“Copyright” and “design rights” protect designs.

 ─ First of all, I would like to ask you about the legal treatment of “design resources” that you intend to handle in “DESIGN デザイン design.” By design resources, we assume that we are talking about 3D data of objects and related information, such as credits, etc. How are these resources positioned legally?

I do not think there is any law that legally defines the term “design resource.” However, once we assume that “design resources” refers to the designed objects and information related to them, two rights, “copyright” and “design right,” are relevant to the information related to design. Both of these rights belong to the category of “intellectual property rights” that legally protect intangible property (intangible property) called information.

─ In the first place, what is the difference between “copyright” and “design right”?

First, copyright is a right that accrues to the creative expression of a person’s thoughts or feelings. It arises spontaneously without payment of a registration fee or any other procedures. Specifically in the field of design, this right covers a wide range of areas other than the appearance of product designs, such as drawings, graphics, websites, and texts. On the other hand, design rights exist within the category of “industrial property rights,” which grant exclusive rights to certain information for the promotion of industry. This right was originally intended to protect the design of the exterior of industrial products and other goods, and it is a right that can only be created by paying to register and apply for it. The system was designed on the premise of segregation, with design rights protecting designs for the appearance of practical goods such as industrial products that are mass-produced, and copyrights protecting designs that are not mass-produced.

The Complexity of Rights Protection for Product Design

However, in recent years, some court decisions have been made to protect product designs under copyright, based on the view that copyright and design rights have different legislative purposes and that there is no problem even if some parts of the design are doubly protected without strict distinction between the two. In the meantime, design rights have been amended to protect some interfaces and 3D data for websites and applications, and both parties have gradually expanded the scope of their respective rights. In the past, it was possible to judge that “It is OK if the design right has already expired,” or “it is OK because the copyright does not arise and the design right is not registered,” etc. However, it is now more difficult to judge because it is necessary to carefully examine both rights, such as “Even if the design right has expired, the copyright may still exist,” or “the design right may have been registered.” It seems that it is becoming more and more difficult to make a judgment. This difficulty is directly related to the pros and cons of handling 3D data in product design.

─ Since the design right was started for product design, it is applied to the “shape” of the product, correct? That is why the treatment of 3D information that has been converted into data has become more complicated. Does that make sense?

Yes, that is basically correct. For example, for what is called generic furniture and other products that are re-products of past furniture masterpieces, I believe that design rights are often taken for the original masterpiece furniture. The basic idea is that after the design right expires, which used to be 20 years, or 25 years under the current system, the product becomes open source and is no longer subject to rights protection.

However, the current debate is that even if the design right protection period has expired, in some cases there may be a reasonable number of cases where the design is also protected by copyright, creating a situation where it cannot be easily reused. On the other hand, from the perspective of product designers, this can lead to an extension of the term of copyright protection, which is both good and bad.

Where is the authorship and creativity of the design?

─ Does the fact that a design is subject to copyright mean that a kind of authorship or creativity can be recognized in a design that is supposed to be a practical product?

Yes. In the field of copyright, we use terms like “utilitarian works” or “applied arts.” Again, it is very difficult to draw a line as to whether or not there is a copyright. Simply put, it depends on whether or not the work expresses the creator’s individuality, or whether or not the work is aesthetically pleasing on its own when its functionality is excluded. Although there are some fluctuations in the expression and the way of thinking depending on the court case, it is often judged based on such criteria.

─ I see. Is it like separating functionality and visual originality?

Yes, that is correct. Copyright law is a law that protects creativity. Therefore, the basic line is that design, including functional elements, is considered to have little to do with creation and expression, which is the expression of individuality, and is not protected by copyright law in principle. As a result, the original segregation was to protect only the functional and design aspects of a design with design rights.

How does the law perceive the beauty of functional or indigenous objects?

However, as you can easily imagine, it is not easy to make a sharp distinction between practical function and aesthetic appreciation. I also believe that the aesthetics of the times are a factor in the complexity of the situation. In particular, we live in an age in which functional things are easily regarded as “beautiful,” and the pursuit of functionality and the expression of individuality tend to blend together. Therefore, it is in line with the needs of the times to consider the scope of protection of design rights and copyrights separately, and to think that both can be protected, without being conscious of the division of rights between design rights and copyrights. I believe that there are some cases in which copyright protection is granted to copyrighted works.

 ─ From a more cultural perspective, what about indigenous products such as crafts and folk art? Are there any differences in the legal treatment of these products from those manufactured and sold by corporations?

