Dogs in the Manger?

Theft or Public Right? Can publishers or manufacturers retain rights over something they don’t want to use?

I’ve been very interested in the subject of public right of access to research publications for a long time but the wider implications of this topic came to the fore for me recently through a debate in a different arena.

Through my enthusiasm for cycling and the Brompton folding bicycle in particular I’m a member of an online forum for Brompton owners who take a more than usually passionate interest in these bikes.

Since the patents expired on the original design of the Brompton an Asian manufacturer has started producing a cheaper copy that is very close to the original in appearance and construction although not of the same high quality of manufacture and detail. Some members of the Bromptontalk forum noticed that this copy uses an early design of luggage rack that they felt was more attractive than the current design made by Brompton and were thinking of buying this rack to fit on their bikes.

This led to a heated debate about the ethics involved. Although the copy may not be infringing any current patent or design right several people felt that the producer was morally wrong to sell it and profit from the work of the original designer and we would be morally wrong to buy it. Others said that if a producer discarded a design they have no right to prevent other people from making it or buying it.

As I am a designer with a few patents and other original designs to my name you might expect me to agree with the moral objectors, however I think one has to be careful. The copy bike is not particularly ethical, just a cheap copy to cash in on the success of Brompton, and I don’t want to defend them.

But the point about discarded designs is important. If somebody decides that they don’t want to produce a design and goes on to produce something different, I don’t feel they can continue to retain a moral right over the old design.

It’s like a publisher who decides not to continue printing a book, which happens often. We might want to read that book but they have decided for their own reasons that we can’t even if the original author would like us to. I have taken the initiative to archive a number of academic papers on the web despite not having permission of the copyright holder, for example the work by Bruce Archer and Henrik Gedenryd listed on this blog.  I did it because I feel that the original publishers have abandoned their moral right by not continuing to make these papers available and there is a danger that the good work of the authors will be lost to us. (Archer & Gedenryd have died and can’t stand up for their own work)

So if some of us like an earlier version of a Brompton product and Brompton don’t want to make it, I feel we have a right to find somebody else to make it for us. This can be quite a serious problem as products get older, I have a Volkswagen T25 camper (the last of the rear-engined VWs) and a lot of parts are no longer available from VW, but people have decided to go into production on their own account. I don’t think VW care much and they understand the iconic value of their old products still being cherished and seen on the road, but strictly speaking some of those parts might still be protected by patent or design right* and I feel it would be ethically wrong for them to enforce their rights.

Similarly, back in 1984, I designed a bicycle pump for the Bluemels company. It was a very original and successful product but the company were taken over and the new owners swapped the handle of the pump, which was functionally and visually an essential part of the design. The new handle looked very odd and lost several ergonomic advantages so I was not happy and could no longer point to the design as my work, or buy one to show people. As the designer, even though I had signed over my patent rights, I feel I had a moral right to produce the original handle if I chose, or help somebody else to do so and it would have been in my interests. I was paid a modest wage as a junior designer to do the work which was OK but my future career depended on people seeing the quality of my past work.

So I believe that a producer who abandons a product – book, academic paper, music, movie, industrial product whatever – abandons their moral claim to that work.

*Yes I know the T25 is more than 25 years old but VW are prepared to discontinue parts less than 25 years old so there was a time when T25 owners were breaching patents or design rights by copying components.

PS. Incidentally the concept of ownership can take some very strange twists in the hands of the charlatan. Here in Sheffield we have had a big dispute over the right of access to the footbridge across our local railway station. The train operating company wanted to restrict access to train ticket-holders but the bridge is also the only easy access between the city and the housing beyond the station and also the nearest tram stop.

The bridge was built with funds from taxpayers and is owned by Network Rail, a state-owned company who look after rail infrastructure in Britain. Network Rail lease the station and bridge to the train company, East Midlands Trains, but the government can take it away any time they think EMT are failing to deliver the services they promised.

Yet EMT have the cheek to say publicly that the bridge and station are “Private Property”

stillpoint link