The Unregistered Design and Copyright - Essay Example

Introduction Innovation and creativity are essential pillars of social evolution. People began viewing adapted and applied knowledge as intangible assets from the early years of the industrial revolution. Products of aesthetic thought and expression have been more difficult to protect and defend than the outputs of scientific research and development. Problems of specification of intellectual property have become more controversial with the spread of digital technology in the form of computers. Print media have advantages that arise from their tangible form, over music, film and designs of commercial importance, though elements of subjectivity in judging whether a piece of work is a copy or essentially new, cannot be avoided altogether. The migration of mature economies from manufacturing to services has heightened the need to protect intangible assets. Territorial coverage of intellectual property protection is a matter of contention. Individual countries such as the United Kingdom, and groups such as the European Union, are powerhouses of commercially valuable inventions. They are quick to adapt legislation to technological advancement, ensuring that the regulatory environment under their jurisdiction remains conducive for new products and ideas. There are a number of important markets where UK and EU products and services have business potential, and where piracy and the absence of effective protection are major issues. The UK has been diligent in adjusting national laws to EU requirements (Consultation on the Modernization of the UK System of Registration of Designs, 2003). The country ensures protection of essential national interests through the mechanism of the Regulatory Reform Order. However, legal literacy seems to be higher in Germany and France as these countries have more new design registrations. (Consultation on the Modernization of the UK System of Registration of Designs, 2003) Similarities between Unregistered Design and Copyright The Unregistered Design system and Copyright law in the UK have a common objective to protect intellectual property. Both seek to encourage creativity and innovation. They discourage the pernicious practice that prevails in some countries outside the European Union and the United States, which allows entities to steal or to use ideas of others for their own benefits. The Copyright and Patents Act of 1988 in the United Kingdom actually covers unregistered design (Fawcett & Torremans, 1998). The objective is to provide a degree of protection to parties who do not follow the process of registering functional designs. Unregistered designs are protected against both primary and secondary infringement under this Act. The Community Design system is more flexible and covers all of the EU area; it is more advantageous than national registration (Consultation on the Modernization of the UK System of Registration of Designs, 2003). Both copyright and the unregistered design take immediate effects as soon as a figure or any expression of thought takes form. It is not necessary to take any specific steps or to follow a procedure for the protection of law to take effect. However, both the unregistered design right and copyrights are not applicable for ideas that remain in the minds of their creators. It is therefore important to be the first to establish use of a figure or shape of any work of creative expression. Protection does not create a monopoly or protect the commonplace, but it does prevent deliberate copying. Protection lasts for 15 years from the time of creation and first use, or for 10 years from after commercial use of the design or idea to make a product or to signify a service. Design rights and copyrights are treated as assets that can be bought, sold or licensed (Intellectual Property, 2006). The word copyright is used more often for films, music and similar work, whereas unregistered design is used for marks and shapes. Unregistered designs do not need any aesthetic value, as with copyright; it is adequate if a design is unique and different from anything that has been previously used and produced. However, interconnections are excluded, so if a design is an essential feature of an enhanced product, then it is not worthy of protection in the eyes of the law (Bright, 1994). Similarly, the manufacture, supply and use of visible parts of automobiles are excluded from design protection in the interests of people who need repairs and maintenance of cars and other vehicles they own. How Unregistered Design Differs in Practice UK and EU laws both provide for intellectual property to be registered. This in itself provides a significant difference between unregistered designs and works which has been registered. Unauthorized use or copy of a registered design can invite prosecution and the registrant may claim damages. Since copying can cause losses in a commercial situation, the non-exclusive cover of unregistered design may prove to be inadequate. A party which applies for registration of design has litigation rights, including against the Registrar, which a part with unregistered design does not have (Fawcett & Torremans, 1998). Therefore, all parties who can afford the time, cost and effort of registering a design, would be well advised to do so. Competitors may be more prone to try to copy successful and potentially valuable unregistered design would be often deterred from doing so if registration is secured (Intellectual Property, 2006). The owner of a registered design has monopoly rights to manufacture and to trade in products that carry the mark or shape involved. Thus, a registered design has a relatively higher and more effective commercial value. A party which has applied for design registration can ask for urgent application and redress of an application if there is fear of copying or abuse. Conclusions The UK and the EU join the United States