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2022 | Book

History of Design and Design Law

An International and Interdisciplinary Perspective

Editors: Assoc. Prof. Tsukasa Aso, Prof. Christoph Rademacher, Jonathan Dobinson

Publisher: Springer Nature Singapore

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Technik" , Springer Professional "Wirtschaft"

Table of Contents

About this book

For the first time, this book provides an up-to-date history of product design and product design law covering 17 countries — Japan, Korea, China, Singapore, the United Kingdom, Germany, France, Italy, the Nordic countries (Denmark, Finland, Iceland, Norway and Sweden), Russia, the United States, Brazil and Australia — selected for their innovative or influential approach to design or design protection.

Each country is the subject of two chapters — one on the history of design and the other on the history of design law — authored by experts in design and intellectual property (IP) law. This unique interdisciplinary approach explains why and how various national design protection systems (that can include design, copyright, trade mark, competition and civil laws) developed, making it an ideal book for students, researchers and lawyers.

The book also serves as an international survey of different national policy and legal responses to historical developments and specific design and legal issues allowing readers to consider their advantages and disadvantages — and so is also recommended for policy and law makers, as well as organizations that administer IP rights.

Topics include the subject matter of design protection; procedural and substantive requirements; design registration; infringement; and the overlap of design rights and other IP rights. The chapters on design history provide further context to the historical development of these legal concepts by considering major design movements, key designers and iconic designs and the current state of design.

The chapters highlight the connected and often complementary relationship between the two histories, not only for each country, but at the regional and international level, often as a result of government policies, trade, colonialism, immigration and globalisation.

Design and design practice continue to become more global and evolve with developments in technology. At the same time, design laws are not internationally harmonized and continue to develop at the national level, with a number of significant changes occurring in recent years.

This timely book shows how the lessons of the past continue to inform the future direction of design and the legal systems developed to protect it.

Frontmatter

Asia

Frontmatter

Chapter 1. History of Japanese Design

Abstract

‘Modern design’ in Japan began with an encounter with the West. In the mid-nineteenth century, when the country opened up to the outside world after 200 years of isolation, it began to promote its own industrial development and, in order to catch up with the West, it focused on exporting traditional crafts and adapting them to European tastes. In the early twentieth century, Japanese design adopted European ideas of modern design and moved away from the superficial and toward the functional, rational and social. In the 1970s, when environmental and energy issues began to arise, Japanese design became recognized worldwide for its ability to reduce size and weight, and innovative product designs were introduced to the world one after another. Japan has been eager to learn from European and American design and incorporate it into its own design, and then use its own superior technological development capabilities to improve and develop it into a design with its own strengths. The Sony ‘Walkman’, for example, created a new lifestyle and was introduced to the world. Another feature of Japanese design is that it was not individuals but rather anonymous teams of designers in corporate design departments who led the way. Since its encounter with the West in the nineteenth century and throughout the twentieth century, Japanese design has always been closely linked to industry and has contributed to its development, but in the twenty-first century, with the end of mass-production and mass-consumption, it is looking for new ways that go beyond the values of the industrial society.

Minako Ikeda

Chapter 2. History of Design Protection in Japan

Abstract

The history of the Japanese design protection system, dating back to 1888, was a history of adapting to international standards for design protection due to the development of domestic industry and the expansion of product export. The current design protection system in Japan is based on the Ishōhō [Design Act] of 1959. Since 1998, the scale and frequency of revisions have increased. This chapter outlines this history—from the Meiji period through to the 2019 amendments of the Design Act—focusing mainly on the expansion of the scope of design rights.

Masanori Yabumoto

Chapter 3. History and Current Status of Design in South Korea

Abstract

Compared to the overall history of modern design, Korean industrial design, as opposed to Korean craft, has had a very short history. Korean industrial design really could be considered to start in the 1950s, after thirty-six years of Japanese influence during colonization and the three years of the Korean War. From that time, the Government’s priority was economic development. It saw design as key to industrial competitiveness and began to develop industrial design policy. Accordingly, the laws and systems related to design are relatively well established as is the in-house design system, centered on companies. The 1960s and 1970s saw the copying of overseas designs and efforts to establish original equipment manufacturers. Today, Korea’s industrial capacity has increased, and its industrial design is considered globally competitive. Meanwhile, the process of indiscriminately accepting Western design as a means of industrial development has raised questions about the identity of Korean design and led to efforts to identify and develop indigenous Korean design. As a result, ‘Korean design’, which is imbued with Korean history and tradition, continues to emerge.

