Simpsons Solicitors Webinar Presentation - Creative Industries in Australia
Doing Business in Australia: Creative Industries IntroductionAdam Moxon Simpson Simpsons Solicitorsasimpson@simpsons.com.au Lot 1, Level 2 23 Hickson Road MILLERS POINT NSW 2000Simpsons Solicitors Ph: (02) 8014 5050 Fax: (02) 8014 5060
Introduction Simpsons Solicitors • A leading Australian specialist intellectual property and entertainment law firm (highly recommended by Chambers Global and Legal 500). • Helping creative industry companies doing business in Australia e.g book publishers (including Hachette, Penguin, Macmillan), record companies and music publishers (Universal, Warner, Music Sales), film producers and developers (Sony, Great Southern, independent producers), design and digital agencies (Frost), fashion and fabric (MAMBO, GP & J Baker (Kravet)).
Creative Industries Legal Issues - Introduction • Broad comparison with the UK/EU legal system • Company Structures & employees / contractors • Agreements with parent company • Collecting Societies • Trade Marks – search, clearance and registration • Film / TV funding and tax incentives • Design Registration / Copyright overlap • Privacy
Company Structures A structure to suit your business •Public company •Proprietary Limited (Pty Ltd) – Foreign Company •Partnerships / JVs •IP Holding Company? •Not for profit/Charities Licensing and service agreements with parent company Employees & contractors •Need to carefully distinguish roles and understand when someone might be considered an employee •Unavoidable obligations with employees – a question of fact not contract
Collecting Societies For those in the music, film and book publishing industries – various collecting societies affiliated with UK societies. • CAL / VISCOPY • Screenrights • APRA • AMCOS • PPCA Consider Australian subsidiary membership – more timely, fewer cost deductions due to multiple handling.
Trade Marks • Trade marks – registered and unregistered (common law). • Clearance first – before entering the market, a trade mark clearance report helps manage the risks of other traders objecting to entry (start with a web search). • Apply to register: • Examination by IP Australia – report. • Potential Opposition – by Office or competitor. • Dealing with any objections from IP Australia or competitors. • Registration.
Film and TV Incentives Generous tax offset scheme • Up to 40% of “qualifying Australian production expenditure” for feature films (20% for TV) with “significant Australian content – Screen Australia (Cth). • Need local tax paying subsidiary (with local director). • Other incentives offered by State counterparts e.g Screen NSW. • Other offsets and grants for games and media developers.
Design / Copyright OverlapDesigners – Fashion & Industrial • Creates challenges for design companies in protecting their intellectual property. • Need to consider design registration in Australia rather than rely on copyright protection – a balancing act.
Privacy • Use of Personal Information regulated by the Privacy Act 1988. • Similar to UK & EU provisions. • Overhaul in March 2014 – particular changes regarding O/S data storage & tougher penalties. • No stand alone cause of action for invasion of privacy.
Checklist • Consider appropriate company structure. • Consider nature of agreements between Australian business and UK business (tax, licensing, protection). • Film/Music/Publishing – consider local collecting society membership requirements, potential benefits (lower administration costs). • Clearance searches for registered and unregistered TMs (and registration). • Film – tax offset considerations – local tax paying entity, Australian director, Australian content/talent. • Fashion/Design – consider design registration rather than rely on copyright. • Review privacy obligations.