Ramila Clugston, IP Australia

Hello and thank you for watching – I’m Ramila Clugston, the project manager for IP Australia’s review of the design system in Australia.

In 2020, Melbourne Design Week explored how design can shape life, and the role that design plays in our society.

Between April 2019 and April 2020, we explored Australia’s design economy, researching what drives design innovation and the role protecting designs using IP plays in the ecosystem. IP Australia was pleased to be included as part of Melbourne Design Week’s prestigious programme and are happy to share this presentation with you.

This presentation is focused on findings from our research that set the scene for three core challenges.

We want to invite you to share your ideas for solutions that address these challenges:

  1.  The first is focused on improving knowledge of intellectual property and business strategy early – this is when a design is still just a concept
  2.  The second challenge questions whether the way ‘designs’ are described in the legal intellectual property system captures what is valuable about good designs being created
  3.  The third challenge relates to supporting designers who believe they have been copied after they have commercialised their design

While we recognise that design is rarely a linear process, these challenges are focused around three broad stages of a designer’s journey—concept, creation and commercialisation.

We will ask you to capture and send us your ideas of how you would solve each challenge. Below, you will see a link to a PDF document with cards showing each challenge. These look like the cards currently on the screen in this video.

You may fill in these cards directly in the document and email to the team as an attachment. Or, if you prefer, feel free to contribute your thoughts in an email. The email address, MDP-DRP@ipaustralia.gov.au, is written below for your reference.

You may want to include who will benefit from your solution. There is also a place where you can include an image if you draw your idea – either sketch and scan on paper, or use your preferred digital tools – why draw? Well, you are a creative industry and sometimes drawing may better help articulate your idea. It may help us also understand it better when we read through the solutions you send us.

I will emphasise that this is your opportunity to provide direct input to future reforms.

So, that’s what this presentation is about, but who are we?

IP Australia is the government agency that administers four different intellectual property rights, that people can register: We administer patents, trade marks, designs and plant breeder’s rights. we don’t administer copyright.

We are a team at IP Australia dedicated to reviewing the designs system.

Through an economic lens, we see that design contributes significantly. We estimate that design industries and workers contribute around $67.5 billion each year to Australia’s GDP… now that is equivalent to the construction sector.

Design is also an important part of Australian businesses competing on the global stage.

Beyond economics, we see design contributing to our Australian identity, to our values and our lifestyle.

Design rights are a type of intellectual property that protects the visual appearance of products.

Worldwide, the number of design right applications being filed has doubled over the last decade. Meanwhile, in Australia, the number of design applications being filed per employee has been falling.

In our review, different types of research, ranging from conversations we’ve had one-on-one with designers through to broad-scale economic analysis across nearly one million Australian businesses, have come together in a series of four research reports.

The first is Defining Design and introduction piece that sets the context for the research.

The second is Talking Design, and I would like to thank the many members of the design community who contributed their time through interviews and roundtables for this qualitative research piece.

The third is Valuing Designs, which summarises economic analysis conducted by the team at Swinburne University’s Centre for Transformative Innovation, alongside IP Australia’s team. We thank the professor Beth Webster and the CTI team for their fantastic work.

The fourth report is Protecting Designs. In recent months we have partnered with a number of design industry peak bodies and member organisations to distribute a survey of Australian designers and inventors.

As of this video being recorded, the first three are published and available on the research page of our website.

We encourage you to read these reports. We welcome your feedback, especially whether they reflect your experience in design.

When looking across the entire suite of reports, the research paints a fascinating, but complicated, picture.

Some of our most significant overall findings across the research include:

   (1)  There is a significant mismatch between how design is seen and done in Australia, and what is being protected by the design rights system.

We see only one in every 297, that’s less than half a per cent, of Australian businesses have held a design right in the last 16 years. This seems very small, compared with the significant amount of design work being done and the contribution design makes to the economy as a whole – so what is represented in the system, and what is being left out and why?

   (2) We see that the small portion of Australian businesses who do have design rights are more likely than the average Australian business to be doing significant research and development and exporting into overseas markets.

