June 2, 2020

Copyright Protection Issues in the Era of Mass Customisation | Modular

In an era where companies are under increasing pressure to give customers exactly what they want, a move to a more customisation-friendly production line is inevitable. It is also critical for businesses to step up and start offering customised lines of products as soon as possible. Adoption is already rising, with some really big names like Nike and Adidas already jumping on the mass customisation bandwagon. But what about copyright protection issues?

As we move into a realm of customised products, it is important that designers, manufacturers, and brands themselves are as stringent in adherence to copyright laws as they have always been under the mass production model. How can we ensure that the customised options we offer customers don’t inadvertently trespass on other designers’ and brands’ intellectual property?

It’s an important question that needs to be addressed, but also one that is not as difficult to answer as it may initially seem to be.

The Designer’s Role

Designers already know their industry well. It is a key aspect of the role to be thoroughly immersed in the collections of competitor brands and small labels within the industry. Indeed, a designer must consume an abundance of material, not only from their own industry, but from other industries too, in order to inform their own creativity and identify market trends.

Part of the reason for being thoroughly informed as to what is going on in design is to ensure that the products they design are not infringing on the intellectual and brand property of others. Equally, a designer must be aware if any products on the market infringe on their own copyright.

What Is Copyright?

Copyright regulates the exploitation of cultural goods. It creates a set of property rights vested in the owner or licensee of the protected work.

Copyright, however, will not protect functional objects (including furniture, appliances, or garments). These are more usually covered by design rights.

A design can be copyrighted under section 4 of the Copyright, Designs, and Patents Act 1988.

Where a design is created whilst working for a company, in the course of employment, the employer is legally the first owner of any copyright in the work.

A copyright owner has the exclusive right to:

  • Reproduction rights: copying the work
  • Distribution rights: issuing copies of the work to the public
  • Rental and Lending rights: renting or lending the work to the public
  • Licensing rights: authorising others to carry out any of the above activities

This is a very brief overview, so we recommend, if you’re not familiar with copyright and design rights laws to research thoroughly.

Mass Customisation and Copyright Protection Issues

It is both unlikely and inadvisable for a brand to give over the full design process to customers. The main premise of mass customisation is that the customer is offered a range of options upon which to customise a single product. For example, a shoe can be customised for colour, material, and pattern. However the customer cannot fully augment the design of the shoe itself, add their own materials or patterns, or change the main body of the shoe in any way.

Clearly, allowing a customer free reign over the design of a brand’s products is a step too far, and would not only create massive copyright protection issues, it would also truly disrupt the manufacturing process to an unmanageable extent. Equally, the integrity of the brand is at stake.

This matter clears up the majority of copyright protection issues that could arise from customer-centric design.

Choosing Customisation Options

The brand would, as is currently the case, be responsible for sourcing the materials, patterns, and any other options for the manufacturing of the product. These will either be licensed from external designers or craftspeople, or designed and created in-house. As such, the same rules apply as would to the current mass production model.

Where colour and material are the only options from which a customer is permitted to choose, it remains the duty of the designer to create the original framework of the design. They would also be responsible for making sure that the design itself is original, and that no aspect of the potential combinations of product overlap with the property of another brand or designer.

To put it bluntly, there is no reason that a brand offering mass customisation should infringe on copyright protection as a result of their integration of the model. All current processes still apply.

Who Holds The Copyright?

Whilst the customer has had some input in creating a product to their specifications, the copyright continues to lie with the brand. As the customer is picking from pre-assigned options, the brand owns the rights to every combination possible within their customisation framework. In the same way that a consumer cannot put together a whole outfit of a brand’s garments in an original way and call all the items within that outfit their own design, nor can they claim copyright over a customised product.

What About 3D Printing?

Some businesses, working in a similar but different mode of customisation, will allow customers to submit renderings for 3D printing. In this instance, there are many more options available to the customer, and the business simply uses the 3D printing hardware to make the customer designs a reality.

This is an area that is worth considering. Clearly, a brand or business offering a 3D printing service must take the issue of copyright protection very seriously.

Unauthorised commercial production of patented products by 3D printing may constitute an act of patent infringement by the user of the printer. Even offering for disposal or disposal of the infringing product may amount to infringing acts.

Where the 3D printed product has been produced at home, on a person’s private 3D printer, for non-commercial purposes, the rules are different. So, for example, a historical case seen in the House of Lords overruled an objection to Amstrad manufacturing and selling twin-deck tape recorders that could be used to create infringing copies of copyright-protected music. The House of Lords rejected the argument that Amstrad was jointly liable with any consumer who committed such an infringement. Amstrad’s advertising made it clear that it could not grant permission to copy protected works. Thus, a 3D printer should, itself, carry a similar warning not to infringe copyright. If a private individual sells any infringing 3D printed product they have created, that is an offence under copyright law.

As we have mentioned above, an object may be covered by copyright if it is classed as a ‘work of art’. This does discount many manufactured products, and mainly simply protects sculptures and work of artistic craftsmanship.

Hand-knitted woollen sweaters, pottery, and hand-crafted jewellery are examples of items of artistic craftsmanship covered by copyright law. Nonetheless, it is often difficult to ascertain whether an article is protected as a work of artistic craftsmanship.

Commercial 3D printed reproduction could well amount to copyright infringement. Intention and knowledge that actions amount to copyright infringement are, of course, no defence. If, however, a company 3D prints spare parts for existing articles, this is not considered an infringement. A company is, therefore, able to copy any features of a protected design that enables their own design to be functionally fitted or aesthetically matched with the protected design.

It seems clear that companies offering 3D printing on behalf of customers for user-generated designs are in a sticky situation with copyright. When it comes to mass customisation, limiting the options available to consumers is the key to ensuring infringement does not take place. Finally, the responsibility lies with businesses, manufacturers, and brands to ensure that the products they customise for consumers meet regulations, as it is they who will be liable for any infringements.