Jongkyun Kim

Chapter 4. History of Design Protection in South Korea

Abstract

After the end of the Chosun Dynasty, Japanese colonial rule and the United States Army Military Government in Korea, the first law regarding design was enacted in 1961 in the Republic of Korea (South Korea)—the Design Act of 1961. Over the past 60 years, there have been three full revisions and close to 40 partial revisions of the Act, culminating in the current Design Protection Act. In order to keep pace with, and effectively protect, industrial development in South Korea, these revisions have included the introduction of a partially examined registration system and stricter registration requirements, and the gradual extension of the term of the design right. This chapter sets out the history of South Korean design law, focusing on the unique features of the South Korean system for design protection.

Junha Kim

Chapter 5. The Factors, Perplexity, and Future of China’s Design Development After the ‘Reform and Opening Up’ Policy

Abstract

Chinese design has a long history, and the process of conflict and transformation between tradition and modernity has gradually opened its path of exploration. In the early twentieth century, the traditional handicraft industry changed to mechanical production methods which led to the emergence of design consciousness. In the mid-twentieth century, with the establishment of a new China, economic development also led to the transformation of design from initial consciousness to spontaneous design. In the late twentieth century, due to the ‘reform and opening up’ policy, an influx of Western design trends brought about a qualitative change in Chinese design. This chapter explores the internal and external factors that contributed to the development of Chinese design following the ‘reform and opening up’ policy introduced in the Third Plenary Session of the 11th Central Committee of the Chinese Communist Party. The current perplexity and future of Chinese design, as well as copyright issues, inclusive design, and sustainable design, are also considered.

Yanfang Zhang

Chapter 6. History of Design Protection in China

Abstract

The Chinese Patent Law—which protects the external design of industrial products—has been amended four times since it came into effect in 1985, in response to the development of China’s domestic economy. At the same time, the Copyright Law—which concerns artistic works and in some circumstances may protect the design of products—has been revised three times since 1990 and reflects the growing prosperity and progress of China’s cultural industry. Laws concerning the protection of trademark design and product packaging design have also been revised a number of times. This chapter focuses on the history of these forms of design protection, in particular, the protection of the external design of industrial products, and discusses the impact of these laws from the perspective of the development of China’s domestic industry, the US-China trade conflict, China’s World Trade Organization accession and the implementation of the national innovation development strategy.

Wanli Cai

Chapter 7. History and Current Status of Design in Singapore

Abstract

This chapter describes the beginning of industrial and product design in Singapore—from self-governance to achieving the status of a UNESCO Creative City of Design. The growth of industrial and product design in Singapore can be attributed to Singapore Government initiatives to set up systems and infrastructure to facilitate that growth. Through foreign collaborations, development of local talent and the creation of a favourable environment, industrial and product design has grown from zero to a vibrant and creative community that supports Singapore’s aspiration to be an innovation-driven economy and a ‘loveable city’.

Leon Loh

Chapter 8. History of Design Protection in Singapore

Abstract

The laws of the United Kingdom historically governed registered design protection in Singapore. More recently, Singapore has taken a different approach to the protection of designs. In particular, Singapore has adopted a unique mechanism to minimise overlapping protection under design law and copyright law. Singapore encourages designers to use the design registration system under the Registered Designs Act. However, applications for design registration remain relatively low. Furthermore, while the tort of passing off and the Trade Marks Act may also be used to protect industrial designs in Singapore, both impose stringent requirements which can act as a barrier to such protection.

