Development under the old law
To understand the current legal position concerning computer generated designs it is first necessary to look at the deficiencies in the law as it was. Formerly, legal protection of designs was given by the Registered Designs Act 1949. A design was defined as features of, for example, shape or pattern, applied to an article by an industrial process. An article was defined as any article of manufacture including any part of the article if the part was made and sold separately. As far as computer generated designs were concerned the law did not protect them, as such designs would fall short of the requirement that a design be applied by industrial process. An icon on a computer screen was not an article and so could not be registered as a design. The case law seemed to provide only one exception. In Suwa Siekosha’s Design Application  icons displayed on digital watches were held to be registrable on the grounds that the code used to produce the symbols was in an integrated circuit built into the watch. Another case considered the question in relation to computer icons. In Apple Computer Inc’s Design Applications  an application was made to register computer icons as designs in relation to a ‘set of user interfaces for computer display.’ The Design Registry held that applying a design to a computer screen was not an industrial process and that a user interface was not an article. An appeal was made to the Registered Designs Tribunal. The presiding judge thought that the issue was somewhat semantic and that icons which are an inherent part of a computer’s operating system would satisfy the industrial application requirement, unlike icons which were produced by running computer software. After modifying the description to ‘computer display screens with computer-generated icons’, Apple was able to obtain registration. Consequently, the position following the Apple case seemed to be that if icons were produced by a computer’s operating system and were permanent and inherently built into the computer they may be registered as designs. Symbols and images produced by software, however, would not be registrable as they would not be built into the computer.
The current position
Designs are now covered, to varying extent, by the Registered Designs Regulations 2001 and Directive 98/71/EC on the legal protection of designs. The definition of design has been widened and computer generated images, along with images on digital watches and mobile telephones, for example, are now capable of being registered as designs. Computer programs themselves may not be designs, but any icons or other symbols that they generate when being run may be. This is subject to the other requirements being satisfied, such as novelty. The information technology industry itself, though, does not yet seem to fully appreciate the protection afforded to computer generated designs and relatively few have been registered or applied for.
Research has shown that many of the computer icons and designs which have been registered seem overly commonplace and may lack the requisite individual character. Others seem to be for sequences of screen displays, particularly for games. Since designs need not be put to use problems may arise in the future with speculative designs being registered forcing information technology organisations to purchase them or redesign their own icons. The nature of registered design law, unlike trade mark law, allows greater opportunity for this type of dubious activity.