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Intellectual Property – how is it the board’s business?

Breakfast Briefing: 18 August 2009

Four arts organisations were represented at the Intellectual Property (IP) briefing, hosted by Heather Watson, Special Counsel, McCullough Robertson Lawyers, and co-facilitated by Katrina Chambers, Senior Associate, McCullough Robertson Lawyers, and David Fishel, Director, BoardConnect and Positive Solutions.

Overview of discussion

Discussion covered:

  • examples of arts organisations (international and national, and large and small) who have successfully exploited IP to generate new income streams
  • the scope of legal frameworks to protect individual and organisational IP
  • how arts organisations can systematise IP protections across new projects to improve ease and clarity of future exploitation
  • specific questions from participants

David Fishel opened the briefing by outlining a number of companies who have commercially exploited their IP:

Examples of commercialisation:

  • National broadcasting companies creating television and radio content, and in turn creating a chain of stores to sell recordings of content and associated merchandise
  • An Australian national performing arts company creating a separate legal entity to on-sell successful productions
  • A theatre company investing in securing long term rights to new commissions
  • A local theatre company dividing company operations into a funded community arm where artistic product is produced, and a commercial arm via which successful product is toured
  • A small theatre company selling unique installations to museums, based on their puppetry skills
  • A small arts organisation creating a digital media-based storytelling product transferable to non-arts communities
  • A small consulting firm licensing a training program to a national delivery company

IP protection was highlighted as being relevant even to smaller arts companies, where a great deal of new work is produced.


Katrina Chambers outlined legal protections in relation to IP:

Refer powerpoint slides provided

The importance of proactive contracting to define the chain of IP ownership throughout projects was highlighted, rather than trying to sort out ownership later, when the product becomes saleable, but original creators are unknown, no longer contactable etc.


David Fishel facilitated a discussion amongst participants about some of the IP protections and opportunities which might be relevant to their arts organisations:

IP considerations for arts organisations:

  • Careful contracting in relation to collaborative artistic projects
  • Consistent record keeping to track IP ownership, for reference in relation to future exploitation
  • Definition of what artist fees entail – does one off fee incorporate handover of IP, or is there a licence for use in all future performances of production?
  • Whether a contract for service with confidentiality provisions (and even professional indemnity insurance provisions) is more appropriate than a licence arrangement in some circumstances e.g. an arts organisation consulting to another arts organisation about the set up of a new workshop program
  • Requiring volunteers to sign an agreement covering the basics of coverage under organisation’s insurance policy, the organisation’s retention of all IP created via volunteer role