Stealing somebody’s designs is no different from stealing a song – it is all protected by copyright, after all. But compared to its musical counterpart, as well as patents and trademarks, the protection of design rights is a relatively new enterprise.
Trademark protection goes back to the 17th century, whereas design rights only came into being with the 1949 Registered Designs Act. There has been more legislation since, including the 2002 Community Designs Regulation and the 1994 Trade Marks Act, but as Dids Macdonald of Anti Copying in Design points out, ’There is very little case history and an awful lot of design out there.’
And whereas strong criminal sanctions exist for trademark infringement, the introduction of similar sanctions for design right infringement is still under consideration, according to the Intellectual Property Office – a state of affairs that Macdonald wants to put right. ’If I’m a famous songwriter and if someone steals my song they can go to jail, but if I’m an iconic furniture designer, they can’t,’ says Macdonald. ’[We want to put] design right on a par with copyright, because where is the difference in creativity?’
Acid launched two petitions last year to call for the criminalisation of design right infringement, and is hoping to reach critical mass and deliver them to coincide with World Intellectual Property Day on 26 April.
Another issue is the expense of registering a design. Many designers rely on unregistered design rights, says Macdonald, so identifying the rights that they create should be a priority. Raising awareness is crucial, something the Lighting Association is doing in this year’s Student Lighting Design Awards. For the first time, it’s asking entrants to identify different types of intellectual property which are relevant to their designs and show that they have taken steps to protect their IP rights.
’[We believe] that the lighting industry needs original design in order to flourish both in the home market and export,’ says Peter Hunt, chief executive of the Lighting Association. ’By encouraging student lighting designers to protect their IP we hope this will become an automatic process for future designers.’
Putting an IP strategy in place has a preventative and deterrent effect, and it is important to create an audit trail. Acid provides a free design databank, where consultancies can record all key stages of a design. ’The methods, although a little dated, do serve as different forms of protection,’ says Sean Dare of Dare Studio, who is currently going through the process of registering his designs with the IPO office. ’In this day and age, where most design work is either created electronically or scanned for e-mail purposes, it does offer an opportunity to date encrypt or sign the file for validation purposes.’
Designers can also highlight the value they place in their IP by including a simple IP statement on documents. The IPO also offers a free online IP Healthcheck tool to help businesses identify, exploit and protect IP, and its Central Enquiry Unit provides information on IP enquiries.
Access to redress if design rights are infringed is tricky. Dare says he ’wouldn’t hesitate to follow legal action to protect my designs, which I have invested in so heavily’, but many small and medium-sized businesses baulk at the cost and effort involved. ’We should encourage designers to register designs, but in tangent there has to be access to easier ways for infringement redress and access to more cost-effective and time-effective legal solutions,’ says Macdonald.
Don’t underestimate the power of mediation. ’A strong “letter before action” can often achieve an originator’s objective,’ says Macdonald. Out of Acid’s 400 settlements, only three have reached a final court hearing. ’Mediation is something I am passionate about,’ adds Macdonald. ’Getting people around the table can sometimes result in future relationships being maintained and even license royalty agreements struck.’
One designer recently raised awareness of a perceived infringement through social networking site Twitter, but if all else fails, you may want to take a leaf out of designer Benjamin Hubert’s book: ’Be the first to market and try to innovate, especially in materials and processes – and be as original as possible.’
Acid advice on protecting your intellectual property
- If you don’t want to be copied, say so. Communicate your anti-copying policy through your website and marketing material
- Education and knowledge are key strengths – if you know your IP rights you’ve got a head start
- Create audit trails – keep signed and dated copies of original work
- If you are showcasing new products, only allow photography with your permission
- Get a signed non-disclosure agreement if you are discussing new ideas, concepts or prototypes
- Put an IP strategy in place, identify your rights and protect them
- If copied, choose your battles carefully and identify your key objectives. Never sue on principle