On 31 January 2024 Nick Kounoupias, Anti Copying in Design’s Chief Counsel has been invited to speak at the World Intellectual Property Organisation’s sixteenth annual Advisory Committee on Enforcement in Geneva. He will join speakers from France and Egypt to talk about the challenges and solutions for small and medium-sized enterprises in intellectual property enforcement.
A summary of the talk is below and the full speech is here
Intellectual Property Enforcement Challenges for SMEs in the UK Design Sector: A Call for Reform
The design economy in the United Kingdom (UK) has emerged as a global success story, contributing significantly to the country’s gross value added and employment. Despite this, there exists a stark disparity in the protection afforded to intellectual property (IP) rights, particularly copyright and unregistered design rights, both nationally and globally. While the European Union (EU) undergoes a paradigm shift towards stronger copyright protection, the UK, post-Brexit, remains somewhat isolated in its approach. The Intellectual Property (IP) system in the UK is hailed as one of the best globally, but for many small and medium-sized enterprises (SMEs) in the design sector, enforcing IP rights is perceived as cost-prohibitive and time-consuming.
I. Design and Intellectual Property: The Birth of Anti Copying in Design (ACID)
The Anti Copying in Design (ACID) organisation was founded in 1996 by Dids Macdonald, a designer frustrated by the lack of protection for designers’ IP rights. ACID’s initial focus was on raising awareness and providing resources to help designers safeguard their creations. Over the years, ACID has played a crucial role in shaping UK design laws through lobbying efforts and campaigns.
II. Hierarchy of Intellectual Property Rights
Design rights occupy a seemingly lower position in the hierarchy of IP rights, with patents, copyrights, and trademarks enjoying more prominence. ACID likens patents to a rigid father figure, copyrights to a practical mother, and trademarks to the sensible, trend-setting oldest child. Designs, however, are often labelled as the “awkward child” in the UK, facing challenges in legal protection and recognition.
III. UK Designs in an International Framework
The complexity and inconsistency of design laws in the UK are evident, with pre-Brexit and post-Brexit scenarios showcasing a lack of harmonisation. The loss of the single market post-Brexit has created uncertainty for British designers, limiting their access to registered and unregistered community design rights. Attempts to simplify the legal regime for design protection are underway, but the timeline for such reforms remains uncertain.
IV. Discrepancy in UK Laws
The criminal laws pertaining to IP rights in the UK exhibit a significant discrepancy. While stealing copyright or trademarks is a criminal offense, stealing a registered design only became a criminal offense in 2014, and unregistered designs are not protected under criminal laws. The cost and uncertainty of registering designs further complicate matters, leaving designers vulnerable to theft.
V. UK Design Post-Brexit
Brexit has added another layer of complexity to the protection of design rights, particularly concerning the single market and the availability of design protection based on the location of the design’s first publication. The uncertainties surrounding this issue have left designers in a catch-22 situation.
VI. Design Protection within an International Landscape
Considering the global nature of design theft, the need for an international design treaty is emphasised. Design laws worldwide are contradictory and complex, requiring harmonisation to provide a minimum international standard of protection for designers.
VII. Design Law Complexity and Cost of Proceedings
The UK’s IP legal framework is deemed unfit for purpose by ACID, with IP litigation considered a luxury only affordable by a few. Enforcing design rights is seen as costly, complex, time-consuming, and stressful for SMEs, hindering access to justice. ACID is actively engaged in discussions with the UK Intellectual Property Office to bring about procedural and legal reforms for a more level playing field.
ACID remains committed to collaborating with governments, industry stakeholders, and legal professionals to ensure the respect and upholding of design rights. Efforts include advocating for a National IP insurance scheme, tools for self-help, and a Fast Track Mediation service. ACID hopes for design law reform in the UK, addressing complexity, cost, time, and stress associated with legal action, especially for small businesses. The ACID IP Charter, introduced in 2022, seeks to garner public support for designer rights, urging individuals to become signatories and join the fight for robust IP protection in the UK.