A lot of people, including me sometimes, wish the problem would go away, but once you see it, it is impossible to unsee.

- Paul Hawken, responding to the seemingly intractable challenges around sustainability

Partnership on Design Directory

The Designers Accord has partnered with Design Directory, a joint venture between Core77 and BusinessWeek, to promote sustainable design practice.

Design Directory is the comprehensive, global index of design firms and creative consultants, spanning the practices of design management, communication design, industrial design, and interaction design.

In order to provide more exposure for the design firms adopters, we have created this alliance. The Designers Accord logo will be displayed on design firm adopter's listings and in Design Directory search results. In addition, users may filter their search results to return only firms who have adopted the Designers Accord - sending a clear message to clients, colleagues, and job-seekers that your firm is at the forefront of sustainable design practice.

Current design firms adopters are encouraged to set up their profiles on Design Directory. After May 1, 2008, the Designers Accord website will no longer list design firm adopters.

If your design firm has a current profiles on Design Directory, it was automatically updated to reflect your adoption.

All new design firm adopters will declare their adoption of the Designers Accord when they set-up their profiles on Design Directory.

The first panel discussion with Designers Accord adopters will be held at Sustainable Brands 08 on June 2-5 in Monterey, CA.

Book Excerpt: Designing Better Futures

We thank Designers Accord adopter Global Foresight Network, for sharing an excerpt from their inspiring new book.

Designing Better Futures focuses on how organizations and cities must rethink, redesign, and successfully change, so that they are more interesting, less stressful and capable of creating enduring value.

Using resources without thinking and acting in ways that are detrimental to the environment is no longer an option. The authors suggest that the window of opportunity to make the transition to this new Age of Sustainable Design is short, and the need for different conversations urgent.

As we move past the Age of Progress, future success is demanding both innovative design and the use of every technology at our disposal. Above all it must not be a time to have a crisis of imagination!

Download the chapter 1: Collision point: the changing face of reality

The State of Green Business

In this landmark report, Designers Accord supporter Joel Makower and the editors of GreenBiz.com (also the creators of the Greener by Design conference) answer the question: How are U.S. businesses doing in their quest to be greener and more environmentally responsible?

It introduces the GreenBiz Index, a set of 20 indicators of progress, tracking the resource use, emissions, and business practices of U.S. companies: carbon, materials, energy, and toxics intensity, clean-tech investments, e-waste recovery, paper use, employee commuting, and more.

This should not be missed. Download your copy of The State of Green Business 2008.

About Life Cycle Assessment

Life Cycle Assessment (LCA) is a process for evaluating all of the environmental impacts of a product or service system, through all of the phases of design, manufacture, retail, use, and disposal.

Why is LCA important? So that we don't kill the forest for the trees.

LCA puts a non-monetary valuation on environmental impacts, to give you a sense of where to begin improvements. For example, the biggest impact phase of a cotton towel is not manufacturing, or even the agriculture involved in growing the cotton; it comes from the energy expended from using washing machines and dryers over the course of the towel's life. If you are asked to develop concepts for a greener towels, then solving for the wash and dry experience is a powerful opportunity for environmental innovation.

LCA has its challenges, however. It can be difficult to get your hands on the data unless you have complete control over the product design, sourcing, and supply chain process. Also, data in the Europe, the US, and Asia are based on different consumption habits in each region, so determining a global LCA can be complex. But if you're just getting into green design, or you are looking to expand how you solve for environmental impact, then we recommend you get your hands dirty with LCA.

Learning more:

Okala EcoDesign by IDSA
LCA 101
EPA Case Studies
LCA Case Studies in the EU

Also, PRe, the leading LCA software developer, has an active LCA discussion community for users of its Sima Pro and Eco-It software.

Check out:

The Game Plan : A solution framework for climate change and energy by Saul Griffith.

Core77's recent piece on the Designers Accord: It's a great primer on the mission and plans.

A Primer on Intellectual Property and Creative Commons

In anticipation of the launch of the Designers Accord web platform this summer, we’ve asked Katy Frankel to describe the issues around IP protection. Katy has worked extensively with Creative Commons and Architecture for Humanity’s Open Architecture Network on the issues that we will be dealing with in the next few months.

Designers face the unique conundrum of producing works that lie at the intersection of all forms of intellectual property protection.

Intellectual property law uses three mechanisms – patent, trademark, and copyright – to enforce an author’s rights to exclusive use of inventions, designs, brands and creative works. Intellectual Property stems from the U.S. Constitution, Article 1, Section 8, which provides that Congress shall have the power “to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The goal of the clause is to promote innovation and encourage creativity, while maintaining a robust public domain available to all.

