Are our designs safe online? Research into Intellectual Property, Copyright and the Internet – Assignment Four

To understand in more detail if our designs are safe online I felt it necessary to do extra research so I could grasp more of the theory behind  the Internet and the World Wide Web.  The Internet is relatively new and has slowly creeped into our lives until we are dependant on it.  Naughton, 2010 writes “The Internet went from being something exotic to being boring utility, like mains electricity or running water – and we never really noticed”.  But how much do we understand of these resources because  the Internet and the World Wide Web are two completely different things, invented by different people and for different purposes.  The Internet according to W3C (2010)  “is a global system of interconnected computer networks that interchange data by packet switching using the standardized Internet Protocol Suite (TCP/IP)”. It was  invented by  Vinton G. Cerf and Robert E. Kahn in the early 1970’s. When Cerf and Kahn first designed the internet they did it so that it would work in the future and that no particular person or company could own it.  It was simply a means for interchanging packets of information, regardless of what that information was.  This of course meant that no one needed permission to exchange information but also no one could control malicious parcels and theft from these parcels. So when Tim Berners-Lee invented the World Wide Web  whilst  working for CERN the European Organization for Nuclear Research, as a way of making communication on computers easier worldwide, he didn’t need the permission of anyone.  There’s an excellent diagram explaining the process here.  Naughton (2010) likens the Internet to a railway track with signalling and with traffic running along the tracks and the world wide web as just one of the different kinds of traffic. Others being instant messaging, music files from iTunes, email etc.

Even before the question can be asked about online protection we have to ascertain what is exactly covered by copyright law because when many of us put our art work online we don’t ask ourselves this question. Simon Stokes, solicitor and partner of Blake Lapthorn and an expert in his field (Chambers UK, 2011) recently had an article published  ‘can the law protect works of art and what exactly does it protect?’  In this article Stokes looks at what types of artwork are protected by copyright in the UK.  He uses the s4 Copyright Designs and Patents Act 1988 as his source of information and examples of the works protected include graphic work, photographs and works of artistic craftsmanship.  In a court of law where the artwork does not fall within a certain category  “the Judge may well look at the intention of the creator and her status (as an artist)” (Stokes, 2009). Copyright law protects original art and this law differs between countries, in the UK the art work should not be a copy and must possess an element of skill and effort, in continental countries the work should have the stamp of the artist and in US law the work must have a nominal amount of creativity.

Stokes looked at cases where artists’ work had been reworked by other artists. He uses the example of the allegations of plagiarism following the Turner Prize exhibition entry of Glen Brown for his work The Loves of Shepherds, which was allegedly inspired by an illustration by Anthony Roberts for a book jacket. A similar case in the US used the defense that the work was changed so dramatically and therefore not in competition with the original, this is known as the “doctrine of fair use”.  At present we don’t have such a law in the UK although (Stokes 2009) asks, “whether this should be broadened along US lines”. To prove breach of copyright in the UK, the percentage of the artwork copied is taken into account and how much of the original artists’ idea. UK copyright law also recognises the so-called “idea/expression” dichotomy — “copyright protection shall extend to expressions and not ideas”, (Stokes, 2009).

According to Stokes there are two types of UK copyright cases, the first, those who find their work/idea has been used dishonestly e.g. within adverts and those whose work has been reworked e.g. magazine covers/photographs used in mixed media. He feels that if the law is increased in one area the public domain will suffer and freedom to use others work as inspiration will become more difficult but on the other hand weakening the law by introducing a fair use policy  puts more pressure on the original artist to protect their design. At present Stokes is following the case of Cariou v Prince which is testing current copyright protection where Prince has quite blatantly used the photography of Cariou in his artwork.

So what happens within the world of textile design?  With the increase in cutting edge textiles and products it is now more important than ever to have Intellectual Property Rights to protect the designer and the time and money invested in the design.  As we have just completed our first project Natural Pattern, I’ve become more aware of the investment that goes into producing a design, whether this is under the umbrella of a new or an existing trademark whatever the business size, this includes research into the design brief, future style trends, contextual market, sampling, prototypes and pricing policy etc.  Lane- Rowley (1997) suggests looking at Intellectual Property Protection of a new design in a “business context” and starting small reduces the risk that a “major innovation” could involve.

