Does the Law Protect Value in Design? Alexander Carter-Silk & Michelle Lewiston Speechly Bircham LLP
Design Drives Economic Activity• Form and function are not alternatives• Function without form is sterile.• Design facilitates acceptance of function• Brand and Design can be synonymous.• Design has been an economic driver for over 400 years.
The law of comparative advantageThe law of comparative advantage;“The ability of one person or country toproduce a particular good or service ata lower marginal and opportunity costover another(Ricardo 1815)
Three Eras• Industrial Revolution – Shifted economic power from labour to capital – Shifted value from craftsmen to those who owned the means of replication.• Technological Revolution – Shifted communication from one to many to many to many. – Shifted value from content to the means of distribution.• Globalisation – Shifted economic advantage of reproduction from West to East – Innovation and reproduction split globally
Labour and CapitalAn effective law of industrial design is necessary if theproduct of the creative mind can be replicated by a thirdparty at a lower cost or using less skill than that which wasused to produce the original.
From caves to Victorian applied art Globally, all cultures place a high cultural value on the “design” of artifacts and the embellishment of their environment.
Function and FormAs function becomes available design differentiates 1908 1950 1960 1926
Arts and CraftsThe exclusive right to reproduce the product of thecreative mind is fundamental to the economicincentive to create.
The “Carried Value”What carries the value?Function, quality or aesthetics?
Why law must protect industrial design.• Culture; Rewarding and valuing the creative mind is essential to promoting rich diversity in our aesthetic environment.• Morality; Allowing those with the means of replication to predate on those who create is unfair and wrong.• Economics; The comparative advantage of production has moved from west to east. Innovation and creativity are essential to western economies.
Does the law achieve its objectives?• Certainty; Are designers clear as to what constitutes an unlawful copy and what is permissible innovation?• Cost; is the cost of protecting the value in design economic and proportionate?• Complexity; Can those who rely on design understand the rules which drive their economic decisions?
Our researchThe UK and most of the European law fails on all threeheads:•Complexity; Designers perceive the law as complexand ineffective to protect the essential carried value ofdesign.•The Courts; Courts are far to heavily influenced byconcerns over extending rights beyond what isnecessary•Costs; Designers perceive the costs of protection inthe UK and other jurisdictions as disproportionate.
The Opportunity• Value; The value of industrial design has never been higher or more important to industry.• History teaches us important lessons on how to cast legislation.• Engagement: There is an opportunity to engage and INTA can lead the way.• Brand and Design cannot be separated both rely on aesthetics and heuristics which drive value and economic growth.
LinksReport for UKIPO Design Law the Past and the FutureREPORT PREPARED FOR BRITISH BRANDS GROUPHEURISTICS AND PACKAGING