IP & Collaborative Agreements in the Creative Industries

CREATe Working paper 2018/06

Martin Kretschmer, Sukhpreet Singh & Bartolomeo Meletti

Executive Summary

The AHRC Creative Industries Clusters Programme (CICP) is a radical departure from traditional research funding. Research is understood in the context of R&D collaborations that are conceived to lead to new products and services, and ultimately to increased productivity and economic growth. These are ambitious, perhaps unprecedented goals for arts and humanities funding.

The experimental nature of creative R&D collaborations between Universities and industry, the subject matter of this report, requires new and innovative collaborative models and considerable cultural adaptation. We cannot know what works best at the outset. But consortium leaders and collaborators need to know the state of the art: what is the orthodox approach to managing and exploiting intellectual property (IP) (where IP is seen as a ‘thing to be sold’), as well as, more fluid iterative interactions (where IP may be viewed as an enabler and catalyst to achieve wider goals, such as increasing capacity and developing an ecosystem).

This report does not aim to provide a set of IP exploitation templates. It is designed to instigate discussion and draw attention to recent research and resources that make it possible to develop bespoke solutions. The aim is to achieve a better understanding of the environment and to enable collaborators on the Creative Industries Clusters Programme to make informed decisions.

The report is structured in 5 sections. Section 1 provides a brief introduction to different forms of intellectual property (including patents, trade marks, design rights, copyright & confidentiality). As copyright regulates much of the creative industry’s output, the report includes a crash course on copyright law, drawing on the resources of CopyrightUser.org, a guidance portal developed by CREATe research. Different types of copyright works are explained, the criteria for protection, the difference between authorship and ownership, how there are economic (linked to owner) and moral (linked to author) imperatives in the copyright system, and, finally, how licensing is used to exploit copyright works.

Section 2 focuses on the resurgence of creative reuse that appears to be a function of the digital environment. It is rare that new products or services do not touch on, be inspired by or adapt existing creative productions. There are opportunities within copyright law, due to the availability of public domain materials and limitations placed by law on the scope of copyright protection, but there are also real risks where exploitation becomes impossible without a careful understanding of joint creation and the need to obtain permissions.

Section 3 explains the current practice of collaborative agreements between the University sector and industry, focussing on the so-called Lambert approach, a toolkit of model agreements that has wide currency in science and technology collaborations. An important difficulty of the Lambert approach is the complexity and formality of the language used that seeks to provide legal clarity for future scenarios before the market potential of the collaboration can be assessed. In the creative industries, it is often necessary to revisit agreements at a later stage, typically once scalability becomes viable. Tying too many knots at the outset may provide legal assurance but also stifle the growth potential of the collaboration. Without concrete examples, it is difficult to envisage how IP arising from collaborative projects is translated into the real world.

Section 4 shares 4 case studies, each from a different creative sector and using a different R&D approach. First, the traditional Hollywood ‘Studio’ approach is presented as the paradigm for consolidating all IP in one production entity, providing maximum freedom for subsequent exploitation; secondly, a more mixed approach of using copyright material for audio-visual production with overlapping layers of different licences for different subject matter is explained; thirdly taking cues from a rapidly developing technology sector, product development over open source licensed artificial intelligence (AI) platforms is explored; and finally a case study from the galleries, libraries, archives and museums sector contrast different attitudes to the use of public domain materials.

The report concludes with Section 5 entitled ‘pitfalls and challenges’. This suggests a number of issues that decision makers should reflect on when seeking to manage IP in collaborative agreements:

– the difficulty of distinguishing background and foreground IP in creative projects, especially under conditions of iterative production involving users;

– the importance of trust in creative relationships and the need to devise contractual ownership agreements rather than relying on joint authorship provisions of the law;

– the ‘nobody knows’ characteristic of cultural production, where prediction of future success is elusive but potential windfalls are high (due to the ‘winner-take-all’ tendency of creative markets);

– the need to understand the use of options to collaborate under conditions of uncertainty, and the advantages of building future freedoms to operate into the R&D process;

– clarification of IP issues in augmented and virtual reality (AR/VR) which usually contain a wide range of potential subject matter, including technology and third party cultural materials;

– the temptation of micro-enterprises and SMEs in the creative sector to avoid engaging with IP, due to time, knowledge and financial pressures;

– an understanding of the ‘negative space’ under copyright law, where it may be difficult to draw the line between ideas and expressions, and where alternatives to enforcement may be needed, such as brand identity and first mover advantages;

– open access obligations that cover research outputs in the context of the UK Research Excellence Framework (REF);

– navigating and challenging the established culture of University technology transfer offices, shaped by a culture that often results in risk averse processes of managing and exploiting IP.

The radical nature of new R&D collaborations in the creative industries will require new approaches. There is a need for policy buy-in at the highest level from both research funders and collaborating Universities. Experimental collaborative models will not come risk free. Innovative and adaptive approaches, open and closed, exclusive and non-exclusive need to be encouraged. There can be no hiding in walled gardens.

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