What are your main concerns regarding Intellectual Property Protection?
A healthy, creative design culture relies on the open exchange of ideas. An open exchange of ideas requires that there are basic protocols in place that respect and acknowledge contributions to design processes. Britain has certainly had an extraordinarily creative and innovative culture. But as design processes, client bodies and organizations become more complex, it is essential to reflect seriously on the practices and protocols that are necessary to protect and cultivate creativity and innovation. Designers want to be immersed in a creative culture and they want to be able to have an open exchange. It is in their DNA. But design is also a serious business and acknowledgment, attribution and compensation are essential to the sustainability and growth of a design company.
It goes without saying that authorship is a complex issue and not for unpacking here. Regardless, basic protocols of attribution and acknowledgement are essential. Every designer and architect has had experiences where these basic protocols are not practiced. These range from the annoying to the devasting. Sitting in a public lecture of a now well established designer/architect, seeing one’s drawing presented as ‘part’ of their body of work, without receiving either a request or attribution. Having a studio visit from a renowned architect whose finger lands on a page in your portfolio only to discover 6 months later that the diagram and concept has emerged in their project, unacknowledged. These are battle stories and every designer has them. We survive them and move on. Perhaps we shouldn’t.
NDA’s are becoming increasingly necessary in order to define a ‘safe’ place for the exchange of ideas between clients or potential clients and designers, regardless of whether these NDA’s are generated by the designer or by the client. When used and adhered to this can be a powerful and reassuring tool. When implemented but not followed or made excessively onerous, they can be damaging not just to the designer and the creative process, but to the project and the large, complex teams that are often involved.
When a large organization requires designers/architects to sign a non-disclosure agreement prior to offering commissions while also asserting that all intellectual property rights pertaining to the designer’s work, remain with the designer, it is reasonable to assume the purpose is to create a safe environment for exchange in which both the client’s interests and the designers intellectual property is protected. This allows the designer to put forward their strongest ideas for the project with the understanding that they will not be used without the client appointing, acknowledging and compensating the designer. When the price for this ‘safety’ is that the designer/architect is unable to disclose, promote or publish these ideas until the NDA or contractual agreement is terminated by the organization, it becomes serious matter indeed.
Copyright law is essentially suited to 19th century categories of artistic production and is far less suited to contemporary notions of design that privilege ideas, processes, strategies and complex interrelationships, and indeed objects that emerge out of this way of thinking. This is an area of law in need of a major renovation.
Are there any countries that are leading the way in protecting architects/designers’ work?
Though British, we are now based in New York and more familiar with the practices here. America is certainly not yet leading the way in this area.
The British system instituted in 2011 that allows small
businesses to protect not just patents but trademarks and copyrights through the Patent County Court is a great step. This change allows more businesses to protect and enforce their basic rights at a lower cost. However, for a small design office, the cost of lawyers can still make it prohibitive, regardless of the strength of the claim and so this cannot be seen as a solution in and of itself. I am less certain about the merits of the bill currently being tabled in the House of Lords. I do not see how criminalizing infringement of design rights is actually going to help.
I would be very interested to hear more about innovations in other countries that are leading the way in this area.
What effect can a lack of IP Protection have on a small firm?
There are two primary issues here: protecting your IP and defending your rights to it when it is infringed. Both cost money, and for small firms, and particularly young creative ones, money is often in short supply. Design fees seldom cover the cost of really good design, let alone having a legal team at your disposal.
There are of course, fairly inexpensive ways of establishing basic design rights…but these rights are only as good as your ability to protect them, and it’s the protection of them that can be prohibitive. Small creative firms essentially have to put up with having their rights infringed or in extreme cases, bring the debate to the media. Given the passion they invest to their work, this is challenging process. This is why the exploitation of this reality by large organizations, particularly those that have a lot of power, should be deemed unacceptable.
