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Copyleft in Latinamerica(II): Creative Industries

FACTSHEET

IMPORTANT ISSUES

Why is COPYLEFT useful for creative industry SMEs?

What type of licence should I choose?A. SoftwareB. Other creative industries

How can I apply for a COPYLEFT license?

Related links & additional information

Glossary

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“Creative industry” SMEs can benefit from further opportunities by using this licensing system, since they tend to operate in an open innovation, crowdfunding, digital dissemination environment.

Most of these SMEs use or consume goods protected by copyright (catalogues, software, photos, designs, etc.), the use of which is subject to license payment. Moreover, they also produce works that are protected by copyright (audiovisual works, books, software, sculptures, web designs, etc.), from which they receive or may receive royalties.

For instance, a Web Design Studio will be a software consumer. If this is your case, you may make a profit from efficiency gains due to savings on licensing costs and the use of open standards and collaborative models, such as outsourcing with open licence contracts...

On the other hand, any Architecture Studio, scriptwriter, fashion designer or publicist is considered as a producer of copyright-protected material. In this case, the decision to use COPYLEFT licences will depend on the kind of service or product offered on the market by the company. It should be borne in mind that COPYLEFT does not entail renouncing economic benefits.

As a software consumer/producer SME, your company could be more efficient by also using products subject to

COPYLEFT licences.

1. Why is COPYLEFT useful for creative industry SMEs?

The open innovation environment is suitable for using COPYLEFT licences as they enable protecting and sharing data for mutual benefit.

TIPS and WATCH-OUTS!

The best option to avoid lack of liabilities is to implement the COPYLEFT-based software through a professional consultant or implementer and to include a liability clause within the contract.

TIPS and WATCH-OUTS!

The best option to avoid lack of liabilities is to implement the COPYLEFT-based software through a professional consultant or implementer and to include a liability clause within the contract.

Moreover, it is advisable for SMEs to familiarise themselves with this type of licenses, especially if they are going to deal with public Administrations in Latin America countries or Chile.

The legal practice of using COPYLEFT licences to manage copyright in the Latin America is recognised by the different regulatory bodies by means of legal authorisations to license works such as software or by means of principles and rules that govern the use of FOSS by the State.

COPYLEFT In LATInAMErICA( I I ) : CrEATIvE InDUSTrIES1

Open innovation cooperative environments are an alternative for SMEs to base their r&D strategy since them allow SMEs to build relevant knowledge for the products and services development, through the cooperation of external professionals and entities.

Using COPYLEFT licenses enables the exchange of information with the appropriate bodies while reducing costs, building synergies, accelerating the achievement of successful results and enhancing the practical application. A clear example is the use of databases in intercompany collaboration.

Enterprises may benefit from using free software that allows innovation and interaction between developers. These programmes provide “technological independence”, as in the case of a company stopping to develop a computer programme: other community members may be able to take over and develop it further. An example of such a collaborative development is Firefox.

On the other hand, the use of COPYLEFT software also entails certain risks in which concerns to individual liability.

E.g Considering that the development of a COPYLEFT software use to involve lots of software developers, who will be responsible of a software malfunctioning?

COPYLEFT In LATInAMErICA( I I ) : CrEATIvE InDUSTrIES 2

2. What type of license should I choose?

The SMEs business models, as well as the industry in which the activity is carried out mainly determine the choice of the type of license. It would be also necessary to determine whether the SMEs will use the licensed work as a consumer or as a producer.

Finally, it will be necessary to assess the purpose of the license according to the needs and priorities of the company.

Further information about the different types of COPYLEFT licen-ses can be found in our FACTSHEET: COPYLEFT In LATIn AMErICA (I): InTrODUCTIOn, available in the Latin America IPr SME Help-desk website: www.latinamerica-ipr-helpdesk.eu.

Before making the choice of using a specific COPYLEFT license, you should take into account:

• Your business model

• The industry in which the activity is carried out

• The nature of use: consumer or producer

• Type of license depending on the function and purpose

TIPS and WATCH-OUTS!

In case you need tailored advise about what type of COPYLEFT license do you need or how to use, contact us! Latin America IPr SME Helpdesk offers confidential, free of charge first-line support on Intellectual Property rights. Further information can be found in our website www.latinamerica-ipr-helpdesk.eu.

