Protecting the Industrial Designs of Today and the Future BY VLADIMIR SAMOYLOV A thesis Submitted to the Victoria University of Wellington in fulfilment of the requirements for the degree of Doctor of Philosophy Victoria University of Wellington 2020 1 This dissertation is dedicated to my father, Alexander Vladimirovich Samoylov, a man who led by example, advised and encouraged me in all my endeavours. You will never cease to inspire me. 2 Acknowledgments First and foremost, I would like to extend my gratitude to my two supervisors: Associate Professor Susan Corbett and Dr Jonathan Barrett, without whom this dissertation would have never come to be. Your specialist guidance, mentorship as well as general encouragement, was and always will be, most appreciated. Due to your patience and combined efforts, I am today a much more confident researcher and writer than I ever imagined myself becoming. Thank you both also for introducing me to the world of academia. More specifically, for always challenging me and encouraging me to take my research as far as possible. I am also extremely appreciative of, and grateful for, the many research and teaching opportunities you have provided me alongside my PhD studies. Thank you also to Professor John Creedy for your help with finalising this dissertation. I am very grateful for your advice and suggestions, which helped me improve my writing. I would also like to thank Dr Jessica Lai and Dr Amanda Reilly, as well as the other academics at the University who contributed to my academic development by providing me with tutoring and other related opportunities, whilst I underwent my PhD studies. I am very glad to have got to know you and it has been a great learning experience working with you. Thank you for your faith in me. I would also like to thank all those who participated in my research project. Thank you for giving me your time and for your most valuable contributions to this dissertation. Last, but certainly not least, I would like to thank my mum and sisters for your unconditional love and belief in me. I am always most grateful for your support, even if I don’t always make that very evident. 3 Abstract This study examines and critiques New Zealand intellectual property protection for industrial designs, taking into account that many New Zealand industrial design owners outsource manufacture of their designs to China. Industrial design, which refers to improving the aesthetics of products to increase their marketability, is evolving conceptually and practically. In New Zealand, copyright and registered design laws each protect, respectively, the visual expression and the “eye appeal” of an original design. As design practices evolve with advances in technology however, it is increasingly evident that industrial design is about more than just visual expression or “eye appeal”. Many designers are not focusing solely on product stylisation and decoration, but on the provision of a more holistic product experience for the consumer. The development process of industrial designs from concept to marketable product is also changing, with many New Zealand industrial design owners employing increasingly efficient design development strategies. The fast-paced, cost-effective infrastructure of China is often utilised by New Zealand businesses for the manufacture of industrial designs. This study therefore sought to determine how to appropriately protect New Zealand industrial designs, in light of: a. foreseeable advances in technology; and b. the fact that many New Zealand industrial designs are manufactured in China. To answer these questions, this study examined and analysed New Zealand’s copyright and registered design laws, taking into account not only existing protections, but also factors that are likely to be of significant relevance in the future, such as the impact on industrial design from developments in 3D printing and virtual reality. The Chinese intellectual property regime for industrial designs was also examined because China is a major trading partner and often, as noted, the locus of manufacture. 4 The study included an empirical investigation, in the form of interviews with designers and design academics as well as legal practitioners specialising in intellectual property law. The input of the interviewees, together with the legal analysis, informed a series of suggestions and recommendations for New Zealand policy and its law-makers regarding how industrial design protection can be improved. A key finding of this study was that existing legal protections do not appropriately protect increasingly holistic designs, as well as new types of designs emerging from developing fields such as virtual reality. In assessing the appropriateness of protection, the interests of industrial design owners were balanced against the public interest in protecting the public domain. It is suggested that to achieve equilibrium copyright law should be expanded to protect design expressions for all senses. Moreover, new categories of copyright protected works should be introduced to accommodate emerging design. The definition of design in registered design law should also be reconceptualised in order to acknowledge new types of designs and evolving design practices. Industrial design owners who outsource manufacturing to China can protect their designs via copyright as well as design patent. However, enforcement of intellectual property protection is unsatisfactory in many areas of China. Therefore, New Zealand industrial design owners should also employ non-legal protection strategies. Interviews with successful businesses, in the course of the empirical investigation for this study, revealed that the leveraging of existing relationships of those with already established operations in China, and intentionally splitting an industrial design’s component parts for manufacture among several factories in different locations, are useful strategies to employ. 5 Contents 1. Introducing the Study ................................................................................... 10 1.1 INTRODUCTION ............................................................................................................................................... 10 1.1.1 Motivation .......................................................................................................................................... 12 1.1.2 Thesis outline ...................................................................................................................................... 12 1.2 RESEARCH PHILOSOPHY – PRAGMATISM .............................................................................................................. 13 1.2.1 Legal pragmatism .............................................................................................................................. 15 1.3 PRAGMATIC APPROACH IN THIS STUDY................................................................................................................ 16 1.3.1 Research question .............................................................................................................................. 19 1.3.2 Research method................................................................................................................................ 19 1.3.3 Data analysis ...................................................................................................................................... 21 1.3.4 Contribution ....................................................................................................................................... 22 1.3.5 Limitations .......................................................................................................................................... 24 2. What is Industrial Design? ........................................................................... 26 2.1 HISTORY AND BACKGROUND OF INDUSTRIAL DESIGNS ............................................................................................ 26 2.1.1 Arts and Crafts movement ................................................................................................................. 27 2.1.2 Industrial designs in New Zealand ...................................................................................................... 29 2.1.2.1 Traditional Māori design .............................................................................................................................. 29 2.1.2.2 European settlement ................................................................................................................................... 31 2.1.2.3 Contemporary Māori design ........................................................................................................................ 32 2.1.2.4 Modern industrial designs in New Zealand .................................................................................................. 35 2.2 THE ROLE OF THE INDUSTRIAL DESIGNER ............................................................................................................. 37 2.2.1 Aesthetics ........................................................................................................................................... 38 2.2.1.1 Western aesthetic theory ............................................................................................................................ 43 2.2.1.2 Traditional Chinese perception of aesthetics ..............................................................................................