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Design as an object of intellectual property
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УДК 347. 211
Vetosh Alyona Alekseevna
Ural State Law University
Russia, Ekaterinburg
e-mail: vetoshalena@gmail. com
DESIGN AS AN OBJECT OF INTELLECTUAL PROPERTY
Abstract. This article examines the main methods for the implementation of design protection, analyzes exceptions to general copyright rules, determines advantages and disadvantages of each method of protection, announces the ways proposed for introduction into legislation in terms of increasing the efficiency of identifying and suppressing plagiarism.
Keywords: copyright, design, authorship, plagiarism, design patent, intellectual law, trademark.
For most people it is hard staying on top of a fast-changing world and constantly evolving society.
An incredible amount of new information, ideas and inventions are appearing on an everyday basis. The development of the Internet, mass production and globalization have influenced new elaborations (N. Frolova, A. Bogdanovich, Problem of plagiarism in design, 2019). The increased number of manufactured products and the openness of the cultural space are some of the reasons for the emergence of dishonest use of other people’s developments. With the growth of Internet usage people have started posting their artworks online, which also leads to high chances of copying the results of someone’s creative activity. Unfortunately, design is no exception. It is a very popular field of work with a high demand for qualified employees (demand for designers in Russia has grown by 78% over the past year). When work is made available to the public, the probability of someone stealing it and claiming it as their own can skyrocket as we live in a share-friendly culture.
The importance of protecting design and intellectual property in general lies in stimulating innovation. If new ideas are not protected, individual creators and businesses would lose interest in development. If artists are not paid fairly for their creations, they do not have incentives to create. Another reason to protect intellectual property is fair competition. This way artists are not put into a risky situation of someone stealing their concepts and ideas to profit their business. Fairness is important in this matter as it is quite exasperating to see your work being exploited by a single person or a business without any permission to do so.
Before I start talking about ways to protect intellectual property, I want to give a definition of the concept. Intellectual property is a sub-branch of civil law that regulates relations, the object of which is the results of intellectual activity and the means of individualization equated to them, in particular, relations associated with emergence, realization, disposition and protection of intellectual rights. (Novoselova L. A. , Law of intellectual property, m.: Urait, 2017)
Intellectual property is commonly comprised of four categories:
1) patent,
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2) copyright,
3) trademark,
4) trade secrets.
Now I would like to reveal in more detail each of the options presented above.
Patents are mostly used to protect inventions, innovations and anything new to solve the existing difficulties. They protect only the visual appearance of a product, concepts and general ideas. It is important to note that a design patent does not protect any underlying functions of an artwork. Design patents can be utilized to protect on-screen graphical images and animations, and individual portions of a product, meaning they may be used to protect almost any type of design. A design patentee is entitled to exclude other people from making, using, selling their design. Infringement of a design patent is taking place when the overall appearance of the original artwork and accused designs are substantially the same. The level of sameness is judged by an ordinary observer, a retailer purchaser, rather than an expert. It is important to note that design patents require special registration and are granted after a successful prosecution. Design patent takes several months to register and lasts from 5 to 20 years from issuance, which means the terms may be extended.
Copyright, on the other hand, protects work that is fixed in a tangible medium of expression. It does not protect any ideas. In contradiction to patent, work is automatically copyrighted when it is created, except for the work-for-hire situations, where the intellectual property is owned by an employer, not a creator. However, to sue a copyright infringement it is required to file a copyright application first. A copyright holder has exclusive rights to profit from the artwork, reproduce it and make derivative works. A copyright is infringed if the article is being reproduced, publicly displayed or copied into a derivative work without the permission of the owner. Copyrights provide protection for the lifetime of the author plus 70 years after the death.
Trademarks are brand marks that provide a product a distinct identity, help purchasers distinguish between various products or services. They cover a broad range of elements such as logos, product shape, and even sounds. In the same way as copyright, it’s not required to register a trademark, however, it would be useful to do so as it grants complete protection. It is important to do trademark clearance research to ensure that you are not trying to register an existing mark. Trademark is an identifier of goods or services, meaning the less similarity to other marks the better. One of the most convenient trade mark protection options for a design is the Madrid Protocol. When registering in this system, the designer protects his or her creation in 57 countries at once. (Jerome Gilson, Anne Gilson LaLonde. The Madrid Protocol: A slumbering giant awakens at last, Lexis Nexis, 2003, p. 7)
A trade secret includes a formula, program, technique, pattern, method, or process that is used in one's business, and has economic value that provides an advantage over competitors, so it is reasonable to maintain its secrecy. Violation of secrecy entails liability in the form of compensation for losses to the injured party. Disclosure of information that is not classified as a secret of production, but is recognized as confidential information by virtue of law or by agreement of the parties, also entails liability in the form of compensation for losses of the injured party or payment of contractual forfeit.
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Each of the methods protects design creation in its own way, so it is best to apply for as much protection as possible to the work.
A vital component of protecting intellectual property and specifically design is a personal understanding of the importance of protection and compliance with the rules by other designers. It is important not to cross the line between simply copying and having inspiration, so it is important to educate oneself and understand when actions are legitimate and when they break the law. One of the concepts that is essential to know is fair use, which makes it legal to use someone’s work without their permission in certain circumstances:
1. Scholarly works. It is possible to reference published articles or other material without worrying about copyright.
2. Criticism. People are free to mention the material they are criticizing.
3. Teaching. It is allowed to use designs in education, teaching people based on existing pieces.
4. Parody. The work has to be transformative enough. It is necessary to twist original ideas and concepts the way consumers would have a new understanding of the original.
5. News reporting. If a copyrighted piece of work is relevant to the story, it is legal to mention it without worrying about copyright infringement.
Using someone’s work does not mean claiming it as your own; it means referencing the work without plagiarizing it.
In conclusion, despite the large selection of design protection tools, they cannot protect artworks completely, since it is very difficult to find plagiarized designs in the endless stream of information on the Internet, people need to make an effort to improve protection. It is worth prescribing clear penalties, as well as creating technologies by which it would be easier to track plagiarism. It is also important to educate yourself, both ordinary people and design creators, so that people stay against plagiarism, meaning the need to improve their understanding of what to do if their work or someone else’s work has been copied.
List of references:
1. Novoselova L. A., Law of intellectual property, m.: Urait, 2017
2. N. Yu. Frolova, A. P. Bogdanovich. Problem of plagiarism in design // Problems of humanitarian education, 2019. URL: https: //elib. bsu. by/bitstream/123456789/234238/1/484-489. pdf (access date: 22. 10. 2021)
3. The problem with plagiarism [Electronic resource] / Inge Economou - the Sixth International DEFSA Conference Proceedings, 2011. URL: http: //www. defsa. org. za/sites/default/files/downloads/2011conference/Economou. pdf (access date: 21. 10. 2021)
4. The number of published vacancies in the " Design" direction has increased by 78% [electronic resource] URL: https: //netology. ru/free-lessons/issledovanie-dizajna (access date: 23. 10. 2021)
5. Jerome Gilson, Anne Gilson LaLonde. The Madrid Protocol: A slumbering giant awakens at last. // Lexis Nexis, 2003, p. 7
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