A post by Nikos Prentoulis on MARQUES Class99 blog on design law
The online portal of Dezeen, a design magazine of which I am sure most readers of this blog are well aware, is host to an exchange of arguments over copyright infringement and furniture replicas, though not by academics or legal practitioners. The Managing Director of VITRA Tony Ash, lashed out against makers of furniture replicas and relevant UK legislation. In response, Chris Diemer, the Managing Director of VOGA, claims that “to tar all replica furniture companies with the same brush is neither fair nor accurate”. Legal practitioners will find it interesting that, when the two disputants discuss intellectual property, they refer to different aspects. Mr Ash talks of copyright, whereas Mr Diemer refers to design law and its lesser term of protection. In my (European continental) mind, not all furniture designs deserve copyright protection and, in some cases, not even design law protection.
But, what I wish to discuss is the moral thread which stitches together Mr Diemer’s argument. He seems to argue that a replica should escape the moral criticism of counterfeiting if its quality is good and its price reasonably cheap. This way, we understand, consumer efficiency occurs due to the low cost of acquiring a design piece and if also the replica producer / trader does not deceive consumers. He goes on to invoke some of the designers themselves arguing that they intended to create objects addressed to the mass of consumers, not the rich few. He contends that there is a distinction to be drawn between moral replica producers who respect consumers and offer fair prices in good or excellent quality replica products and their immoral counterparts who produce poor quality cheap products.
Having had the pleasure to see, learn and sometimes even enjoy the work of people in the likes of Verner Panton, Charles and Ray Eames and le Corbusier, I have often found myself unhappy with certain pricing policies. But I have never questioned the absence of moral support for intellectual property infringement. Whether Hegelian or Lockean, pneumatic or economic, romantic or liberal, intellectual property is not a conspiracy to keep prices artificially high. I can understand the argument that a particular design does not merit protection under copyright or design law, but I cannot see how the fact that someone has avoided the fundamental “cost” of design creation, which lies in the heart of intellectual property protection, and found the work ready in the market, means that reaping the benefits is only natural. Moreover, I do not see how pricing in itself is a measure of moral or immoral behaviour.
I also feel it should be clear that any economic inefficiencies for consumers, competition distortion or monopoly abuses are not the result of intellectual property rights per se, but of the way they are exercised. And the penalties for such inefficiencies are either provided by law (notably market regulation or competition law) or appear as a sales drop or consumer contempt (social media can devastate brands). But the idea of a ‘vigilante’ copyist, who takes consumer rights and welfare into its own hands and “corrects” the market, sounds more like an excuse than a moral argument. Of course, I have been wrong before – so the question is: are there moral and immoral replicas? And, if so, should the former be free of “sin”?