-disclosure or confidentiality on collaboration, or contracts for manufacturing, distribution or agency, but all agreements require careful handling. Always read fine the print and don’t be afraid to question or reject any details, recommends Marisa Gianassi, designer and co-owner of Method Studio. Use legal advisors, prepare for negotiations, in terms of what you’re happy to give away or walk away from, says Euan, and bottom line: be sure you trust the other party. “If you don’t trust someone, there’s no point in having a 2-page or 102-page agreement because you don’t want to have to enforce the agreement in the first place. There has to be some element of trust in any relationship.”
Depending on your market, the best strategy may be to avoid protecting your idea—at least in the early stages of development, cautions Richard Clifford, studio director of prototyping studio MAKLab. If you are prototyping an idea, your journey to market can be stalled if you lock up the IP, putting it out of reach of potential collaborators. Getting to market quickly is essential, given the fast pace of change in production technologies, particularly in digital, and the trend for industrial copying. Richard often recommends to start-ups the best plan is to get in early and capitalise on your ideas first. “Go out there, do it first, talk about it the most, and keep doing it”. A social enterprise, MAKLab is exploring the frontiers of IP sharing programmes such as Open Desk designs, WikiHouse for open-source architecture, and other ideas shared in the Creative Commons.
Eventually, you will be copied—“it’s not if, but when,” Dids from ADIC warns—then what do you do? Don’t panic, and gather evidence, she recommends—ideally, buy a sample of the copy and get your own IP evidence in order. Identify a quantifiable loss and decide what you want to achieve, such as damages, or publicity, and take legal advice. Most important: don’t sue on principle alone—as Dids knows from her own experience, the cost of the effort can far outweigh the benefits.
Who can help? Whether you’re contemplating an IP strategy, or celebrating an offer to buy your idea, or you’ve just discovered your creation in someone else’s shop, there are a number of helpful resources in addition to those mentioned above:
Anti Copying in Design (ACID)
Have a look at Copyright User , a multimedia resource aimed at helping creators, media professionals and the general public to understand copyright. A joint collaboration between CREATe and Bournemouth University, Copyright User consists of videos, interactive tools, subject resources, and FAQs. The resources are meant for everyone who uses copyright: musicians, filmmakers, performers, writers, visual artists or interactive developers. Learn how to protect your work, how to license and exploit it, and how to legally re-use the work of others.
The Cultural Enterprise Office supports creative businesses in Scotland with a variety of advisory services and information, much of it available online.
The Intellectual Property Office has published business guidance on the changes to design laws.
The Intellectual Assets Team of Scottish Enterprise provides a variety of services and online resources.