The term ‘intellectual property’ or ‘IP’ refers to the property rights that arise in the outcomes of creative and intellectual processes, such as artworks, designs and inventions. These rights are legal tools that practitioners can use to protect their work from unauthorised use, build and protect their reputation or brand, and generate income. It is crucial that all practitioners understand how intellectual property applies to creative work so that they can protect their own interests and avoid infringing the rights of others.
8.1.1 Types of intellectual property
Some types of intellectual property, such as copyright and moral rights, apply automatically from the time of creation and to almost all forms of creative work. Other types, such as designs, patents, trade marks and trade secrets – also known as ‘industrial property’ – are created by a practitioner’s additional activity, such as use or secrecy, or applying for registration or publication. These are usually used to support commercial activity.
Copyright refers to a set of rights relating to the reproduction, publication or communication of the work that can be sold or licensed. Moral rights are the right to be acknowledged as the creator of the work, and the right to prevent the work from being altered without permission.
Depending on their practice, a practitioner may use only a few forms of intellectual property or the entire suite. For example, a visual artist working in the medium of painting and represented by a gallery might rely almost entirely on copyright and moral rights. Whereas an artist with a new media practice creating an immersive environment might develop innovative software with commercial and/or therapeutic applications and might choose to patent it, thereby sharing the technological advance in exchange for the right to prevent others from using it.
A practitioner entering into an arrangement with a gallery for a range of merchandise would need to consider copyright and moral rights, as well as whether it would be necessary to register the designs of the products as a means of preventing others selling products that look the same; whether they need to register the word or phrase under which it is marketed as a trade mark; and also how they keep their technical and business information confidential as they work with others. A designer creating multiples should also consider these factors; and a practitioner making works for international distribution, whether on an industrial scale or one-off pieces for sale via an online marketplace, should consider these issues with an international perspective.
All practitioners working or exhibiting internationally, or presenting their work online, should understand that IP law varies from country to country, and also that IP extends to the way that you promote your product. It is critical therefore that visual artists, designers and craft practitioners understand the various forms of intellectual property, how they might apply to their practice, and when to seek professional advice. For that reason, each of the forms of intellectual property is introduced in the Code, with users then referred to more extensive discussion externally.
8.1.2 The purpose and context of IP
The purpose of Intellectual Property protection is to encourage creativity and innovation by allowing people who invest their time creating new works and products to prevent their work from being copied by others and to generate income from them. The patents system is also designed to build the body of publicly available knowledge. The World Intellectual Property Organization (WIPO) states that Intellectual Property ‘provides the legal framework of ethical conduct to enable orderly using or sharing of knowledge’ (World Intellectual Property Organization, Marketing Crafts and Visual Arts: The Role of Intellectual Property. A Practical Guide, ITC/WIPO, Geneva, 2003, p. 15). Some argue however, that creativity and the creative industries (if not capitalism) are better served by freer use of others’ work.
Practitioners need to be aware of and respectful of other practitioners’ rights and also need to have a strategy to protect their own. For those seeking to earn money from their practice, it makes sense to develop an intellectual property strategy within their business plan. WIPO suggests integrating IP strategy throughout all stages of the business cycle – setting out an extensive methodology for craft and design practitioners and identifying smart tactics for visual artists, such as researching the IP protection for their works in any country to which they invited.
However, practitioners can observe others’ rights and protect their own even if they are not in full agreement with the system. ‘Copyleft’ is an organisation, symbol and system by which creators permit others to reproduce, adapt or distribute their work provided that the user then allows others to reproduce, adapt or distribute the resulting work on the same basis. The organisation Creative Commons has published a number of free agreements that creators can use to provide blanket permission for some uses of their work at the same time as reserving others.
Practitioners conscious of the influence of others on their work or engaging in the artistic strategy of appropriation should read the Arts Law Centre of Australia Factsheet Appropriation Art: An overview of copyright and consumer protection for artists.