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Institute for Capitalising on Creativity

Intellectual Property Management

Successful strategies for the management, commercialization and exploitation of Intellectual Property (IP) are critical to every creative organisation, regardless of its size or sector. The aim of this research during 2013-14 was to understand which strategies are working best for Scotland's creative industries. Findings take several forms:

  • a free book of practitioners' IP cases
  • blogs and videos from a series of UP Your IP workshops
  • a seminar on smart exporting

More details on the ‌Knowledge Transfer Partnership with Creative Scotland can be found below.

Front cover of IP book Tales from the Drawing Board11-10-2015:  Tales from the Drawing Board book launched

A book published by ICC and Creative Scotland details producers’ efforts to manage and benefit from their Intellectual Property (IP).

Free download:
Tales from the Drawing Board: IP wisdom and woes from Scotland’s creative industries

In this collection of cases, readers can learn from the IP experiences of workers in Computer Games, Dance & Theatre, Fashion & Product Design, Film & Television, and Music & Publishing. Each section addresses daily issues of IP management, such as development and early research, documenting work for protection, partnerships and collaborative working, licensing agreements, developing brand strategy, self-publishing and digital rights management, and handling claims of infringement. Legal comments from creative industries specialist solicitor Philip Hannay address the issues raised.

The book was launched on 10 November 2015 during a roadshow of the Creative Industries Federation (CIF). Tales from the Drawing Board is the result of a Knowledge Transfer Partnership between ICC and Creative Scotland. It received funding from the Economic & Social Research Council, Innovate UKCreative Scotland National Lottery and the Centre for Copyright and New Business Models in the Creative Economy (CREATe).

09-25-2014: UP Your IP Workshops

Up your IP seminar ICC held three workshops providing strategic and legal advice on everyday IP issues. Each event focussed on a different sector. Read more in our blogs below. Photo: Colin Tennant

Design: 16 June 2014
Digital and Performing Arts: 11 Sept 2014
Games: 25 September 2014

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Blog: 'Make your assets sweaty'

Games sector UP Your IP workshop 25-10-2014

This wasn’t the typical language we’ve been hearing during our researching of strategies for managing and exploiting IP in Scotland’s creative industries. Our work with Creative Scotland has revealed a common set of challenges—such as the need to recognise one’s IP, to know when to share it or to protect it, and how.

But from a recent workshop on IP in the Scottish games industry, the call to sweatiness –to make intellectual properties ooze with revenue potential—has, er, stuck with us.

The phrase belongs to David Wightman, whose experience with guiding Another Visitor and other media companies in the UK, US and Asia enabled him to advise games companies to operate in “stealth mode”, to be ambitious about their goals and aggressive about their management. Sweaty assets fit this strategy efficiently, because they deliver a greater return on one’s developed IP.

“Make one product and get three out of it, with different skins, for different markets”, David counselled, or consider “reverse engineering—how to get more money from your existing products.”

David spoke during Upping Your Game, the third in a series of IP workshops with creative industries practitioners organised by ICC and Creative Scotland, with additional financial support from the RCUK Centry for Copyright and New Business Models (CREATe). The event was hosted in Dundee by Abertay University Business Development Team on September 25, and attracted 48 games designers, company managers and other sector representatives. In addition, the event was live-streamed to the National Virtual Incubator node at Strathclyde University.

As with Wightman’s appeal, a dominant theme of the afternoon’s discussions was the need for Scotland’s games companies to beef up their business strategies, particularly in relation to exploiting IP. The idea echoes those of our previous IP workshops held for Designers and Theatre.

“In Scotland, we are great at creating IP but weak at leveraging IP”, said Colin Anderson, Managing Director at Denki. He joined Marc Williamson, Director of Development at Tag Games, in discussing exploitation models that have worked for their companies, for example, partnering other brands to feature their products as toys or player assets within games.

However Colin emphasised “there’s no single answer” to how to best exploit IP—the solutions depend on market conditions and potential partners’ positions. “You need to be flexible to the conditions and to aggressively pursue opportunities”, he said, and “be aware that so much of how you go on to use IP is beyond your control.”

Effectively managing IP requires a different way of thinking to games development, according to Paul Durrant, Director of Business Development at Abertay University. “There is a different mind-set to financial thinking—you must consider business modelling, investment, capital, and so on. But nobody gets into the games industry to run a business—they get in to make games”, Paul said. “So the need to be a business is a rude awakening.”

He further suggested it may be time to adjust the “agile working” strategy that pervades the industry, in which content comes first; now the focus needs to include business and IP.

In common with other creative sectors, Scottish games companies are typically micro-sized, said Brian Baglow, Director of Scottish Games Network, and employing specialist IP managers often is a luxury. Colin reported mixed results at Denki with bringing in commercial managers from outside the industry. So existing company leaders need to develop better IP skills and priorities, to lead the high-level commercial strategies that the industry requires.

Currently, Marc observed, “business is too often an afterthought, and we end up giving away too much”. Colin agreed: “The industry is at a great stage, where bedroom games programming is becoming very easy, like forming a band, but our knowledge of IP is lacking”.

