Dids Macdonald, CEO, Anti Copying in Design (ACID) tells Cabinet Maker about the change in law with regards to replica designs.
“Replica” designs have been hugely popular over recent years, but now no new copies may be made or imported into the UK. The recent repeal of section 52 of the Copyright, Designs and Patents Act 1988 extends the copyright for a deceased designer’s work from 25 years to 70 years in line with copyright for authors, songs and film writers.
This means that retailers and so called replica design companies will no longer be able to sell unauthorised and unlicensed replicas of iconic designs or works of artistic craftsmanship. Put quite simply, the ‘knock-offs’ of some quite famous designs, like the Eames chair, the Arco floor lamp or the original Egg chair are no longer legal. Those who sell replica designs have until January 2017 to sell any remaining stock.
This mustn’t be confused with protection for designs created after 1988, these are protected by registered UK & EU (for the moment) designs and the monopoly right lasts for 25 years. In the UK and EU there is also another legitimate right, unregistered design right. In the UK this can last for up to 10 (in certain circumstances 15) years and in the EU 3 years. Nothing changes on EU rights for the foreseeable future until Brexit is sorted.
An overriding strategy of the UK Government is to support the creative industries and to harmonise the law across Europe. Leaving a loophole for unauthorised and unlicensed copies of iconic designs to be sold meant that the UK was a trading post for the rest of Europe to buy these products. ACID welcomes this move; apart from Estonia and Romania we were one of the last 3 countries to comply with EU law! Sir James Dyson said, “The deliberate and intentional copying of designs smacks in the face of costly research, development and creative talent and there is nothing smart about it.” Fakes are never in fashion! There are thousands of British designers and manufacturers producing original designs that could benefit from this new law.
All other design-led EU countries proactively support the notion of original design. Copying or selling copies is against the law and the Government’s stance is crystal clear reinforced by the IP Minister, Baroness Neville-Rolfe, “IP enforcement in all its forms is a clear priority to support our creative industries.”
It is even more important pre BREXIT to support our British designers and British made products and get away from the culture that it is OK to steal and free-ride on another’s creativity.
AND WHAT OF BREXIT AND DESIGN?
Keep calm! Why? Because nothing will change overnight. It is business as usual! Under the Lisbon Treaty, there is at least a 2 to 3 year negotiation period (or possibly longer) before the UK leaves the EU. This means that European Union trade marks (EUTMs) and Registered Community designs (RCDs) will still give protection in the UK until at least June 2018, possibly longer. Patent protection remains unchanged because it is governed by the European Patent office and not a body of the European Union.
On a positive note, the UK is still the 6th largest economy in the world and design punches well above its weight contributing £72 billion to the UK economy. UK designers need to set themselves on a path of productivity to combat stagnation. If a business is still competitive then BREXIT is not relevant and it is a case by case evaluation. If there is an enthusiasm to make it work, irrespective of politics or, almost in spite of, confidence will play a huge part. Planning, too, will play a key role.
Following an ACID survey some concerns were raised such as losing the ability to gain community design registrations, ideas no longer protected when talking to EU potential clients and the extra costs and bureaucracy. Some were worried that there would be more copycat products and there would be increased difficulties in IP protection and increases in cost. The overriding concern shared by many is the general uncertainly surrounding post ‘Brexit’ legislation & the cost and complications of re-filing all IP across various territories.
At the first of many round table meetings with the Minister for Intellectual Property, Baroness Neville-Rolfe, ACID started positive dialogue to identify the key points to include in transitional arrangements so that the very best terms can be negotiated. The above concerns were articulated and ACID is in ongoing talks with policy officials to raise the above concerns. ACID also identified an opportunity to provide UK designers with stronger and better design protection. This is a unique opportunity to make UK unregistered design right similar to the EU equivalent and also to introduce criminal provisions. Together with the introduction of a new law of unlawful imitation, this would mean that if IP law fails designers they could rely on unfair competition, giving the UK a competitive edge over EU designers.
Initially, these are some points to consider:
- Currently, in the case of designs, which need to be novel, there will be no way of seeking a new UK registration for designs which were registered or disclosed more than 12 months prior, unless the Government decides to implement automatic UK design protection for EU designs. It is too early to speculate on this. Trade marks can, of course, continue to be registered as new UK trade marks at any time, provided that they meet the relevant criteria for protection and do not conflict with prior rights.
- Therefore, the only way to be certain of continuing protection for EU registered designs in the UK after the exit date is to re-register them as UK designs now, provided that they were not registered as EU designs or previously disclosed more than 12 months ago.
- Protection for unregistered EU designs will cease as at the exit date. Eventually and until (if) the Government enacts new design protection legislation, the only unregistered rights available in respect of designs will be the UK national design right and, where applicable, copyright.
- How can designers and manufacturers prepare? Identify, examine and strengthen relationships and links to EU countries. Identify which EU regulations govern what you do. Look at any agreements in place and renegotiate a special deal wherever possible. Since no country has ever left the EU, Brexit some say could take significantly longer.
LOCK UP YOUR IP – UNLOCK GROWTH!
And finally on a positive note, ACID has acted decisively and increased the benefits of the Design Databank to accept copyright works such as design drawings, plans, images, etc. Now you can also download a timed & uniquely referenced Certificate each time you upload & lock your files - strengthening and supporting IP with evidential proof of lodgement. Copies of responses to pitches, tender or procurement requests can also be lodged sending a clear message of IP ownership and a strong deterrent warning shot.