Review of the European Framework for Design Rights

III/ Updating the Legislative Framework​

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With regards to updating the framework to account for the digital age, the rise of 3D printing raises a concern for some industry players. As patents have expired on 3D printing technologies that have been around for decades, the cost of 3D printers has decreased. This, in turn, has allowed for their broader adoption in the economy. Indeed, 3D printing poses both ethical challenges, such as the ability to 3D print weapons, and commercial challenges for businesses which may see their design rights infringed by the reproduction of their designs by private users. Under the current framework, Article 20 1 (a) grants a limitation on the rights of the community design to acts done privately and for non-commercial purposes. The ability for consumers to quickly download 3D plans for objects to be printed at home not only raises concerns on infringement, it may also raise safety concerns if those objects are replacement parts which do not meet specific safety standards.

Another area where the framework may be updated is in protection of graphical user interfaces (GUIs). These include the familiar apps and icons which consumers use on their smartphones and computer devices every day. In the United States, GUIs are protectable under copyright, whereas in the EU there is some confusion as to whether they can be protected as designs. The Commission may therefore seek to update the framework to allow GUIs to be protected under design law.

A third area which the Commission draws attention to is the spare parts market, and the distortive effects that the design rights framework may have in the market. When the Regulation was originally passed there was still disagreement on the role of designs for components involved in complex products. The compromise appears in Art. 110 which grants an exception for the right to repair “until such time as amendments to (the) Regulation enter into force”. It seems that time has come. While historically, the major concern was the spare parts market in the automotive sector, others sectors ought to be on the lookout for how a revision of this provision may impact their sector. The European Green Deal and renewed energy behind the Circular Economy may feature heavily in this debate; a balance may need to be struck between rightsholders and the goals of these important public policies.

Finally, although not specifically mentioned in the Inception Impact Assessment, when reviewing legislation such as this, the Commission oftentimes seeks to incorporate the most relevant case law from the CJEU and other EU courts into the legislative framework in order to codify the law and create greater legal certainty. One area of particular interest is the area of cumulation. Cumulation is the idea that a single object may be covered (or not) by varying levels of IP protections. In short, can the same object be protected by more than one IP right. Following both the Cofemel and Brompton Bicycle decisions, the CJEU seems to have made clear that perfect cumulation between copyright and designs is possible. To create greater legal certainty the Commission may wish to look at codifying this as such in statute.