Simpsons Solicitors Webinar Presentation - Creative Industries in Australia
1. Doing Business
in Australia:
Creative Industries
Introduction
Adam Moxon Simpson
Simpsons Solicitors
asimpson@simpsons.com.au Lot 1, Level 2
23 Hickson Road
MILLERS POINT NSW 2000
Simpsons Solicitors Ph: (02) 8014 5050 Fax: (02) 8014 5060
2. 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)).
3. 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
4. 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
5. 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.
6. 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.
7. 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.
8. Design / Copyright Overlap
Designers – 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.
9. 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.
10. 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.