The Parody Exception in EU Design Law: A Catalyst for Creative Evolution, Innovation and Cultural Discourse

Jacques, Sabine; Derclaye, Estelle

Abstract

This article delves into the recent proposals put forward by the European Commission, presented on the 28th of November 2022, which aim to revise key EU instruments governing the protection of design rights. With design legislation largely remaining unaltered for over two decades, the Commission's objective is to modernise this legal framework, further harmonising the protection of industrial designs within the EU. A noteworthy aspect of the proposal is the introduction of a new exception for 'critique and parody,' which garners support from designers and users alike. This article scrutinises the intricate relationship shared by design and art, shedding light on their points of convergence and divergence. The existing design legal framework undergoes critique for its inherent imbalances and the limited scope of its exceptions, especially in instances concerning referential or illustrative uses. The proposed amendments are deemed essential in ensuring fair competition and tackling the intricate question of intellectual property rights cumulation. Considering designs becoming increasingly multifaceted, serving both functional and artistic purposes while elevating themselves to a cultural echelon, their legal treatment grows in complexity. This gives rise to fresh discussions surrounding the adequacy, efficacy, and comprehensiveness of the equilibrium to be established between the rights of rightholders and the interests of users. The article emphasises the imperative of maintaining a fair balance between the rights of right-holders and competing interests, with a particular focus on the newly proposed parody exception. Furthermore, it delves into the realm of critical design, often a form of design that challenges established assumptions concerning the roles of products, with the aim of stimulating discourse and provoking debate. Within this context, the article underlines the significance of the anticipated modifications in EU design instruments, presenting insights into how the new design parody exception should be interpreted to encourage innovation and creativity.

Citation

Jacques, S., & Derclaye, E. (in press). The Parody Exception in EU Design Law: A Catalyst for Creative Evolution, Innovation and Cultural Discourse. European Intellectual Property Review,

• Journal Article Type: Article
• Acceptance Date: Feb 9, 2024
• Deposit Date: Feb 9, 2024
• Journal: European Intellectual Property Review
• Print ISSN: 0142-0461
• Electronic ISSN: 0142-0461
• Publisher: Sweet and Maxwell
• Peer Reviewed: Peer Reviewed
• Issue: 5
• Keywords: Design, parody, copyright, trade mark, desing directive, design regulation, EU, Europe, humour
• Public URL: https://nottingham-repository.worktribe.com/output/31157645