Lessons on copyright from the fashion industry

Johanna Blakley of www.readytoshare.org has done a terrific TED talk on intellectual property in the fashion industry and the lessons it might provide for other creative industries, or as TED billed it Lessons from Fashion's Free Culture. It's an updated version of the talk she did at iSummit 2008 in Sapporo and the Creativity & Copyright: The Surprising Tale of the Fashion Industry at the Lear Center, also in 2008, but it is still hugely relevant. Thanks to Glyn Moody via twitter for the link to the TED talk.



Blakley speaks engagingly about the vibrant ecology of creativity in the fashion industry despite the fact that fashion is not protected by copyright.  The only IP protection they have is trademarks - they can own their names and trademark signs etc. but not prevent someone from stealing each others' seams, colours, shapes, hemlines, trends.  And in fact fashion trends exist and move quickly precisely because of the ability to copy without having to ask permission.

Many fashion designers complain about this copying and have resorted to lawsuits to prevent it but the courts, even in the US, have consistently declared that 'apparel is too utilitarian'  to qualify for copyright protection.  Designers can own a copyright in a drawing of a dress but can't own a copyright in the dress - the dress is out there to be copied.

So how can the high end (ie expensive) fashion companies stay in business when a mulititude of knockoffs (including counterfeits with the trademarked logo) in cheaper stores and market stalls?  Well though it's not rocket science to it figure out, Tom Ford an ex Gucci guru, has said "the counterfeit customer is not the Gucci customer."  Imagine that.

The thing that jumps out from Blakley's talk, though, is her graph of the gross sales of goods from copyright intensive industries (film, music and books) compared with that of the low copyright industries (automobiles(can't copyright look and feel of a car), food (can't copyright a recipe in theory i.e. set of instructions), fashion and furniture (3 dimensional utilitarian objects can't be copyrighted etc.).  I've done a rough version of the graph below:

Comparatively speaking the copyright intensive part of the entertainment industry represented by movies, books and music is tiny in relation to the output of industries not protected by copyright.

Other things, btw, that can't be copyrighted include jokes (eg one liners though it hasn't stopped folks like Ashley Brilliant registering the copyright in more than 7000 aphorisms and Leo Stoller claiming to own words like "stealth" and "hoax" - no, I'm not kidding), hairstyles, magic tricks, fireworks, the rules of games (eg rules of monopoly), perfume (though you can patent the chemical combinant and trademark the smell).  And interestingly enough though they are entitled to copyright tatoos, tatoo artists find that socially unacceptable - the subculture values sharing.  Yet there is very little scholarship or policymaker interest in thriving low IP industries which might give us a clue to the business models for the entertainment industry of the 21st century.

Blakley essentially wants us to have a deeper understanding of what facilitates creativity and innovation and the importance of sharing, openness, fair use doctrine and the lessons of free culture from the low IP industries.  Most of us have a very vague grasp of all of these things and until we stop equating sharing with theft and treating openness and valueless, she doesn't believe we're going to make a lot of progress.  On the contrary, if we keep buying into the "property is good, therefore more property is better matra" crativity and innovation will get increasingly controlled and stifled.

Interesting.

Update: Apologies for the formatting problem with the gross sales graph which hopefully are now corrected.

Conversations with seven Science 2.0 pioneers

The New York Academy of Sciences has been interviewing pioneers of science 2.0, including James Boyle.

NYAS: What do you see as the current problem with access to science knowledge?

Boyle: Science knowledge generation has gone digital, but our method of knowledge processing is still analog. Most scientific literature is behind pay walls. You may be able to find it with Google, but you probably can't read it. That's Science 1.0: You don't have access unless you're sitting in a great research university where it's free, and you certainly can't send a robot to crawl the literature to create a mini index of all the articles, and cross index them and see whether, for example, a particular gene known by multiple names is referenced by them.

NYAS: Is the prestige attached to publishing with closed journals part of the problem?

Boyle: Right now, if your article gets into Nature or Science it's a big help in getting tenure and grants and retaining grad students. That's important—we should encourage people to publish. But perhaps we could refine the incentives so that you get more of a bump for publishing openly. I would like to see people's resumes say when their database has been downloaded more than 1,000 times. You want the prestige economy to reward the pro-social behavior, not the anti-social behavior.

NYAS: So, how can incentives be changed?

Boyle: When you've got centrally funded science, it should be a pretty easy cascade to start. The funders get much more bang for their buck if they do this. You're actually saving the public money and increasing the yield of every research dollar.
Once the idea can be explained to people, it makes an enormous amount of sense. I tell scientists, "There are a billion people connected to the, the Web. At least one of them has a smarter idea about what to do with your data than you do."
Their first take, though, is "Oh, great. You're going to force me to annotate my data, and put everything out there. You're going to troll it and publish ahead of me. I'm going to get no credit, I'm not going to get tenure, and I'm going to end up living under a Dumpster. And you're going to win the Nobel Prize." That mindset is the big obstacle.
We need funders to say that a condition for the funding is data deposit in an open, accessible format. That's beginning to happen—the public-access mandate from NIH is beginning to make the literature openly available. But we're just at the beginning.

NYAS: Beyond social/cultural issues, what else needs to change?

Boyle: Nobody ever wants to fund infrastructure because it's boring, but enabling Science 2.0 is the Eisenhower freeway system of the mind. And then we need to get past the legal restrictions so that we can have technologies that troll for data, make sense of it, and import it mechanically.

NYAS: How is Science Commons addressing those issues?

Boyle: We're sort of the public interest lawyer to the sciences. Say you want to use a database which was generated in Europe. We come up with a data protocol, a legal tool, which says "this gets your data free to the greatest extent possible in every jurisdiction in the world that we have lawyers in" (and we have lawyers pretty much everywhere, because a lot of really smart lawyers have volunteered to produce this high-quality tool).
We're also attempting to show people what it might look like if you could wire together all this open stuff. We have a project called the Neuro Commons which is putting all the publicly available neurological literature and open databases together in a vast, open network that anyone can download, use, or build upon.
We've had high-throughput arrays, robotization, in silico studies, genetic sequencing, and the personal genome. All of these were supposed to catapult us off into a scientific revolution, but didn't. It reminds me of what people were saying about the personal computer in 1985: "This thing's just a paperweight. What does it do for me?" The answer was, "Nothing until it's wired together with all of the other ones." Then suddenly you can't imagine being without it.