Intellectual Property - the genie is out of the bottle
“Information wants to be free” is one of the most misquoted slogans of the Digital Age.
It was first said in 1984 by Stewart Brand founder of The Well, one of the first online communities.
"On the one hand information wants to be expensive, because it's so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other."
Northern Ireland’s creative industries struggle to protect and exploit their Intellectual Property (IP), particularly at a time when ideas and work can be copied and distributed so easily.
Ian Wilkinson from Invest NI’s Technical Advisory Unit was speaking at an IP seminar on the protection of creative industries’ IP and the exploitation of business IP. “Northern Ireland is largely made up of small and micro businesses and the smaller they are the less importance they place on IP. Some think that IP is only for big businesses.”
Marice Cumber established Own-it.org in 2004 at the London College of Communication. Own-it provides creative practitioners and businesses with relevant knowledge, advice and support. “Nationally the creative industries have same value as the Construction industry. They contribute £60 billion a year to UK economy and equates to 7.3% and have grown at twice the rate of economy over past decade. She highlights the aspiration of the DCAL, Strategic Action Plan, Creative Industries, (October 2008) which wants to grow the sector here to 15% by 2011; nearly double in UK sector. However she points out, “77% of Belfast businesses have fewer than 10 employees. Belfast businesses are less export focused - 79% of their sales are domestic.
“Look at the creative industries and what they mean. It’s about individuality, ideas, innovation and the thinking that goes behind a product. And it’s about the intellectual property. What actually defines a creative industry is that is based on ideas.”
While UK creative businesses are competing in a global economy, 39% have no business plan, 33% with annual turnover of less than £1m have no financial goals.
“The government is now looking at the creative industries; they have now become a focus of government attention, because they’re growing and vibrant. That’s where the growth, excitement and money is and that’s all routed in innovation and at the core of that is intellectual property.”
Donald Clark is a director of Learn Direct, Caspian and the Brighton Arts Festival. He designed some of the first computer-based learning programmes in the early 1980s. He co-found Epic Group in 1986, now the UK's market leader in e-learning.
“You would have trouble describing many creative business as businesses sometimes and that’s where a lot of the market failure comes from. I think it’s terribly important in the creative world to get to grips with the sales and marketing and finance to make your business really work.”
The Own-it survey on Creatives and IP in 2005 showed that half of respondents believe their own work has been stolen. Most did nothing about it and only one in eight taking legal advice. A mere 4% took actual legal action.
Why were they not more assertive when their work was stolen? Marice explained that the barriers to IP engagement for creative businesses include ignorance accessibility to lawyers and cost. “There is no mechanism to challenge the culture or allow for IP development for small creative businesses.”
So while there are barriers to exploiting IP, there are also problems in protecting IP. Many younger businesses often use someone else’s ideas and developing them further or take some lines of code to put into their own work. There are legal options like Open Source and Creative Commons Licensing for people to use other peoples work, providing they follow specific agreements.
The Own-it survey showed that 80% of respondents have used someone else’s work in their own work without permission. Rory Campbell a lawyer from the media law specialists Forde Campbell LLP says copyright is under pressure. “It’s the changing nature of IT. Bluntly, everybody is now able to copy and distribute content instantaneously. Linked with that exponential development in IT is a change of public opinion. Also a misunderstanding; copying a CD onto your iPod breaks the law; it is format shifting. That is illegal. But people don’t really care about the law. The point is copyright is a law that was created to protect creative output and it has changed. When radio came on the scene and when television came on the scene it adapted. It’s about time it did again.”
Open Source is a strong theme running through digital creativity. “I regard certain types of Open Source as a total risk in this area” says Rory Campbell. “There are particular licences for types of open source code out there which – if you sign up to them and you and encode some open source code into your product, you are contractually committed, by the terms of that open source licence to distribute your code. You’ve got to expose the source code, you’ve got to expose the crown jewels, you’ve got to allow everyone to share it and pass it along in the future. And not enough people think about that.”
Marice Cumber put it this way “We almost think that Open Source is the Glastonbury of the creative industry; everyone wants to go there, but sometimes when you go there, it’s raining and you won’t have such a good time after all. They are trading in a very flexible way – everyone is up for sharing. If that’s what your business is based on are you getting revenue return? Is the business modal there, and that’s something that needs to be looked at.”
Invest NI offers several levels of support to any business that needs to protect and exploit their IP including access to academic work on both sides of the border and expert in-house technical support.
But the abuse of IP is not just about small businesses “borrowing” other people’s work or teenagers downloading music. Big businesses may leave small businesses vulnerable. “I’ve grown to dislike big publishers over the years, because they tend to treat small companies with contempt. It’s not just doing good legal work with them – try chasing the money!” according to Donald Clark. His advice is “Make sure you’ve got them really pinned down on the audits and the money they’re earning and they owe you. People forget this in the rush to market and exhilaration of producing a marvellous piece of music or whatever you forget that you have to chase the money – they won’t come up with it voluntarily. Your cash flow will be critical - it won’t matter to them if you go under or not.”
“The realpolitik of IP is that you’ve got to live with this now. The genie is out of the bottle – the digital copies are out there. The music, movie and TV world are fighting a rear guard action. They are largely a bunch of managers in the analogue world trying to cope with the digital future.”