Open Design is about sharing your work with others, and about designing with others. This also brings up some confusion; how can you share your work without getting copied? What are your rights if you design something in a collaborative project? And can a commercial product be Open Design? Is it possible to make a living from your work if you open your design files?
To answer these questions, it’s good to get some background on copyright and industrial design right, how design traditionally is protected and how Creative Commons licenses can be applied to design. For designers, the legal aspects of protecting their work are hard to figure out. Instead of diving into all of the legal licensing systems, it is best to first define a clear goal, and then find the best way to license your work. In this article we explain copyright, industrial design right, patent law and trademark law.
By looking at specific cases we illustrate which rights apply for designers, and how in these cases Creative Commons can be applied to achieve the goal of the designer.
The following cases are for illustrative purposes only. Do not rely on the following cases for your activity. They represent hypothetical cases of blueprints distributed under Creative Commons licenses. Creative Commons licenses are copyright licenses and do not apply to rights such as design rights, trademark, patents, etc.
If you are interested in applying a Creative Commons license to your blueprints or design products you should seek specific personal legal advice from qualified legal practitioners.
Copyright law protects works of authorship such as: books, songs, choreography, operettas, lyrics, drawings, paintings, sculptures but also computer programs and products of design and applied arts.
In order to receive copyright on a work, you have to create a work that reaches a minimum level of originality and creativity. What is protected under copyright is the expression, not the idea. This means that if you design a cardboard lampshade, you don’t have copyright on the idea of making a lampshade out of cardboard, but you do have copyright on the cardboard lampshade in the specific form that you designed it if original. It is your creative expression. Other people can also make a cardboard lampshade; as long as they don’t copy your design they are not infringing your copyright.
Copyright operates “automatically”, meaning that there is no need to register in order to receive copyright. Proper registration of copyright can have certain advantages; it is a public record, it helps in an infringement suit and as an assumption for validity. Copyright usually lasts 70 years after the author’s death and cannot be renewed.
Copyright gives the author of work moral rights (mainly paternity and integrity), rights of economic exploitations such as the right to copy, distribute, communicate to the public, translate, modify, adapt, perform, and to authorize any of these acts. Moral rights cannot be transferred, while economic rights can.. This means that if someone wants to use, alter, adapt, modify or perform your work, they always have to ask your permission, unless such acts are covered by exceptions or limitations to copyright or other fair use/fair dealing provisions (depending on the legal system of the country).
Creative Commons licenses are a flexible tool to manage copyright. You can allow people to do certain acts in advance, like the right to use, share, or the right to build upon a work that you created.
Industrial Design Right
Industrial design right protects the outward appearance of a product such as the lines, contours, colours, shape and texture. It protects industrial or handcrafted products, including packaging, graphic symbols, typographic interfaces and modular products or products with multiple components, as long as the parts are visible during normal use/operation of the product. Designers in the EU can obtain protection at the national level or at the Community level. Community Design (based on the Community Design regulation) is a right that applies in a unitary form in the whole EU (i.e. if a German court declares it invalid it will become invalid in the whole Community).
There are two types of Community Design; Registered Community Design and Unregistered Community Design.
Registered Community Design lasts for 5 years and can be renewed up to 25 years. Registered Community Design offers a wide protection, similar to that offered by patent law. It gives the right holder the exclusive right to use (produce, offer, sell, rent, import, export, expose, use or stock) the design and to forbid others to use the design without his permission.To obtain a Regsitered Community Design a designer needs to file a registration at the OHIM office.
If a designer does not register the design but nonetheless makes it available the designer will enjoy an Unregistered Community Design. A design/model is protected as an Unregistered Community Design for 3 years from the date that the model was first available for public within the EU. An Unregistered Community Design offers the same rights of a Registered one, but only against acts of copying, while in the case of a Registered Community Design, also acts of independent creation will be found infringing.
Patent law protects new and useful inventions in the field of technologies that have industrial application.
A patent is a trade-off between the government that grants an exclusive right to an inventor to manufacture, use, and sell an invention for a period of 20 years, and the inventor who makes public details of the invention. In fact, in order to obtain a patent one needs to register and disclose the invention. In order to be patented, an invention has to be novel, possess an inventive step and have industrial application. However, differently from copyright, patents do not operate automatically. You have to submit a detailed and complex request.
A trademark is a distinctive sign such as a word, logo, device, shape, packaging or sound, to identify the origin of goods and services. Enterprises, individuals or other legal entities can use a trademark to distinguish their product or service from that of others, and to consequently protect their reputation and goodwill.
Trademarks must have a distinguishing characteristic and not a descriptive one. The more a trademark resembles the associated good, the weaker it is. For instance, a trademark such as ‘water’ for mineral water will be too descriptive, while a pink elephant in relation to water may distinguish a bottle of water from others.
Trademarks need to be registered to enjoy full protection. Usually unregistered marks are also protected within the limits of “pre-use”, but with significant variations depending on the jurisdiction. A registered trademark is valid for a period of 10 years (in case of a Community Registered Trademark) and can be renewed indefinitely as long as it maintains its distinguishing characteristics.