For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Monday, 7 March 2011

Creative Barcode and Creative Commons: complementary bedfellows

Just six months after its launch, and five months after the IPKat posted this little piece, Creative Barcode has attracted a good deal of attention, not least on account of a question which many folk have asked the IPKat and others: “How does Creative Barcode differ from Creative Commons?” Maxine Horn, CEO of Creative Barcode, has kindly accepted the Kat's invitation to explain:
"The shortest answer is that Creative Barcode and Creative Commons they are complementary. However, they do have a few pertinent points of difference. 
Let’s start with what both organisations have in common. They are both not for profit organizations. They have both developed a technical infrastructure to support the rapidly increasing digital file sharing, on and offline and they both seek to enhance rather than restrict innovation. Both support copyright but offer alternative ways by which ideas can be shared.
Both parties seek to minimise the cost and paperwork complexities inherent in traditional IPR law, but both parties have chosen to achieve their goals in slightly different ways. 
The major point of difference between Creative Commons and Creative Barcode is one system is far more suited to works in the public domain and the other is predominantly suited to concepts not in the public domain. 
Creative Commons is best used on open source work and source credits for works in the public domain. It enables users to select their own terms of usage. It enables open-share and re-mix of creators’ works without a focus on a commercial return on investment for the creator. CCL Creative Commons offers open source use or open negotiation for use. 
Creative Barcode provides a system for permission based usage of solicited creative concepts not in the public domain (i.e. the recipient has requested the files and they do not contain open-source files or works in the public domain). Its very simple usage terms state that concept ownership is retained by the Creator until such time as works have been purchased. In short, recipients of creative barcoded files may not utilise any disclosed information contained in the files without the permission of the creator. Creative barcode offers closed source access to concepts and private negotiation of use. 
The key points of difference are: 
Creative Barcode
• Creative Barcode allows permission based usage and retained Creator ownership until some form of commercial deal has been agreed and concluded.
• Creative Barcode allows no automatic ‘open-source’ option. It has ‘one’ underpinning ‘agreement’ which is ‘no barcoded concepts or proposals shared with recipients may be utilised by the recipient without the permission of the creator’.
• The target audience is predominantly professional creative industries more akin to being paid on a fee-for-services basis who are at risk when pitching for new business, entering open innovation competitions or developing their own concepts to present to and negotiate a commercialisation license with another party; pre-contract.
• Creative Barcode serves as an IP source management tool and file tracker for creators, co-creators and brand owners. It enables proof of source to be quickly verified and avoids litigious challenges.
• Uniquely numbered Barcodes are generated using a software App and applied to written and visual files before sending direct to a’ recipient. Barcoded files enable visual demonstration of what has been disclosed.
• Creative Barcode is predominantly used to protect conceptual works ‘not’ in the public domain. 

Creative Commons
• Creative Commons majors on open-source and re-mix without needing to seek any permission from Creators who have allowed open usage.
• It relies upon source credits being applied by a party.
• CCL does not provide a file tracking service.
• Open-source is preferred by some software developers and other creators who have a commercial reason for making their work freely available, or who feel they will benefit from potential PR values, personal status enhancement or who just love the challenge and require no remuneration complications.
• Creative Commons offers a range of usage terms and licenses to suit the individual or firm. These are useful to ensure correct procedure is followed but the most common public association with Creative Commons is free to use and re-mix.
• CCL users state clear terms of usage which vary according to their specific requirements.
• CCL is predominantly supporting usage rights and file sharing for works in the public domain. 
The issue Creators currently have to contend with and rein back-in, is the unofficial stretch of the public domain. The public domain is just that – ‘public’. Traditionally it includes files uploaded on to a publicly accessible internet site; works publically exhibited or published, presented in public forums such as conferences or displayed in the media, on and offline, and in social media and business networks. 
Some have attempted to extend public domain to include one to one business meetings that as a minimum are obliged to be undertaken with a duty of confidentiality. Creative Barcode reinforces trust, establishes a means for Creators to have early, open conversations with potential industry partners and avoids the ‘true’ public domain hampering (when exclusivity and confidentiality is paramount) progress. 
Legally CCL materials are robust but it is not their business to offer legal services or advice. Tracking and monitoring usage remains the sole responsibility of the user, as is legal pursuit if their CC Licence is breached. 
Creative Barcode offers no direct legal advice but it does facilitate an intervention and mediation service provided by World Intellectual Property Organization (WIPO). An initial intervention letter is free of charge and mediation services are provided at 50% less than normal rate card to Creative Barcode registered users. Any breach arising is one of breach of agreement. For additional security, Barcode users can send their files through the file tracking facility found in the software App. In doing so, the database records sent date and by whom, sent to and received, file downloaded confirmation. Files cannot be downloaded by the recipient without the terms of receipt being accepted. There is no room for doubt. 
Creative Barcode does provide users with free access and use of Licensing Agreements when they need them to support deals going forward. 
Creative Barcode and Creative Commons are compatible bedfellows both sharing a common goal and both addressing the key needs of parties in the design, creative industries and innovation sectors on an as-it-suits basis".
Says the IPKat, what's so good about both Creative Commons and Creative Barcode is their ability to achieve results and generally improve the commercial environment for IP owners and users without the need to make any changes in the law. Both systems show what a little creative thinking can do.

