In June 2018, IAO founder Saskia Wilson-Brown gave a talk at the World Perfumery Congress about a new initiative exploring alternatives for current IP structures as they relate to historic and independent perfumery. Here are the slides and Saskia’s presenter notes, shared under a Creative Commons Attribution 3.0 Unported License
PAST + FUTURE MODELS IN PERFUMERY
by Saskia Wilson-Brown
for The Institute for Art and Olfaction
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SLIDE 1: IAO MISSION
Extend the world of scent beyond traditional boundaries of use.
+ We initiate and support experimental projects that utilize scent
+ We provide accessible / affordable materials education in our lab
+ We celebrate excellence in independent perfume through our yearly award mechanism: The Art and Olfaction Awards
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SLIDE 2: IAO MISSION CONTINUED
I started the IAO because I believe that for people to succeed in new endeavors, they need two basic things:
Access (to knowledge, materials)
Structure (upon which to rely)
Our first purpose, at the IAO, is therefore to create the access that I believed was missing — particularly, of course, in California. The structures we’ve created through our various programs came out of that, and were designed to serve the independent, artisan and experimental communities.
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SLIDE 3: BACKGROUND
I created the IAO based on my experience in independent film in the mid-2000’s, at a time of huge change.
Change which I saw, and see, happening in the world of perfume.
When I started the IAO, I was working at a TV network called Current TV. Founded by Al Gore and Joel Hyatt, the network’s goal was to democratize the media (in response to Gore’s 2000 presidency run against George bush, where the media called the election early in FL. costing Gore the votes he believed he needed to win)
My job was to develop “viewer created content” for on-air broadcast…
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SLIDE 4: MEDIA LANDSCAPE
… and my job was possible because of the changing landscape in media.
+ Increased access: thanks to digitization of media
Knowledge: blogs, magazines
Hardware: flipcams, cell phone cameras
Software: Imovie, Final Cut Pro, etc.
Information flowing, and cheap materials meant there was a lot of new media being created, and in response, we began to see…
+ New structures:
Controlled platforms (youtube, vimeo)
“Uncontrolled” platforms (torrent sites, pirate sites)
More and more other outlets like film festivals (Slamdance, SxSW, Cucalorus, etc.)
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SLIDE 5: PROBLEMS IN MEDIA
But of course, with this new proliferation of media creation came some problems:
+ Piracy + theft: Nothing new, but worse with digital files, and the new P2P platforms
+ Distribution funnels: Too much content, not enough traditional paid distribution platforms to support it
+ Content Quality: Lots of user generated content meant lots of terrible content and the good stuff lost in the crowd
Result: in the early days:
+ Big media companies were losing audiences to this new flow of on-demand / user generated media
+ However, the new media creators were not surviving: It was too hard to monetize the content, even when it was viral hit.
(Fun fact: Puppy Vs Cat was the first cat video viral hit, loaded to Youtube in 2006)
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SLIDE 6: NOW
13 years on (I measure this from the launch of youtube in 2005), however, we’ve come to a time where these new structures are working pretty well.
The proliferation of media and shift in distribution is undoubtedly real:
Nielsen ratings: total viewers of ALL TV Channels in US, in 2017 was just under 86 million
One Taylor Swift Video has gotten – in 10 months, about 909 Million views.
Assuming one viewer views it 10 times, that’s still just over 90 million people
but…
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SLIDE 7: ADAPTATION
…Within this, big media companies have adapted well:
+ All have online / interactive content component, often buying up existing ones (Ex. Youtube content aggregator/producer Maker Studios -> Acquired by Disney in 2014)
+ Are hiring independent content creators to generate views and advertising money.
The potential threat from these freshly empowered content creators has become an asset.
Meanwhile, online platforms have expanded and gone mainstream as legitimate media sources in their own right. They are trusted, and advertisers are now sinking their money into online platforms and indie media makers. In turn, this means that smaller creators have access to revenue based on views.
It’s not easy, but it’s working.
And I believe that it’s working in large part to some well delineated intellectual property structures, which protect content creators, distributors, while also – crucially – allowing for free media.
Let’s talk about these structures for ownership and IP, in media, for a second.
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SLIDE 8: ACQUISITIONS
The typical transactional way of acquiring content typically work in 2 ways:
+ Classic acquisitions: A simple model, much like buying a car, in which a film is purchased in a linear way (and typically in perpetuity and across all platforms)
+ Licensing: The usage of media or content provided in exchange for specific terms and rates.
Content creators can sell licenses piece-meal, including, for example,
Educational licenses
Theatrical licenses
Territory-specific licenses
Product licenses (toys, drinks, clothing, grapes, etc.)
All this is dependent on classic copyright-reliant structures.
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SLIDE 9: COPYLEFT
However, a lot of people have or had ideological issues working under these copyright structures,
meaning that the traditional acquisitions – and even the licencing model – was not possible for them.
So, alternatives started to spring up, and get adapted from the software world.
