The Business Use of Creative Expression by SMEs: Introduction to

Copyright Related Rights

&

Guriqbal Singh Jaiya Director, SMEs Division World Intellectual Property Organization (WIPO)

This Presentation

1 – What is Copyright?

2 – Why is Copyright relevant?

3 – How to Protect?

4 – How to Generate Income?

5 – Using Works Owned by Others

PART 1 WHAT IS COPYRIGHT ?

What is Copyright



Grants authors, composers, and other creators legal protection for their creations

(‘

works

’ )

literary and artistic



Gives ‘bundle’ of exclusive rights owners to control the use , which allow of their original works in number of ways and to be remunerated



Also provides ‘moral rights’ which protect the author’s reputation and integrity.

Copyright Works

Films Literary Dramatic Photographic Music Artistic

Copyright and Business

•

Computer programs

• Content on

websites

+ ‘look and feel’ •

Product catalogs

• Artwork and text on

product literature

Copyright and Business

•Artwork and text on

labels and packaging

•

Marketing and advertising materials

(on paper, billboards, websites, accounting forms)

Copyright and Business

• Sales training program captured on videocassette • Newsletters • Instruction sheets, operating manuals for machines, maintenance manuals • Technical drawings, diagrams, maps • Some types of databases

A Bundle of Exclusive Rights

Economic Rights

– Reproduce or make copies – Distribute to public – Sell, rent

*

, lend* – Display or perform to public – Adapt and translate – Make available on the Internet

Assignment or License Moral Rights

– Right of paternity: acknowledgement – Right of integrity: object against mutilation and/or distortion

Moral Rights cannot be transferred

* Generally applies only to certain types of works: Cinematographic works, musical

works, or computer programs.

What are Related Rights?

Rights of performers

• • • • • actors musicians singers dancers or generally people who perform

Rights of producers of sound recordings

(phonograms)

Rights of broadcasting organizations

in their recordings ( cassette recordings, compact discs, etc.) in their radio and television programs and in Internet broadcasts such as ‘podcasts’

Example, in the case of a

song

by Barry White …

Copyright

protects the

music of the composer

and the

words of the writer

, and ...

Related rights

would apply to ..

the

performances

of the musicians and singers who perform the song the

sound recording

of the producer in which the song is included

Can't Get Enough/Just Another Way to Say...

(1973/75,IMS Records) the

broadcast program

of the organization that produces the program containing the song

Copyright

•

Term of protection

: Generally speaking: - Life author + 50y - Exceptions •

Automatic

• Copyright subsists

worldwide

: Berne Convention

heirs So why register?

But national law applies

What is not protected?

•

Ideas or concepts

• E.g., instruction manual that describes system for brewing beer •

Facts or information

• Historical, news, scientific, biographical • E.g., biography •

Government works

• Statutes, judicial opinions, etc

What is not protected?

•

Names, titles, slogans, short phrases

• But advertising slogan may be protected under TM or UC • Artistic logo may be protected under CR Nike World Police and Fire Games, Québec

What is not protected?

•

Works of applied art ?

• Protection differs greatly from country to country • Overlap with industrial designs

• Sportman invents technology for better shock absorption for running shoes. • Advertises on his website. Describes in text what the technology is about.

• Competitor sees website and makes running shoes with the same absorption technology.

PART 2 Why is Copyright Relevant to Your Business?

1. Control of Commercial Exploitation Exclusivity

over the use of copyright protected works helps business to gain and maintain

competitive edge

in the marketplace

– computer programs – advertisements – instruction manuals – musical compositions – photographs – catalogs – video games – multimedia – commercial databases – technical drawings – films – magazines – architectural works – websites – sound recordings – TV and radio programs

2. Generate Income



Copyright is a tradeable asset

that may be owned, bought and sold the same as other types of property  sell copies of the work  sell copyright in the work  permit others to use your copyrighted work  Can be an important

long-term value

for your business if the work is of quality or is a commercial success.

3. Raise Funds

•

Companies that own copyright assets may be able to borrow money from a financial institution by using such a bundle of copyrights as a collateral.

E.g., portfolio of distribution rights to movies

4. Take action against infringers Copyright law enables to take legal action against anyone encroaching on the exclusive rights Remedies/Sanctions: - Stop infringement - Obtain monetary relief - Destruction of infringing works - Criminal sanctions

5. Use Works Owned by Others May enhance the value or efficiency of your business

- play music in restaurant, bar, retail shop - use computer software or databases created by others - illustrate your website or catalogs with photographs taken by others

Requires, in most cases, prior permission from the copyright owner

6. Effective Marketing and Advertising Enticing marketing or advertising materials requires use of creative text , artwork , logos , etc., which are all protected by copyright.

In the

digital environment

,

companies are turning to the Internet and use copyright protected works on their websites to get noticed , build loyalty and ultimately boost sales .

