The Business Use of Creative Expression by SMEs:

Introduction to Copyright & Related Rights

Guriqbal Singh JaiyaGuriqbal Singh JaiyaDirector,Director, SMEs Division

World Intellectual Property Organization (WIPO)

This PresentationThis 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 1PART 1

WHAT IS COPYRIGHT ?WHAT IS COPYRIGHT ?

What is Copyright

Grants authors, composers, and other creators legal protection for their literary and artistic creations (‘works’)

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

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

LiteraryLiteraryFilms

Dramatic

Music

Photographic

Artistic

Copyright Works

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

Moral Rights

– Right of paternity: acknowledgement

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

* Generally applies only to certain types of works: Cinematographic works, musical works, or computer programs.

Assignment or License

Moral Rights cannot be transferred

What are Related Rights?

Rights of broadcasting organizations

in their radio and television programs and in Internet broadcasts such as ‘podcasts’

Rights of producers of

sound recordings

(phonograms)

in their recordings (cassette recordings, compact discs, etc.)

Rights of

performers

• actors• musicians• singers • dancers

• or generally people who perform

Example, in the case of a songsong by Barry WhiteBarry White …

CopyrightCopyright protects the music of the composer and the words of the writer, and ...

Related rightsRelated rights would apply to ..

Can't Get Enough/Just Another Way to Say...(1973/75,IMS Records)

the performances of the musicians and singers who perform the song

the sound recording of the producer in which the song is included

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 2PART 2

Why is Copyright Relevant Why is Copyright Relevant to Your Business?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 – commercial databases – advertisements – technical drawings– instruction manuals – films– musical compositions – magazines– photographs – architectural works – catalogs – websites – video games – sound recordings

– multimedia – TV and radio programs

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.

2. Generate Income

• 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

3. Raise Funds

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

4. Take action against infringers

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

5. Use Works Owned by Others

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 3PART 3

How to Maximize your How to Maximize your Copyright Protection Copyright Protection

in Your Business’ in Your Business’ Creations?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 4PART 4

How to Get the Most out of How to Get the Most out of Your Copyright Your Copyright

in Your Business’ in Your Business’ Creations?Creations?

Sell the work or sell copies of the work

Do you lose copyright?

License your economic rights

Exclusive

Non-exclusive

Sell your copyright

‘assignment’

Business’ activity

Buyer’s interest

Price

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.

• 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

Why should a business consider licensing?

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

Owner of copyright: has great power to define how his photos are used

Important to consider range of possibilities to commercialize the photographs.

Example of photographer

Possible to simultaneously grant various licenses for one photo:

To different

usersFor specific manners of exploitation

For limited period of time

For specific purpose

In limited

territory

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 5PART 5

Using Works Using Works Owned by OthersOwned 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

• 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?

Holisticforgeworks.com

• 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

Guriqbal.jaiya@wipo.int