What is this petition for?
The Authentic Design Alliance needs your support for its campaign to promote and encourage original design, and support Australia's design industry, by seeking a change in Australia's intellectual property laws. The change is needed because the current laws do not adequately recognise the value or importance of original design, and encourage unauthorised copies to be made and sold, undermining the value of the original design, and diverting income from designers.
Action is needed so that Australia recognises and properly values the significant investment made in, and the important social and economic benefits of, original design.
Please join with us, and show your support, for original design, and by signing this petition, to ask that:
(a) The Commonwealth parliament amends Australia's intellectual property laws, so as to give fairer treatment to authentic, quality, original design, give designers the same copyright protection for their creative output as given to architects and ensure that original designers are not pushed out of the market by legal, but unauthorised, cheaper replicas.
(b) The Commonwealth government funds a comprehensive education and public awareness campaign. The campaign, to be developed in conjunction with the authentic design industry in Australia, will promote to the Australian public the benefits of and value in original design, and the true value comparison between an original design and its unauthorised, cheaper, replica. The campaign will also raise the awareness of the significant adverse impacts felt by individual designers, the design industry and the Australian economy, when consumers choose an unauthorised, cheaper replica product.
In addition to showing your support by signing the petition, please also write to your local Federal Member of Parliament, each of the Senators in your State and these Commonwealth ministers to urge each of them to support the ADA's campaign:
The Hon. Nicola Roxon MP
Suite MG 50
Canberra, ACT, 2600
Fax: (02) 6273 4146
The Hon. Greg Combet AM MP
Minister for Industry and Innovation
PO Box 6022
Canberra, ACT, 2600
Fax: (02) 6273 7112
A suggested draft letter that you can use is available here.
Why is change needed?
When a replica of an original design is made it is a facsimile (and usually a poor facsimile) of the result of the designer's hard work and talent. The replica is sold usually at a price that is significantly less than the price of the authentic design. This is possible because the cost of design is not an investment made by the manufacturer that needs to be recovered as part of the sale price. Further, the selling price is able to be further undercut because the unauthorised replica manufacturer can dispense with the need for investment in quality materials and expertise in manufacturing.
As a result, what at a superficial level appears to be an exact replica of an original design piece, at a significantly lower price, has market appeal, and competes with the quality of the original product. However, whilst it is a product that may look like the original, it is rarely, if ever, of the same quality as the original, and is unlikely to have the same or anywhere near similar lifespan.
The manufacturers and sellers of unauthorised replica pieces rely on the fact that consumers do not understand or appreciate the important differences in quality and value that exist between an original piece and an unauthorised replica. Greater public awareness of the important differences, and a greater understanding of how a replica piece can be sold at such a significant price difference, will mean that consumers have all the information to be able to make a true value comparison, and are making fully informed choices as between the competing alternatives.
When a replica piece is sold (with the purchaser giving little if any thought to whether, in fact, it is a true "replica" or "like for like" product), the designers and manufacturers of the original piece miss out on the income that they would otherwise earn on a sale of the original piece, or an authorised licensed copy.
Not only does the sale of the replica mean a lost sale for that piece, but it also significantly adversely impacts on the ability of the designer to create further demand for the design, by entering into authorised licence agreements. Few manufacturers are prepared to invest in the development of a designer, or the designer's work, through a licensing arrangement when the significant investment required can be undermined by legal but unauthorised copies. In these circumstances, any rational manufacturer will not invest in any long-term development relationship with designers, or the design industry, but will simply join with the replica market, and make and sell unauthorised copies, without the need to incur the additional cost of a licence fee to the designer.
This ultimately leads to a lack of innovation and further development in Australia's manufacturing processes and capabilities. The current position does not encourage any further investment (in terms of time, money, energy and resources) in new design in Australia.
As a result, the legal acceptance of cheap replica furniture shuts the door to Australian designers offering affordable, original design. It also allows those replica sellers, trading off the skill and hard work of original designers, to benefit from a lack of public understanding and awareness and to get away with something you cannot do in any other industry that recognises and values the contribution of original creative effort.
Australia's Copyright Act puts designers of original creative design in the same category as designers of industrial equipment and spare parts (unless the particular design in question is considered to be a "work of artistic craftsmanship"). This means that, unlike sculptors or jewellers or fashion designers or, indeed, architects, creators of most original design (which is to be manufactured on some level of commercial scale) have no copyright protection, and cannot prevent someone from simply copying exactly their original design, without permission and without any compensation for the designer's skill and effort, or the manufacturer's significant investment, unless registered design protection is obtained.
There is no justification for granting to architects (as creators of original design for the built environment) more favourable treatment and greater powers to prevent unauthorised copying of those original designs than granted to the designers of the original pieces that many architects use to enhance their vision of, and design for, the building as part of its interior design or fit-out.
Whilst design protection is available under the Designs Act, there are a number of limitations with that system, including each of the following:
(a) The maximum term of protection is significantly less than copyright protection – with a registered design lasting for no longer than 10 years.
(b) Additional costs are incurred by designers to obtain design protection, as the design must be registered, and fees paid to the Commonwealth government. Copyright does not require any registration process and does not increase the designer's costs, as no fees are payable.
(c) Any application for design protection must be made before the product is made publicly available. This means that a designer has to make an assessment of the likely success, or the likely extent of unauthorised copying, of every new design (and an assessment of the likelihood of a return on the cost of obtaining protection) before there is information available to assist in that decision. In short, this means that in order to ensure that a designer's creative output is properly protected, the designer must incur the cost of filing for design protection for each and every new design. This is an inefficient allocation of scarce resources on the part of a designer.
The current regime does not adequately (if at all) protect and enhance the rights of original designers, as can be seen with the growth in the number of manufacturers and sellers of "replica" unauthorised copies of significant and valuable designs.
Further, as was recently demonstrated by the litigation taken by Herman Miller against major replica seller Matt Blatt, careful use by replica sellers of registered trade marks that are owned by the original designer (where it is clear that the product offered is not an original) also does not give the original designer or trade mark owner any "magic bullet" in stopping the replica products from being marketed or sold by reference to the name of the designer.
Current enquiries into copyright
The Australian Law Reform Commission is currently undertaking a review of some parts of Australia's copyright laws. This review does not include any of the issues raised by this petition, and any recommendations made by that enquiry will not address the continuing adverse impacts of allowing unauthorised replica design to be sold and marketed.
The government can respond to this petition, and the calls for greater protection for original design, without undermining or otherwise impacting that current enquiry.