In Brazil, the use of open software is compulsory by law for public administrations, and they have had a Creative Com-mons (CC) license on the State webpage from 2004 to 2011. In Chile, the Government uses the CC license on its webpage.

The public buying system created a Framework Agreement for the development and maintenance of software in 2010. This Framework Agreement states that software developed for the State must be COPYLEFT-licensed. A law encouraging the progressive and gradual use of freeware by the State is being drafted in Argentina.

In Paraguay (2011) there was a great project aimed to inte-grate freeware in the State administration, which is current-ly on hold. In Uruguay, the purchase of freeware licenses is given preferential status by law. In case private software is chosen, solid reasons must be provided.

Furthermore, the use of Creative Commons licenses by the State in public bodies has been in a process of development since 2012. The same applies in venezuela, where prior au-thorisation is required for the use of private software in the Administration. regarding CC, venezuelan government has been coordinating the process to adjust these licences to the local legislation since 2010.

RELEVANT FACTS

The national regulations of all these countries are harmonised with the copyright protection system (‘all rights reserved’), and the express authorisation of the holder is necessary for their use.

All these countries are parties to the Berne Convention. Each country is competent for granting and accepting the use of these licences in the Public Administration concerning copyright protected works.

Some examples of the use of this type of licences are the use of websites in CC format or materials edited by the State (books,

videos, etc.) and licences for the use of open source software.

A. Software

As for the software exploitation, you may choose between paid licenses or free and open software licenses. Both of them have advantages and disadvantages.

If licenses’ sale is your business, COPYLEFT provides less possibilities for your business model, unless you opt to sacrifice part of the revenues to make a greater overall profit, and, at the same time, decide to keep some rights reserved and waive others by distinguishing products and combining licenses.

Freemium models, as AVG Antivirus, prove that a combination of COPYLEFT and Copyright is, sometimes, more profitable than opting for one of them exclusively. As for users, COPYLEFT licensed software, could be totally free or not. Moreover, they, usually imply computer consultancies’ costs, which in the case of copyright licenses are normally included within the licenses payment.

For software users, it is very useful to use COPYLEFT licenses authorising software modifications, which allows making adaptations without having to hire a specific technical service or acquiring licenses packages predesigned by the producer, as it happens with software protected by traditional means.

Therefore, users will enjoy more freedom to choose programmers and maintenance or software suppliers. The main disadvantages

of the COPYLEFT model for users are that a higher basic technical knowledge is required and some incompatibility issues with proprietary software (office automation) and operative systems. Example: Microsoft Word may have incompatibilities when executed from Linux.

COPYLEFT licenses do not mean lack of protection and play a marketing role. They also facilitate the copyright administration and provide distinctiveness in the market.

TIPS and WATCH-OUTS!

B. Other creative industries

If the purpose of the author is to be known by the widest possible audience, COPYLEFT is the most appropriate license for him/her, because it would allow to broadcast his/her work on the Internet to a global audience.

There are a number of SMEs in the music industry that would rather use COPYLEFT in order to broadcast CDs and songs, while the profits are generated within the rest business lines such as events organization and promotion or merchandising.

In the case of start-up SMEs, both in publishing and music industry, the combination of COPYLEFT licenses with crowdfunding systems has become a successful way of financing.

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One of the most popular online music magazines, “innerviews”, based its dissemination model in Creative Commons COPYLEFT Licenses.

The Latin America IPR SME Helpdesk may guide you to determine your IPRs with no charge and under the strictest confidentiality. Contact our Helpline service (helpline@latinamerica-

ipr-helpdesk.eu and you will be answered within 3 working days.

• When a change of the type of license is allowed, those who have already accessed to the work will keep the rights in force at the time of first access.

• The work´s main distribution channel (e-commerce, sto-re, etc.) must be taken into account.

• If the work happens to have several authors, you should check if you will need a unique license, or one for each author. Please use our helpline for case-by-case advice.

• Assess the level of protection and the level of dissemi-nation that you wish.

• Decide whether you want to allow third parties to copy, disseminate, display, and perform derivative works ba-sed on your work.

• You should fully understand the scope of your rights in order to efficiently protect your creations.

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Examples of such financing strategy are the musician that offers some songs under a COPYLEFT license on his/her web page and simultaneously launch a crowdfunding campaign to record an album, or online magazines that offer their contents under COPYLEFT but use crowdfunding to get financing for publish their special paper editions or yearbooks.

