Will the replica furniture copyright law 2020 damage the world of design?

Ivan Macquisten

The government have set a date for the introduction of a new copyright protection law which will make it ILLEGAL to manufacture or sell copies of mass-produced designs after 6 April, 2020.

At Good to be Home, we looked into this and found that many product designers were passionate about the law, so we asked for them to share their opinions on the end of replica furniture.

You can read their responses, here. 

It’s no surprise that many furniture product designers are happy that the law will soon come into place, and they don’t understand why the law wasn’t amended years ago.

But other opinions, including that of Ivan Macquisten,  journalist, market analyst and independent public affairs campaigner, believes that the law can only hamstring designers.

When we asked Ivan to share his opinion, his response was so lengthy, that we had to give it its own post! Here it is…

Pharrell Williams and Robin Thicke find themselves on the wrong end of a £5m lawsuit, with Marvin Gaye’s children, over the similarity of their 2013  hit Blurred Lines, to the late Motown star’s classic Got To Give It Up.

As Marcus Berkman noted in a recent Spectator column, Richard Ashcroft had to chalk up to experience a run-in with Alan Klein over The Verve’s Bittersweet Symphony, which more than paid tribute to Andrew Loog Oldham’s orchestral version of The Last Time.

The result? A full writing credit and 100% of Ashcroft’s earnings from his song diverted to Mick Jagger and Keith Richards.

Berkman talks of other, similar tales in the very recent world of pop music.

Music sampling, especially in Rap, has also been a grey area over the years.

Where does the tribute end and plagiarism begin?

Pharrell Williams says he was unaware of being inspired by Gaye, so what then?

Answer: it makes no difference. He still crossed the line.

So all you designers, prepare yourselves for your turn.

I have spent the past two and a half years in opposition to much of the design world as they lobbied first for the adoption, then the immediate introduction of new legislation that they argued would defend their rights, and put an end to copycats.

Quite apart from many of the best legal brains in the UK saying that the law did not need changing under the EU directive and Italian court case that prompted the move, it seemed to me, from the start, that little thought had been given to just how far-reaching the consequences would be.

All in all, the proposed law change looked like bad news; hence my decision to back the antis.

By the time I became involved, however, it was already too late to stop the changes altogether. We concentrated on delaying their enforcement, such transitional periods being a standard part of introducing legislation that is likely to have a significant economic and social impact.

On that front, we won hands down.

Designers in the UK, today, should thank me and my fellow campaigners. And here’s why:

As with so many fresh laws on the statute book, this one appears to do one thing, yet actually, does the opposite.

It would appear to strengthen the rights of designers, yet it actually hamstrings them.

It would also appear to ensure quality in the world of design from now on; sorry, it is more likely to lead to far less innovation and a huge drop in investment.

It should bring designers more money as rip-off merchants and replica retailers go out of business; apologies, but wrong there too.

Well, at least consumers will turn their attention to classic designs now the cheap imitators disappear… not going to happen.

Section 52 of the Copyright, Design & Patents Act 1988 limits industrial design rights to 25 years from the first year of manufacture or marketing. This allows designers to capitalise on their designs for a quarter of a century but prevents ongoing monopolies from hitting consumer choice and pricing.

The UK government decided to bring the law in line with the artist and author rights by upgrading the weaker design right to copyright, extending it to 70 years after the death of the designer. This decision ignored the other existing protections under patent and trademark law, which helped balance rights under the old rules. The result, say some in the legal profession, is what was balanced is now unbalanced.

Whatever your point of view, it was the decision to make the law change retrospective that drew much of the protest from anti campaigners. It means that any design whose rights had already expired under the old 25-year rule but would qualify under the new 70-year rule will be re-enfranchised.

The result is that plenty of businesses who have been legitimately plying their trade, employing people and paying taxes, will simply go bust as their activities become illegal overnight. That will happen on April 6, 2020 – the five-year delay, dating from the final consultation findings, won by the antis, whom I advised.

