Opinion: in his latest Opinion column, Sam Jacob argues that the UK government's plans to extend the copyright term for design "protect existing interests instead of promoting innovation".
Later this year the UK government plans to change copyright law for design, extending the period of protection for designs deemed “artistic” until 70 years after the death of the creator. In essence, that means the entire oeuvre of canonical twentieth century design. Wrapped up in the Enterprise and Regulatory Reform Bill is legislation that will have a profound effect on design culture.
Currently, design for artistic works, which may well include prototype models of design icons, has copyright protection in the UK from “the end of the period of 25 years from the end of the calendar year in which such articles are first marketed”. That means that a designer of an artistic work has a 25-year monopoly to exploit the design before it passes into the public domain.
That means there is nothing legally wrong with you or I knocking up our own version of a Le Corbusier lounger or an Eames chair and there are, of course, many replicas on the market now - though you should get them while you can before the ERRB becomes law. There’s nothing wrong (legally) with a company producing exact replicas and selling them far cheaper than Knoll, Vitra or Herman Miller’s “authentic” replicas.
Thinking about the issue of copyright in other industries is illuminating. For example, the big pharmaceutical companies rely on the protection of intellectual property to give them a period of monopoly in which they can recoup (and obviously exceed, sometimes many times over) the vast sums they invest in research and testing.
Here, intellectual property acts as a motivator for development, offering a reward for the risk and experimentation that the companies take on up-front. Even then, the period of protection is short – 20 years from the date of application for the patent. Most of those 20 years will be lost on proving to regulators that it is safe and it works.
But in design, do the big companies invest in research to anything like the same extent? Do the likes of Knoll, Vitra and Herman Miller really support innovation? Or do they mainly exploit the back-catalogue of their intellectual property portfolio by churning out more and more products by Mies van der Rohe, Charles and Ray Eames, and George Nelson? It’s certainly easier: no expensive designers to pay, no re-tooling of production lines, no real risk. It is an enviable situation - a market that they essentially control with consumers caught in an endless love affair with mid-century furniture.
I’d argue that they don’t even have to create this demand: the desirable, canonical status of the named designers is not bestowed by the marketing initiatives of the design companies themselves. It’s a function of academic scholarship, art history, museums and other institutions, whose commitment (and, often, whose funding) is public - serving culture and knowledge rather than private interest.
Extending copyright for design to 70 years from the author’s death suddenly pushes the whole of modernism back into private ownership. It means, one can estimate, protection of around 100 years for the design of, say, a chair. It essentially fixes the field of design for the foreseeable future and condemns us to mid-century modernism until the middle of the next century.
Copyright’s expiration period creates dynamism in creative activity. Twenty-five years seems long enough for a company to recoup the costs of design development and it also means that they have to develop new designs of equal merit to replenish their stock of design rights. The extension will mean there is less incentive to invest, to experiment and to develop new designs.
There are shades of the “Mickey Mouse Protection Act” at work here, the phrase used to describe the 1998 extension of US copyright terms that was heavily lobbied by Disney. Equally, it echoes the UK’s "Cliff's law", named after singer Cliff Richard, which extended the copyright term of music recordings from 50 years to 70 years.
Both are pieces of legislation that protect existing interests instead of promoting innovation. It’s interesting to note that there has been significant lobbying with regard to the Enterprise and Regulatory Reform Bill on behalf of “well known furniture designers and manufacturers.” It has also been welcomed by the Design Council.
At heart this is more than a legal matter, more than an argument over knock-off Barcelona chairs. Wrapped up in this proposed legislation is a disciplinary definition of what design actually is.
Is design, to quote Mies van der Rohe himself, “the will of an epoch transformed into space”? This, of course, is the spirit of innovation and radical experiment that brought these design classics into existence in the first place. Or is design, as the ERRB seems to propose, the will of a previous epoch transformed into private interest?
I’d argue for the former, for ramping up design research and development, and for greater investment in design by those private interests to create the design classics of the future.
Sam Jacob is a director of architecture practice FAT, professor of architecture at University of Illinois Chicago and director of Night School at the Architectural Association School of Architecture, as well as editing www.strangeharvest.com.
Top image of Mies van der Rohe's Barcelona chair courtesy of Shuttershock