The interaction between Artificial Intelligence and design: an analysis under EU design law

Introduction

Artificial Intelligence (“AI”) is being viewed as an increasingly useful tool that has impacted a number of industries. The integration of AI is transforming the methods in how companies create products and how they interact with suppliers and customers.

The fashion and design industry is no exception. AI-technologies are used in almost every segment of the value chain. The possibilities are almost limitless. AI is no longer used only to identify what consumers want and to predict future trends, but also to generate and refine designs and even to manufacture fabrics, colors and so on.

Brands from all corners of the fashion industry have started working with AI-technologies. Luxury brand Valentino, for example, created AI-generated visuals for its 2023 campaign.[1] Other fashion brands are not just using AI for advertisements, but also to create entire collections. G-Star Raw is another example that released its first denim couture piece that was created using the generative AI-platform MidJourney.[2] This program is designed to create images based on text descriptions. The AI-design was subsequently brought to life in their atelier in Amsterdam.

                                                                       

AI has also found its way into the interior design sector. The first piece of furniture made using AI is believed to be the “AI Chair” designed by Philippe Starck for Kartell.[3] In this case, AI did not replace the designer, but calculated the best option in terms of quality, sustainability and comfort. The AI-program calculated possible variations. The aesthetic elements, such as colour and form, were left to the designer.

It follows that using AI-technologies clearly offers multiple benefits for the industry. It allows designers to accelerate the design and production process, demonstrating efficiency and innovation in the industry. Given its ability to analyze vast amounts of data and make precise predictions, AI has the potential to completely reshape the future of design.

However, the reverse of the medal cannot be ignored. With the rise of AI in the design industry and its increasing role in design development, designers are confronted with a myriad of new challenges. The industry has shared concerns about the potential of AI-technologies to threaten the position of human designers. Among designers, the fear has surfaced that human creativity will be eliminated and that the designs of human creators will be copied and used as source data.

To this day the legal implications arising from the increasing use of AI in the design industry are uncertain. Challenges occur eminently in the field of intellectual property rights, where questions related to the identification, protection and ownership of AI-created designs are becoming more significant. The interplay between AI and copyright law[4], as well as between AI and patent law has received a lot of attention recently. While the same cannot be said for the interplay between AI and design law, the use of AI-technologies has been identified as the biggest challenge to address for the European Union design law regime (“EU design law”).[5] Both European Union Intellectual Property Office (EUIPO) and World Intellectual Property Organization (WIPO) published a study assessing the impact of AI on the infringement and enforcement of designs.[6] It follows that the emergence of AI requires us to reconsider some of the traditional criteria and concepts on which European design law is based.

It is understood that some AI-programs can create designs independently, which are to be considered as “AI-generated designs”, whereas other AI-programs can only assist in the creation of designs, which are to be considered as “AI-assisted designs”. For more information regarding the distinction between AI-assisted and AI-generated output, we refer to a previously published article in our newsletter: “Artificial Intelligence: the qualifications of AI creations as “works” under EU Copyright law”.[7] This article mainly focuses on AI-assisted designs, since at present AI-programs are mostly used to assist designers rather than to replace them.

In this article we will explore the challenges that come forward with the use of AI in the design development process and assess whether the current legal framework in the European Union provides answers to these challenges. In the first section, we briefly review the basic principles of EU design law to provide an answer to the question as to whether AI-driven designs can be protected under European design law. In the second section, we will focus on the question how the legal framework responds to difficulties regarding the determination of ownership of AI-driven designs. In the third section, we will focus on the question whether the use of prior designs by AI constitutes a design infringement. In the final conclusion, we will provide some advice for designers who want to use AI to enhance their creativity and productivity.

First Section:  Protection under EU design law

“Can AI-assisted designs be protected under European design law?”

In addressing the aforementioned question, we need to take a closer look at the characteristics of European design law and the process of design development. EU design law is governed by two EU instruments, being the Community Design Regulation of 2001[8] (“CDR”) and the Design Directive of 1998[9] (“DD”).

In short, design law provides protection for the appearance of a product or parts thereof. A design results from the features of the lines, contours, colours, shape, texture and/or materials of your product.[10] An essential part of a design is the concept of product, being any industrial or handicraft item, including inter alia parts intended to be assembled into a complex product, packaging, get-up, graphic symbols and typographic typefaces, but excluding computer programs.[11] Since the focus is on the overall visual impression (read: the look) of products, a design does not need to be appealing, decorative, ornamental or aesthetically pleasing.

For it to be valid, a design must be new and have individual character.[12] These criteria are objective requirements that focus on the the characteristics of the design from an objective point of view. The personal motivations of the designer are not considered.

