Intellectual Property Considerations for the Emerging Designer and Freelancer
(Written by: Marcus Chan)
As part of the National Design Centre’s “Next Gen” programme 2020, the DesignSingapore Council recently organised an event in partnership with Ella Cheong, aimed at increasing intellectual property (“IP”) awareness amongst Singapore’s own young and emerging designers. As human creativity continues to shape the world we live in, ideas and designs are regulated by various IP laws that impact the way we create. Marcus Chan shared his insight on key IP considerations that emerging designers and freelancers should take note of. In addition to explaining the legal framework behind registered design law, he also touched on important aspects such as IP registration, ownership, copyright issues and licensing. A snapshot of his presentation is as follows:
Why is IP important?
IP refers to intangible creations of the mind, such as inventions; literary and artistic works; designs; logos and trade names used by businesses. Every one of us experiences IP when we go about our daily lives. It is increasingly important to both individuals and companies as it is a key driver of the modern economy.
Thus, it would be wise for artists and designers to consider IP at an early stage, particularly when their work falls under the ambit of various IP regulations both in Singapore and worldwide. Furthermore, the Singapore Government has continually emphasised and invested in design innovation as a method to boost the local economy. As great designs generate great value, designers and artists are crucial in building a Singaporean economy increasingly reliant on IP for growth.
Complexity of Regulations Affecting Designs
To get a design registered in Singapore, it has to satisfy the requirements of being a “new design”. Under the Registered Designs Act (“RDA”), a design is one that contains features of shape, configuration, colours, pattern, or ornament applied to any article or non‑physical product that give that article or non‑physical product its appearance. It is generally “new” if it has not been registered or published, and this requirement does not require for a design to be “new” in the aesthetic sense.
Getting a design registered/protected may be important to individuals and companies alike. For example, the aesthetic value of a design may be the key factor to attracting customers’ attention. If a product is successful, the owner of its corresponding design might want to retain this commercial advantage by preventing others from or requiring permission before using this design.
Yet, subject to registration and registrability criteria, other rules may apply which affect the rights and uses of a design or work in question. For example, some works that are unable to qualify for registration or unable to be protected include those intended to be applied to printed matter primarily of literary or artistic character. In such cases, copyright protection may be extended to the corresponding designs or works instead. However, this is subject to further restrictions on what may qualify for copyright protection in Singapore. Furthermore, designs which qualify for registration under the RDA but are unregistered might not attract copyright protection. Amidst this backdrop of multiple rules and regulations, the result is that emerging artists and designers may not be adequately prepared for the potentially complex legal considerations surrounding their work.
One major topic is the issue of ownership. While employers are generally treated as owners of designs in an employment relationship, the law was recently amended in Singapore for cases where a work is commissioned – designs are now vested in the designer unless parties specifically agree otherwise.
Meanwhile, it is important to consider why IP is important to an individual’s work. IP, like other forms of property, may be used to the benefit of an IP owner / user. It may be used for commercial purposes, for example by licensing or assigning these rights to others in exchange for ‘royalties’ or financing. It provides a platform for recognition and may even be used as a tool for collaboration, thereby generating greater value for future opportunities. Protecting one’s IP also prevents others from infringing one’s rights, and may also be used as a defence should an IP infringement claim be received.
Key Takeaways and Practical Tips
Overall, the body of regulations surrounding various works may be a thorny issue for young and budding designers. Moreover, separate types of works are affected differently depending on the industry norms and specific rules which may apply. As an individual or small start-up may not be fully aware of the relevant IP issues, it is important to consult a professional to understand how best to utilise IP for a work/business.
A recommended approach would be to first understand how each work may be interpreted under the laws of Singapore. It is also useful to understand what rights others may have, as well as the relationships that apply in the event a work is commissioned, or when joint ownership applies.
In this regard, individuals or businesses should consider conducting an IP ‘Audit’ on their portfolio – this would help parties to understand the IP rights, obligations and considerations that surround their work/business. There are numerous government agencies and professional entities that are well equipped to assist with such ‘Audit’, and it is highly recommended that emerging designers or companies start considering IP at an early stage to utilise it as a tool for business growth.
The recording of the webinar can be found here. Note that there are exceptions to what may qualify as a registered design, as indicated in the RDA  These are provided for in the Copyright Act (Ch. 63) Singapore