We also see that having design rights predicts some future productivity gains, but only for a narrow segment of the Australian economy.

   (3) There are many different and strong views about designs being copied. What is clear, however, is that defending a design against copying using the IP system is seen to be too difficult and too expensive for most.

While there is good news for some, we also see challenges faced by designers and businesses who engage in design.

Our review tells us that there is a need for change. But what does change that encourages original design and makes the - design right system more effective look like?

And now, before I dive into the challenges, I just want to once again thank all those who contributed and partnered with us on this research, and we look forward to continuing the relationship.

Concept

Starting with our first challenge: How might we increase designers’ knowledge of intellectual property and business strategy, so they can make informed and proactive decisions about their protection needs?

All designs start as a concept in the mind of the person creating it. We heard that many different things motivate people to design, and it’s certainly not just money.

But for those who want to build their career in design or use design as part of a business, earning a return on investment for what they design is very important.

IP rights, including design rights, are a tool to protect designs in the marketplace that some use as part of getting that return on investment. Our interviews suggest that many in the design ecosystem know very little about IP rights generally, and even less about design rights.

This includes businesses who tell us that visual design is very important to their commercial success and would feel exposed should someone else copy their design.

A common story was that designers only became aware that design rights exist after they have reached the commercialisation stage and experienced copying.

When looking at over one million Australian businesses who operated between 2002 and 2017, our economic research team found that those who participate the most in the design rights system are large manufacturers or wholesalers, concentrated in metropolitan areas.

This squares with what we heard through interviews, which suggests that larger businesses have greater access to advice from attorneys and other advisers about their IP protection, while smaller businesses struggle to get the personalised input they need, as there is no one-size-fits-all approach in design, business and IP.

For example, we spoke to a homewares designer who had designed a new product, registered the design with IP Australia, and received keen interest from a major retailer in stocking their product. The designer had just made a couple of prototypes and had no pathways to getting the advice or support they needed to make that happen. They thought registering their design would unlock pathways or connect them to partners who could help them going forward. The deal disappeared, and the designer had sold none of their product.

So, it’s not simply just being aware that design rights exist but making informed decisions about IP’s role in an overall business strategy.

We recognise an opportunity exists if we can meet this challenge: The challenge being - How might we increase designers’ knowledge of intellectual property and business strategy, so they can make informed and proactive decisions about their protection needs?

Creation

Moving to our second challenge: How might we change what the IP system describes as ‘designs’ to protect what is valuable in good design?

There are many different types of design, and clear boundaries don’t exist between them.

Design rights have historically served the industrial design of physical products that can be mass-produced. Other forms of design—like design thinking, service design or design in a virtual space where there isn’t a physical product — are often about moving toward better solutions or experiences. But these types of design are not part of the design rights system.

This is reflected in our economic research, which shows a relatively narrow set of industries where businesses experience an increase in revenue from having at least one design right.

Analysis shows these are businesses more likely to be in intermediate industries, rather than designing and making whole products  – for example, designing and manufacturing specific component parts of a machine (and having a design right registered for that component), then selling this on to other businesses that add their own value and components, until the final end-product is ready for sale. These chains are often across multiple countries, with the Australian business being just one link in what is known as a ‘global value chain’.

To many, those who benefit the most economically from the design rights system don’t do work they would typically think of as ‘design’.

In areas that a lot of people more traditionally view as beautiful design, like pieces of furniture, lighting or clothing, the design and end-product crafted from that design are intertwined and together may reach a cultural status like a work of art.

The divide between what is seen as beautiful design and what is protected by design rights can even play out within companies. For example, we interviewed a start-up with a new, world-leading technology product. They placed a lot of visual design effort and resources into the way the machine looks and told us the visual design of their product is critical to their business’ success. But what they had protected via a registered design was a replaceable component part that sat inside the machine. The outside appearance was not specifically protected via any registered IP.

In our interviews, many designers said the current legislation focused on protecting the visual features of products fails to capture what is most valuable in design, including the processes that create an output or outcome from a design’s concept. They said that any end-product is just the ‘tip of the iceberg’ of design, and what is valuable falls between the cracks between the different IP systems of design rights, patents, trade marks and copyright, remaining unprotected.

