Design as intellectual property

The Guardian
recently underwent what it described as its “most radical change in 50
years” when the newspaper adopted a new mid-sized Berliner format,
redesigned its layout and reconfigured its sections. After a brief
debate with its readers over the initial omission of Doonesbury, the
new-look Guardian has been welcomed. The investment of time and money
in this process has been significant, and the result is a distinctive
and original publication.

But how effective is the intellectual
property regime to protect the investment which publications make in
their design, and how able are they to prevent competitors aping their
design features?

There are some elements which, probably
unsurprisingly, do not attract any level of intellectual property
protection. Page size, number and deployment of sections and
supplements are all key elements of how a publication is identified,
but will not enjoy any copyright protection should they be adopted by
other publications.

It is also hard to see how features of this
kind could become so commonly associated with a particular publication
that their being adopted by another could give rise to the type of
confusion and damage that would found a passing-off action.

More
surprising perhaps is the trend within copyright cases away from
protecting design and presentational styles. The recent Ideal Home case
showed that copying at any level less specific than textual or artistic
reproduction will find an unsympathetic ear in the intellectual
property courts.

Courts will protect design features in more
specific instances, such as a new font that may have been commissioned
by the publication in question. Font design constitutes an “artistic
work”

for copyright purposes and is therefore capable of
protection against substantial copying. That said, given dimensional
margins and the restrictive scope of variables within which font design
operates, it is easy to see how an “off the shelf” font could be
adopted that would give the unobservant reader the same general
impression, without constituting a copyright infringement.

More
fertile ground for intellectual property enforcement may be found in
the fields of trademark law. A distinctive stylised logo will be
registerable and capable of enforcement against imitators adopting a
similar logo likely to confuse the general public.

Publications
are also increasingly looking at the registered designs regime
(overhauled by the Registered Designs Regulations 2001). Design
features that are new and “have individual character”

can be
protected through registration for 25 years and exercised against users
of designs that create the same “overall impression”.

There has
been little case law in this field as yet, and the bar is likely to be
set high as to the level of novelty and individual character required
for enforcement.

The scope of what the law will protect in the
field of newspaper and magazine designers is perhaps narrower than
might be expected by those who carry out or invest in the work done.
Terms such as “distinctiveness” and “originality” necessary to enforce
the design features are less easily invoked by intellectual property
lawyers and judges than by designers and publishers.

Iain Stansfield is a partner at Olswang

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