Kodai Kimura

Europe

Frontmatter

Chapter 9. British Design

Abstract

This chapter provides a survey of design in Britain, from the eighteenth century to the present, focusing on the broad design movements that have characterised that story, as well as on some of the key designers and iconic designed objects that have featured within it. The story is also driven by some important themes, among them the tension between traditionalism and modernism; between developing a distinctive British design and responding to influences from other countries; and the repeated attempts to ensure that design in Britain is rooted in aesthetic and moral values that are not contaminated by the commercial priorities of the marketplace. In this respect, the moralising mission of the late-nineteenth-century Arts and Crafts Movement, led by William Morris, is seen to re-surface repeatedly in this story. The chapter traces the importance to Britain, in this context, of loss of empire and de-industrialisation; and points to the moments when the state has attempted to take control of the design quality of Britain’s products, as well as to others when design has been driven by popular values and become a form of cultural expression. It also focuses on the growth and importance of designer-culture in Britain.

Penny Sparke

Chapter 10. History of Design Protection in the United Kingdom

Abstract

The United Kingdom (UK) was a pioneer in industrialisation and global trade. As the scope of these activities expanded, so did the need for protection of designs from piracy. After studying the French design protection regime and the needs of industry, Parliament created a design registration system in 1839. The existence of special protection for industrial designs in the UK acted to delay the extension of copyright to mass-market products until the late twentieth century. When it eventually arrived, the result was over-protection of banal designs. In response, in 1989, the UK adopted a short-term unregistered design system alongside its registered design system. European harmonisation of design law in 2001 and 2002 brought further changes and an additional layer of unregistered design protection. Today, several parallel registered and unregistered protection systems exist, providing the UK with a rich, complex, design protection regime.

David Charles Musker

Chapter 11. Design Made in Germany

Abstract

The ‘Made in Germany’ brand is synonymous with high quality and innovative design. However, this was not always the case. This chapter traces the history of design in Germany, from its beginnings in the late nineteenth century through to the excellent international reputation it enjoys today. This history includes a number of famous design schools, organizations and movements that revolutionized design across the world. Germany has also produced a remarkable number of design superstars and iconic designs—from furniture, automobiles and household appliances, through to corporate, typeface and environmental design. However, the importance of the individual designer and national design appears to be fading. Germany—like other countries around the world—is again witnessing a fundamental shift in what constitutes ‘design’ and how designers work to deliver important social, cultural and economic change.

Michael Erlhoff

Chapter 12. History of Design Protection in Germany

Abstract

Schloss Ringberg, a castle in Southern Germany used as a convention site by the Max-Planck Society, might be the spiritual birthplace of contemporary European design law. It is a bit difficult to escape the irony here, considering the rather distant relationship that German legislators and courts have had with design protection over the last 150 years. This chapter follows the development of German design law from establishment of the first design protection law in 1876 to the current day. It also focuses on the overlapping protection of product design provided by copyright law.

Christoph Rademacher

Chapter 13. History and Current Status of Design in France

Abstract

Throughout the last century, France exported luxury products, and recently, the know-how of designers who have little local infrastructure to produce modern or contemporary design. It is an interesting case of a nation where l’art de vivre [the art of living] has been central for four centuries, but where the practice of design, in the contemporary sense of the word, has more recently established itself as essential to the art of living. In France, the doctrine of the ‘uniqueness of art’ and the legal protection of the creator are strong, but the recognition of the role of the latter only slowly took hold in the twentieth century. This chapter explores these developments in parallel with the changes in law described by Professor Tsukasa Aso in Chapter 14. The chapter shows that France can be defined as a nation that exploits, sometimes paradoxically, the French ‘spirit’— the one the eighteenth century defined as ‘pretty’, but also the one that established itself as political, social, critical and structural from the 1950s to the 1970s. The practice of design in France can be statutory and programmatic, industrial and critical. Designers regularly oppose the canons of a historical and patrimonial elegance and create counter-models that reorient them and allow their designs to acquire a position in the national cultural landscape.