Within the UK, IP law can become very complex and for every stage of the design, different IP rights can apply.  With an original design, when the first mark is made on paper or computer, copyright is automatic, the same applies to the design of the product whether for fashion or interiors ‘”design rights are automatic”  (Lane- Rowley, 1997), these are both known as Statutory Rights.

Registered Rights are more formal; they are based “on monopoly rights as opposed to control of copyright-based ownership rights” (Lane- Rowley, 1997).  They involve cost and time and in a law court they would almost always protect the registered design.  One point Lane-Rowley makes very clear is that before registering the design never share your idea with anyone who is not connected directly to the company, as this constitutes prior publication and before attending any trade shows, designs should always be registered. This registration is made through the UK Patent Office.

Where design rights might not be protected in the law courts is when a prior search has not been carried out to ascertain if the design you’ve created is already registered.  This also applies to trademarks especially when smaller companies who are not known nationally or internationally have registered their name.  Here the designer could have invested in labeling and packaging only to find that someone is already registered to use that name/trademark.

Possession of IP rights including both statutory and registered are all seen as assets and can be traded as such.  A designer about to commence working for a company will have to check their contract of employment before signing.  The terms of ownership for the designs created will be included in the contract.  Designers may also have an agent who represents them, here the designs are sold through this third party and its important to make clear what the design can and cannot be used for.

With the design protected it is the onus of the designer to make certain that their IP rights are not broken.  To reinforce these rights items can be marked.  In the case of automatic copyright, designs and drawings can be marked with the  © symbol, followed by the designers name and year. This symbol is recognised internationally.  Where the items are clothing or products, labels can be attached or sewn in and on fabric this is the selvedge edge.  The information on these labels should include ownership information and registration number.  For registered designs the patent number is applied to the design and for trademarks, TM is placed after the name until the trademark is accepted and then ® is placed after the name.  Lane- Rowley (1997) makes it clear that although copyright marking is not required by law in the UK a designer will have more support should a case arise.

One thing is certain, the world of copyright law is not for the everyday artist and I think this is where things need to change.  Artists should be able to access very clear and easy to understand information. After reading other articles and books written by Stokes it is quite obvious he is an expert in his field. I found his article ‘can the law protect works of art and what exactly does it protect?’  difficult to work through perhaps because it was condensed and I had to dissect every sentence looking up the different policies, cases quoted and legal meanings, I came away with a better understanding but it was hard work.  Perhaps a better choice would have been his book Art and Copyright.  In the book the types of artwork are in clear sections with clear references.  Lane-Rowleys’ book, “Using Design Protection in the Fashion and Textile Industry” was a good choice to read.  It looks at all aspects of textile design and protection and perhaps should be made a set text for textile design students as it covers many cases, explains them and is in a language I could understand.  Neither Stokes nor Lane-Rowley gave opinion on the subject, both used well referenced cases and information, which as far as I’m aware, is up to date.

Our work needs to be protected but at what point should the artist find out about copyright and design rights, after their designs have been stolen?  I can understand why those just starting out in the industry bury their heads and hope it will all go away but perhaps it should be taught as part of our university degree, after all the processes we go through to create our amazing designs we then go and have them stolen because the world of Intellectual Property is like a foreign language. Whilst researching I came across an article in Design Week about a new software application Creative Barcode which launched in September 2010.  It is aimed at designers who send their designs ideas via the Internet to large companies, this in the past this has lead to IP theft.  Creative Barcode will embed barcodes into the designers’ ideas, proposals and innovations and the company interested  can access the designs once they’ve agreed to the Creative Barcode terms and conditions; including agreeing to inform the designer of any production/manufacturing plans they may have.  The barcodes can be inserted into CAD, digital, graphic and text files as well as onto paper designs.  Creator Maxine Horn says “the device is born out of my many years working in the creative industries and noticing that the problem of idea theft is growing …”  There is a cost associated with this but for those who just don’t have time to research the subject and want to design instead of playing lawyer it could be the ideal answer.  The site can be accessed here with much more information about the process.  An organisation which welcomes Creative Barcode is ACID (Anti Copying in Design)  who are committed to raising awareness of Intellectual Property theft.  It is a member organisation again with lots of advise and a FAQ section. If you want to learn more about IP and copyright there is now an online course which is provided by the British Library, it is free to everyone.

