CLASS 99
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MONDAY, 10 JUNE 2013
IP Bill - would amendments fall foul of FLOS?
Amendments (available here) were proposed to the IP Bill last Friday.
Some of these are helpful - for example, a definition of the rights of joint owners. However, one displays clearly the dangers of unintended consequences.
The Copyright, Designs & Patents Act defines "design" for the purposes of what is included within UK Unregistered Design Right at s213. A similar definition exists in s51, for what is correspondingly excluded from copyright.
At present, broadly speaking, 3D designs are included in Unregistered Design Right and excluded from copyright; for 2D designs, the reverse is true. The amendments propose to change s213 to align the definition of UK Unregistered Design Right with that of Unregistered Community Designs (and UK and Community Registered Designs). That sounds laudable, in principle, but ...
The main effect is to also include 2D designs within the protectable subject-matter of UK Unregistered Design Right. However, the knock-on effect of thus including all registrable designs within the definition of UK Unregistered Design Right is that they would all be EXCLUDED from copyright protection under s51.
This would have several interesting consequences. The first is that the Government's recent abolition of s52 (and consequent extension of copyright protection) in the Enterprise and Regulatory Reform Act 2013 would be entirely negated, as no design would survive s51.
The second is that the UK would clearly be in breach of its obligations under the Design Directive 98/71 and the Community Design Regulation 6/2002, both of which require the "principle of cumulation" and forbid the denial of copyright to designs in general, as explained in the EU FLOS case (C-168/09 Flos SpA v Semeraro Casa & Famiglia SpA), discussed here and here.
I have some other areas of significant concern:
Tags: copyright, intellectual property bill, section 51, section 52, UK Unregistered Design Right,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA459
IP Bill - would amendments fall foul of FLOS?
Some of these are helpful - for example, a definition of the rights of joint owners. However, one displays clearly the dangers of unintended consequences.
The Copyright, Designs & Patents Act defines "design" for the purposes of what is included within UK Unregistered Design Right at s213. A similar definition exists in s51, for what is correspondingly excluded from copyright.
At present, broadly speaking, 3D designs are included in Unregistered Design Right and excluded from copyright; for 2D designs, the reverse is true. The amendments propose to change s213 to align the definition of UK Unregistered Design Right with that of Unregistered Community Designs (and UK and Community Registered Designs). That sounds laudable, in principle, but ...
The main effect is to also include 2D designs within the protectable subject-matter of UK Unregistered Design Right. However, the knock-on effect of thus including all registrable designs within the definition of UK Unregistered Design Right is that they would all be EXCLUDED from copyright protection under s51.
This would have several interesting consequences. The first is that the Government's recent abolition of s52 (and consequent extension of copyright protection) in the Enterprise and Regulatory Reform Act 2013 would be entirely negated, as no design would survive s51.
The second is that the UK would clearly be in breach of its obligations under the Design Directive 98/71 and the Community Design Regulation 6/2002, both of which require the "principle of cumulation" and forbid the denial of copyright to designs in general, as explained in the EU FLOS case (C-168/09 Flos SpA v Semeraro Casa & Famiglia SpA), discussed here and here.
I have some other areas of significant concern:
- The amendments would remove protection via UDR for functional designs.
- They would remove the "must-match" exclusion without, however, replacing it with a "repair clause" defence - thus making spare part competition impossible.
Tags: copyright, intellectual property bill, section 51, section 52, UK Unregistered Design Right,
Perm-A-Link: https://www.marques.org/blogs/class99?XID=BHA459
MARQUES does not guarantee the accuracy of the information in this blog. The views are those of the individual contributors and do not necessarily reflect those of MARQUES. Seek professional advice before action on any information included here.
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