LEGALLY SPEAKING –

Paul Sugden on Protecting Know-How

What do we do when we teach?…We equip our pupils to build upon what we have learnt from our own investigations and learning.

What though is this teaching when it comes to a creative textile artist? The textile artist is teaching techniques and skills to foster creativity and expression in their students. These skills of creativity may be ephemeral; they may be cocooned and blossom years later or they may spring like Athena from Zeus, fully-fledged and ready to do battle.

The issue that causes problems is not the teaching but the consideration of the ownership of the creativity. Who owns what in this creative exercise? How many stitches by a teacher change the work from being the student’s into being the teacher’s work? Does the advice to change the position of an item in the work mean that the teacher becomes the owner of the work? What rights do students have to the creations they make in class? Can a student sell their work if made as an exercise for a class? Does the student have to obtain the permission of the teacher to exhibit their work or to sell it?

These questions will be the theme for this year’s series of articles as many questions have arisen since we started on this theme last year. Creativity and the protection of know-how is really the essence of this issue. The law in western cultures looks at the protection of creativity as an area called intellectual and industrial property – this includes the laws of copyright, designs, patents, the obligation of confidence, and protection of trade reputation. We have looked at the issue of copyright in last year’s articles and have seen that it protects the rights of the author relating to the form of expression used, not the idea itself. This means the form of expression in a material form such as a weaving or textile creation, for example the Federation tapestries are forms of expression which are artistic works that copyright protects. The ideas behind the images used in a Federation tapestry are not patentable or protected as trade secrets under the obligation of confidence.

Patenting does not arise in the area of textile arts and teaching of techniques as they are generally excluded from patenting as being considered part of copyright. In addition many techniques may be variations by different cultural groups or long forgotten customs of another party. The imparting knowledge of how to produce a work of textile art is an issue of know-how and really this falls into the category of is it a trade secret? If it is a true trade secret such as the formula for Coca-Cola then the obligation of confidence will be placed on a party not to disclose the information.

Does a textile art class fit within the requirements of a duty of confidence? To meet these requirements the information must be of a confidential nature; it must be given in a situation where the party receiving it knows it is confidential and violation occurs if there is disclosure of the confidential information without the owner’s permission. To meet these requirements a teacher would have to state that everything a student learned in the class was confidential, and that the students were not to use the information imparted in any way.

Would this work for a teaching situation in the textile arts? Generally these levels of confidence only occur when it is an issue of research. Finding that a dye will set better with the medium at five degrees hotter than recommended is not in itself confidential information, nor is the arrangement of items for inclusion in a visual work. Most of these issues of technique are know-how which can be useful but which does not fall into confidential information.

In this arena of textile arts the use and teaching of know how is the very basis for the creation of the classes that students want to attend so as to find out ‘how to’. Very few techniques fall into a system of know how that can be commercialised as a pure know how method (such as the Alexander technique or Suzuki method). If your know-how is at these levels then you could consider franchising the use of the method and make a business of selling the technique. The essence of franchising though is that the technique can be replicated continually without variation and provide a uniform result. This is not the essence of the creative arts where few textile techniques fit these criteria.

In most situations a teacher is training people to be able to do the techniques they themselves have learned. Teaching the techniques does not give the teacher a monopoly that prevents students using these techniques, nor does it prevent a student from selling or exhibiting the works they produced in a class taught by a teacher. To take an example from music, attending a master class with Jacqueline Du Pre to learn techniques for cello playing doesn’t mean you cannot use the techniques imparted by her to you in the class when playing your cello after the class.