Another theme of the workshop focussed on financing for games projects, with suggestions offered by Morgan Petrie, Portfolio Manager for Technology, Digital Media and Market Development at Creative Scotland; Joyce Matthew, Account Manager for Scottish Enterprise; and Paul Durrant.

Paul urged that games companies need to be smarter about accessing funding, especially public money such as that available from Scottish Enterprise and Creative Scotland, which expects projects to be of public benefit. “You need to consider what you’re giving in return for the investment or grant. Is it a society benefit? Jobs growth?”

David Gourlay, partner with MacRoberts LLP, described the basic types of IP protection –including copyrights, trademarks, designs patents of know-how/intellectual assets, confidential information, and moral rights--as essential building blocks for businesses’  financial strategies.  “To be investor-ready, you need to be able to answer questions about having contracts and so on that clarify ownership of your IP. Investors love to see registered IP—they get a warm glow when they see that.”

Inevitably as companies strengthen their business strategies they will find that the resources required to manage IP can detract from those that could be ploughed into building the products --the “trade-off of time and money—IP housekeeping vs asset development” as Paul called it. He warned: “Be prepared for tough choices.”

In the final section of the workshop, contributors considered how the games industry can engage with other sectors and the global industry to help secure a healthy future for their businesses.

One development area is in interdisciplinary working, collaborating with other industries such as theatre, design, health, and education. Malath Abbas’s company, Quartic Llama, recently collected a Digital Innovation award from Arts & Business Scotland for its collaboration with National Theatre of Scotland. He admitted that stepping outside one’s comfort zone can be difficult: “There is a lack of trust in others. How do you start talking with people you don’t know?” he said.  “But you have to establish communications early. Talk a lot, and honestly. Educate partners about what you can do.”

Other contributors to the workshop panels were Alan Dobson, Business Development Officer for Dundee City Council; Prof Gregor White of the School of Arts, Media & Computer Games at Abertay University; and Simon Meek, Founder and Director of The Secret Experiment.

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Blog: Digital Dialogues with Theatre

Digital and Performing Arts sector UP Your IP workshop 28-10-2014

A recent IP workshop with 45 members of the Federation of Scottish Theatres (FST) revealed the complexity of IP issues to be managed when digital technologies are incorporated into an established, multi-faceted industry such as theatre. Handled effectively however digital media offer enormous potential for theatre companies, regardless of size, to reach new audiences worldwide and to enhance demand for live performances.

Digital Dialogues
was hosted 9 September 2014 by ICC in collaboration with FST, with additional funding from CREATe [RCUK Centre for Copyright and New Business Models in the Creative Economy]. The event focussed on the implications for IP brought about by theatres’ increasing adoption of digital activities such as downloading, streaming and marketing, and their impact on specific industry participants including producers, writers, performers, composers, marketers, and audiences.

While the digital era is yet relatively new, there are leaders such as Digital Theatre co-founder Robert Delamere and  freelance producer and writer Lesley-Anne Rose who have quickly built expertise in working with and exploiting the possibilities, while legal specialists such as David Gourlay of MacRoberts LLP and Sheona Burrow and Philip Hannay of Cloch Solicitors have developed practices able to support the unique challenges of IP rights stemming from digital theatre and marketing.

In introducing Delamere and Rose, ICC researcher Eilidh Young observed that theatre producers typically juggle a variety of IP rights issues, a logical consequence of their coordinating role among performers, writers, musicians, technicians and others. The finding is one of several emerging from research ICC is conducting with Creative Scotland and CREATe on the management and exploitation of IP across Scotland’s creative industries.

Indeed, Delamere has established a practice in which contracts with authors and actors, covering all possible uses of IP stemming from Digital Theatre’s live-streaming, online and cinema film broadcasting and educational recordings, are signed well in advance of any new project. Such negotiations are aided by research Digital Theatre conducted in 2009, its first year of operations, with Equity and BECTU (Broadcasting Entertainment Cinematograph and Theatre Union) to determine an acceptable legal framework for handling IP.  Now Delamere finds convincing creatives to participate in Digital Theatre productions is easier because they know their IP is secure within the contracts. Likewise, theatre agents and unions are becoming more knowledgeable about digital media and are now more receptive to working with it.

Such care with IP is helping Digital Theatre meet its primary aim, of providing a ‘global auditorium’ which makes theatre accessible to all ages, societies and regions. Digitaltheatre.com offers 35 HD films online, attracting 75,000 visitors monthly, and its YouTube channel has been seen by 1.25m viewers. The company also offers Digital Theatre Plus, a programme of rehearsal and backstage recordings, to support theatre education for 1.8m students in 36 countries, and its Screenings programme plays digital film in 1000 cinemas in 25 countries.

Rose spoke from her experience of working with theatre company Stellar Quines, which received Ambition Scotland funding to develop digital capacity through live-streaming, creating a 3-D digital recording of a pre-existing production—Ana--and producing a film--The List--for commercial distribution. The projects, which have attracted audiences across Scotland, Canada, and Australia, taught the company much about the challenges of filming in 3-D and about audience preferences for filmed theatre presentation.

