Not for Designers: On the Inadequacies of EU Design Law and How to Fix It

• Author: Thomas Margoni
• Position: Senior Researcher Institute for Information Law (IViR), faculty of Law, Amsterdam
• Pages: 225-248

Not for Designers

2013

225

3

Not for Designers

On the Inadequacies of EU Design Law and How to Fix It

by Thomas Margoni*, Senior Researcher Institute for Information Law (IViR), faculty of Law, Amsterdam

© 2013 Thomas Margoni

Everybody may disseminate this ar ticle by electroni c means and make it available for downlo ad under the terms and

conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8 .

Recommended citation: Thoma s Margoni, Not for Designers: On t he Inadequacies of EU Design Law and How to Fix I t, 4 (2013)

JIPITEC 3, 225

A. Introduction

1

Design rights represent an interesting example of

how the EU legislature has successfully regulated

  

type of protection is not for all. The tools created

by EU intervention have been drafted paying much

more attention to the industry sector rather than

to designers themselves. In particular, modern,

Abstract: Design rights represent an interest-

ing example of how the EU legislature has success-

fully regulated an otherwise heterogeneous field of

law. Yet this type of protection is not for all. The tools

created by EU intervention have been drafted paying

much more attention to the industry sector rather

than to designers themselves. In particular, modern,

digitally based, individual or small-sized, 3D print-

ing, open designers and their needs are largely ne-

glected by such legislation. There is obviously noth-

ing wrong in drafting legal tools around the needs

of an industrial sector with an important role in the

EU economy, on the contrary, this is a legitimate and

good decision of industrial policy. However, good leg-

islation should be fair, balanced, and (technologically)

neutral in order to offer suitable solutions to all the

players in the market, and all the citizens in the soci-

ety, without discriminating the smallest or the new-

est: the cost would be to stifle innovation. The use of

printing machinery to manufacture physical objects

created digitally thanks to computer programs such

as Computer-Aided Design (CAD) software has been

in place for quite a few years, and it is actually the

standard in many industrial fields, from aeronautics

to home furniture. The change in recent years that

has the potential to be a paradigm-shifting factor

is a combination between the opularization of such

technologies (price, size, usability, quality) and the dif-

fusion of a culture based on access to and reuse of

knowledge. We will call this blend Open Design. It is

probably still too early, however, to say whether 3D

printing will be used in the future to refer to a major

event in human history, or instead will be relegated to

a lonely Wikipedia entry similarly to ³Betamax² (copy-

right scholars are familiar with it for other reasons).

It is not too early, however, to develop a legal analy-

sis that will hopefully contribute to clarifying the ma-

jor issues found in current EU design law structure,

why many modern open designers will probably find

better protection in copyright, and whether they can

successfully rely on open licenses to achieve their

goals. With regard to the latter point, we will use Cre-

ative Commons (CC) licenses to test our hypothesis

due to their unique characteristic to be modular, i.e.

to have different license elements (clauses) that li-

censors can choose in order to adapt the license to

their own needs.”

Keywords: Design Rights, Novelty, CDR, OHIM, Creative Commons, CC0, Open Design

2013

Thomas Margoni

226

3

digitally based, individual or small-sized, 3D print-

ing, open designers and their needs are largely ne-

glected by such legislation. The absence in the whole

 

 

in the amount of Recitals making reference to the

needs of the industrial sector in the Community De-

sign Regulation, including 7, 8, 13, 14, 15, 16 and 25.1

  

Recitals 7 and 24. This is certainly not a conclusive

argument by itself, but it is quite symptomatic of the

level of the debate during the drafting phase.

2

The historical moment when this legislation was

drafted (the Green Paper is from 19912) offers only

 

when products of industrial design meant industri-

ally based enterprises, and where the state of the

technology, its costs, and dissemination did not al-

low individual designers, or even small enterprises,

to play a relevant role. However, the equation seems

inversely proportional: the technology evolved from

1998 (the year of the Design Directive) to 2002 (the

year of the Design Regulation), giving wider access to

individual designers, but their relevance in the stat-

utes did not evolve accordingly. On the contrary, the

needs of the industrial sector found a sounder rec-

ognition in the most recent legislation.

3 There is obviously nothing wrong in drafting legal

tools around the needs of an industrial sector with

an important role in the EU economy; on the con-

trary, this is a legitimate and good decision of indus-

trial policy. However, good legislation should be fair,

general, and (technologically) neutral in order to of-

fer suitable solutions to all the players in the market

and all the citizens in the society, without discrim-

inating against the smallest or the newest. Failure

 

would represent an obstacle for innovation.

4 Thanks to technological evolution, the role of small

and individual players in the game of design has

grown exponentially without the law apparently

being able to catch the shift or the consequences

it entails.

5

Nowadays, the situation in technological terms is

diametrically different from the time when EU de-

sign law was enacted, as witnessed by “personal” 3D

printing solutions and the number of projects imple-

menting them.3 The proportions of the relationship

recall IBM’s 1970 data processing units that occupied

entire rooms contrasted with today’s tablets.

6

The use of printing machinery to manufacture phys-

ical objects created digitally thanks to computer pro-

grams such as Computer-Aided Design (CAD) soft-

ware has been in place for quite a few years, and it is



aeronautics to home furniture. The change in recent

years that has the potential to be a paradigm-shift-

ing factor is a combination between the populariza-

tion of such technologies (price, size, usability, qual-

ity) and the diffusion of a culture based on access to

and reuse of knowledge.4 We will call this blend Open

Design.5

7 Many Open Design supporters argue that 3D print-

ing technology and mass customization can be seen

as the cornerstone of a third industrial revolution,6

much like the steam engine and the spinning mule

  -

ardization for the second.7 3D printing has an end-

less number of possible applications, from food to

aerospace, from biotech to jewellery. In particular,

Open Source 3D printing – i.e. the use of 3D print-

ers created and licensed following the FLOSS model



distributed manufacturing models that will reduce ship-

-

fected economic sectors, create new markets and

new forms of social interaction, and reduce pollu-

tion (such as that connected with shipment).8

8 As it has already happened in the past, when legis-

lative interventions fail to recognize new techno-

logical, economic, and business needs, social change

happens and new forms creation and dissemination

     -

mental, from a policy point of view, not to turn this

social change form beyond to against the law. From a

legal point of view, a careful balancing of the differ-

ent rights and interests at stake can lead to shared

solutions that empower institutions, stake holders,

citizens and global welfare. From an economic point

of view, turning thousands or millions of potential

customers into transgressors can hardly be seen as

a good business plan.

9

It is probably still too early, however, to say whether

3D printing will be used in the future to refer to a

major event in human history, or instead will be rel-

egated to a lonely Wikipedia entry similarly to “Bet-

amax” (copyright scholars are familiar with it for

other reasons). It is not too early, however, to de-

velop a legal analysis that will hopefully contribute

to clarifying the major issues found in current EU

design law structure, why many modern open de-

 -

yright, and whether they can successfully rely on

open licenses to achieve their goals. With regard to

the latter point, we will use Creative Commons (CC)

licenses to test our hypothesis due to their unique

characteristic to be modular, i.e. to have different li-

cense elements (clauses) that licensors can choose

in order to adapt the license to their own needs.9

CC licenses are already employed in a number of 3D

projects.10

10

It must be borne in mind, however, that other le-

gal tools may play an important role in the protec-