10 comments:

Filemot said...

Useful explanation, but we are still getting this confused use of Public Domain. Perhaps we need a third body that makes clear that no copyright or moral rights or anything else is asserted in the work.

Anonymous said...

It provides no protection and makes money out of the ignorance of its customers. Little better than www.wipd.biz.

Maxine Horn said...

Anonymous. Your 'assumption' is incorrect.

Niether CCL nor Creative Barcode are a 'registery'; nor do they 'make money' out of the ignorance of anyone.

Creative Barcode enlightens and fills a much needed gap which also acts as a positive stepping stone to higher level formal legal services on an as and 'when' needed basis.

wipd.biz - is an entirely different model, purpose, legal structure and carries a price tag several 1000% higher than that of CCL or CB.

Perhaps you should align the benefits of CCL and CB (and their and our transparent and low complex communications) against WIPD to better familiarise yourself.

So thanks for the web link. It enables visitors to assure themselves of the integrity of both CB and CCL.

TMS said...

Hi Maxine,
I responded to a post made on the Hargreaves Review blog as I am keen to understand what exactly is being offered to users. Can you enlighten me regarding a statement made on your website? My post is repeated below:

"“Creative Barcode™ does not replace patents and copyright. It was introduced due to the lack of Intellectual Property (IP) protection over the core idea – often the most valuable element. Copyright does not protect the idea itself – a common mistake idea generators make.”

Maxine, can you explain how enforceable protection for an idea can be obtained where such protection is not protectable under current legislation? I’m not sure providing a means for pseudo-IP protection is helpful to creators/innovators. The lack of understanding of the current IP system, which is a major problem, is best addressed via education."

David Jaglowski said...

TMS: You're confusing registered intellectual property rights with covenants of non-disclosure/non-use. Enforceable protection for an idea can be obtained by contracts between the person(s) disclosing the idea and the person(s) receiving the idea.

You should review the basic agreement : http://www.creativebarcode.com/trustcharter

Then look at step 7 of this page:
http://www.creativebarcode.com/howitworks

While I won't opine on the law in the UK, in the US that process will certainly form an enforceable contract.

Anonymous: A form agreement and third party verification that particular documents were exchanged at particular times are certainly forms of protection. Whether they are worth the fee is for the customer to decide.

Maxine Horn said...

Hello TMS
Thank you for your query.

The answer lies in the Trust Charter agreement (http://www.creativebarcode.com/trustcharter) that underpins barcoded work whether it is sent via our file transfer and tracking system to a known recipient or whether the hard copy is sent and accepted prior to barcoded files being exposed to the known recipient.

So what is accepted by mutual agreement is the terms laid down in the Trust Charter.

As such the strategic ideas inherent in the written proposals and/or visually articulated concepts may not be used/ commercialised without the permission of the Creator.

It enables early conversations to be safely held to establish interest levels before higher level protection is required.

An estimated 75% of (soft) innovation is not subject to patent.

Currently a large % of professional creative industries in response to new business pitches; open innovation activities, or seeking co-creation /licensing deals with third parties are flying commando.

You could argue that's what an NDA is for. However, Barcode demonstrates what has been disclosed. And during, 'pre-contract' new business activities such as pitches and tenders and OI, industry partners often do not or cannot sign NDA's when dozens of firms are pitching for the business or where OI might attract 100's.

Overcoming the IP education gap will not eradicate the cost, complexity and time issues.

There is a major difference between professional creative industries who generate innovative concepts in response to pitch requests everyday and individual inventors and entrepreneurs with a singular idea'.

Creative agencies are not in a position to go through IP registration and legal processes, pre-contract for every new business opportunity that presents itself - and neither are those soliciting concepts. It is simply not time nor cost efficient.

Creative Barcode provides a time and cost efficient means of identifying the source/creator; usage and ownership rights from the outset.

Once discussions, deal negotiations and contracts are taken to the next level formal IP terms would of course kick in.

