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The following is the text spoken by OUT-LAW journalist Matthew Magee.
Hello and welcome to OUT LAW Radio, where we hope to keep you up to date with the latest news and the most fascinating features from the world of technology law.
My name is Matthew Magee, and this week we look into the quiet one of the intellectual property family: design rights. Will a pair of petitions give design protection some bite?
But first, here are some of the top stories from OUT LAW.COM, where you can read breaking technology law news throughout the week.
Privacy watchdog says government and courts let us down
and
Germany says no to Google book deal
Information Commissioner Christopher Graham has said that the courts and Parliament are to blame for the ongoing trade in personal information uncovered by its Motorman investigation.
The Information Commissioner's Office (ICO) uncovered 17,500 requests for private information made to a private investigator by 400 journalists. Information handed over included ex-directory addresses and contact details for security service personnel and celebrities.
Giving evidence this week to the House of Commons Select Committee and Culture, Media and Sport, Graham said that the ICO highlighted the problems of the trade in personal data in a 2006 report, What Price Privacy Now?, but that action had not been taken by the authorities.
He said, "we were let down by the courts, who did not seem to be interested in levying even the pathetic fines they had at their disposal. We were rather let down by parliament in the end, with no legislation; and we were let down by the newspaper groups, which did not take it seriously."
The German Government has lodged an objection to the deal which will allow Google to continue to scan, and sell digitised copies of many of the world's in-copyright books.
A court will decide in October if a £125 million deal between Google and the US Authors Guild should be permitted. The deal allows Google to scan and sell books that are in copyright but out of print, including so called 'orphan works' whose copyright holder cannot be traced.
Germany, though, has said that the deal should not be allowed to go ahead and that it would undermine the rights of German authors within the US. Its submission also said that the availability of the service outside of the US would affect other book markets. Google said that it disagreed with Germany's analysis of its plans and that the matter was only one of US law.
Authors have until the end of this week to opt out of Google's deal and the 'fairness hearing' on the deal is scheduled for October.
Those were some of the top stories from this week's OUT-LAW News.
As the digital revolution has taken hold, making it possible to create exact copies of material like films and music at no cost and with no loss of quality, creators' rights have naturally been the subject of fierce debate.
Copyright, which is what protects artistic creations, has been the right most fought over, but a whole host of what have come to be called intellectual property rights have also been involved.
One such right, though, has been talked about less than most. Perhaps because it relates to physical goods that internet piracy is less likely to affect, or perhaps because of a lack of lobbying power comparable to that of major entertainment multinationals design rights have been less debated, and less noticed, than the others.
One woman and her trade body are seeking to change that though. Dids MacDonald founded Anti Copying in Design, or ACID, which campaigns on behalf of designers and their rights.
She has taken that campaign to Downing Street, where she has started two online petitions to demand better treatment of designers and bigger penalties for those who cross them.
MacDonald concedes that design rights have been something of a poor relation to the likes of copyright, trade marks or patents.
Dids MacDonald: There is very little awareness about design right as a legitimate intellectual property right. There does not seem to be too much case history on design right but I think increasingly we are going to see more and more cases because product plagiarism and product infringement unfortunately is rife within the creative industries. There is not the money that there is behind the sort of copyright lobby and at the moment I think that I am one of the few lone lobbying voices on behalf of designers in the UK trying to strengthen and improve laws and trying to raise awareness about the tremendous contribution that they make.
So what exactly are we talking about here? What is a design right and what does it protect? MacDonald, herself formerly a designer of interior design accessories, explains.
Dids MacDonald: Design right is a right that protects mainly 3D articles. In the UK it protects the shape and configuration, and in the European Union it protects anything, the lines, the colours, the shape, the contours. Unregistered European community rights last for 3 years, registered community rights last for 25 years and offer protection in 27 member states and it is a monopoly right therefore if you have to take action and rely on your registered right you can present your numbered certificate which is evidence of your design ownership.
The people whose designs the rights protect are often running small, even single person businesses. They are vulnerable, says MacDonald, and often don't know what their rights are, never mind how to go about enforcing them.
Whereas other industries face infringement by individuals or by faceless criminal gangs of counterfeiters, designers face copying activity from what is possibly an even more daunting source, says MacDonald: large, well financed, otherwise legitimate high street businesses.
Dids MacDonald: Is it high street retail change, yes it is, what they would do is look out for successful products. I would add that there are many responsible retail chains who support original design but unfortunately it is easier to take the soft track to market by replicating products that are already a success and become the next must have. It can take a millisecond to photograph a new product that is on a roll and have it the other side of the world in seconds before somebody has packed up their exhibition stand, that design can be on the market within weeks and that does happen.
There will be cases where individuals steal designs and try to sell them themselves, but MacDonald said that taking action in some of these cases is hard when a new designer does not yet have much of a reputation in the market and so will find it hard to establish consumer confusion about the goods.
Faced with unrecognised rights, attacks from major businesses and seeming reluctance by government to protect designers, MacDonald has taken her members' fight right to the top: to Number 10.
Dids MacDonald: ACID's submission put the case for aggravated damages for restitutional damages and for exemplary damages. None of these were addressed in the Ministry of Justice’s white paper that we waited approximately two years for. As a result of this act the Ministry of Justice decided not to improve exemplary damages for intellectual property infringement and design right infringement in particular, we decided to set up two Number 10 petitions.
What MacDonald wants is for people found to have infringed someone else's design rights to face criminal penalties possibly including jail. She claims this is the only thing that will provide an adequate deterrent, although she is not sure at what point copying becomes so serious that it may merit a spell in prison.
Dids MacDonald: We believe that in the current system damages under civil law does not provide it this incentive, whatsoever, and it is also significant contributed to the extent of copying, the copying that sort of currently is being experienced so a deliberate strategy for example within some high street retail chains is to weigh up the risks of being challenged and usually by the time that they are challenged and it reaches court they are, you know one, two, three years down the track, and they have built into the cost of this in their profit margins. Looking for the criminal sanctions for design right infringement to fall in line with copyright and trade mark infringement.
So what would the threshold be for criminal sanctions?
Dids MacDonald: I think that it is very difficult to quantify but I think that clearly you are not going to lock up everybody that steals designs, one does not lock up everybody who steals a physical item but I think there is a dissuasive element in a system that has the appropriate damages that fit the crime.
MacDonald hopes her petitions – one with 139 signatures so far, the other with 132 - will change the government's mind. Even if they don't, though, they may at least raise the profile of intellectual property's forgotten rights.
That is all we have time for this week, thanks for listening. Why not get in touch with OUT-LAW Radio? Do you know of a technology law story that you think we should cover. We would love to hear from you on radio@out-law.com. Make sure you tune in next week; for now, goodbye.