Rose said the projects demonstrated that digital technology works best when it is embedded into projects from the start, and into the way a company already works, rather than being added on during a production. As with Digital Theatre, Stellar Quines found it important to secure IP rights early and to anticipate all possible uses of the digital IP generated, including for marketing, and to consider the media platforms where it will be used and the length of time it may be distributed. For the film project, she had found it easy to secure actors’ rights by using both stage and amended film contracts, rather than issuing new, all-encompassing contracts. However with writers, artists, and for pre-recorded music, the company had to create IP contracts from scratch. Rose recommended commissioning new music when possible as permissions for this are easier to negotiate than for pre-recorded music.

Both producers remarked on the potential for digital to continue sparking innovation in theatre, and defended the technology against fears that it could replace demand for live performance, noting that it can work complementarily and help reach new audiences that would not normally attend the theatre. Indeed Digital Theatre found that 70% of its online viewers said the experience made them want to go to the theatre more, or to participate in related activities such as live educational workshops. Such opinions echo those studied by NESTA research on Royal National Theatre live broadcasts which found the events led to larger, rather than smaller, audiences at the theatre itself.

During the workshop’s legal session, David Gourlay considered the range of IP permissions required for each participant in a production, beginning with the author of the original work, who must give the right to communicate it to the public. With creatives, there is a range of non-property, recording, property, and moral rights to be considered, and Gourlay echoed Delamere and Rose’s points that contracts should be agreed early and broadly, anticipating future permissions that might be required. The filming of sets, designs and costumes requires consent from freelance designers, Gourlay noted, and this should be recorded in written contracts for streaming and downloading projects. Even audience members’ consent to participate must be gained when the production is of an interactive nature and footage will be distributed, even if done so informally via social media. Gathering such consent requires advance planning, for example, for asking audiences to sign a consent forms on the way into a theatre or by making consent a requirement during the online purchase process.

Seona Burrow, a solicitor with Cloch and PhD student with CREATe, considered legal issues which must be considered by companies conducting digital marketing. Chief among these is the ownership of and permission to use film, sound, and other content, and the contracts needed to address these rights. As with the theatre production itself, digital marketing of the work requires forethought as to all potential activities and covering these in writing early in the production, she advised. Marketing also requires compliance with essential codes and guidelines such as the Advertising Standards Codes, Control of Misleading Advertisements (Amendment) Regulations 2000, and Information Commissioner’s Office guidance. Managed effectively, brand and product marketing contribute significantly to theatre companies’ ability to be recognised by audiences, Delamere and Rose said, enabling them to compete on a global stage with other, often larger providers of digital theatre material.

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Blog: Act Early and Strategically

Design Sector UP Your IP workshop 23-07-14

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 held in June 2014 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, will focus on IP for Theatre organisations, and a third event, on September 25, will address IP for Digital Collaborations. In 2015, the partners will release a suite of guidebooks addressing IP in Scotland’s Creative Industries, based on research conducted during a Knowledge Transfer Partnership between ICC and Creative Scotland. For details contact coca@st-andrews.ac.uk

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 ipo.gov.uk.

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: https://www.gov.uk/government/publications/changes-to-design-law-business-guidance

  • The Intellectual Assets Team of Scottish Enterprise provides a variety of services and online resources.

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Eilidh YoungKnowledge Transfer Partnership with Creative Scotland, 2012-2014

Knowledge Transfer Associate: Eilidh Young

Successful strategies for the management, commercialization and exploitation of Intellectual Property (IP) are critical to every creative organisation, whether it is a freelancer, micro business, SME, publisher, distributor, or retailer.

IP management offers a means of appropriating the returns on organisations’ creative output, by preventing the unauthorised use of their goods and services. Without an IP strategy, strategic difficulties arise when content creators make management decisions unaware that innovation (creative content) is separate from the IP that protects it and determines its ownership. Further challenges are created by the fast pace of technological advances, changes in consumer behaviour and the erosion of the enforcement of copyright.

As traditional business models seek to adapt to these new realities, IP management strategies also must evolve to address the broad range of critical issues: Digital Rights Management, licensing, direct sales, alternative revenue streams, Creative Commons, branding, and formal IP rights (patents, trademarks, copyright, trade secrets and design rights).

This Knowledge Transfer Project explored strategies in use and identified best practices, in order to support practitioners across Scotland. Working full-time at Creative Scotland’s Edinburgh and Glasgow offices, KT Associate Eilidh Young worked with Creative Scotland, its clients, and academia to examine the IP situation in a broad range of creative industries, (Fashion, Advertising, Architecture, Design, Games, Film, TV, Radio, Publishing, and Music), focussing in particular on Design and Publishing Rights. She analysed the issues and obstacles to IP exploitation and commercialization, gathering examples of both innovative and failing IP strategies.

Eilidh’s project resulted in descriptions of best practice models, workshops for creative industry practitioners, and recommendations for Creative Scotland’s own investment programme in the creative industries.

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Institute for Capitalising on Creativity
E: coca@st-andrews.ac.uk
T: +44(0)1334 462808