A design is new if no identical design, or design features of which only differ in immaterial details, has been made available to the public before the date of application or priority.[13] In addition a design must also have individual character. This is the case when the overall impression it produces on the informed user differs from the overall impression produced by any design which has been made available to the public before.[14] In assessing individual character, the degree of freedom of the designer in developing the design shall be taken into consideration.[15]

It is remarkable that the law considers a designer as a “developer” rather than a “creator” of the design. There is no level of creativity or personal expression required. The only requirement necessary for protection is an act of design development. This is in sharp contrast to the perspective of copyright law, which requires the copyright protected work, being the author’s own intellectual creation, to include its author’s personal stamp.[16] This comparison between copyright law and design law, helps to understand that design law has been created and implemented with innovation in the industry in mind, rather than the designer. Therefore, in EU design law, the design and what it consists of will be more important than the designer and their personality.[17]

The question arises whether AI can commit an act of design development. In order to answer this question, it must be determined what kind of contribution is required and when a contribution is sufficient in order to speak of “development”. The concept of development is however not further defined in the law. There remains an uncertainty regarding what kind of acts are included. Falling back to the definition of a design, we could argue that the act of development includes some form of intellectual effort from one or more individuals. In fact, the designer is revealed as a person who develops the design and who gives the product its specific appearance.[18]

Design law also requires that the designer has some degree of freedom when developing the design.[19] This points to the possibility of the designer to make choices in the design development process. Unlike the copyright regime, a designer’s limited freedom does not necessarily impact the protection of the design. Minor but novel differences in the design may be sufficient to create a different overall impression to an informed user.[20] As creativity or creative acts are not explicitly required in the law, we conclude that the choices of the designer should not necessarily be of creative nature. Even if the creative nature is taken into account, creativity will be considered in the context of its reflection in the product’s appearance and not in the context of the expression of the designer’s personality.[21]

In view of the foregoing, it can be concluded that AI-assisted designs can be protected if there is sufficient human contribution in the design development, even if this contribution was not creative or inventive. The design must only fulfil the the requirements of novelty and individual character. AI-assisted designs might be considered a variant of computer-aided design and might be treated in the same way. If the AI-assisted output has been designed without sufficient human interaction, and thus qualifies as an AI-generated design, EU design law does not constitute a perfect fit.

Second section:  Ownership

“Who will own design rights on an AI-assisted design?”

As AI-assisted designs are generated with material human intervention and/or direction, the question arises as to whether the design is jointly owned by the human designer and the AI-program, or is it solely owned by the human who contributed to the design.

Under the CDR, the right to a design vests in the designer or their successor in title.[22] Where two or more designers jointly develop a design, joint design ownership occurs.[23] Strangely enough, EU design law remains silent on the question who and/or what qualifies as a designer.

To understand what is meant with the term “designer” we must fall back to the definition of design under EU law. In fact, the definition reveals something about the personality of the designer. The designer is the person who develops the design giving the product its specific appearance, which is new and has individual character.[24] As discussed above, the act of development includes the intellectual effort of the designer.

It appears that EU design law indirectly requires the designer of a protected design to be a natural person or a subject with legal personhood. This follows inter alia from (i) the fact that design rights can be inherited, meaning that a designer must be a natural person, and (ii) the fact that design rights can be assigned to third parties by the first owner, meaning that a designer has a legal personality.[25]

Since EU design law considers the designer as a natural person (or a group of natural persons) or a legal subject with legal personality, AI-programs cannot qualify as designers. In other words, the law does not recognize ownership of design rights by AI.[26] It is suggested by the European Commission that the person using the AI-technology should be considered the designer of AI-assisted designs. This, of course, provided that the design fulfils the objective requirements of novelty and individual character.[27]

As AI cannot be the owner of design rights, the question arises what happens with designs that are AI-generated, and thus created without any human intervention. Since no designer can be identified, in principle, the design would fall into the public domain. This means that anyone can use the designs without obtaining permission. The question remains whether designers should enjoy free use of AI-generated designs, or whether it is desirable to bring AI-generated designs under the protection of EU design law. Specific legal provisions to regulate the ownership of autonomously generated AI designs appear to be most sensible to increase legal certainty.[28]

Third section:  Infringement

“Can the use of prior protected designs by AI constitute a design infringement?”

To assess whether the use of prior designs by AI-programs constitutes a design infringement, we must first focus on the nature of design protection.

Design owners are given the exclusive right to use the design and to prevent any third party from using it without consent. Use is defined to cover “the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or stocking such a product for those purposes”.[29] It should be noted that an infringement does not only occur when the same product – to which the design is applied or that is mentioned in the application – is used. Instead, the rights are infringed using any product in which the design is incorporated or to which it is applied.[30] Under EU design law, designs will accordingly infringe when they create the same overall impression on the informed user.[31] A similar design that provides a different overall impression will not infringe. Given the digitalization, it is fortunate that the protection under design law is not limited to the reproduction of physical products. The protection is in fact granted for the form as such, regardless of the product’s dimension. Think about a design that is registered for a 2D product but used in a 3D product.[32]

Against that background, the question arises whether the use of prior designs by AI can constitute an infringement. Broadly speaking, a distinction can be made between two types of infringement:[33]

(i) Input infringement: it covers the situation where a protected design is used as source data to train AI-programs.

