The federal government, through IP Australia is currently conducting a review of design-related IP (Intellectual Property) laws.
Long overdue, Australia’s design-related IP laws trail by worldwide standards, particularly relative to similar countries. This is compounded by the fact that even globally, design rights have always sat awkwardly between the two cornerstones of the IP world: patents and copyright.
As an example, a songwriter or photographer’s work is automatically covered by copyright. Copyright continues regardless of how many times the song or photo is played or reproduced. Hobbyist or professional, copyright costs are free, requiring no application process and lasts the rest of their lives plus another 50 to 70 years. An industrial designer’s drawings are also copyrighted, but the moment their work is manufactured, it disqualifies for copyright. This is because copyright is reserved for ‘artistic expression’; music and photography are considered artistic; whereas products are not – regardless of how creatively, innovatively, or beautifully the products are designed. Or how commercial or formulaic the music or imagery is.
Patents protect the functions of how something works – and not what it looks like. Like design, patent creators must apply for IP protection. The process is complex and expensive, but it does grant successful applicants double the exclusivity period given to design protection. And unlike Australia’s design laws, patents provide a grace period (more on this below).
The middle ground between expression and function is covered by ‘Design Registration’ (or Design Patents in other countries). This needs to be applied and paid for in advance, but its major flaw is its limited exclusivity period. In many countries this is 25 years from registration, but in Australia the period is only 10 years.
In Australia, governments on both sides are united in their support for innovation and creativity; being smart and creative is the key to our economic future. But the reality is quite different to the rhetoric. On all key indicators Australia’s design and IP laws lag compared to countries that we like to compare ourselves to.
Source: Designs Law & Practice (IP Australia, University of Melbourne, IPRIA) M Falk & H. Zhang, 2019
The chart above compares Australia against similar developed countries. It measures Design IP Intensity (relative number of registered designs) against Design Labour Intensity (number of employed designers relative to total industrial workforce) and clearly reveals that countries with high-value, design-led economies all provide longer and more appropriate design protection than Australia.
All these countries, unlike Australia, are signatories to the Hague System, a series of integrated IP laws that better support design innovation. In addition, all these countries also offer a grace period, where designers or design owners can wait to see how the product performs in the market before deciding to pay for registration. Australia rejects this; creating an even tougher barrier to design protection, or worse – discouraging companies to investing in design entirely.
Ethics of IP rights go further than the biased nature of design rights. Anything that contains the word ‘property’ will result in the wealthy and powerful wanting to hoard and profit from it. Just look at the pharmaceutical industry’s high profit margins, or tech conglomerates control over thousands of patents. These entities leverage IP rights to get even stronger and more profitable. Real change is needed to limit the ability for corporations to lock-up creativity. And there should be more ‘open-sourcing’ for the common good. But until then, our current laws have far too many inconsistencies, producing winners and losers that hinder the very actions that these laws were in place to protect.
Today’s IP laws are still directly descended from laws drafted in the late 1800s. They were agreed over a series of international conventions held in Paris, Madrid and Berne. At that time these were world centres of industry and art. Also, at this time; ‘design’ had yet to be defined as a profession; authors, musicians, artists (and the then emerging ‘artiste de la photographie’) were almost certainly individuals, and reproduction techniques were limited in volume and quality. Since then mass-production, corporatisation, and the digital revolution have completely changed our lives. Is it any wonder our nineteenth century IP system has so many cracks?
“Its never been about control, profit or ownership. It is just innately human to want to be acknowledged for your contribution.”
It’s not surprising that industries with clearly established IP rights have also been able to assert their ‘right’ to be acknowledged for their work. For designers, IP rights are less about control or profit and more about the desire to be acknowledged for their hard work. Attribution is not technically part of any IP law as such. Like applauding a musical performance or complementing a chef, recognising another person’s creativity and skill should be a common courtesy and beyond any fee or payment. The irony of attribution is not lost on industrial designers.
“Our work has appeared in a magazine story about the product’s design. Yet Cobalt or our designer’s name is never mentioned.”
As product designers, we fully support other creative professionals asserting their IP rights. What we are saying is that those rights should be applied equally; not just for basic acknowledgement, but to actually foster a culture and economy boosted by innovation, creativity and design.
“As product designers, we have nothing against other creative professionals making the most of their IP rights. What we are saying is that those rights should be fairly applied for all”.
Steve Martinuzzo - Co-Founding Principal of Cobalt Design
External References and Further Information:
Melbourne University/IPRIA > Designs Law and Practice Report
World IP Organisation > Hague System Agreement
IP Australia > Designs Reform Practice
Design Institute Australia > Submission to IP Australia
