|03 February 2011|
For as long as most of us can remember issues surrounding the protection of creative works when pitching concepts & proposals to industry, pre-contract, has been fraught with problems.
The growth of digital file sharing and more recently the increase in the number of brand owners using open innovation to draw in creative ideas may only increase the vulnerability felt by creative people openly exposing their work.
The traditional fees for services model will continue to exist, however brand owners are trialling other procurement models including licensing, royalty and shared risk deals. These models are more commonly associated with industrial design, but are now extending across graphics, service design, packaging and digital disciplines. The use of crowd sourcing competitions to elicit creative solutions for packaging, web platforms and even in some cases, brand identity, is also on the increase.
We can argue about how appropriate such activity is but irrespective of whether a business engages in more traditional procurement methods or use competitions, the issue of protecting the value of creative proposals are very similar.
How will the creative industries adapt and respond to procurement and remuneration changes?
And crucially how will they protect their creativity and the value of their knowledge based solutions?
The answer may lie in trust based engagement models
In an ideal world such vulnerability issues would not exist if trust were an automatic assurance during business negotiations. However, it is not.
That does not mean to imply that most people are purposefully disingenuous in their business dealings.
It means that without clear guidelines in place misunderstandings between the negotiating parties can result in one party feeling exploited if the unspoken terms they believed they were operating by differ from those of the other party.
It would suggest that a simple to apply, trust based procurement system with non-complex terms and conditions; low cost and minimal paperwork could be a mutually beneficial solution? People need to know where they stand from the outset of the engagement process.
To support this theory a group of UK based branding and interface designers are the brains behind the launch of Creative Barcode. They have designed a simple yet clever solution to this complex problem. Will it work? It will if creative people want more secure terms of engagement and it achieves critical mass.
Barcode it and share it.
Creative Barcode is driven by a user-friendly App that belies the technology behind it. It is used to produce a unique barcode encoded with Creators details and pasted into the header or footer of all written and visual files associated with the project proposal.
Files can then be shared freely with third parties including existing and prospective clients, third party suppliers and co-creation partners. The data owner panel and link to terms and conditions are clearly visible. It complements a non-disclosure agreement as it shows ‘what’ has been exposed, when and by whom.
Traditionally barcodes have been used by retailers for around 50 years. They denote that any item carrying a barcode belongs to another party (the store) until it has been purchased.
Today, businesses are using digital barcodes on advertisements and marketing materials that when scanned provide the user with product information and purchase details.
Advertisements now regularly carry barcodes
Creative Barcode performs in much the same way as each barcode is unique and contains the creators’ ownership and contact details. However it goes further than that as it is supported by non-complex permission based terms and conditions of use. The terms are simple. The party receiving authorised, barcoded files may not utilise any of the work without the express permission of the creator. This applies to concepts articulated in written and visual formats.
These terms are agreed prior to work being exposed to the brand owner, potential partner or open innovation competition managers. The permission based usage rules are simple to understand & adhere to.
The Creative Barcode system throws the opportunity wide open for trust based engagement between creative industries and brand owners. If critical mass is achieved it stands a chance of becoming the normal terms of trading.
Once a concept has been purchased or project completed and paid for the system generates a transfer of ownership certificate. This protects the purchaser should any future claim be made regards the source of the work.
It is also provides tangible value to the work purchased irrespective of whether the certificate is provided following completion of a traditional fees for services project or the sale of a concept submitted to an open innovation competition.
The growth yet fragmentation of creative industries
Designers and creators worldwide remain one of the fastest growing sectors of industry.
However the creative industries are dominated by two opposite extremes. The very large creative companies who have the structure and means in place to protect their intellectual property rights through traditional means, and the ever smaller micro businesses and rapidly growing freelance market, who do not.
In the UK alone there are over 30,000 creative firms and more than 300,000 freelance operatives including designers of all type, writers, content creators, web developers, engineers, photographers, musicians and so on.
The two common things freelancers share, is their creativity and their vulnerability in a David and Goliath business environment
If you estimate the number of freelance creative people across the world their combined number would total a few million. Consequently their combined ability to demand trust based rules of engagement and permission based use is very powerful indeed.
So why has that power not been galvanised and utilised to date?
Possibly because concept protection is viewed as a complex issue and no one party or sector has commercial benefit to gain from providing a solution – other than the creative industry itself.
However creative people still struggle to speak with one voice. It’s the nature of the beast that many have described as trying to herd cats. That may be true, but if there is one predominant issue upon which creative people do agree, it is a need for their creativity to be respected and valued.
