Pitch Protection: Intellectual Property

The MCCA argues that PROs should copyright ideas under its Pitch Protection service. But how relevant is it to the industry, asks Adam Hill.

Your intellectual property is what sets you apart from other PR practitioners and your ideas need to be protected against theft by unscrupulous clients. That is the reasoning behind a new initiative from the Marketing Communications Consultants Association (MCCA) - the Pitch Protection service.

Although this service was originally designed for the marcoms industry, MCCA MD Scott Knox wants the PR sector to get involved. He explains: 'We have heard of many cases where clients have taken ideas and assumed them as their own.' The scheme aims to put a stop to that by getting members to register their pitches with law firm Nicholson, Graham & Jones before they present to clients. The lawyer issues a certificate asserting copyright, and putting clients on notice that ideas in the pitch are confidential and an agency will take action to protect its rights.

Feeling you have been hard done by is one thing, proving it is quite another. Since there is no copyright on ideas, the scheme relies on existing confidentiality law to protect agencies against abuse. Knox admits that it is a 'starting block' but that registration of pitch documents eradicates argument about what was created and when.

People versus the pitch

'Any deterrent measure that helps protect the industry's intellectual property is to be welcomed,' says PRCA director-general Patrick Barrow.

And pitch protection looks like a sound move if you accept that ideas are the currency of the PR industry. But many are not sure that this is an accurate assessment of PR's modus operandi. IPR president-elect Chris Genasi says: 'Clients always say that all the pitches are exactly the same. They tend to buy the people - that is the nature of what we do.'

So if it's not what you do, but the way that you do it that counts, surely the need for pitch protection immediately melts away. After all, PROs are rarely dependent for their business on the creation of concrete entities, such as artwork or logos, which could be copyright protected. Euro RSCG Biss Lancaster chairman Graham Lancaster says: 'I don't think the problem is widespread in the PR sector because it is probably rather less about the ideas themselves and more about the way we execute them. In an ad agency, direct marketing or sales promotion, that may be different.'

It's an issue that Frank PR has already dealt with. It sealed a deal last year to be paid a licence fee whenever Nickelodeon rolls out its 'TV Family' idea in other countries.

Yet Lancaster believes PROs should look closely at what the MCCA is doing: 'The need to protect our intellectual property is important. We should be very interested in this. Most of us put a copyright sign at the end of pitches but are never quite sure how enforceable that is.'

College Hill Associates includes a warning slide about confidentiality in its presentations, but director Dick Millard admits: 'We rely entirely on client integrity.'

Some PROs take the risk of losing ideas as simply part of the territory.

Financial Dynamics MD of issues management Jon Aarons says: 'It's an occupational hazard and you sometimes have to strike a balance between showing insight and creativity without giving everything away.' But there is no need for this uncomfortable balancing act, say in-house PROs.Phones 4u head of PR and sponsorship Damian Peachy says: 'There's often a nervousness about sharing a particularly strong idea, but I'd like to think that the PR industry has sufficient integrity that people respect copyright.'

Novartis Pharma UK head of PR Fiona Turner agrees: 'In ethical PR we are heavily regulated so on pitches involving clinical trials, for example, a lot of the ideas are going to be the same anyway. So agencies that win the pitch are often the ones you have the chemistry with.'

And liking - or disliking - an agency is a recurring motif on the in-house side of this debate. As Nokia UK director of comms Mark Squires says: 'I've seen pitches where I've loved the ideas but don't like the people.' In-house PROs even suggest that, rather than binning an agency but keeping its work, the opposite may be true. 'Sometimes you don't even take the key ideas,' adds Turner. 'After a product debrief you may find that they're not right for the brand. But you have confidence in that team.'

Whatever your view on PR as part of marcoms, pitch protection may only apply in certain areas of the industry. Aarons says: 'You have to distinguish between the marketing end of PR and, say, issues management or public affairs. If you're advising on sensitive issues, this doesn't arise: clients invariably need to hear what you think of their current situation and if we are not prepared to do this, we don't deserve the business.'

And if you do feel robbed of your ideas, you need to think about the ramifications of complaining: not being asked to pitch in six months' time is a large price to pay for bringing up a, perhaps, unwinnable point of principle.

The MCCA does not pretend that its initiative represents a silver bullet for agencies fighting rapacious clients. What it does do is concentrate the minds of everyone involved. But if the PR industry is brimming with integrity the question must remain whether there is any point in it following suit.

CAN THE PR INDUSTRY REALLY PROTECT ITS IDEAS?

YES - DOMINIC BRAY, NICHOLSON, GRAHAM & JONES PARTNER

'We have been working on various aspects in the intellectual property field with the MCCA and are running the pitch protection scheme. Yes, there is no copyright on ideas, but this scheme enables agencies to have a better chance of protection because there is a law of confidentiality.

For that you need to demonstrate that an idea is not already in the public domain and that it is of commercial value. You need to prove that this has been disclosed in confidential circumstances and has been misused.

'Members submit a pitch to us and we provide a certificate (saying we have received it on a certain date). We are a registration service, which means that the client is "on notice". The certificate is sent to clients pre-pitch saying all information in this material is confidential and we are disclosing it to you in confidential circumstances. We've asked agencies to identify half a dozen key creative ideas so we could later say to the client, for example, "here are four things you wouldn't have done (had you not seen the pitch)".

'I can understand why there is some cynicism about this scheme. I am not giving PROs legal rights that they didn't already have. But the main thing is to act as a deterrent to clients. This scheme helps because it gives evidence as to when a pitch was created and makes it clear what ideas are open to dispute. Sending the notice makes it clear to the client that the agency is aware of its rights and will make clients think twice about running off with ideas. We have no PR agencies signed up yet, but I can see it would appeal - in a sense, PR ideas are even more ephemeral than ad campaigns.'

CAN THE PR INDUSTRY REALLY PROTECT ITS IDEAS?

NO - CHRIS GENASI, ELOQUI CEO AND IPR PRESIDENT-ELECT

'I've been in the business 19 years on the consultancy side and can't recall an occasion when someone has said their idea has been nicked by a client. I can think of a lot of times where you read about a campaign that you pitched for but didn't win and the idea is similar to yours - but that's not the same thing. In PR, you can have a good idea but the client doesn't like you. So they pick an agency where they like the people better and perhaps the final idea would have been inspired by your pitch.

But if you are doing some research to generate coverage, or are organising an event, it's hard to imagine that it would be a unique idea - it is not like you are producing new technology. And what are you going to do about it anyway? Challenge someone? If you write to them saying they've stolen your idea, you might just be annoying someone who's going to be a client two years down the line. What are you going to get out of that?

'I'm not sure that it's a very big issue in the PR industry. I think the main need for protection is not against clients but from one's own people. There is always the risk that you pitch, the business is won, and perhaps one or two senior people try to take that away on their own - but then that is covered by restricted covenants. If you're pitching jointly, there is also a risk that the other agency tries to take the idea. So it is important to guard against that. But it's extremely difficult to protect an idea.'

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