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August 5, 2012

Letters to The Times

On July 31, 2012 the following letter was published in ‘The Times’ (including the last paragraph as written, although methinks something may have got lost in subbing along the way)…


Copyright law ‘must be clarified’


If enacted, Clause 56 of the Enterprise and Regulatory Reform Bill would repeal section 52 of the Copyright, Designs and Patents Act 1988, so that copyright in the artistic features of mass-produced products will subsist until 70 years after the death of the designer, rather than the present period of 25 years.

One practical effect of the reform will be to make replica versions of classic designs, such as Jacobsen’s Egg chair, unaffordable to many consumers. Also, the creative freedom of future designers will be constrained because of the need to avoid stepping on the toes of their predecessors, which those using images of these designs for illustrative purposes will need to obtain permission. These social costs are clear, yet there is no evident public benefit from the reform.

The reform has been justified as a response to Case C-168/08, Flos v Semararo, where the European Court of Justice found that transitional provisions in Italian law that left the Arco lamp unprotected contravened the Designs Directive 98/71. The UK did not intervene and thus the Court was not informed that during the passage of that Directive, the UK secured permission to retain the 25-year term. Rather than repeal section 52, the Government should take the earliest opportunity to clarify that this freedom remains intact.

In any case, repeal of section 52 goes well beyond what would be required to implement Flos – member stated remain free to limit the extend of protection of copyright in designs. There has been no consultation on this measure at all: public input would likely produce a more measured response.

Professor Lionel Bently, University of Cambridge
Professor Tanya Aplin, Kings College London
Professor Ronan Deazley, Uni of Glasgow
Professor Graeme Dinwoodie, Uni of Oxford
Professor Sir Robin Jacob, UCL
Professor Martin Kretschmer, Bournemouth Uni
Professor Hector Macqueen, Uni of Edinburgh


My response was published today, August 5, 2012, as follows, although they chose to delete my opening line which said that this debate isn’t helped by letters to The Times which obfuscate the issue by being shrouded in legalese…


Proper Protection for Original Designs


Our failure to keep in line with the rest of the EC has seen the UK become the knock-off capital of Europe: original work is insufficiently protected which effectively authorises fakes (‘Copyright law must be clarified’, letter, July 31). This damages Brand UK and endangers our standing as a centre of design excellence.

By the rationale of your correspondents’ letter increasing access to classic designs is a good thing. However, many of these classics were conceived as luxury items. An analogy would be a Hermès handbag. Would it be deemed of public benefit if everyone had access to a phoney Birkin?

The issue here is not availability of good design — there are many alternative, affordable items beyond this handful of classics — the issue is the protection of intellectual property.

The discrepancy of copyright protection is enormous. As it stands a registered design is entitled to cover for 25 years from date of issue, as opposed to 70 years after the death of the last originating designer. This means a designer’s work loses protection during their lifetime. Clause 56 of the Enterprise and Regulatory Reform Bill merely seeks to offer a copyright protection equivalent to that currently proffered automatically to our writers, artists and musicians.

Most crucially, all this talk of classics ignores the affect on our young designers, and the future of Britain’s creativity. What incentive is there to innovate if your work is not adequately protected? Do designers invest less commitment, passion or originality in their work, and therefore deserve less protection? I think not.

Michelle Ogundehin
Editor in Chief
ELLE Decoration UK

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Writer, Author, Brand Consultant & TV Presenter

Michelle Ogundehin is internationally renowned as an authority on interiors, trends and style. She is an influencer with expertise and the multi award-winning former Editor-in-Chief of ELLE Decoration UK.