Moreover, using COPYLEFT as a way of distribution happens to be a powerful strategic tool, given that it tends to create customer/user involvement.

That allows the company to improve his/her customer knowledge, to discover potential business niches and increases customer loyalty, more than in other marketing model.

Apart from being used as a basis for business model, COPYLEFT is also useful as a dissemination tool in those industries in which the content is not as important as the level of dissemination.

This is the case, for example, of bloggers or influencers in the fashion industry. On the one hand they protect the content of their blog’s posts through COPYLEFT, while authorising the copy and public communication of their work -provided that the authorship is mentioned-.. And on the other hand, they achieve a greater level of dissemination, while making profit in the number of visits of their blogs and contracts signed with other brands.

COPYLEFT In LATInAMErICA( I I ) : CrEATIVE InDuSTrIES

3. How can I apply for a COPYLEFT license?

• Identify the work you want to use or bring onto the market, i.e. a software, a video game, a handbook, a video, an outfit design or a musical sketch.

• Identify the IPRs that may protect your work depending on the country.

• Choose the type of license that you want to use depending on your purpose and the rights you want to assign, taking into ac-count the following factors, among others:

- Is it compulsory to quote the author?

- Is it compulsory to share the whole work without modifica-tions (sharealike)?

- Is it possible to modify it or not?

- Authorisation for dissemination

- Authorisation of commercial use (or not)

- Licensing conditions of derivative works.

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Creative Commons (CC) is an easy way to apply COPYLEFT to a work. In this respect, permissions to be granted and rights to be reserved should be determined. These could be:

• Recognition of authorship (this is the minimum require-ment for applying COPYLEFT to the work) (BY)

• Authorise (or not) derivative works (SA/ND)

• Authorise (or not) commercial distribution (NC)

Source: Creative Commons

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4. Related links & additional information

Further information about IPR in Latin America can be found on the Latin America IPR SME Helpdesk website: www.latinamerica-ipr-helpdesk.eu.

Creative Commons: www.creativecommons.org

Copyleft Foundation: www.fundacioncopyleft.org/es

World Intellectual Property Office www.wipo.int

COPYLEFT IN LATINAMERICA( I I ) : CREATIvE INDuSTRIES

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License: is an authorisation to use, commercialize, copy or transform the work granted by means of an agreement.

Influencer: in marketing, an influencer is a key individual that have recognition and influence over the purchase decision and opinion of the rest of the target market. For these reasons, some marketing campaigns are designed especially for them.

These are just some of the terms you can find in our Glossary section. Visit the Latin America IPR SME Helpdesk website to know more.

www.latinamerica-ipr-helpdesk.eu

5. Glossary

The following is a list of terms that may be useful to better understand this document:

Open code/ Open source: Open source code software means that it is distributed under a license that allows its use, change and redistribution. The core requirement to be considered to fall in this category is that its source code should be available. It allows studying how the program works and modifying it in order to improve or adapt it to a specific purpose.

Closed code/ Closed source: this means that the computer programme code is hidden, i.e. it cannot be access to be modified. In general, an escrow agreement is performed so that it is available for the client.

Open Innovation: innovation strategy in which companies cross their internal organizational boundaries and cooperate with external professionals to carry forward their projects and do R&D.

COPyLEFT In LATInAMERICA( I I ) : CREATIVE InDuSTRIES

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ABOUT LATIN AMERICA IPR SME HELPDESK:The Latin America IPR SME Helpdesk offers free of charge, first-line support on IP and IP rights matters to facilitate the expansion of European SMEs (EU SMEs and SMEs from the Associated countries) already established at, or working with entities in Latin America as well as those potentially interested in establishing commercial and R&D activities and ventures in these countries.

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Disclaimer:The Latin America IPR SME Helpdesk is a free service which provides pract ical , object ive and factual information aimed to help European SMEs understand business tools fo r d e v e l o p i n g I P R v a l u e a n d managing risk. The services are not of a legal or advisory nature and no responsibility is accepted for the results of any actions made on the basis of its services. The content and opinions expressed are those of the authors and do not necessarily represent the views of the European Commission and/or the Executive Agency for Small and Medium-sized Enterprises or any other body of the European Union. Before taking specific actions in relation to IPR protection or enforcement all customers are advised to seek independent advice. Neither the European Commission nor the Agency may be held responsible for the use which may be made of the information contained therein.

Last update: June 2017

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