Numerous research studies undertaken that attempt to determine what drives creative people invariably include these characteristics:
Getting creative with traditional barcodes Digital Barcodes with your details embedded
When creative people are convinced that their work has been misappropriated by another party, during what they believed to be genuine and trusted business opportunities, they can be left feeling exploited and angry. Often they have no option but to put the incident down to bad experience and move on.
To offer some support, the World Intellectual Property Organisation (WIPO) Arbitration and Mediation Centre will make available its neutral alternative dispute resolution procedures to Creative Barcode users. Specifically, it will issue free of charge, an intervention letter and seek to resolve disputes by mediation rather than litigation.
For Creative Barcode users, this service will provide an efficient option in light of an ever growing number of approaches to WIPO from distraught creative people who allege their work, submitted in response to a genuine business enquiry has been misappropriated.
The creators feel certain that there is a law that has been broken that can be used to bring the alleged offending party to account.
Often this is not the case. Creative firms can be surprised to find themselves in a very weak copyright position and an even weaker financial position when the larger and richer party simply denies utilising the work for commercial advantage.
Even if the party admits they were ‘influenced’ by a proposal submitted, if it is not wholly a replica of the work, then proving copyright breach can be difficult, time consuming and expensive. Changing the title of a work and the look and feel of visuals weakens a copyright infringement claim even if the core strategic ideas the visual works represent are utilised.
Often it is the core ideas that contain the value and yet it is the core idea that is not protected under copyright law. This is the most contentious issue creative professional’s face and the one they most commonly misinterpret.
Why aren’t ideas easy to protect under copyright law?
For several reasons – the first is the confusion that has steadily grown between ‘inventive’ ideas which can be protected via patent applications and those solution based ideas common within professional 2D and digital industries.
There is the common truth that multiple parties might generate the same or a very similar idea – even though it is of course the manner by which an idea is articulated and commercialised that determines the value
If one party could exclusively protect a ‘business’ idea issues would arise with anti-competitiveness and creation of monopoly. For example, one Bank, one car share club, one travel agent.
There are firmly held beliefs that idea ownership would restrict innovation and even world progress
So where does that leave creative industries professionals?
Potentially creative industries could fight to differentiate between ‘ideas’ and solution-led creativity to prove their work is as valuable or more so than any other creative interpretation such as photography, illustration, novels, music and fine art. They could legally argue that they should hold the same automatic and moral rights
However, changing IP law is complex and could take a decade or more to achieve.
A faster and more realistic approach might be for creative industries to unite under a system that denoted fair and non-complex terms of engagement based on agreed principles of trust and permission based use.
In other words, create an ethical trading standard that becomes the norm by critical mass.
If every creative person barcoded their work the creation dates, creative-solution and visual interpretation is identified and tracked to its Creator. When; why and how it was exposed to another party is also tracked. And, should it transpire that another party had indeed presented the very same or near identical solution but offered a more acceptable deal to the third party, that source would also be self-evident and provable.
Such a system as offered by Creative Barcode could begin to erode the disputes and eradicate disingenuous misappropriation of works in commercially competitive environments.
If vulnerability is reduced, far more opportunity will open up for the buying and selling of solution driven Creativity.
Creative barcode cannot guarantee that every individual in receipt of barcoded work will not misappropriate it.
However it removes any doubt that a perpetrator was fully aware of their actions. This would affect their trustworthiness and thereby professional status, which is not a good career move.
Further, should such breach occur, any dispute pursued would not rely on potentially weak copyright but that of breach of trust agreement. The simple agreement is that written and creative proposals submitted under the prospect of genuine new business opportunity, may not be commercialized without permission of the Creator. Recourse becomes straightforward, pay for the use of work retrospectively or it is withdrawn from the market.
It is said that 90% of people live by rules because 10% of people do not live by values.
In the creative industries all that is requested is honest and fair trading – do not use a Creators work for you or your firm’s commercial advantage without their permission and a rightful share of the benefits.
Is that too much to ask?
© 2011 Maxine J Horn, CEO of Creative Barcode
About Creative Barcode
Creative Barcode was launched in the UK in September 2010. It is a not for profit organisation developed and funded by designers and innovators for the benefit of their peers worldwide. Protect your work with Creative Barcode®. No complex paperwork - just barcode it and share it. The annual cost to join Creative Barcode is just £30/$47.60 and includes 5 barcodes, documentation, and use of an optional file transfer system. Later in the year, Creative Barcode members will also benefit from a Community of members directory to identify and access creative partners and peers across the world. www.creativebarcode.com