Current models of Intellectual Property are insufficient to achieve many of the desired objectives creators have for their works. Patent and trademark protection for design work is expensive to obtain and difficult to maintain, respectively. However, an alternative copyright scheme exists for eligible works. Creative Commons best resolves the tension between maintaining exclusive proprietary rights to a work but simultaneously allows the creator to open the work up for additional use by the public in a legal way.

Definition of Terms

Before describing the benefits of Creative Commons, it's important to define the terms of the discussion:

Patents Patents protect inventions. A general utility patent requires novelty, utility and nonobviousness. However, a design patent protects the new, original and ornamental design for an article of manufacture. The protection afforded by a design patent is limited to the ornamental features of the design, and excludes any features that are structural or functional. Where the nature of the design contributes to the operation or performance of the article, protection is excluded.

For example, the existence of a design patent on a golf club would not prevent others from copying features such as the streamlined shape of the club head, if this shape also increases the loft and distance of the golf ball. By contrast, a design patent for an athletic shoe protects the aesthetic, nonfunctional, aspects of the shoe such as the location and arrangement of perforations and stitching and the coloration of elements.

Trademarks A trademark serves as a designation of source for a product and may come in the form of a word (Apple for computers), color (Tiffany blue), or sound (NBC’s three notes), among others. Three-dimensional expression – known as tradedress – may also serve as a source of origin for the product, so long as the design actually identifies and distinguishes the service or goods with which it is used.

Product packaging and appearance are most commonly eligible as tradedress. The strength of a tradedress depends on whether the design is distinctive enough so that, in the marketplace, its primary purpose is to serve as a source identifier. Purely ornamental design cannot serve as a foundation for tradedress, unless it has acquired secondary meaning in which the mark has developed a significance that distinguishes the goods of the producer from the goods of others. Dirt Devil’s KONE may exemplify a design that would serve as a source designator.

Copyrights A copyright protects the expression of an idea in a fixed tangible medium. Copyrights are a bundle of rights that the author of a work retains exclusively to others, specifically (1) the reproduction right, (2) the derivative work right, (3) the distribution right, (4) the performance right, (5) the display right, and (5) the digital transmission performance right.

However, not all works are copyrightable. Copyrightable media are limited to:

literary works
musical works
dramatic works
pictorial, graphic and sculptural works
motion pictures
sound recordings
architectural works

Copyright does not protect works that are intended for utilitarian use, due to the inability to adequately distinguish between the functional and expressive elements in a product and granting copyright so broadly would endanger the public’s use of such ideas embodied in the product. For example, the idea of a chair cannot be copyrighted.

Precedent has applied the test whereby if design elements reflect a merger of aesthetic and functional considerations, the artistic aspects of a work cannot be said to be conceptually separable from the utilitarian elements, resulting in no protection for the entire work.A two dimensional representation of such unprotected industrial or product design, however, remains fully protected under copyright laws as a pictorial work.

Fair Use and its Cautionary Guidance

The Fair Use Doctrine is an affirmative defense to a claim of copyright infringement. Fair use is a conclusion based upon the weighing of competing policies and an inquiry into the particular facts of a specific case. Because a finding of fair use is inherently fact specific, it is only with great caution that general policy statements about certain types of uses are made.

Section 107 of the Copyright Act gives examples of fair uses, such as criticism, comment, news reporting, teaching, scholarship and research. The Act also identifies four criteria used to evaluate a claim of fair use:

1. the purpose and character of the use;
2. the nature of the copyrighted work;
3. the proportion of the work taken; and
4. the economic impact of the taking.

Intent and First Amendment concerns may also factor into the equation. Profit motive almost always nullifies a claim of fair use. Similarly, if a fair use were being claimed for the identical economic potential intended for the original work, a fair use defense would likely fail.

Works understood as highly creative or original proportionally increase the likelihood that infringement could not be avoided by a claim for fair use. Correspondingly, while a taking of an entire work is understandably much different from the taking of a single frame from a movie, the proportion of the work taken is better understood by conceptualizing the core of the work. The use of the core of a work, Mona Lisa’s smile for instance (assuming the painting had copyright protection and was not already in the public domain), would nullify a claim that such a use was fair, as opposed to taking the background scenery from that painting.

Though the Act identifies the relevant factors for evaluating fair use claims, these components have ambiguous boundaries, cannot be measured with any precision and often overlap with one another. Courts have singled out the fair use defense as the most troublesome doctrine in the whole of copyright. Duke Law School Professor James Boyle has published a user-friendly guide to fair use practices.