Depending on how old you define crafts and folk art, it is basically difficult to copyright old and obsolete designs. If the shape is very simple, there is no copyright in the first place, and even if there is a copyright, it is highly likely that the term of protection has already expired. In this sense, designs belonging to crafts and folk art are most likely to be in the public domain, where anyone can freely use them without charge. There is no difference in whether the design is produced by an individual or a company, and there is no difference in whether the design is copyrightable or not.

“Open data with clear licenses and guidelines.”

─When promoting design resources, I am also concerned that users may feel atrophied, thinking, “I might be accused of plagiarism for using this data.” We hope that users will be able to identify and understand such risks in advance. What is your opinion on how this design archive should be promoted in the future?

The use of design resources must be considered not only from the perspective of copyright/design rights, but also from the perspective of unfair competition prevention laws. It is not easy for individuals or even companies to determine which design resources can be used freely based on these perspectives. That is why I think it is important to establish licenses and guidelines with clear conditions of use for design resources. This is where the importance of open-sourced design resources lies.

─ Are there any other aspects of the “DESIGN デザイン design” project that we can expect?

There are two aspects to this project: “archiving” of design resources and “conversion to open data,” correct? Regarding the former, there is a situation where policies are gradually spreading, and the Society for Digital Archiving, which was established several years ago, is discussing and making proposals for legislation to promote archiving. I think that if we can collaborate with such an organization, the possibilities will expand.

With regard to the latter, “open data,” I see a somewhat stagnant situation in terms of government policy. For example, the website “PLATEAU” (2020-), which maintains and publishes 3D model data of cities as open data, is a world-class advanced project, and the Ministry of Education, Culture, Sports, Science and Technology has made open access (open academic papers) the default for research results that receive public funding. Although the Ministry of Education, Culture, Sports, Science and Technology (MEXT) has made open access the default for publicly funded research results (open access for academic papers) and other ministries and agencies are discussing and working on open data, I feel that the momentum for open data itself is not that great. The Basic Law for the Promotion of Public-Private Data Utilization stipulates the responsibilities of not only the national government but also local governments and businesses, but with the exception of a few advanced initiatives such as Shizuoka Prefecture’s “VIRTUAL SHIZUOKA” (2020-), the momentum for open data among local governments and businesses is not yet strong.

Aiming to create a platform that goes beyond data publication

One is “Open Design: The Future of Creation through Participation and Co-Creation,” in which I also participated as a translator. This 2013 book discusses the possibilities of open-data and open-source product design, based on the premise of the evolution of digital fabrication and other technologies. Another book is “Hackability of the Stool” by Daisuke Motoki and DDAA LAB, which is a collection of projects to modify 60 stools designed by Alvar Aalto, and includes a discussion between Mr. Motoki and myself at the end of the book. The end of the book is a conversation between Mr. Motoki and myself about the possibilities of open source and modification of products.
Attempts to open-data and open-source product design have been discussed for some time, and I think it is important to connect this project with these discussions. I have the impression that archives tend to stay at the point of “simply being open to the public.” However, I think it is important to make it open source/open data, especially with regard to projects using public funds. The most important value of an archive from the viewpoint of open data is to ensure that it is open to serendipity or some kind of “unknown use” by ensuring that it can be used free of charge, can be used for secondary purposes for profit, and can be freely modified. I think this is the most valuable aspect of the archive from an open data perspective.

It depends on what kind of data will be made available, but it would be even better if the archive includes things that surprise us, such as “Oh, that kind of data is also open. I feel that if some other use cases are created, such as utilization in the field of education, it will become more exciting.

─ Finally, what are your expectations for METI in this project?

I will talk about recent good practices. I am reminded of the “3dcel. (3D City Experience Lab.)” (2017-) project led by Seiichi Saito and Megumi Wakabayashi. At first, I was concerned that the project was very ambitious and wonderful, but I also felt that it would not last long. However, the seeds that were planted in this project were later sublimated into a project of the Ministry of Land, Infrastructure, Transport and Tourism in the form of “PLATEAU,” which continues to this day. The seeds sown in this project were sublimated into a project of the Ministry of Land, Infrastructure, Transport and Tourism in the form of “PLATEAU,” which continues today. “PLATEAU” has also been a catalyst for the development of urban policy-related DX in various ways.

In terms of stimulating various initiatives in both the public and private sectors and promoting industry, this is right in the middle of the role that METI should be playing. I hope that this design resource project has the potential to become such an entity.