Catherine Geel

Chapter 14. History and Current Status of Design Protection in France

Abstract

As industry developed in France, the subject matter of design protection expanded from ‘designs’ (two-dimensional designs) of silk fabrics in Lyon to designs other than silk fabric and later industrial ‘models’ (three-dimensional designs). Historical evidence suggests that there was a desire for greater protection of designs and models in France and that the development of design and model law was the result of lobbying. The large number of dépôt [deposits] of designs at the Conseil de prud’homme [local trades councils] indicates the necessity of this type of protection. Furthermore, the théorie de l’unité de l’art [theory of the Unity of Art] established the protection of industrial designs and models by copyright law.

Tsukasa Aso

Chapter 15. Italian Design

Abstract

Across one century, Italian design has mutated from a cultural avant-garde experiment into a global financial business. As an expression of national culture, evidence of design precedes the foundation of the discipline, which in Italy took a long time to develop between 1956 and 2000. Beginning in 1909, the Futurismo movement expressed design thinking at many levels, delivering an extraordinary heritage of experiences. The political situation between 1920 and 1940 greatly limited the manifestation of modernist thinking, thus also of industrial design theories and practice. In the post-war decades, fertile cultural debate and the economic boom led to the creation of an Associazione per il Disegno Industriale. At the same time, particularly between the late 1940s and the early 1970s, coach building established itself as a distinct manifestation of Italian design, whose cutting edge quality was acknowledged worldwide. In the 1960s, politically concerned, genuinely Italian, radical design thinking brought about a reconsideration of the creation and the consumption of goods. Establishing itself as a professional practice through the 1980s, when industry and culture entered a harmonious discourse, Italian design finally acquired global recognition towards the end of the twentieth century. In so doing, Italian design lost its national connotation and became, in every way, a global phenomenon.

Paolo Tumminelli

Chapter 16. History of Design Protection in Italy

Abstract

Nowadays, depending on the value that can be attributed to a shape, there are several possible means of protection for industrial design, including design, copyright and trade mark. These types of protections are now cumulative due to the process of harmonization of industrial property law provided by the European Union (EU), but for a long time, they were alternative and not cumulative in Italy. Before the EU Design Directive, the aesthetic shape of industrial designs could be protected by a type of patent called an ‘ornamental design patent’ if it gave the products a ‘special ornamentation’. This special protection could not be cumulated with that provided under copyright law, which provided protection only for an applied art work if it was possible to separate its artistic value from its function (the so-called separability criterion). Moreover, since a shape trade mark could be registered only if the shape did not provide ‘substantial value’ to the goods, it was not possible to register an industrial design as a shape trade mark if it provided special ornamentation of the product in which it was embedded or if it had artistic value that was distinct from its function. In this case, the design was considered to have substantial value.

Margherita Cera

Chapter 17. History and Current Status of Design in Scandinavia

Abstract

This chapter makes the case that the development of Scandinavian industrial design in the twentieth and twenty-first centuries should be understood in the light of social developments including educational reform, the role of the functionalist movement and the influence of Scandinavian (especially Danish) designers on the shaping of a modern legal framework for design protection. Inspiration from Japanese design aesthetics on the Scandinavian design idiom is discussed. Furthermore, it is argued that Scandinavian design must be viewed as ‘identified design’ in the sense that consumers are typically familiar with the names of the designers behind their furniture, lamps, tableware and other furnishings and that, in the twentieth century, many designers were prominent public figures. Brief object biographies of a number of Scandinavian designs, that have acquired an iconic status within material culture (due to their ubiquity, their mediagenic character or similar cultural-symbolic status), are provided in the chapter, including Poul Henningsen’s ‘PH5’ lamp for Louis Poulsen, Arne Jacobsen’s ‘Ant’ Chair for Fritz Hansen, Hans Wegner’s ‘Round Chair’ for PP Furniture, Märta Måås-Fjetterstrøm’s textile designs, Aino & Alvar Aalto’s ‘Aalto Vase’, Armi Ratia’s ‘Unikko’ design for Marimekko and Peter Opsvik’s ‘Tripp-Trapp’ chair for Stokke Furniture.

