It’s not often that our ermine-robed Lords and Ladies have the chance to discuss the finer points of intellectual property in design. This week was one of those rare moments, as the Enterprise and Regulatory Reform Bill passed through the House of Lords for its second reading.
Buried within the bill lurks section 65, an innocuous looking paragraph, but one that could have a dramatic knock-on effect for the world of designers, manufacturers, publishers and museums.
The wording simply proposes to “omit section 52″ of the Copyright, Designs and Patents Act of 1988, which covers the “effect of exploitation of design derived from artistic work”.
Under current UK copyright law, designs can be freely reproduced 25 years after being created – hence the proliferation of “authentic replica” furniture. When an original Mies van der Rohe Barcelona chair will set you back about £5,000, it’s easy to see why the £455 copy has been so popular.
But not everyone is so enthusiastic about the glut of affordable fakes. When it was revealed that Samantha Cameron had bought a replica of Achille Castiglioni’s classic Arco lamp – for £250, compared to the £1,500 for the original – she was denounced by the editor of Elle Decoration as “cheap, hypocritical and fake” for supporting the “faux-furniture” industry.
McDonald’s was similarly chastised by Danish furniture company Fritz Hansen for its use of copies of Arne Jacobsen furniture, alongside some authentic originals, in its store rebranding. The company suspended all supplies to McDonald’s, claiming it “could not co-operate with a group that accepted piracy and set aside intellectual property rights” – even though the designs McDonald’s used were technically legal.
But not for long. Repealing section 52 will extend the copyright of design to the life of the author, plus 70 years – meaning you would have to wait until 2048 until you could buy that Eames Lounge chair knock-off.
“By protecting new designs more generously, we are encouraging more investment of time and talent in British design,” trumpeted Terence Conran at news of the bill. “That will lead to more manufacturing in Britain, and that in turn will lead to more jobs … Properly protected design can help make the UK a profitable workshop again.”
While designers rejoice, the faux-furniture industry has been up in arms, claiming the move will threaten more than 6,000 furniture companies in the UK.
But while this may be a victory for the protection of designers’ intellectual property, bringing the discipline in line with music and literature, a crucial by-product of the bill has been entirely ignored.
“On the face of it, the bill looks like good news for design,” says Lionel Bentley, professor of Intellectual Property at the University of Cambridge. “But there are lots of people that have been critically overlooked: from university lecturers teaching design history, to book publishers, to museums – everyone will now have to seek permission.”
He gives the following examples:
“If the V&A has an exhibition of fabric designs from the second world war and post-war austerity era, permissions will need to be sought to include images of these designs in the exhibition catalogue and on postcards;
“If the BBC commissions a short film about the work of the Design Council, including images of designs made in the 1950s and 1960s, permissions will be required to broadcast the images.”
The law will also apply retrospectively, meaning any book published that illustrates a work of 20th-century design will likely have to be edited and reprinted.
“It would be pretty easy to formulate a clause that would capture the replica design manufacturers, but not affect all these third parties,” says Bentley, and concerns raised in the Lords yesterday suggest there may still be time.
“But in my view, the bill is a bad idea. The 25 year period we have at the moment corresponds to the period of registered design protection, so this change in copyright law would entirely undermine the registered design regime,” says Bentley. “Besides, there is a vast amount of economic literature that suggests nobody is looking for returns more than 15 years into the future when they invest in a creation – and patents for inventions are 20 years max.”
Does this bill represent a welcome move, finally bringing the intellectual property of design in line with other creative disciplines? Or is it another example of adding needless red tape, a destructive blow to the world of publishing, teaching and museums?