One of the only tools that small design firms are left with in this situation is reticence, withholding their best ideas for those working relationships where they can rely on mutual respect, appropriate acknowledgement and compensation. It is hard to see how this enforced creative reluctance benefits clients, design culture and the public at large. The reality, of course, is that to survive, young design firms do not have the luxury of turning down work and simply have to work on projects while knowing that the very IP that is essential to their brand may be taken and used, with little benefit to them. This is not a sustainable model.
The issue we face is particularly acute because, in order to effect transformation with in large organizations and complex projects we necessarily get on board very early in the process, often years before a conventional design process might begin. We deal in concepts and strategies coupling them with design and action-based solutions and have developed particular tools, that embrace everything from technology and ecology to sentiment and aspiration, to help seed innovative new ideas within an organization. We are often in there 5 – 10 years before physical evidence of our work appears. The issues raised become even more crucial when working in this kind of time frame. Our clients, are invariably of a caliber that understand this and understand that the long term relationship of trust is at the heart of creating really innovative solutions to the complex issues they face or complex projects they hope to implement.
Working with IP creatively
Creative Commons licensing is an interesting and important option, particularly because it reinforces the combined principle of open exchange and attribution. But for a small design office and depending on the type of project, it is not always appropriate. Designers live from their work and therefore, regardless of passions and idealisms, we all have to be quite strategic about if and when we ‘give’ things away.
We established a non-profit organization, ATOPIA Research, to allow us to devote serious time and effort to working on some of the overlooked or understudied environmental issues confronting communities around the world and creating design solutions in response to them. We develop unique design solutions that address complex problems in new ways. We patent our inventions in commercially aggressive countries where the designs also have relevance, in order to be able to award free licensing to communities in need in poor countries. It is a kind of Robin Hood type policy.
PITCHAfrica, a social enterprise using soccer as a catalyst to build community-centered, region wide rainwater
harvesting initiatives, is one of the results of this type of work. In our Waterbanks Initiative, we are developing alternate designs for high yield rainwater-harvesting schools that can be built for the same costs as the most rudimentary type schools found in developing countries where access to water is a huge social issue. We will release the Waterbank designs and design protocols as open source solutions, but not before we have completed testing and adequate documentation that will allow these ideas to be adopted (and adapted) safely, and effectively. Giving things away also comes with a responsibility. We work with implementing partners who understand the fundamental importance of this.
Other related Issues
In a conversation after the RSA US Student Design Awards in New York recently, Eoin Billings of Billings Jackson, and I were talking about the importance of recognizing ‘origins’. Beginning to place more focus on the stories of the origin of designs and particularly complex design projects and processes would be immensely powerful step forwards. The stories of origins are inevitably more gripping than the often ‘packaged’ celebrations of genius that are delivered as explanations to the public by clients, press and even the designers themselves. We believe strongly that were these stories of origins to be shared openly with the general public, the public would engage with and commit to the importance of design in entirely new ways. This would serve us all.
What specific changes would you like to see made to legislation in the US to protect architects/designers’ work?
Establish an affordable system in the US for small design firms and businesses to protect and enforce their intellectual property, whether basic design rights, copyrights, trademarks, patents of other rights. This certainly needs to extend to the protection of patents not just of small US based firms but of patents owned by foreign entities. For a rather intricate set of reasons, most patent infringement cases involving foreign owned patents in the US end up having to be contested in West Texas. Paul Leonard was telling me that the rather shocking fact that no foreign held patent has been successfully defended in East Texas since the 1850’s.
To contextualise this, I had a significant experience a few years ago collaborating with a prominent American University, where an ATOPIA designed project was chosen by the University to be built and delivered to a developing country as part of a University research project. While the project itself ended before this could be achieved, ATOPIA’s design, for which we had previously filed a patent, appears to have ‘inspired’ an independent student design that bore many striking similarities and went on to receive a prominent national award for student led innovation. This has raised an interesting set of questions about boundaries and ethics surrounding intellectual property and innovation in relation to higher educational institutions.
Jane Harrison is CEO of New York-based ATOPIA.
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