Stina Teilmann-Lock

Chapter 18. Design Protection in the Nordic Countries: The Past, the Present and Maybe the Future

Abstract

The Nordic countries adopted similar Designs Acts in the 1970s and these Acts remained in place until the European Union (EU)-harmonized design regime took over in the early 2000s. This chapter first describes the background to the pan-Nordic Acts and then moves on to point out how they generally failed to live up to the expectations of the legislators in providing a tailor made protection system for the ‘modern’ functional (‘Scandinavian’) designs that had emerged from the 1950s. Next, the chapter turns to the current protection in the Nordic countries under the EU regime. It is shown how designers in some of the Nordic countries have more or less abandoned the national system based on the national Design Acts and instead have turned to the EU Design Regulation. It is also argued that the national (Danish) courts are becoming better at following the guidance from the Court of Justice of the European Union and are coming out of the shadows of the pan-Nordic Acts and into the harmonized EU-based design system. The final part uses the Nordic experiences to reflect on the recommendations in the recent Evaluation of EU Legislation on Design Protection.

Jens Schovsbo

Chapter 19. History of Design in Russia: 1917–2021

Abstract

This chapter provides an overview of the main phases of design development in the Union of Soviet Socialist Republics (USSR) and the Russian Federation (Russia) from 1917 to 2021, setting them against the political and economic context of the time. The first post-Revolution design professionals had to create a new material world from scratch. All the innovative know-how was immediately passed on to students but implementation in nationalized factories remained problematic. The dramatic political changes of the 1930s introduced a new style: the Communist leadership wanted to go back to the classics. The huge industrialization effort cost millions of human lives but the achievements were impressive. World War II put design evolution on hold, and the post-war regime renounced the ‘excesses’ of the past. The ‘Khrushchev Thaw’, mass housing construction, new technologies, space flight and efforts to improve international relations changed the lifestyle and the mindset of the Soviet people. Design officially became an integral part of any production process, and the Soviet design system took shape. The All-Union Scientific Research Institute of Technical Aesthetics (VNIITE) acted as a central coordinating body while every ministry got a specialized research institute or design office. The system collapsed with the rest of the Soviet Union and a new generation of Russian designers once again had to start from scratch. This time, they relied both on the reinvented Soviet legacy and the inventions of the avant-garde to find a distinctive national identity.

Alexandra Sankova

Chapter 20. History of Design Protection in Russia

Abstract

This chapter provides an overview of the history of design protection in Russia, with a focus on industrial design protection since the first industrial design Act of 1864. This overview shows that, throughout the deep economic and political transformations of the twentieth century, successive legislators pursued a variety of objectives, such as securing private investment, enhancing workers’ rights, raising consumers’ standard of living, regulating competition on the mass-market and increasing trade volume. The outcomes were not always satisfactory, but they did provide life-size experiments that involved different rationales and forms of design protection in various political and economic environments. Today, design is protected under several chapters of Part IV of the Civil Code, in particular the provisions on industrial design and copyright.

Natalia Kapyrina

North America

Frontmatter

Chapter 21. American Design, Breaking the Mold

Abstract

In this chapter, Professor Matthew Waldman provides his perspective on American design. He explores design as a concept through the ages and discusses the changing role of the American designer, covering various innovations, innovators, designers and movements. Professor Waldman does not write about architecture or graphic design and would recommend the many great histories of these fields already in publication.

Matthew Scott Waldman

Chapter 22. History of Design Protection in the United States of America

Abstract

This chapter provides an overview of the history of design protection in the United States of America (US), in particular, the historical development of the design patent system. The chapter first looks at the background and legislative process leading up to the enactment of the 1842 Act, the first design protection law in the US. The features of the 1842 Act are described and discussed, its various revisions are outlined, and design practice is briefly considered as background to the legislation. This history shows us that the development of design patent law—especially in relation to utility patent law—has had many twists and turns. The final section of the chapter provides an overview of current design patent law and briefly mentions other design protection laws, namely copyright and trade dress.

