Lies, damn lies, and TED talks

Jul 11, 2012   //   by Alexander Lyon   //   Blog  //  Comments Off

Johanna Blakley speaking at the TED Talk in Los Angeles in 2010The principle behind TED is brilliant. Ideas worth spreading. Experts in the field give a broad-brish, easy-to-understand talk about their work, its implications and how it might affect other topics.

Sadly, TED doesn’t really have much in the way of a “review” process. The information imparted by the speaker is treated like the gospel truth, and there is very little room for debate within the TED structure. Usually, this isn’t a problem. Speakers are chosen carefully, they are professional and base their talk on published, peer-reviewed or otherwise sure data.

Then, there are cases like Johanna Blakley’s “Lessons from fashion’s free culture“.

There are a number of factual mistakes in her talk. From the minor error that can be granted as she wants to remain simple*, through the medium-sized mistake or choice that had to be made to stay within the short time frame**, all the way to the outright massive fib meant to mislead the listener***. I’m not particularly interested in listing all the mistakes, nor presenting a tit-for-tat response to her talk, but I do feel that the way in which she has presented her case runs contrary to her own data, as well as other data that is readily accessible.

For the most part, her talk is nothing more than a relatively banal description of the fashion industry. How it’s structured, how challengers are disrupting the status quo, how the market is segmented, how and why changes in the market occur, how the mechanisms to subvert market structure work. Sure, there’s a small part about the copyright environment, the differences between the USA, the EU and Japan that is interesting, but it’s a very cursory glance at the legislative environment these companies evolve in. Similarly, the final segment on “what deserves copyright protection” is interesting, but by side-stepping the two other major IP protections (patents and trademarks) leaves at best a very fragmentary understanding of intellectual property protection, and at worst is actually misleading listeners into believing things that aren’t covered by copyright cannot be protected by other manners.

Innovation is a complex term to discuss. It covers a wide range of situations, from new technologies, game-changing inventions and novel processes all the way through minor tweaks in presentation, incremental perfections of existing goods and services as well as imitation of competitors’ offers. When Johanna Blakley talks of innovation, she is being un-obvious in that there is little that most people would call innovative in fashion. Creative, certainly. Original, perhaps. But “innovative” is clearly a stretch. In her whole talk, there is only one example that I feel is innovative : Stuart Weitzman’s steel/titanium Bowden-Wedge high heel shoe.**** How innovative is this shoe? I can’t really venture a direct comparison, but it doesn’t seem as massive as other industries see on a regular basis, be they telecom and IT which have become ubiquitous in the last half-century or even those in aerospace and automobile. My knowledge of fashion, however, is not encyclopaedic, so if there are innovations in the past half-century that portray the sector in a better light, feel free to bring them to my attention in the comments.

My opinion, based on the data she showed in her talk, is that fashion is incredibly low-innovation. For all the changes in the world around us, someone from the 1930s would have little difficulty adapting to today’s fashion industry. Sure, hats are out, women wear trousers, t-shirts, jeans and “casual” clothes are widespread and well accepted. But beyond these minor fashion adjustments, there would be no difficulty in understanding what materials clothes are made from, how they are manufactured, how they are intended to be worn, and how they fit into a “trend”. Could the same be said for anything else? It’s possible, but the examples of industries that are so stagnant are far and few between. Food seems like the obvious answer, but the era of supermarkets, frozen food and prepared meals make the entire experience very different from that almost a century ago. Microwave ovens were introduced as a home appliance in the 1960s, and it’s only in the 1980s that they became widespread. Fridges were still a relative novelty in the 1930s, with only 20-25% of households having one by the end of the decade, whilst freezers were generally unknown of as a home appliance. Shopping has massively changed, as have the standards of preparation for foodstuffs. I could go on, but the general point is already clear : even food has seen important changes since the 1930s, despite it being considered by most people a “stagnant” industry, far behind other sectors when it comes to innovation.

The crux of her argument, her “call to action” if you will, is the graph showing the gross annual sales in the US of certain industries. On the left, four taller bars that she claims are from “low-IP” industries, and on the right three much smaller bars that she labels as “high-IP” industries. The errors on this graph, on this one slide are in my opinion just too great to be ignored.