Issues of Copyright Duration and the Solution: Creative Commons

Copyright duration remains one of the most pressing issues, causing routine conflict amongst scholars, creators, and Congress. Congress has consistently increased the duration of copyright protection ever since the first copyright statute in 1790. In fact, there appears to be little, if any, constitutional limit upon Congress’ power to determine the length of the copyright term.

Originally, copyright ownership vested for a period of twenty-eight year but under today's Act, copyright extends for the lifetime of the author plus seventy years (thanks to the Sonny Bono Copyright Term Extension Act, pejoratively known as the Mickey Mouse Act due to Disney’s support of the extension). While the intent of the Clause in the Constitution was to further creativity and expression by giving exclusive rights to a creator for only a limited time, thereafter making it available for public use, the public domain continues to be restricted.

Creative Commons works to revive the balance, compromise and moderation interpreted in the US Constitution.

Founded by Stanford Law Professor, Lawrence Lessig, the non-profit organization seeks to empower authors to control the exclusive rights they wish to retain and those rights they wish to grant to the public. Building on the idea of creating legal rights for users beyond fair use (referred to as “ fair use plus”), Creative Commons allows authors to grant more legal uses than the fair use doctrine would allow. Creators choose from a palette of restrictions they wish to apply to their work:

Attribution. Lets others copy, distribute, display, and perform your copyrighted work — and derivative works based upon it — but only if they give credit the way you request.

Noncommercial. Lets others copy, distribute, display, and perform your work — and derivative works based upon it — but for noncommercial purposes only.

No Derivative Works. Lets others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it.

Share Alike. Allows others to distribute derivative works only under a license identical to the license that governs your work.

Licenses attach the to work, digitally, in three formats: (1) Commons Deed - a plain-language summary of the license, complete with the relevant icons; (2) Legal Code – fine print that you need to be sure the license will stand up in court; and (3) Digital Code – a machine-readable translation of the license that helps search engines and other applications identify your work by its terms of use. The machine-readable metadata allows search engines to find Creative Commons licensed content.

To date, there are over 145 million link-backs, and that is only an estimate of digital (not analog) works. Attaching a Creative Commons license to a work is irrevocable, however it does not preclude an author from engaging in a different contractual arrangement with a potential consumer. The Creative Commons license relationship only applies between the creator, the user and the subsequent users.

Interaction between Creative Commons & the Design Industry

Designers across the board have begun to understand and maximize the possibilities for Creative Commons licenses. Architecture for Humanity is a California-based non-profit organization aimed at encouraging architects and designers to seek architectural solutions to humanitarian crisis. Architecture for Humanity uses the Creative Commons Developing Nations License on some of their designs. The Developing Nations License allows anyone in a developing country to freely use a copyrighted work while contemporaneously allowing the licensor to retain the full copyright in the developed world. The license further creates the opportunity for architects in the developing world to create designs readily available for use within their homeland but preserves the architect’s rights in the developed world, where revenue-generating potential of the design exists.

In February, 2006, Architecture for Humanity founder, Cameron Sinclair, was awarded the TEDPrize. His wish, to create a community that actively embraces open source design to generate innovative and sustainable living standards for all, resulted in the 2007 launch of the Open Architecture resulted in the 2007 launch of the Open Architecture Network.

The Open Architecture Network serves a central channel of distribution for humanitarian designs, allowing authors to disseminate their designs, view others and collaborate on joint projects.

The content exchanged employs the Creative Commons licensing model, maximizing these objectives. With a platform for collaborative design, designs can now evolve into a virtual tree diagram of different ideas, tracking their development and growth. The designer chooses which Creative Commons license will govern the work.

Conclusion

While contemporary mechanisms of intellectual property may not perfectly grant the exclusive rights that designers across the board would want, it is worthwhile to recall the origins of such proprietorship – to encourage innovation and creativity. Creative Commons, by allowing authors to decide how to share copy rights with the public, enables designers to control the measure of exclusivity on some of their works, thereby empowering authors to achieve the objectives of sparking imagination in others by contributing to the commons without surrendering complete control.

About the Author Katy Frankel works with architects, designers and engineers on the adoption of Creative Commons licensing strategies. At Creative Commons, she focused her efforts on the launch of the Open Architecture Network. Katy has most recently authored “Copyright Protection for Architectural Works: How Can Creative Commons Encourage Collaboration Among Socially Responsible Architects?” (American Bar Association – The SciTech Lawyer, Volume 3, Issue 4 Spring 2007); was a contributing author/editor to Design Like You Give a Damn by Architecture for Humanity and Spectacle by David Rockwell; and presented at the Harvard Graduate School of Design. Katy is finishing her law degree at Quinnipiac University School of Law, focusing on Intellectual Property Law. She completed her undergraduate work at Cornell University.