Tatsuyuki Suemune

South America

Frontmatter

Chapter 23. History and Current Status of Design in Brazil

Abstract

This chapter seeks to introduce the reader to the history of Brazilian design, offering an overview of the process of institutionalization of the field of design in the country. It is not my intention to exhaust the subject, we will only fly over the field and comment on historical, political, economic and social factors that contributed to the establishment of the field of design in Brazil. I also propose some categories of analysis developed by Brazilian researchers and, whenever possible, I have sought to provide examples that illustrate these concepts.

Almir Mirabeau da Fonseca Neto

Chapter 24. History and Current Status of Design Protection in Brazil

Abstract

Brazil’s modern history as a country started in 1822 with its independence from Portugal. Since that time, Brazil’s intellectual property (IP) protection system has developed and been the subject of discussion. Brazil included a provision on industrial property in its first Constitution in 1824; and was the first country in Latin America to provide any form of copyright protection in its Criminal Code of the Empire of Brazil in 1830. IP protection in Brazil has been largely influenced by French law and international treaties such as the Berne Convention and the TRIPS Agreement. IP rights for designs may be granted under two laws, namely the Law on Copyright and Neighboring Rights and the provisions related to industrial design rights in the Law on Industrial Property. The scope of the two laws naturally overlap. Dual protection is possible because, in Brazil, the reproduction of a work of art by an industrial process or the industrial application of a work of art does not distort or remove its artistic nature.

Roberto Carapeto

Oceania

Frontmatter

Chapter 25. A Chronological History of Australian Design

Abstract

This chapter comprises an overview of Australian design history, from the continent’s earliest inhabitants to the present. Although Australian design is not well known, its history nevertheless offers some unique and provocative case studies. Design historians have thus far focused primarily on a modernist ideal of designers as form and image-makers and compiled histories based on the resulting artefacts of their practice. But recent scholarship on decolonization has challenged such characterizations of design by highlighting alternative possibilities for understanding design’s history in settler colonial societies. In this light, Australia’s colonial foundation and its legacy require further scrutiny, and the uneasy relationship between professional design culture, colonial expectations and Indigenous culture is juxtaposed in the following account.

D. J. Huppatz

Chapter 26. A History of Australian Design Law

Abstract

Histories of Australian intellectual property law usually emphasise British influence. While Australian design laws have often reflected those of the United Kingdom (UK), at times the Australian colonies resisted imperial uniformity and enacted laws that departed from those of the UK. In the latter part of the twentieth century, the Australian law became more unique and distinct. It continued to reflect its British heritage but increasingly responded to local concerns and new external forces, often reflected in recommendations of Government-initiated policy reviews, culminating in the current Designs Act 2003 (Cth).

Jonathan Dobinson

Summary and Analysis

Frontmatter

Chapter 27. History of Design and Design Law: Connections, Influences and Observations

Abstract

This chapter provides a summary and an analysis of the 26 preceding chapters. What emerges is that the design and design protection history of each country is extremely diverse and complex—the result of a myriad of interconnected and multi-directional factors. It also reveals the connected and often complementary relationship of the two histories, not only for each country, but between countries, often as a result of government policies, trade, colonialism, immigration and globalization. Despite this complexity, it is possible to identify some themes that highlight a connection between the history of design and design law: the changing nature of design and the subject matter of design protection; modernism, technology, mass production and substantive protection requirements; nation building, government policy and design protection systems; the designer and their role in design protection. The chapter briefly examines regional and international influences in design history, before focusing on influences in design protection, including international instruments, cross-jurisdictional influences and responses to imitation cultures. The chapter also makes some key observations on the history of design protection, including on the subject matter of protection, the nature of rights, functional design, examination, substantive protection requirements, deferred publication and overlapping copyright and design protection. The final section considers the future of design and design protection.

Jonathan Dobinson, Tsukasa Aso, Christoph Rademacher

Title: History of Design and Design Law
Editors: Assoc. Prof. Tsukasa Aso
Prof. Christoph Rademacher
Jonathan Dobinson
Publisher: Springer Nature Singapore
Electronic ISBN: 978-981-16-8782-2
Print ISBN: 978-981-16-8781-5
DOI: https://doi.org/10.1007/978-981-16-8782-2