Is respect and reward for Creativity too much to ask?

17.01.2011 Features

Maxine J Horn, CEO of Creative Barcode

For as long as most of us can remember issues surrounding the protection of creative works when pitching concepts or submitting tenders & proposals to industry has been fraught with problems. Maxine J Horn tells us about Creative Barcode's solution to these issues.

---

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 experienced by creative people with no option but to expose their creative work, pre-contract.  

The traditional fees-for-services model will continue to exist; however brand owners are trialling procurement models such as licensing, royalty and shared risk, more commonly associated with industrial design, graphics, service design, packaging and digital disciplines. Their use of crowd sourcing competitions to elicit creative solutions for packaging, web platforms and even in some cases brand identity is rising.   

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.  


Andy Warhol courtesy of freakingnews.com

So 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 under differ from that of the other party.  
 
To ensure all parties know where they stand, is a trust-based procurement system with clear, non-complex terms and conditions and no legal paperwork or fees, the most mutually beneficial solution?

A group of United Kingdom-based branding and interface designers behind the launch of Creative Barcode think it might be. They have designed a simple yet clever solution to a 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.

A user-friendly Application that belies the technology behind 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 the 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.

Ads now regularly carry barcodes

Today, businesses are using digital barcodes on advertisements and marketing materials that, when scanned, provide the user with product information and purchase details.

Creative Barcode performs in much the same way. 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 upon 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 and 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 and so forth.

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 area where creative people do agree, it is a need for their creativity to be respected and valued.

Numerous research studies undertaken to try to determine what drives creative people invariably include these characteristics:

• Creative people are primarily driven by passion and emotion rather than simply money.
• They believe firstly in the good nature and honesty of others until proven otherwise.
• They are uncomfortable dealing with complex paperwork and the cost involved in legal protection before a contract has been agreed or awarded.
• They are often not in a financial position to defend breach of copyright.
• They rely heavily on using the © copyright symbol on works in the belief that it offers enough protection. However © copyright protects visual appearance and registered trade names, but it does not necessarily protect the ideas inherent in the work.  

         

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 are often left feeling exploited and angry, with no other option but to just move on and put the incident down to bad experience.

The World Intellectual Property Organisation (WIPO) Arbitration and Mediation Centre will make available its neutral alternative dispute resolution procedures to Creative Barcode users, and in particular a specific intervention notice on its mediation service.  This will provide an efficient option in the light of an ever-growing number of approaches from distraught creative people who allege their work submitted in response to a genuine business enquiry has been misappropriated.  

Creators feel certain that there is a law that has been broken and therefore the alleged offending party can be brought 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 their own 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 professionals 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 - although of course it is how 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 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 denotes 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 then the creation dates, creative-solution and visual interpretation could be 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.

Indeed, it might go some way to opening up far more opportunities for the buying and selling of solution-driven Creativity.

It 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 commercialised 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?

---

About Creative Barcode

Creative Barcode was launched in the United Kingdom 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 GBP £30/ USD $47.60 and includes five 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.

About the Author

In 2005 Maxine licensed the assets of British Design Initiative to form the spin-out British Design Innovation as an independent not-for-profit trade association owned and driven by five national board directors supported by 24 regional directors, with further input from over 500 directors of its member companies, each with more than 10 years business and sector experience. In September 2010 she launched Creative Barcode - an IP protection system for idea generators, to support their participation in open innovation and future idea trading business models. Creative Barcode has been recognised by the World Intellectual Property Organisation as a pioneering and non-complex solution to idea protection not covered by existing IP laws.