Following ACID’s (Anti Copying in Design) petition to introduce criminal sanctions for design right infringement The Government has responded by saying the current civil-based provisions provide a suitable IPR framework despite the fact that copyright infringement (which requires no substantive examination) attracts criminal sanctions. This gives rise to anomalies and inequality of treatment which are very damaging to hundreds of small businesses and designers across the UK and restricts the level of legal protection and support they can expect to receive.Dids Macdonald, commenting on the Governments’ response and, in particular, the statement that unlike trade mark and copyright disputes, design right can often be inadvertent said, “In my 20 years personal experience as a designer and latterly as CEO of a 1000+ member organisation (the majority of whom have joined because of design infringement threats), copying is generally deliberate and blatant rather than inadvertent. I would be interested to learn more about the Government’s evidence to support their statement. However, I am encouraged to continue the debate via the recently announced review of the UK’s IP and by the Government’s commitment to explore any (and all) suggestions for improving the designs framework for the benefit of the UK design industry.”
Nick Kounoupias, ACID LOBBY’s legal counsel and an expert in IP infringement said, “We are only suggesting that design rights should be criminalised where there is actual knowledge like copyright. There is no obvious reason for the disparity of protection. This may have been overlooked during the frenzied last minute lobbying and amendments made to the CDPA in 1988 as it was passing through Parliament. Design right protection was a relatively late innovation in 1988 and at the time it was probably felt that it was a step too far to extend to design right the new improved protection introduced for copyright in 1988. Certainly no rational basis for the inequality has been advanced by Government.”
The simple legal solution would be to introduce into the CDPA two new Sections to mirror S.107(1) and 110 (Copyright Patents and Designs Act (CDPA). The wording would be almost identical to Sections 107(1) and 110 and would be designed to criminalise the infringement of the design right subsisting in 3D designs. This can be done very simply by replacing the word “copyright” every time it appears in Sections 107(1) and 110 with the words “design right” and the words “copyright work” with the word “design.” It would then be necessary to make consequential amendments to mirror Sections 107 (4), 107 (5) 107A, 108 and 109 CDPA. As with copyright infringement this would criminalise blatant and deliberate copying but not copying inadvertently.
The Alliance Against IP Theft representing 20 organisations (of which ACID is a member) has recognised the need to ensure legal parity across IP rights as a key campaigning principle with a need to address the inconsistency in protection for design rights agreed as a specific objective. “ This is why the Alliance Against IP Theft is delighted to be working with ACID to address these anomalies and ensure that designers and creators have the same level of legal protection and support enjoyed by holders of other forms of intellectual property.” said Lavinia Carey, Chair of the Alliance.
In 2008 there were only 2798 designs registered in the UK and in 2009 2111. Most of the UK’s 250,000 designers would appear to rely on unregistered rights. This is contrary to the Government statement that IP, including design rights should serve to stimulate an environment in which new design ideas can flourish, whilst also providing a robust means of protection for existing design rights. ACID receives approximately 30,000 designs per year to its Design Data Bank for unregistered designs.