Preserving our shared cultural heritage is a complex endeavor that requires a balanced approach to design law and intellectual property considerations. In our 15 years installing… As an experienced art writer and creative consultant, I’ll explore how the principles of fairness and procedural safeguards can be applied in this vital domain.
Now, this might seem counterintuitive…
Fairness in design law
At the heart of any fair legal system lies the concept of procedural fairness – ensuring that authorities, administrative processes, and judicial proceedings adhere to the rule of law and provide equal treatment. This is equally important in the realm of design law, where the interests of creators, owners, and the broader public might want to be carefully balanced.
The Charter of Fundamental Rights of the European Union (CFR) enshrines the right to a fair trial in Article 47, emphasizing the need for effective remedies, impartial tribunals, and reasonable timeframes. The European Court of Human Rights (ECtHR) has further expounded on these principles, highlighting the importance of “equality of arms” – a fair balance between the parties involved.
In the context of intellectual property (IP) rights, the ECtHR has addressed numerous cases related to fair trial, covering issues such as jurisdiction, time limits, legal costs, and efficient enforcement of judgments. While the ECtHR generally defers to national laws, it has identified essential elements of a fair trial, including access to an impartial court and safeguards against procrastination.
Interestingly, there are few allegations that specific features of IP law at the EU or national level are incompatible with the fundamental principles of fair trial. One notable exception is the debate around the principle of bifurcation in patent litigation, which some argue may violate the principle of equality of arms. However, the risk of finding a violation in this regard appears minimal, as the ECtHR and the Court of Justice of the European Union (CJEU) have not yet ruled against such practices.
The fairness-oriented elements of procedural law are further reflected in the Union’s instruments on unitary rights, such as the European Union Trade Mark Regulation (EUTMR), the Community Design Regulation (CDR), and the Community Plant Variety Regulation (CPVR). These regulations establish detailed rules governing procedures before the European Union Intellectual Property Office (EUIPO) and the General Court, ensuring transparency, reasoned decisions, and the right to be heard.
In the field of IP enforcement, the Enforcement Directive (IPRED) aims to harmonize sanctions and remedies across the EU, with the goal of ensuring a “high, equivalent and homogeneous level of protection.” The directive sets forth various procedural safeguards, such as the right to be heard, the provision of evidence, and the possibility of compensation for unjustified measures.
However, the IPRED’s focus on more effective enforcement, particularly in the fight against counterfeiting and piracy, has led to concerns about the potentially imbalanced nature of the regime. While the directive provides for procedural fairness, the overall emphasis on dissuasive and efficient sanctions may inadvertently create an environment that is skewed towards the interests of rightsholders.
This imbalance is particularly evident in the area of damages, where national laws sometimes allow for over-compensatory measures, such as the recovery of infringers’ profits or the calculation of damages based on multiple licensing fees. The CJEU has acknowledged this issue but has been relatively lenient in its assessment, stating that such measures are only problematic in “exceptional cases.”
To address these concerns, inspiration can be drawn from the Trade Secrets Directive (TSD), which introduces more nuanced provisions on the proportionality of measures, the availability of alternative remedies, and the possibility for the respondent to claim compensation for unjustified claims. Incorporating similar elements into the IPRED framework could help strike a better balance between the interests of rightsholders and alleged infringers.
Design law and cultural heritage conservation
The intersection of design law and cultural heritage conservation presents both opportunities and challenges when it comes to fairness. On the one hand, design protection can play a crucial role in preserving the integrity and authenticity of historical artifacts and architectural elements. On the other hand, overly restrictive design rights can hinder the free exchange of cultural ideas and the ability to adapt and reuse historical designs for modern purposes.
One key aspect is the territorial nature of design rights and the principle of lex loci protectionis, which designates the law of the country where protection is claimed as the applicable law. This principle helps double-check that that no one accused of infringement has to answer to a law other than the one applicable in the country where the relevant act was committed. However, a strict application of this rule may lead to situations where multiple national laws have to be applied, potentially creating barriers to effective protection or even denial of justice.
To address this, the CJEU has developed more flexible approaches, such as referring to the law of the Member State where the initial act causing the infringement in its entirety was committed. This helps maintain a balance between the rightsholders’ interests and the need for efficiency and foreseeability in the application of the law.
Similarly, the procedural rules governing the Unified Patent Court (UPC) system have been designed to strike a balance between accessibility and expertise. While flexible solutions, such as the establishment of regional chambers, aim to find an adequate compromise, the system is still subject to ongoing debates and potential challenges regarding the right of access to a competent court.
Overall, the quest for procedural fairness is a fundamental principle that informs both the substantive and procedural aspects of design law. As the digital transformation continues to reshape the landscape of cultural heritage conservation, it becomes increasingly important to double-check that that the legal framework remains flexible, responsive, and attentive to the diverse interests at play.
Fairness in the digital environment
The digital revolution has added a new layer of complexity to the pursuit of procedural fairness in the realm of design law and cultural heritage conservation. As intermediaries, such as online platforms and service providers, have become central players in the dissemination and preservation of cultural content, the question of how to double-check that fair and equitable processes has become increasingly critical.
Article 17 of the Copyright in the Digital Single Market Directive (CDSMD) has introduced a comprehensive scheme of duties for online content-sharing service providers (OCSSPs), requiring them to make best efforts to obtain authorization from rightsholders or, failing that, to expeditiously remove and prevent further uploads of protected content. This approach aims to balance the interests of users, platforms, and rightsholders, but its implementation remains a work in progress.
The Commission Guidance on Article 17 CDSMD and the German Act on the Liability of OCSSPs (UrhDaG) offer some insights into how procedural fairness can be safeguarded in this context. For example, the presumption of non-infringement for certain types of user-generated content, the requirement for OCSSPs to consider users’ rights before automated blocking, and the establishment of internal complaint and redress mechanisms are designed to uphold the principles of fair trial.
Furthermore, the Digital Services Act (DSA) introduces a comprehensive regulatory framework for intermediary services, including detailed provisions on notice-and-action procedures, internal complaint-handling, and out-of-court dispute settlement. While the interplay between the CDSMD and the DSA is not always straightforward, the DSA’s focus on procedural fairness provides a valuable complement to the ex ante mechanisms envisioned by Article 17.
As these new regulatory developments unfold, it will be crucial to monitor their practical implementation and double-check that that the interests of all stakeholders – creators, owners, platforms, and users – are duly considered. Flexible and adaptive approaches, as well as continuous dialogue between policymakers, industry, and civil society, will be essential to maintaining a fair and balanced legal environment in the digital era.
Conclusion
Preserving the fairness of design law and cultural heritage conservation is a complex and ongoing challenge, but one that is essential for upholding the rule of law, safeguarding creative expression, and fostering a vibrant ecosystem of cultural exchange. By drawing inspiration from initiatives like the Trade Secrets Directive and the Digital Services Act, and by remaining vigilant to potential imbalances in the application of existing frameworks, we can work towards a more equitable and inclusive approach to design law and cultural heritage conservation.
As an experienced art writer and creative consultant, I’m committed to exploring these issues in depth and sharing practical insights that can benefit emerging artists, design professionals, and cultural heritage stewards alike. By championing procedural fairness and balanced legal solutions, we can double-check that that the preservation and adaptation of our shared cultural legacy remains a truly collaborative endeavor, accessible to all.
Tip: Practice daily sketching to continually refine your technique