This so-called “Copyleft” movement created an alternative to copyright, through licenses that allowed people
to freely distribute copies and modified versions of a work,
with the stipulation that the same rights be preserved in derivative works down the line.
These licenses work within the framework of copyright, but allow more flexibility than the traditional IP models
(Richard Stallman, 1985)
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SLIDE 10: CC
This movement eventually led to some very thought-out and developed open structures for sharing content.
As an example, Creative Commons.
Founded in 2001 by Lawrence Lessig + his colleagues, Creative Commons releases licenses that let creators communicate which rights they reserve
and which rights they waive for the benefit of recipients, or other creators.
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SLIDE 11: FAIR USE
In addition to Creative Commons and other initiatives springing from the Copyleft movement,
there were existing legal structures that offer ways to work with other people’s content.
An example of this are FAIR USE laws, (added to the US Copyright Act in 1976),
these allow third parties to use copyrighted content without the copyright holder’s permission, under certain conditions.
There are many conditions, but two examples:
+ The new work is critique, satire, educational
+ only a small portion of original material used (approx. 8 seconds in tv broadcast)
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SLIDE 12: PUBLIC DOMAIN
Another well-developed structure for sharing and using media is what’s known as PUBLIC DOMAIN
A legal term that refers to work whose intellectual property rights have expired, been forfeited, or are inapplicable
For example, most early silent films are in the public domain (terms are about 67 years), and then things like Newtonian physics formulas, some software code, recipes…
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SLIDE 13: CONCLUSION
A lot more detail that we won’t go into, but point is that as varied as they are, these various structures are reliable.
They allow people to work in whatever way makes sense for them; and – mainly – to let other people enjoy their right to create freely, while crucially protecting the people creating the work, and a free media.
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SLIDE 14: SO WHAT DOES THIS HAVE TO DO WITH PERFUMERY?
With a major exception the landscape of perfume now is very similar to media in 2005. All the data points correspond:
+ Rise in democratization (information sharing, access, platforms),
+ The perception that Good Content is being lost in the noise,
+ Even some of the qualitative issues (perfume equivalent of a cat video?)
+ And of course the human narratives: “They’re excluding us” / “These people aren’t ‘real’ perfumers.”
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SLIDE 15: SIMILARITIES
It’s strikingly similar. And given how it played out in media, it might be wise to consider a more decentralized industry as one of many possible futures.
The IAO’s job, as I see it now, is to continue our work in access, and further it by create new accessible structures for independent perfumers, to support them in this shifting landscape.
And one of the main things that needs revisiting — the glaring difference between film and perfume – are the protective IP structures for perfumers. As it stands, these are not clear enough to be functional at all levels of the industry
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SLIDE 16: EXISTING STRUCTURES
We can rely on some existing structures, of course.
For this, refer to the work of Claire Guillemin and Charles Cronin, amongst others.
But to briefly recap:
Trademark: Identifies the source of the goods of one party from those of others (possibly brand scent marks, see Christophe Laudamiel’s work in Dream Air)
Patent: Covers industrial processes
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SLIDE 17: COPYRIGHT
And then there’s copyright…
Copyright: Protects original works of authorship (poetry, movies, and architecture).
One could argue scent formulation would be the logical fit here…. but this is not often the case. As an example, through a series of cases, copycats of Trésor perfume (not the branding) were ruled potentially in violation of copyright in the Netherlands, but not in France, where the Cour de Cassation ruled that fragrance is too subjective to be clearly defined.
In short, it’s confusing.
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SLIDE 18: MOVIE
I became interested in all this because I’ve been working on a movie for about a year – alongside several colleagues – tracking a relaunch of a historic perfume.
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SLIDE 19: MOVIE
The narrative started off as a simple story (a quest to recreate the perfume) but it got quickly complicated. I won’t share any of those details, but I was left with some crucial questions, and some conclusions about intellectual property in perfumery.
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SLIDE 20: CONCLUSION 1
Unlike in just about every other creative industry: In the mainstream perfume world, there isn’t a strong existing culture of open sharing. This despite many efforts within and outside the industry.
Now, of course…
The independent and artisan community shares: They have no choice.
And there’s the “sharing” that happens in the GC labs…
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SLIDE 21:
But bringing it back to the story in the film: Even the surreptitious “sharing” represented by GCs approach would not have useful for the relaunch of the historic perfume in question. It’s no use to know what’s in a sample if one doesn’t know which the “real” one is.
Although there is access to the smell itself (thanks to the pioneering and hard work of the Osmothèque in Versailles), without an industry-wide culture of transparency there can be no access to the primary research materials themselves (formula, the formulas of historic bases, the technicalities of the natural materials, etc).
Without that access, any research grinds quickly to a halt.
And why does it grind to a halt?
Because of a sort of industry-wide protectionism; a protectionism spurred in part (and ironically) by a lack of actual legal protection.
