The challenge of intellectual property rights for culturally significant patterns, products and processes

Intellectual Property Rights (IPR) in the UK has been a topic of controversy, frustration and complexity for design and designers for many years and this continues to be the case. The situation is further complicated by the different laws affecting IPR in different countries and, often, a lack of knowledge about IPR especially among young designers. Indeed, there are significant differences in knowledge and understanding of IPR among designers in both economically developed and developing countries. To understand IPR we must first alter or augment our perception of property.
We grow up to consider property as a material entity: a car, a house, a television etc., something tangible that an individual has paid to take possession of or has manufactured themselves and therefore has the right to charge another individual for or even to give away; the last three words are important and may become more important as we begin to discuss IPR in relation to culturally significant patterns, products and practices. For example, many of us will give away our personal property to charity shops or any other non-profit organisation we choose because we believe that, in doing so, we are contributing towards the good of our national and global society.
The concept of design knowledge as a property is covered in depth and breadth by Mwendapole (2005) in her PhD thesis. She explains that, although property is probably not semantically the right word to cover design knowledge it is used because, as MacPherson (1978 : 11) stated, ‘property must be grounded in a public belief that it is morally right; if it is not so justified it does not remain an enforceable claim. If it is not justified, it does not remain property’. Design knowledge can be placed into one of two groups (Rodgers and Clarkson 1998): tacit or explicit. To put this simply, tacit knowledge is what is in the designer’s brain; it has been put there by training, education, practice and experience. It is how the designer collects and interprets previous knowledge. The knowledge will remain tacit throughout most of the idea generation stage and even up to the stages of early sketches. Once the designer moves on to technical drawings, models, computer simulations and so on (i.e. they become explicit) the ideas can be tested, viewed, used and enjoyed in the public domain and therefore should be protected and a value placed on them. How this value is arrived at and whether it is purely temporal or spiritual or both is difficult enough in contemporary society; when the designer is an individual or corporate entity, when the designer is part of a cultural group or ecology that has existed for decades, centuries or even longer, the situation is highly complex.