We can help ourselves too.  Perhaps stopping and thinking about if we really want to place our designs on-line whether on web sites, blogs or social networking sites.  If the answer is yes we do, then watermarks can be made easily in photoshop and placed into the image.  If this doesn’t appeal, save the upload image in as low resolution as possible.   Of course this doesn’t prevent the idea being stolen and that is something we have to way up if we want our art work to be seen by the masses.

I do realise that this became more about protection over all than  about on-line protection but I feel we have to understand the underlying details before we can even start to tackle  the problems of on-line theft.  Hopefully  artists will become aware of the problems that can arise and by taking a little time to educate themselves can save a lot of time, effort and money in the future.

British Library, 2010. Free online courses on Intellectual Property, (online),

available from: http://www.copyrightservice.co.uk/3p/bl/

European Organization for Nuclear Research, 2008. How the web works,

(online), available from: http://public.web.cern.ch/public/en/About/WebWork-en.html

ICAN, 2010. The Internet Corporation for Assigned Names and Numbers,

(online), available from: http://www.icann.org/en/biog/cerf.htm .

Accessed 8th December 2010

Lane-Rowley, Ulla, V., 1997. Using design protection in the fashion and textile industry. Chichester: John Wiley.

Naughton, J., 2010.  The internet: Everything you ever need to know, (online),

available from: http://www.guardian.co.uk/technology/2010/jun/20/internet-everything-need-to-know.

Accessed 11th November 2010

Relph-Knight, L., ed.,2010. Creative Barcode software unveiled to protect designers from intellectual property theft. Design Week,  25 (37), 4.

Stoke, S., 2003. Art and Copyright. Oxford: Hart Publishing

Stokes, S., 2009. Can the law protect works of art and exactly what does it protect? Art Newspaper, 18 (201), 35.

The Library of Congress, 2010. Copyright The United States Copyright, (online),

available from: http://www.copyright.gov/title17/

Accessed 8th December 2010

W3C, 2010. The People of W3C, (online),

available from: http://www.w3.org/People/Berners-Lee/

Accessed 11th November 2010

Further research into;

Design protection abroad in more detail both in the US and Europe, using The Library of Congress and European Commission web sites.

Licensing of designs; Intellectual Property Office, UK

Watermarking photographs using adobe photoshop

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3 thoughts on “Are our designs safe online? Research into Intellectual Property, Copyright and the Internet – Assignment Four

  1. Great article, Thanks for the reseach. The usual argument is based on Picasso:
    “If there is anything worth stealing, I steal it”. backed up by the “no such thing as virgin thought” theory.
    I agree, artists need easy to apply protection laws.
    Amanda

    • Thank you Amanda, really appreciate your comment – its such a huge subject, we had to look at two items a book and a journal from a previous assignment and analyse them, I could have gone on forever – perhaps a law degree next !

  2. Great, user-friendly article Judy. I always say, if you don’t want to be copied say so and there is no better way than a short line on your website front page and in marketing material and on standard email signatures saying, “All intellectual property rights are and will remain the property of (insert your name). Any infringements will be taken seriously”. Our members use this in conjunction with the ACID logo which basically says what it does on the tin – (Anti Copying in Design). You are right, understanding identifying the IP you create is an excellent starting point. Signing and dating all key stages during the design/creation process is also a simple way to keep proper documentation behind new work. A solid design audit trail is compelling evidence should it ever be required. We have a free Design Data Bank and hold 350,000 copies of designs/artwork. It doesn’t add to rights but provides independent evidence of date or receipt. We will soon be launching an ACID IP tracker initiative for sending confidential IP led information/plans/drawings/artwork to third parties – watch this space! Well done and thank you.

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