(ii) Output infringement: it covers the situation where an AI-tool has been used to generate output under instruction by the user.

This distinction is best explained using a concrete example. Take the AI-program “DALL-E” created by OpenAI. It is an AI system that generates visuals based on the textual description of an image or artwork given by the user. DALL-E processes the text prompt and generates several options that match the given description. Users can then select and save the visual that aligns best with their expectations.

Like many other AI-programs, DALL-E operates as a generative model, meaning that it learns from the data it is trained with. This dataset consists of a vast collection of images from the internet. Think about content retrieved from websites, social media platforms, catalogues and so on. The more useful and relevant information the AI-program is provided with, the higher the quality of the output will be. As protected designs are used as source data to train AI-programs, design infringement is a growing concern among designers.

Now, suppose that one of your (fashion) designs protected under EU design law is used to train DALL-E. Does this use constitute a design infringement? In the case of a protected design that is used as source data for the purpose of training, it is argued that the use of the design does not constitute an infringement. This is because, as a principle, design infringement occurs when a design is embodied on a product. The use of a protected design as source data is not the use of the design on a product. [34]

However, what if DALL-E generates a derivative work that reproduces your protected design as a whole or partially? In that case, design infringement can arise. In order to constitute a design infringement, the derivate design generated by AI must produce a similar overall impression on the informed user. The pitfall is that it is possible to escape liability by not incorporating the infringing design in a product. Yet, it is said that currently design infringements rarely appear because, at this moment, AI systems are instructed to generate designs in spaces where prior art does not apply.[35]

In any case, the answer to the infringement-question depends on how the underlying models are trained, on the data that is used to do so, and on the nature of the output prompted by the user.

Conclusion

We conclude that the significant impact of AI in the design industry requires reconsidering and reevaluating some of the traditional criteria and concepts on which EU design law is based. The current EU legislation does not provide a solid basis for the emergence of AI. The EU design regime is human-centered and rules on AI-driven designs are missing. As a result, it remains unclear whether an AI-driven designs could be protected under design law, who could be considered as the designer, who could be considered as the owner, and when an infringement occurs.

A number of substantive  gaps were identified, which show that there is a need for a more comprehensive legal framework. The EU legislator is therefore faced with the difficult task of protecting both the creator and the intellectual property rights holder, while at the same time providing a legal framework that provides room for AI and encourages the use of it in the design process, thus stimulating investments in design creativity.

If the interaction between AI and design law raises uncertainties, designers should be aware of the legal implications and risks associated with the use AI-programs. For designers who use AI in the design process, it is recommended to verify the source of the used data. It is important to understand how the AI-program has been trained and what data were used for this purpose. This to understand whether intellectual property protected materials were used or not. Furthermore, it is recommended to review the terms and conditions of an AI-program, whether it is a directly negotiated agreement or a click-through agreement. These terms and conditions may include provisions that govern the ownership of AI-created output. Such terms and conditions may also govern liability in the event of a claim of a third party. In the event of an intellectual property infringement claim, it may be difficult to determine whether the violation occurred due to the prompt by the user or due to the algorithm and input data of the AI-program. In any case we recommend avoiding the use of AI-programs that cannot confirm rights of use based on a license agreement or open-source licensing.

In any case, the arrival of AI in the fashion and design industry is certainly going to redefine the creative landscape. It promises a future with unique opportunities for designers, improving the design process and enabling user engagement and the creation of more personalized designs.

As a final note, we point out that the European Union Parliament recently adopted the “Artificial Intelligence Act” being the very first legal framework on AI.[36] This AI Act aims to provide AI developers, deployers and users with clear requirements and obligations regarding specific uses of AI. It prohibits AI systems which pose an “unacceptable risk” from being deployed in the European Union and in other cases imposes different levels of obligations on AI systems that are categorised as “high risk” or “limited risk”. There is also and agreement reached to regulate the deployment of foundation models[37], including on the adoption of measures to ensure compliance with European copyright law, requirements to publish detailed summaries about the content used to train these systems and the preparation of technical documentation related to the use of the models.

The GEVERS AI Team will be happy to assist with any questions you may have, including questions concerning the EU design law protection of your AI creations and questions concerning the use of AI-programs.

[1] See: https://www.valentino.com/en-us/experience/maison-valentino-essentials.