and the advanced economies of the world in strengthening their future positions by encouraging the development and application of new ideas. Innovation is the principal source of financial performance, and gives such countries sustainable competitive advantage. It is also the basis of a vibrant culture that does full justice to the evolutionary excellence of western civilization. The legal framework in the UK and the EU serve larger social, national and unitary purposes. Copyright law, of which unregistered design right is an integral part, is designed to serve the best interests of all stakeholders, regardless of their size. It is specifically designed to promote the concept of intangible knowledge and creativity assets, which are not valued in statutory financial reporting. The Copyright Law sets the UK distinctly apart from countries in the third world which covertly use piracy of research and aesthetics to promote their welfare. The ground realties imply that registered design protection is better than unregistered design right. The latter does not convey any exclusive right, and does not provide for the owner or inventor to seek compensation. All copyright litigation is subject to a degree of subjectivity, but proving intentional copying can be impractically difficult in real life, especially in matters related to digital technology in all its forms. Registration is a reasonably quick, easy and simple process, and there are provisions to ask for urgent examination of an application if an applicant suspects cases of copying. A registered design has significantly better value in an industrial or commercial context, and is worthwhile for even small and medium enterprises. Registered design has longer protection, apart from financial worth in terms of potential compensation for violation of copyright. The United Kingdom seems to lag behind other EU countries such as France and Germany in terms of awareness of the benefits of registered designs, for the number of applications are relatively fewer (Consultation on the Modernization of the UK System of Registration of Designs, 2003). All parties in the country which enjoy the benefits of unregistered design right, should know that they should be vigilant against primary and secondary violation of their privileges and abuse of their best work. The success of automobile part manufacturers in getting their products excluded from even some registered design protection shows that lobbying by interested groups can change the competitive balance at any stage. Individuals and small enterprises may surrender in future, some copyright provisions by sheer ignorance. The relatively new phenomenon of international electronic commerce on the Internet requires rapid coverage of international copyright laws to all major world markets, and this is another important reason for UK citizens to be more aware of the additional benefits of registered design under Copyright Law. Design should be an integral part of the branding process. Those who market products, in the broadest sense of the term, with distinct and tangible features which cannot be copied, may find unregistered design rights to be adequate, especially if there geographical concerns are very limited. Such cases would be in the minority, because the newest sectors of the economy are extremely competitive, with substantial intangible elements of service. Design is invaluable in such cases, and deserves the additional protection of registration under copyright law. We may justifiably infer that while unregistered design draws inspiration and elements from its parental Copyright Law, it only serves the interests of amateurs or of professional with severely restricted interests in their work. The business perspectives of unregistered design and copyright law are also important from the aspect of timing of first use. Products and services that have long gestation periods before they achieve sizeable market shares may suffer with only unregistered design protection. Applications for registration of such design, made at appropriate times will provide longer apart from more secure and meaningful protection. It is worth continuing on the business orientation of registered designs, to underline the fact that the comparatively modest costs and efforts needed to apply for design registration will prove highly beneficial in the event of merger and acquisition activity. The case for funding growth of brilliant inventions by venture capitalists will be considerably strengthened by registered designs as opposed to mere unregistered design rights. Entrepreneurs would be well advised to build this in to their future plans. The Regulatory Reform Order system is an important safeguard in the UK, to ensure that vital national interests of protections, rights and freedoms, proportionality, balance and desirability are not compromised when national laws are detailed to meet EU requirements (Consultation on the Modernization of the UK System of Registration of Designs, 2003). Private Citizens and firms should ensure that this system is completed well before and thoroughly before EU deadlines expire. The UK did this for the Copyright Law only just in time! . References Bright, C. (Ed.). (1994). Business Law in the European Economic Area. Oxford: Oxford University. Retrieved April 19, 2006, from Questia database: http://www.questia.com/PM.qsta=o&d=74366730 "Consultation on the Modernisation of the UK System of Registration of Designs," (2003), The UK Patent Office Website, retrieved April 2006 from Fawcett, J. J., & Torremans, P. (1998). Intellectual Property and Private International Law. Oxford: Oxford University Press. Retrieved April 19, 2006, from Questia database: http://www.questia.com/PM.qsta=o&d=74377441 "Intellectual Property", (2006), UK Government Backed Intellectual Property website, retrieved April 2006 from < http://www.intellectual-property.gov.uk/index.htm> Read More