Call For Evidence: The Re-Emergence Of Design Rights In The UK?

Call For Evidence: The Re-Emergence Of Design Rights In The UK?

Courtney Doagoo is a doctoral student at the University of Ottawa, Faculty of Law.

In November 2010, UK Prime Minister David Cameron commissioned Ian Hargreaves, Professor and Chair of Digital Economy at Cardiff University to carry out an independent Report regarding the current state of intellectual property law in the UK and to specifically assess whether the existing intellectual property regime was "sufficiently well designed to promote innovation and growth in the UK economy" (Hargreaves, 1). In light of the Report’s findings, the UK Government issued a 24-page Response in August of 2011 released by the Intellectual Property Office (IPO) that was extremely receptive of the Report’s conclusions.

The 130-page Hargreaves Report titled “Digital Opportunity: an Independent Review of IP and Growth” was released in May of 2011. The Report generally addressed common topics such as: the modernization of copyright and patent laws in the face of changing circumstances and technological advancement. The detailed findings of the Report were previously published on IPilogue, and can be accessed here.

The Report went further, in that it also foreshadowed a possible reform of a long forgotten area of intellectual property law, an area that was even absent from the Report’s Terms of Reference, in spite of the fact that it is one of the “largest contributions to overall intangible investment in the UK economy”: Design (Hargreaves, 64). It is interesting to note that the Report has taken into account that there are a wide array of industries that would qualify under the term ‘design’ and has therefore chosen to define the term ‘design’ broadly. For example, the Report considers fashion (apparel) design as conceptually distinct from industrial design.

Chapter 7 of the Report identified several shortcomings vis-à-vis the existing design regime such as the various methods for attaining protection, enforcement of rights and the lack of supporting evidence available regarding the use and effects of design protection.

Firstly, it was noted that there are currently four separate yet possibly overlapping methods in which to obtain design protection. Rights covering the UK (both registered and unregistered), and rights covering the EU (both registered and unregistered). Second, the Report revealed that avenues of enforcement were weak partially due to the fact that design, unlike copyright, only has civil recourses and protection was widely perceived as inadequate. The final and overarching issue outlined in the Report was that there exists a lack of information regarding the various design sectors and their usage of available design protection. "Limited" research has been done in this area as compared with other areas of intellectual property rights.

The UK Government’s Response in August of 2011 acknowledged that there was an unquestionable lack of evidence concerning the impact of design rights on the various industries that it is meant to protect. It further stated that it is unclear as to whether these laws have had a positive or negative effect on the livelihood and growth of the design industries. A summary of the Response was previously published on IPilogue and can be found here.

It was for these reasons that the IPO commissioned a study in conjunction with the Design Council to survey the current state of design rights in the UK generally and to also compare the influence of these rights on competitiveness and growth within the design sectors in other jurisdictions. The study was published in September 2011 and was divided into four chapters.

The first chapter covered design services, design rights and design life lengths; chapter two explored the link between registered designs and business performance; chapter three delved into the analysis of design right case studies; and finally an international comparison of design rights in chapter four. All chapters of the study can be found on the IPO website.

The outcome of this shared study conducted by the IPO and Design Council, culminated in a Call for Evidence announced by the IPO in September. The Call summarizes the study’s key findings and acknowledges the importance of the diverse design sectors to the UK economy in spite of the fact that legal protection is currently a patchwork. Its general purpose is to follow through with the Hargreaves Report by gathering enough information in order to help "identify the growth potential" and understand the relationship between innovation and design rights.

The Call for Evidence urges all businesses, designers and anyone generally related to the various design sectors to submit research or to "provide answers, suggestions and thoughts" to a series of questions regarding their experiences, or lack thereof, with the registration process and other issues relating to their interaction with design protection.

The deadline for submissions to the Call is November 2011 and the findings are scheduled to be published by the end of the year.

Acknowledgement of the deficiencies concerning this economically important sector is a significant step and will undoubtedly shed light in an area that has been long ignored.