On the basis of evidence submitted, the Government decided that five years would provide sufficient time for businesses to adapt without suffering undue hardship.

Vitra led the opposition, demanding the transition to be limited to six months, and they wanted that backdated to Royal Assent in April 2013. In other words, immediate enforcement.

Six months or five years, in the end the law will change.

So why should designers worry?

Why should designers worry? Good to be Home

If the new law is such a wonderful change, why have the government and Intellectual Property Office said it will have a “chilling effect” on innovation in design?

Comprehending just how far the rules will change is essential here.

Under the old design right, which is still in force, it is possible to copy an element of an existing protected design in the creation of a new one if the overall effect is different. Upgrade that right to copyright and any such copying or ‘inspiration’ becomes not just a breach of the right but a criminal offence. The copied design must have artistic quality to qualify, but there is no definition of what that means. A lawyer’s dream.

Look back at Pharrell Williams who declared he was unaware of being inspired by the earlier hit. Either way, it doesn’t matter; ignorance is no defence under the law.

Apply that to new – and even longstanding – designers and it is easy to see how they will be looking over their shoulders every time they put pen to paper or click a mouse. It’s not hard to show how pretty much any design has an element inspired by an earlier one. If so, and that earlier design is deemed to have an artistic quality, then prepare for the handcuffs.

As for the experienced designers, currently delighted by the thought that they are going to shake off poor imitators and have a new source of lucrative claims for breach, they also need to watch out.

Just think: how many of their  designs will fall foul of the new rules as they discover that earlier designs, also now re-enfranchised, inspired them?

I can already think of one prominent jewellery designer to whom this will apply but who, I suspect, is not yet aware of the fact.

What about innovation?

If companies suddenly find themselves with a monopoly of rights, and the imitators shut down, where is their incentive to innovate? If the market truly does transfer to them, they can just sit back and count the cash. And why would they risk money investing in new designs that may, themselves, turn out to be in breach?

Design Originals are, for the most part, much more expensive than the currently legal imitations.

That being the case, they sell to different markets. Why would a punter who pays £1200 for a copy go on to pay £8000 for the original if the copy were banned? It’s just not going to happen, as both the IPO and Government confirmed in their official reports.

So you destroy one market without enhancing the other.

As I have argued before, it is not just designers and imitators who will lose out. This change in the law is far further reaching. Museums, galleries and publishers, protected by the clause allowing use for the purposes of review and comment, will not be covered for the commercial exploitation of designs through 2D images. Assuming they can agree licensing at all, costs will soar for new publications, reprints and promotional items sold through museum shops – in most cases rendering them uneconomic.Ironically, one of the hardest hit is likely to be the Design Museum. Its book celebrating icons of 20th-century design is filled with pictures of manufactured designs due to come back into right in 2020. Even assuming it can get a licence to reprint each and every one of these, how long will that take, and what will the cost be?

Photographers, themselves protected by copyright, have also campaigned against the changes as they, too, will find themselves in breach through their 2D exploitation of 3D designs.

Most replica sectors, from cars to jewellery, have had little or no say at all in this fight. But the most important interested party still all but unaware of what will hit them in five years’ time, is the consumer.

Goodness only knows how much of a swathe the new rules will cut through IKEA products, let alone all the other inexpensive imitators providing affordable goods for those with shallow pockets.

Even this could be in part justified if anyone were truly going to win from the changes, but the evidence shows otherwise.

What will happen in 2020? Who knows? But one thing is certain: the damage to the replica furniture industry will be as nothing compared to the damage inflicted on the world of design.

Sources:

http://www.spectator.co.uk/arts/music/9460052/why-you-should-never-trust-songwriting-credits/ http://www.dezeen.com/2014/09/22/design-brands-vitra-artek-flos-attack-uk-government-over-copyright-law-delay/ https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/353373/Consultation_on_timing_of_repeal_of_section_52_CDPA.pdf https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/404525/Transitional_provisions_for_the_repeal_of_section_52_of_the_CDPA__2_.pdf

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