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SLIDE 22: CONCLUSION 2
So, there is no transparency for the simple reason that THERE IS NO ACTUAL PROTECTION for the perfumers who make, commission, or are entrusted to keep these formulas.
And since there are few structures to support the formulas from being copied, the formula holders have no choice but to revert to the only option left to them: Secrecy. This is a secrecy that survives – somewhat absurdly – even in the context of GC technology.
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SLIDE 23:
While secrecy is of course absolutely understandable for modern mainstream formulas that are on the market, when it comes to our shared and international perfume “heritage”, this secrecy actually stops people from doing important historical work for the public good.
In short – the secrecy caused by lack of protection becomes a recipe for further exclusion. This sort of blind exclusion is de-humanizing, discouraging, and – more selfishly – impedes progress.
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SLIDE 24: CONCLUSION 3
So, I came to another conclusion, perhaps my last conclusion: We need a new structure; one that is complementary and supportive, but that faces a larger, more heterogeneous crowd: The public.
This structure should:
+ Incorporate rules for proper attribution, and how to handle derivative works
+ Serve to safely place the historic formulas that are out of production into the public domain
+ Allow people to safely share their own work, should they choose to
We aim, in short, to create a structure for intellectual property dissemination, that gives agency to the creators and places important shared cultural information into the public domain.
So how do we do this?
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SLIDE 25: PIRATE BAY
Let’s look back to our media friends in the mid 2000’s.
First we can look at a model that probably won’t work: Planned Piracy.
This could theoretically be monetized by donations, but as a lager sharing structure…
+ It relies too much on ideology
+ It makes people nervous.
+ While the idea of radical generosity is appealing, as anyone who is aging in the real world can attest, this is simply not sustainable
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SLIDE 26: CC AND OTHER MODELS
Better to adapt structures like Creative Commons to create our own version of attribution and sharing licenses,
while adopting fair use, public domain models from other fields.
Using this as a launching point, we can start to model behaviour by creating an alternative space for sharing intellectual property, in the independent perfumery sphere.
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SLIDE 27: OPEN SOURCING SMELL CULTURE
But there’s a big problem. We can’t just start using Creative Commons, because CC relies on copyright. As we’ve seen, copyright law is problematic in perfume.
Thus, we need to create a controlled opt-in space: A database where participation requires agreement to a legal contract
+ Participants will share info they have a right to and willingly want to share (along CC models)
+ Participants will create their own version of copyright law
+ And it will all be protected by individually signed contracts (and, of course, terms and conditions)
In other words, a community that will attempt to use a clearer set of legal parameters (contract law) to enforce adherence to a community-led version of an inadequate set of existing parameters (copyright law).
We hope to test this within the independent and artisan community, with a limited number of first participants.
After a year-long examination of all facets of this issue, we will launch this database in 2019.
This all starts in July in a program we’re calling ‘Open Sourcing Smell Culture’.
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SLIDE 28: BASIS
And in conclusion, I’ll leave you this.
These are the basic principles upon which I’m exploring this program:
1. Art is vital to the human experience.
2. Stultified culture becomes fossilized, and increasingly irrelevant.
3. If no one know what’s been done, we’ll inadvertently copy each other, forever.
4. No one has the right to cut other people out of art-making, in whatever form it may take.
5. And for that reason, important information needs to be made available – some should even be public domain.
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SLIDE 29: MUSIC
And there is precedent. Let’s look at some examples coming out of historically shut out communities who – through a lack of other options – shared their creative resources in a similar way:
+ Jamaican Dancehall: A riddim is a basic melody and beat, shared publicly and often used in hundreds of songs and live performances. Entire albums are released celebrating different variations on a riddim.
Example: ‘Buzz Riddim’ by Troyton Rami & Roger Mackenzie // A version emceed by Glockwise // A version emceed and arranged by Sean Paul (a version which won a Grammy) (20:74)
+ Hip hop: Used sampling and call-out culture to create a fluid and constantly evolving musical genre.
Example: ‘Staying Alive’ by the BeeGees / ‘We Trying to Stay Alive’ by Wyclef Jean
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SLIDE 30: FINAL THOUGHTS
So, my final thoughts:
If perfume is to be understood as a contemporary creative practice, and if it is to thrive, we need to loosen our grip on how we understand ownership, and stop being so afraid of sharing.
To that end, parts of our shared cultural knowledge needs to be placed in the public domain so that other cultures may take part, and so that it can be examined and expanded upon to fit the changing face of our world.
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SLIDE 31: FINAL THOUGHTS 2
It is only with a more open approach that the culture(s) we have built around this medium will survive:
The successes won’t be based on who does and does not have access to information, but on efforts to put shared information to better and better use.
For this to work, we need to share with people both inside and outside the industry, while fiercely protecting the attribution rights and preferences of the people who do the creative work that this industry thrives on. We need to make the Fragrance + Flavors industry equivalent of a free media.
This is precisely what we hope to attempt, and I hope that everyone will consider helping us in this endeavor.
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