  • Automobile is a high-IP industry regardless of how one wishes to cut it. Motor technology is patented. Sculptural design (contrary to what she says) is covered under design patent. Electronics technology is patented. It’s a downright fib aimed at misleading her listeners to list it as a low-IP industry. In her graph, it’s the second-tallest, and moving it over to the other side kind of destroys her argument already. With roughly 900 Billion US$ in gross revenues for 2007, it doesn’t fit nicely into her narrative that low IP protection leads to more sales. It destroys it.
  • The food industry is in many respects low-IP, but far from completely. Nestle, for instance, claims to have over 20,000 patents; Monsanto owns key patents to GMO crop, crop that is used on one-fifth of all US agricultural land. Pretty much every brand in a supermarket owns trademarks and/or copyrights on their products and most processed food is the result of a patent-encumbered preparation process. Of course, many aspects of the food industry are not regulated by intellectual property laws. However, this is generally because of a lack of novelty and non-obviousness. Johanna Blakley claims the “look and feel” of a dish can’t be protected. This is partly right : how the actual food is laid down on a plate or serving dish cannot be protected because it is not novel, nor non-obvious, nor does it represent a sufficiently distinguishing characteristic to warrant artistic protection. However, the plate or serving dish it is presented on, in or as part of can be protected. It would therefore be a more accurate illustration of the IP protection state of the market to distinguish catering services & restaurants from food retail. With only a small amount of research one can find that in 2012 the restaurant industry had US$ 632 billion in revenues, whilst the catering and events industry had US$ 7.1 billion in revenues. Assuming “standard” 2% increase per year in their revenues since 2007, that means they accounted for roughly US$ 580 billion in 2007. Which means that almost half of what Johanna Blakley claimed as her “food” industry is actually a “high-IP” industry. Another damning blow for the argument she is putting forth.
  • Lastly, this graph is misleading by omission. Why did she pick these industries? Why not add the firework industry? Why not include IT, telecom and consumer electronics/home appliances? Why did furniture make the cut, but not cutlery, dishware or glass? What is the underlying logic of the industries she is presenting? Sadly, I can’t see one. The obvious comparison for fashion (clothing) would be other industries that people use every day out of necessity. Food and housing markets would have been a good starting point, with utilities such as water, electricity and gas useful to broaden the scope. At a stretch, automobile, telecom and consumer electronics (television, oven, fridge) could be included, but these are already something that go beyond the scope of necessity. This wasn’t the choice made by Johanna Blakley, however. It didn’t portray other “creative” industries that she wished to preach fashion’s model to. So she picked and mixed. Automobile and food making for nice, big, tall bars that she was able to tie into her talk about creativity (electricity would have been much harder). Furniture makes for a bar smaller than fashion that helps bulk out her argument that industries with low-IP***** perform better than the lay person might expect, and makes the “creative” aspect much more clearly than the food or automobile industries. This creative streak then enables her to tack on films, books and music, industries that are by no means necessary, and yet claim to be making a meaningful comparison. If she wanted to take a more general look at “low-IP” vs “high-IP”, she could have added a whole bunch of industries to the “high-IP” part that would render her argument null and void. IT, both in consumer electronics and business services is estimated between US$ 300 billion and US$ 400 billion in 2007, depending on how broad one wishes to be with regards to “business services”. This is considerably more than fashion. The aerospace industry also represented US$ 200 billion, around the same amount as the fashion industry. Given neither of these industries is a necessity (nor are there any equivalent of indecent exposure laws that might punish people who chose to forego their purchase and use when in public), this points rather to a gross under-performance of the fashion market!

The way we consider intellectual property is certainly undergoing profound changes. How we as a society decide to protect digital goods and services is certainly one that is best served by an interdisciplinary team well versed in all kinds of topics as well as law. But this talk is far too misleading to be helpful. To make these difficult choices, we need to have a clear look at which industries have seen genuine innovation, and see how these innovations translate into availability under various kinds of intellectual property protection systems. Fashion, however, is hardly the model I’d want to see replicated elsewhere, mainly because of the reasons Johanna Blakley admires it.

 

 

* : Recipes can be copyrighted, but only as literary expression, the kind of protection she is implying -does- exist as a patent though.

** : Johanna Blakley makes liberal use of the vocabulary and semantic field of novelty (6 uses of “creative”, 3 of “creativity”, 4 of “innovat-”, 7 of “idea”, 4 of “new” as in novel, and 2 of “original”), yet at no points touches on what she means with these words.

*** : Amongst the “low-IP” industries that form a central part of her argument through the bar chart showing the importance of such industries compared to their “high-IP” counterparts, Johanna Blakley includes the Automobile industry. Given that GM, Ford, Toyota, Honda and other major players in the industry are amongst the companies that apply for (and are granted) the most patents, this is either the result of very shoddy research or the desire to mislead her audience through misrepresenting facts. Sculptural automobile design, for instance is not covered by copyright law, but by design patent law, as D366231 and D551594 (amongst a great number of other patents entitled “automobile body” prove).

**** : Using sporks, aluminum or feathers in clothes is not obvious at first, but in my opinion is creative rather than innovative, in that such products are not intended to actually retail, and are rather part of a larger “artistic impression” the house/creator wishes to impart to the public. However, as far as works of art go, these are far from being novel… Paco Rabanne had already experimented with aluminium dresses in the 1960s, working off the motifs of plate metal tunics work by warriors throughout history. To make my point better : if a fridge-maker showcased a fridge made of matchsticks, it would be creative but not innovative. It would also be a work of art rather than a fridge.

***** : Much like automobile designs, functional furniture design can be covered by a design patent. There are over 30,000 patents with “Chair” as the title, for instance. This goes completely against the notion that furniture isn’t protected by intellectual property laws.

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