|St Andrews from St Rule's Tower|
Author Peter Gordon
Creative Commons Licence
The Department for Culture, Media and Sport refers collectively to the following industries as "the creative industriels":
- Advertising and marketing
- Product design, graphic design and fashion design
- Film, TV, video, radio and photography
- IT, software, video games and computer services
- Publishing and translation
- Museums, galleries and libraries
- Music, performing arts, visual arts and cultural education
As the creative sector is an important part of the British economy I am pleased to see that my alma mater has instituted The Institute for Capitalising on Creativity ("ICC") in conjunction with Abertay University, Duncan of Jordanstone College of Art & Design and the Royal Conservatoire of Scotland which I happened to mention in my dance blog Terpsichore this morning. The ICC describes itself on the home page of its website as "a multi-disciplinary team of researchers and educators who apply their skills to the management challenges of one of the fastest growing economic sectors, the Creative Industries." Its work includes carrying out research which culminated in the publication of Creative Industries Scotland:Capitalising on CreativityReport on ESRC grant RES 187-24-0014 , post-graduate education and various services to business that include holding events and publishing.
One of the ICC's works that caught my attention over this bank holiday weekend was Tales from theDrawing Board:IP wisdom and woes fromScotland’s creative industries by Melinda Grewar, Barbara Townley, and Eilidh Young With legal observations form Philip Hannay of Cloch Solicitors in Glasgow. This work is a series of interviews with various business owners in computer games, dance and theatre, fashion and product design, film and television and music and publishing with a page or two of commentary by Mr Hannay at the end of each section. It is well written and as it turned out quite compelling holiday reading.
Mr Hannay's comments are very interesting and perceptive though I can't agree with everything he says. For instance, in a comment on Polybius Games, a computer games developer that had created an ingenious product for young hotel guests, carried out its own enquiries as to the sort of legal protection that it needed for its intellectual assets and registered its own trade mark, Mr Hannay wrote:
"The case study of Polybius Games illustrates the first dilemma experienced by many early stage ventures over whether to action professional IP advice, which can form a significant proportion of an often very limited budget. While there is much to be said for the streamlined Gov.UK websites, user friendly UK-IPO staff, and bounty of free online resources on offer, a DIY approach may not only backfire on IP strategy by absorbing critical creative and management time – thus eating away at any first mover advantage – but an insufficient rights specification, or worst of all the forfeit of IPR on successful challenge, plus the absence of a professional representative on record can detract massively from the maximisation of IP value. There is no substitute for experience. In truth, cost is often not the actual detraction from taking professional advice or instructing legal assistance, cash flow is."I may have missed something but it seems to me that Polybius got its legal protection just about right without incurring professional fees.
Other interesting chapters include one by Angharad McLaren Textiles who was accused of infringing one of her own designs. She had not registered the design but someone else had and she received a letter before claim from solicitors acting for the registered proprietor just before she was due to display the design at an exhibition. Fortunately, she had an audit trail of her creation which would have invalidated the registration and she was able to persuade the complainant's lawyers to think again. I have had to advise in similar cases like that arise because there is no substantive examination of design registration applications in this country or indeed the European Union as a whole. As I said in my case note on the Trunki case (see Supreme Court upholds Court of Appeal in Trunki 10 March 2016):
"It is far too easy to register a design in this country and the rest of the EU as there is no substantial examination of applications by the IPO or OHIM with the result that there is nothing to stop unmeritorious designs appearing on the register. One of the very few things that could be said for Brexit is that we would no longer be bound by the Community Design Regulation (Council Regulation (EC) No 6/2002 of 12 December 2001on Community designs (OJ EC No L 3 of 5.1.2002, p. 1) and Parliament would be free to repeal those amendments to the Registered Designs Act 1949 that were required by the Design Directive (Directive 98/71/EC of the European Parliament and of the Council of 13 October 1998 on the legal protection of designs OJ L 289 , 28/10/1998 P. 28 - 35). It would be an opportunity to replace our law with something along the lines of the American design patent except that the public should have the added protection of a thorough prior art search by the Registry and an opportunity to third parties to oppose the application before it is granted."As I am something of a dance fan and still take ballet classes several times a week nearly half a century after my first plié I was gratified to see that two of the articles were on David Hughes Dance, "a small to middling company" based in Edinburgh and A Curious Seed about choreographer Christine Devaney.
If anyone wants to discuss this article or legal protection for creative output in general he or she should not hesitate to call me during office hours on 020 7404 5252 or send me a message through my contact form.