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
SUMMARY

Design rights represent an interesting example of how the EU legislature has successfully 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 printing, open designers and their needs are largely neglected by such legislation. There... (see full summary)

 
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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-

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