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The UK Government has announced one of its most significant reviews of intellectual property and design law in many years. Its goal is to modernise the ageing system, which is widely regarded as outdated, fragmented and increasingly unfit for its purpose and role regarding the introduction and expansion of AI and technology. This is being headed by the UK Intellectual Property Office, otherwise known as the IPO, with its aim to ensure that Britain’s £100 billion design sector remains globally competitive and that the legal framework protecting innovation keeps up and even advances past other countries.
This comes at a monumental time when design rights, in all their forms, have never been more economically important and complex. From every aspect, architectural, industrial, design, to fashion, product design and even user interfaces, the boundaries between physical and digital creations have been blurred or meshed. Despite this, the legal scaffolding that supports and holds this vast industry up rests on arguably concepts that were conceived pre-digital era, let alone the major introduction of artificial intelligence.
The Complicated Existing System
Currently, the UK design protection framework can be argued as a patchwork, overlapping rights and packed full of outdated definitions. It is incredibly hard for a designer to navigate this confusing mixture of registered, unregistered design rights, copyrights, and trademarks, each with their own tests, procedures and time limits. Regarding major corporations within house legal teams, this can be easily managed and dealt with; however, for the average business owner, this can be extremely overwhelming. This is not just a problem due to its complexity, but also how accessible it is. Many designers remain completely unaware of which forms of protection will apply to their work, or when registering their design right might be necessary.
For example, in architecture, certain elements of a building’s interior, such as furniture, fittings, patterns or components, may qualify for design protection, whilst the building itself may attract copyright as an artistic work. Very few studios have the resources and legal guidance to use these distinctions effectively, and this is what the government’s goal is to fix: simply the structure of the rights and make protection more intuitive for creators.
Brexit and the need for a modern framework
When the UK left the European Union, it automatically lost a large extension of protection for designs registered in the EU. Creators from the UK who had previously been protected via a single design registration which covered multiple member states, suddenly found that they needed to register designs separately in the UK and in the EU. What this meant is that not only was there now a duplication in costs, but also the potential loss of rights abroad outside the UK jurisdiction.
At the same time, technology has progressed profoundly. The IPOs review explicitly mentions that design law must evolve and accommodate new modes of creation and presentation. For example, when it comes to digital rendering, animations, interactive interference and even generated designs, the element of what makes a “design” can no longer be put into one easy static word or phrase. This review by the Government plans to consider whether digital files such as those listed above should be accepted as part of a design application.
The Fight Against Design Theft and Bad Faith Filings
A major concern that is increasingly becoming more apparent is the amount of bad-faith design registration filings that are made by parties with no legitimate claim to design, but only file to block and prevent competitors or to profit through threats of litigation. The UK is now considering new powers for the IPO to use to search and examine the design applications far more thoroughly, identifying those that lack novelty or originality. This would explicitly introduce a “bad faith” provision that would give the IPO the power to reject applications that appear abusive or anti-competitive.
This is great for independent creators and small businesses who often, unfortunately, are the victims of design theft. Many designs are discovered far too late, so that their work has been copied and profited on, either abroad or domestically in the UK. Even when they discover that their work is being exploited, the cost of enforcing their rights through litigation can be expensive. To combat this, they are also exploring a new small claims track within the Intellectual Property Enterprise Court, otherwise known as the IPEC. What this would do is allow disputes with overall less value to be resolved far quicker and through affordable means. If this were to be implemented and function as such, this would represent one of the biggest and possibly most meaningful reforms for small businesses and creatives.
Balancing Innovation and Fair Competition
However, these reforms raise difficult questions on how to balance protection with openness without stifling much-needed competition. In the case of over-protection, this can lead to monopolisation of IP, where IP will be used to block new entrants, resulting in the lack of creativity and innovation. However, in the case of under protection, it can leave creators exposed and discouraged from investing and developing. It will be incredibly difficult to balance or find an equilibrium between these two sides, as ensuring they will have to ensure the law supports genuine creativity whilst also somehow discouraging the exploitation of the system.
One more risk that lies in the implementation of a system that would attempt to fix this issue is that even a well-designed framework can falter if it is too complex to administer or poorly understood. Not only will this change result in small firms and individual designers having to do extensive research to stay up to date, but there will also be further costs associated with adapting to new digital filing systems and definitions, for example. Despite this, these would only be short-term adjustments that would be considered a small price to pay in return for the benefits of having long-term clarity and fairness.
The Digital Future of Design Protection
One of the broader questions of this review is the use of generative AI and machine learning, which is currently reshaping the creative processes of many creators and what the review and possible changes will address to support this AI boom. One of the key elements to ask is whether, in the future, design protection should explicitly distinguish between completely AI-generated works and those that have been created with just human assistance. I believe that it is important to make such distinctions, as this would help maintain the human creativity element whilst also recognising that algorithms and AI technologies have become an indispensable and invaluable tool in design practice.
For example, for architects and designers, this evolution also brings practical opportunities. A reformed IP system could make it far easier to register designs that would only exist in a digital firm, whether that be 3D models, virtual prototypes and even in some cases, animations. This reformed system would hopefully bring the law closer to how the designs are made and strengthen the protection for the increasingly hybrid world that creators are working in.
The design community must engage and discuss this. Architects, designers, creative businesses and educators all have a major stake in not just shaping how the next generation of IP law will work but also spearheading a major reform and creation of laws in relation to AI and its use in the creative industries. For the UK, the design and creative sector has long been one of its greatest assets. Its influence extends further than you think, and for such a vital part of a struggling economy, the law must provide clarity, fairness and give confidence back to those innovating, creating and designing.
Conclusion
This can be considered an amazing turning point and a needed chance to bridge the gap between how creativity occurs and how it is protected. It offers a chance to secure a system that recognises the realities of the creator’s work, one that both values artistry and innovation, both physically and digitally. Whether this ambition becomes reality will depend on how and if the government listens to the creative industries it seeks to serve. If this goal is achieved, it could restore the UK’s position as a global leader in the protection and celebration of our creative industry.