Creative Industry research (Design Council 2010) reported that 65% of the design sector did not operate any formal IP policies or procedures. The reason is as above - time, cost and complexity pre-contract.

Creative Barcode can at least provide a pre-contract policy to equally raise awareness that contract negotiation should include IP rights.

It may well therefore start to convert some of that 65% into new business for IP and legal specialists. Perhaps.

So it is not pseudo IP protection, it is a trust agreement that acknowledges the time, creativity, knowledge, know-how and experience vested in concepts produced by professional creative industries. Thereby in respect of that, such concepts are not to be misappropriated and commercialised without the Creators agreement.

Of course it also protects the interests of the file recipient who if challenged by another party can accurately pin-point the source due to Creative Barcode.

Apologies this has been a bit of a long winded answer but I hope it goes someway to clarifying your query. If not do feel welcome to contact me direct

Best regards,

Maxine Horn said...

Quite right David - our posts crossed over as I spent too long writing mine and you said it far more succinctly! Thank you

TMS said...

I have read the agreement which is why I am questioning the website statement. Every time I come across CB, I have another read to see if I finally understand what is being offered, but I'm not there yet and need convincing.

To me, there is an inference in the statement above that CB creates some kind of IP protection. By stating "It was introduced due to the lack of Intellectual Property (IP) protection over the core idea. Copyright does not protect the idea itself...", I believe it reasonable for a purchaser (lay) to assume that they are getting some sort of protection for their idea. Any protection is that available under current IP law.

The fact that what is really provided (date of transfer plus a promise to be trustworthy?) can be determined by analysis of the rest of the agreement does not address my concern.

Proof of date of transfer is not a key factor in problematic IP cases (such as Norowzian v Arks 1998 - Guinness TV advert) where the core idea was clearly taken, but there was no copyright infringement. If CB was used in a case such as this, then I wonder how the creator of the idea would be protected. If the 'ethical' other party is truly ethical then there is no need for any agreement.

If an idea is taken and used in breach of the trust charter then I'm struggling to see how recompense could be available in court. Defining the scope of an idea after the event, determining what was unique about the idea and what was commonplace or somthing that could reasonably be created independently etc, is not really something a court could easily handle.

Whether as an agreement it is binding is not something I can comment on, though I doubt it is binding on anyone other than the person who accepted the terms in order to download the files, which could be a secretary.

Re the indemnity clause ("The Creative Barcode™ member indemnifies me against any claims arising if they purposefully submit files that do not contain their original work"), I personally wouldn't offer material to anyone on such basis. Just how original are anyone's ideas?

Even if CB use was free I would ask the same questions, because what matters is the value of the product, irrespective of cost.

TMS said...

I like the idea of creating the evidence trail and I like the idea of parties agreeing to be trustworthy, so the product is to be recommended, particularly for the former aspect.

This next comment applies to all contracts, whether licences, NDA's, etc or a 'trust charter'. Parties enter into agreements when they are keen to do business with each other and everyone is friendly. Parties are often willing to agree to vague terms or potentially problematic terms because they are thinking about the positive aspects of the deal and not the potential problems. However, contracts must be drafted to cover the situation where good relations break down. This is when their true value is tested.

Provided all parties signing up to any agreement understand the limitations then there isn't an issue. In the case of CB, it is the protection (i.e limitations thereof) available for the 'idea' which needs clarification.

Maxine Horn said...

TMS
I guess the key issue in all of this is that, currently, the majority of the creative industries (freelance, micro companies in design, advertising, digital etc)are flying commando when responding to new business opportunities proffered by industry.

The vast majority of this activity is not concerned with patent, but instead, new business pursuit of, predominently fee for services work or co-creation opportunity.

If concepts and proposals submitted under the terms of proffered new business opportunity are disclosed to incumbents, to in-house teams or others for commercial (or other) use without the permission of the submitting party, it is a misuse of the terms by which the concepts were submitted.

The investment of time, skill, knowledge, overhead utilised to attempt to win a contract can be significant.

Creative Barcode exists to form an agreement between the parties to diminish or eradicate such instances of misuse.

So, in that manner, it offers a level of protection over time and moeny invested.

Those who agree to the terms are far less likely to breach them as to do so would be calculated rather than, no agreement in place, and therefore dismissed as a misunderstanding.

I understand your professional issues regards depth of 'contracts'.

However, pre-contract new business activity, would not be time nor cost efficient for any party if full legal contracts were demanded by all before anyone could even have a conversation.

So barcode and the Trust Charter agreement offers a fast and efficient means to form mutually agreed terms of use,pre-contract.

Do feel welcome to contact me direct if you need any further information.

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