Friday 21 September 2012

Typical Design Problems No. 3: NDA’s and Copyrights-Creator’s Glass Cages


Creators and designers have an amazing role of creating something out of nothing but vague notions and whimsical ideas. But the whole process is quite exciting and emotional inspite of being performed in exchange of monetary incentives. That is the joy and pain of creating. With numerous hours of mind jostling dialogues within and with clients to crack the best solution that fits the purpose and does much more aesthetically and psychologically to connect with the audience. It is only natural to take pride in owning up to something created by the group that ripped their neurons apart to find that concrete discernible solution out of thin air. But, it isn’t always that the brief is coming from the blue, often the work is familiar, similar to something, something like a solution that needs to be improved, beautified, repackaged and so on. How many times do we get approached for a ground breaking design solution, one that never existed before? Ha, that’s easy you could count on your fingers. Its nice to say that every project is new but we know how ideas and processes get re-jigged thanks to numerous references that can be found. But for a new idea that has never been thought of? What about it? Here’s what you would have come across...

Although it is exciting to work on new ideas its best to be done with those you know very well. Why? Trust! There’s whole lot trust and assurance that need to be exchanged if you are a starter and most often confronted by clients and/or companies and agencies who are willing to hire your services in exchange of an agreement a.k.a the NDA...no its not a political party although an equally toxic creature. That is our cloaked foe the Non-Disclosure Agreement. Why so caustic one may wonder. Most agreements are introduced as harmless veils and something that is only to protect the work in consideration from being private. How straightforward and simple, if things were this way in reality? Indeed, nobody wants to release the work in its raw form, work-in-progress status.... and if the idea is truly revolutionary why would anybody concerned with the designing not want to keep it in wraps? But then come the Clause(s) (read claws). There has to be a catch in the phrase rather paraphrase right? So then come a trail of clauses (in contractual lingo a clause is a statement that defines the terms and conditions under which the agreement is drafted as a document {whose length is as per the size of the client’s business and project}). 

So, the clauses are designed elements of this creature called NDA. Yes, it is an ultimate design to nail down one’s own creativity to a paper (e-paper) with one’s own admission and signature. Some NDA’s are straightforward in seeking confidentiality of the creative person whose unique ideas will be the driver of this unreleased design be it software, game, film, document, program, product, service etc. But most also pin down the creator to relinquish their creations over to the client and some even more devious ones (truly devil’s in the details) can delineate the real estate of a designer. They can actually prohibit the designer to venture into a sector for a certain duration of time. It’s like debarring a child who takes the same route to school and forcing him/her to find an alternative because the roads been booked/ leased/ bought over and thus not to be trespassed, even if the child contributed his/ her free time collecting funds to build the road.

The other kind of venom from some of these clauses is the one that asks the creator to refrain from admitting that s/he was the creator. That is ad absurdum. The power of an agreement to turn back time? Kudos to whoever said Impossible is Nothing.

As a passionate young designer who believes in the model of collaboration and co-creation these 21st century incidents are reminiscent of the plight of all those nameless, faceless craftsmen who once built the Taj Mahal. Shah Jahan took all their credit, may be some was left for the architect/ planner but what remains hidden and forgotten are the names of all those skilled artisans who painstakingly slogged to created the marble marvel and later as the folklore goes even lost the very hands with which they created the masterpiece. Does money, status, a piece of paper/ agreement for that matter have immense power to erase from history the time and effort put in by creators and contributors to a massive mission? 

Any business big or small is a massive mission at hand until it is realised. In its realisation a host of services and facilities are a staple requirement that come from many individuals and organisations. Since its a given thing that no one person with a unique idea is capable of realising that at any cost. But may be at the cost of an entire lifetime with extreme patience and persistence, traits which are inherent to very few wise clients of this era or to clients open enough to hire designers that establish an understanding and trust. There that’s where this article comes a full circle. In the end irrespective of language, literacy, educational qualification, position, power, status, location, language, etiquette, manners, habits whatsoever that differentiates us as humans one thing that does unite us is TRUST. One other thing is TOLERANCE. With trust if we have the ability to tolerate the other person’s whims and fancies we have a peaceful state where both are free doing what they do. This is immensely important and appropriate in this regard. 

An agreement is only to certify a mutual acceptance of terms and conditions. It is drafted with the fear of an unforeseen dispute or malpractice that arises from doubt and lack of trust on both sides and hence further safeguarded with further discomforting clauses. As a young practice there is a great deal to be learned about this practice of applying archaic feudal laws of dealing with distrust for avant garde times. Physically these agreements are like glass boxes, (some even multiple-walled) through which the client and designer communicate. The basis of building a relationship and trust is communication and free exchange of ideas and the very same is hindered by these impenetrable walls. What’s more to ensure nothing leaks out of these glass 

boxes are seals that lock in all information with the Client. This is the shackle named Copyrights. While Copyrights have had great use for artists and creators in the publishing industry of print, film, music, science and technology, there are others who have had to regularly give away their works in exchange of money and anonymity. Can a parent ever sign an adoption agreement from of his/her child the richest organisation with the clause that states that the child is not theirs and they have nothing to do with the child forever or for the duration of the agreement? Why treat design as a commodity that can be parted away with in exchange of incentives? It is great to be detached with one’s work of art/ creation but to the point of anonymity? 

Often the commercial film industry is sneered at for its frivolous, dark and unholy practices but what is inspiring and worth learning from this field is the way every smallest of small contribution from the crew is faithfully credited for and made part of the last 1-2 minutes of credits for a 60-90 minutes film. As an advocate of collaborative thinking, its truly overwhelming to stay on those extra 2 minutes and admire the host of individuals and organisations who have partaken in creating the 60-90 minutes wonder. On a human level it feels great to know that a collective creation is so much worth the money one spent in experiencing it. Why then is design to be more specific graphic or strategic design of to be released products/ services so harsh on the creators pushed to oblivion to maintain secrecy? 

To me this aspect of design is not much of a problem for established designers as much as it is for budding designers. And as the designer gains more foothold of the design arena, terms can be spelled out in black and white. Also, there is a personal take on what the designer considers legitimate and fair and what it is to cross the line. My personal take is this that NDA’s and agreements if they are meant to be must be true to their word an NDA being only a certificate of confidentiality and an agreement/ contract a certificate of the committed service, quality, duration, cost and in case of failure the applicable penalties/ overcharges. When it comes to copyrights that a whole different ballgame but for the creator to own the credits to his/her own work is no copyright infringement. A melodious and soulful song Vande Mataram may be the property of the record company but the composer and singer was and always will be remembered as A.R. Rahman. That to me is the recognition and acknowledgement a designer must always enjoy, if not then it is clear that s/he is yet to find a secure trustworthy collaborative environment.

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