    

short movies online music interactive games contests other new marketing ploys

1961 Coca Cola original vintage advertisement. Features a Valentine's Day

Innovative branding

- with a sense of humour

• • Mouse characters started to have themes Bio 2002 in Toronto

Innovative

•

branding

- with a sense of humour

Bio 2003 Washington DC

Innovative branding

•

- with a sense of humour

Bio 2004 San Francisco

Innovative branding

•

- with a sense of humour

Transgenic Mouse Conference 2004 Nashville

Innovative branding

•

- with a sense of humour

2004 Marketing Tour Japan

Innovative branding

- with a sense of humour

• Bio 2005 Philadelphia

Innovative branding

- with a sense of humour

• Bio 2006 Chicago

•

Innovative advertising in scientific publications

Promoting viral delivery technology

Innovative advertising in scientific publications

• Spring special price promotion

PART 3 How to Maximize your Copyright Protection in Your Business’ Creations?

1. Prove ownership



Deposit or register your work with copyright office



Deposit copy with bank / lawyer



Send yourself copy in sealed envelope



Copyright notice



Standard Identification Numbering Systems

-International Standard Book Number (ISBN) -International Standard Recording Code (ISRC) -Etc.

2. Protect works in electronic form



Mouse-click contract



Mark with rights management information

- Label (copyright notice, warning label) - Digital Object Identifier - Time stamp - Digital watermark 

Technological protection measures

- Encryption - Access control or conditional access systems - Versions of lower quality

3. Ascertain ownership



Author ≠ owner

- But moral rights...



Work created by your employee

- Owner = employee - Owner = employer, automatic transfer - Owner = employer, assignment needed - Different rules for computer programs 

Commissioned work

- Re-use of commissioned material for the same or different purposes

CONTRACT

• Michal is employee in Thai restaurant “Sunset” • During lunch break: makes paintings • Who owns copyright?

• Owner of the restaurant asks Michal to create new logo for the restaurant.

• Who owns copyright?

• Owner of the restaurant asks external designer to create new logo for the restaurant.

• Who owns copyright?

PART 4 How to Get the Most out of Your Copyright in Your Business’ Creations?

Sell the work or sell copies of the work

Do you lose copyright?

Business’ activity Buyer’s interest Price License your economic rights

Exclusive Non-exclusive

Sell your copyright

‘assignment’

When should you consider licensing or selling your copyright over a work?

The exclusive rights

can be divided and subdivided and licensed or sold to others in just about any way you can imagine: — by territory — time — market segment — media — content, etc.

You can grant different licenses, to different persons or companies, at the same time.

Why should a business consider licensing?

•

Income

: Can generate lucrative fees and royalties •

New markets

: Allows business to enter into new product categories or in new geographical areas in a relatively risk-free and cost-effective way •

Marketing tool

: Increases the business’ exposure and recognition

Licensing Strategy



Define scope of activities permitted under the license as precisely as possible



Generally, better limited in scope

- To specific needs and interests of licensee - Non-exclusive license allows further opportunities 

Exclusive license or assignment

- If no alternative - If adequate price - Loss of all future income-earning potential

Licensing Strategy



Handle all aspects yourself

- standard terms and conditions - individually with every licensee 

Entrust administration of (some of) your rights to licensing agent/agency

- book publisher, record producer 

Collective Management Organization

Example of photographer Owner of copyright: has great power to define how his photos are used Important to consider range of possibilities to commercialize the photographs.

Possible to simultaneously grant various licenses for one photo: To different users For specific manners of exploitation For limited period of time In limited territory For specific purpose

CMOs

►

Per type of work and per country

- film, music, photography, reprography, television, visual arts ►

Core activities

• documentation of works of its members • licensing and collecting royalties • gathering reporting information on the use of the works • monitoring and auditing • distribution of royalties to its members

CMOs

►

Advantages

• intermediaries between users and owners • one-stop shop • collective bargaining • blanket license • license of material in digital form • cultural and social intiatives

PART 5 Using Works Owned by Others

When do you need permission? 1. Work is covered by copyright / related rights 2. Work is not in the public domain

Copyright protection period expired Work cannot be protected (e.g. Title) Owner has explicitly abandoned his rights

3. Planned exploitation implies use of rights granted by copyright / related rights 4.

Intended use is not covered by ‘fair use’, ‘fair dealing’, limitation, exception

Free uses or limitations

• personal use • quotations • parodies • criticism • use for teaching purposes • news reporting • scientific research • libraries • certain cases of reproduction

Holisticforgeworks.com

• Company that sells eggs. Buys painting for 10.000 USD. • Can it ...

– Use the painting as a logo?

– Scan the painting and use it to illustrate its website?

– Sell digital copies online with name of the company on it?

• You buy software for your office. Can you – – – – Make a back-up copy for office use?

Make a copy for home use?

Adapt the software to your business needs?

Use the software on multiple workstations?

How reduce risk of infringement? 1. Educate employees 2. Obtain written licenses/assignments, where needed, and ensure that staff are familiar with their scope 3. Mark apparatus that could be used to infringe copyright with a notice

Photocopiers CD and DVD burners Computers

4. Prohibit staff from downloading copyright protected material from the Internet on office computers without authorization

Thank You!

WIPO’s website for SMEs : www.wipo.int/sme

[email protected]