There are also important questions about whether the IP system is future-proofed, given advances in design technologies like AI and 3D printing which challenge traditional notions of design and ownership of designs.

We heard from designers on the cutting edge of augmented reality and 3D simulation experiences and the incredibly involved design processes behind the work they do to create a complete and rapidly evolving experience, purely experienced in the digital space, and the struggle to define and protect their work under the traditional IP systems.

Thinking about design that benefits most from protection from design rights as they exist today, and design that does not, we are focusing our challenge on: How might we change what the IP system describes as ‘designs’ to protect what is valuable in good design?

Commercialisation

Time for our third and final challenge: How might we reduce the cost and uncertainty for designers who believe their design has been copied?

Commercialising designs can be fraught with challenges.

From an IP perspective, a key challenge we hear about is designs being copied without permission, and the difficulties combating copying after a design is put on the market. In our interviews, the most passionate conversations were focused on these experiences.

At the time of recording this video, we are currently completing and analysing the results of a survey to get some clearer data about design concepts and creations being commercialised in Australia, and how widely copying causes unresolvable problems for designers. The results of the survey, reflecting experiences of those who have registered design rights and the wider design community, will be published shortly in our fourth and final research report.

Attitudes toward copying – the boundaries between what’s necessary to allow designs to keep evolving and what’s free-riding on the investment made by others into design – vary widely between industries and individuals.

Some told us that others copying any aspect of their design is a major business threat.

Some told us stories of the impacts of being accused of copying.

Some told us designs in their industry evolve based on trends or incrementally adapting and improving on what’s already out there, so the lines between original and copied are not so clear cut, and it is not clearly defined who would own a design that was a collaborative effort.

Academics also provide evidence that under certain conditions, copying can have a positive ‘advertising effect’ for original designers or warn that too many design concepts being locked down by IP protection stops others from innovating for the greater good.

Overall, views depend on context, the product or industry in question and the players involved.

What we heard loud and clear through our research is that most businesses, even the largest businesses, struggle to combat copying when they discover it.

Even if they have a design right they believe is being infringed, only a few businesses we spoke to had found any success sending letters of demand to stop the behaviour.

Usually, the only option is to take steps to go to court, and many we spoke to told us the complexity and costs of this are just too high for most to afford or justify spending.

Many have questioned the point of registering their designs at all given the difficulty of stopping copiers or making them pay compensation.

Some told us they rely on social media and public relation methods to combat copying, rather than enforcing formal IP rights.

There are complex legal tests about when a design is infringed and it’s often hard to see how these would apply to any particular scenario if it went to court.

Even with different views on copying, people should be able to know where they stand from a legal standpoint.

While there will always be opinions about what is harmful copying and not, it is clear the design rights system hasn’t addressed the disputes of those we have spoken to throughout our research.

If we can’t cheaply and quickly resolve those disputes and reduce uncertainty, then no one wins.

This leads to our final challenge for this event: How might we reduce the cost and uncertainty for designers who believe their design has been copied?

While this presentation has focused on three challenges, the suite of research covers more topics and findings than we have time to take you through today – I would encourage you to explore the findings and read the full reports if you are interested. [The link to the reports is available in this video’s description.]

This research is not the end of the story.

We will keep working with you, and the broader design community, going forward and hope you stay in touch. We won’t be able to solve everything all at once but want to work on and drive change in a direction that is of most value.

For example, throughout 2020 IP Australia is working towards a Designs Bill that will implement some changes to the design rights legislation that won’t need to wait for the longer-term research and reform work. We greatly appreciate the contributions made by many in this room to this process, which will create real, tangible changes for those who register their designs.

Thanks again for taking the time to watch this presentation. 

Just before I finish up, I would like to remind you to download the challenge cards and send us your ideas via the email address on the screen now, and available elsewhere on the page. We look forward to hearing your thoughts.

Last updated: 
Wednesday, March 18, 2020