[2] See:https://www.g-star.com/ko_kr/stories/art/artificial-intelligence-fashion

[3] The designer used AI-design software developed by Autodesk; See: https://www.starck.com/a-i-introducing-the-first-chair-created-with-artificial-intelligence-p3801

[4] For more information regarding the interplay between AI-driven designs and  copyright law, we refer to an article previously published in our newsletter: “Artificial Intelligence: the qualifications of AI creations as “works” under EU Copyright law” written by Pieter De Grauwe and Sacha Gryspeerdt and published in …On the edge of IP in June 2022.

[5] See: “Design rights and designer’s rights in the EU” written by Anna Tischner and published in Research Handbook on Design Law in 2021 (p. 206).

[6] See: “WIPO conversation on intellectual property and artificial intelligence” written by WIPO in May 2020 and “Study on the impact of artificial intelligence on the infringement and enforcement of copyright and designs” written by EUIPO in March 2022.

[7] See: “Artificial Intelligence: the qualifications of AI creations as “works” under EU Copyright law” written by Pieter De Grauwe and Sacha Gryspeerdt and published in …On the edge of IP in 2022.

[8] No. 6/2002.

[9] No. 71/1998/EC.

[10] Article 3(a) CDR.

[11] Article 3(b) CDR.

[12] Article 9(2) CDR.

[13] Article 5(2) CDR.

[14] Article 6(1) CDR.

[15] Article 6(2) CDR.

[16] See: “Artificial Intelligence and EU Design Law” written by Mikko Antikainen and Heidi Härkönen and forthcoming in Design Law: Global Law and Practice.

[17] See: “Artificial Intelligence and EU Design Law” written by Mikko Antikainen and Heidi Härkönen and forthcoming in Design Law: Global Law and Practice.

[18] See: “Artificial Intelligence and EU Design Law” written by Mikko Antikainen and Heidi Härkönen and forthcoming in Design Law: Global Law and Practice.

[19] Article 6(2) CDR.

[20] See: “Artificial Intelligence and EU Design Law” written by Mikko Antikainen and Heidi Härkönen and forthcoming in Design Law: Global Law and Practice.

[21] See: “Artificial Intelligence and EU Design Law” written by Mikko Antikainen and Heidi Härkönen and forthcoming in Design Law: Global Law and Practice.

[22] Article 14(1) CDR.

[23] Article 14(2) CDR.

[24] See: “Artificial Intelligence, Design Law and Fashion” written by Hasan Kadir Yılmaztekin and published in 2023 (p. 65).

[25] Article 14 (1) and 14(3) CDR; “Artificial Intelligence and EU Design Law” written by Mikko Antikainen and Heidi Härkönen and forthcoming in Design Law: Global Law and Practice.

[26] See: “Artificial Intelligence, Design Law and Fashion” written by Hasan Kadir Yılmaztekin and published in 2023 (p. 67).

[27] See: “Green paper on the Legal Protection of Industrial Designs” written by the European Commission and published in ***: “It should be admitted that the generation of a design by computer is just one untraditional method of operating which should entitle the person using the computer to this effect and choosing the design generated among the possible multiplicity of solutions given by the computer, to obtain protection if the design fulfils the objective requirement of distinctive character”.

[28] See: “WIPO impact of artificial intelligence on IP policy – Response from Brunel University London, Law school & Centre for artificial intelligence” written by Dr Hayleigh Bosher, Dr Olga Gurgula, Mr Simon Stokes, Dr Faye Wang and Dr Paula Westenberger (p. 29).

[29] Article 10 and 19 (1) CDR.

[30] See: “Intellectual property law, 4tth edition” written by Lionel Bently and Brad Sherman and published in 2014 (p. 755).

[31] Article 10 (1) CDR.

[32] This follows from case law of the European Court of Justice, see: Joined cases C-24/16 and 25/16 Nintendo v. Bigben (ECLI:EU:C:2017:724).

[33] See: ”Copyright and AI: part 1 and 2 – Infringement by machine?” written by Nick White and James Yow and published in 2023. (https://www.charlesrussellspeechlys.com/en/insights/expert-insights/litigation–dispute-resolution/2023/large-language-ai-models-and-the-key-copyright-questions-part-1/ and https://www.charlesrussellspeechlys.com/en/insights/expert-insights/dispute resolution/2023/copyright-and-ai-part-2–infringement-by-machine/).

[34] See: “Artificial Intelligence, Design Law and Fashion” written by Hasan Kadir Yılmaztekin and published in 2023 (p. 60).

[35] See: “Artificial Intelligence, Design Law and Fashion” written by Hasan Kadir Yılmaztekin and published in 2023 (p. 65).

[36] See adopted text: https://www.europarl.europa.eu/doceo/document/TA-9-2023-0236_EN.html (The AI Act is expected to be published mid-2024. The AI Act will enter into force 20 days after publication in the Official Journal of the EU. Most of its provisions will apply after 24 months).

[37] A foundation model is a type of machine learning model that is pretrained to perform a range of tasks.