Journal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592

Design protection in managing sustainable user-driven
innovation in SMEs
Gunnar Prause

Tallinn University of Technology, Estonia

Email: gunnar.prause@ttu.ee

Laima Gerlitz

Wismar Business School, Germany

Email: laima.gerlitz@hs-wismar.deThomas Hoffmann

Tallinn University of Technology, Estonia

Email: thomas.hoffmann@ttu.ee

Abstract
Innovative products and services – which are an essential precondition to economic
prosperity and welfare in society as such – result increasingly from cross-sectorial combinationof technologies, design and business models. The recent design “wave” in management andinnovation gained growing attention in the context of entrepreneurship and innovation. In
recent decades, design became also part of the discourse of social responsibility. Designers
interpreted their social role as complementarity to business strategies, and design was meant
to bridge pure industrial thinking and social responsibility. Today, design adopts acomprehensive holistic thinking and addresses social, cultural, environmental, political andeconomic provinces in the context of globalisation, industrial expansion, increasing consumption.
Numerous approaches came to light under design management or design-driven
innovation provinces. Indeed, they have been a promising key to develop, perform competitively
and grow in a sustainable way. Yet, sustainable and responsible innovation development andthe outputs thereof on the product, service or marketing level embrace also issues that are linked
to the ownership and stakeholders involved in the innovation process, namely, intellectual
property right (IPR) aspects – in both national and international contexts.
From an IPR perspective, it has to be taken into account that design-driven innovation is
becoming a more and more prominent example of user-driven innovation, resulting in thechallenge of how to distribute to prosumeristic users a “fair share” of the company’s profit basedon the economic exploitation of the prosumer’s contribution. Indeed, industrial design issue hereis just as significant as in patents or utility models.
The authors took part in several European research projects on design management, open
innovation and related IPR topics with a focus on transnational entrepreneurship. The researchis based on semi-structured interviews, qualitative and quantitative surveys, expert
assessments from diverse European countries as well as on a comparative analysis of the legal
national and international regulations on the issue. The paper highlights and discusses resultsof important aspects of IPR for design management processes, thus forging innovation and30

Journal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592

sustainable entrepreneurial growth.
Keywords
Design management, IPR, open innovation, user-driven innovation, SMEs
(1) Introduction

sustainable

Design-driven

e.g.

in

the

enjoysmanufacturing sector, enables to generate

growing importance on the entrepreneurial

technological innovations or achieve social

agenda and cases like “Braun” products ofinclusion through being heart within social

Dieter Rams that inspired Apple’s designers

innovation development process (Brown &or the Russian “Gopniki” look. But most

Wyatt, 2010). Indeed, as the scholarly

approaches and concepts for design-driven

discourses showcase, design has become an

innovations areoriented on

important tool related to the businesscompanies,

realistici.e.

management

innovation

imprints,

anddevelopment,

innovation

andentrepreneurship (Borja de Mozota, 1998,

innovation for entrepreneurs and specific2003a, 2003b, 2006; Raulik et al., 2008;

SME-suitable implementation concepts are

Prause & Thurner, 2014). By echoing Zhao

hardly to find. This makes it complicated for(2005)

SMEs to benefit from design-related cost(cultural), social (external environmental),saving, business processes’ improvements

managerial (entrepreneurial), technologicaland sustainability, which have been proven by

and environmental domains that integrate

research studies (GDC, 2010; Gerlitz &design can drive innovation, accelerate newPrause, 2017). Indeed, traditionally design

knowledge

has been affiliated with products and their

Therefore, the focus turns from traditional

uses, their shapes, colours, etc. or just been

design towards design management (DM), i.e.

treated as a matter of mere styling but today,thehowever, design has been “repositioned”, andbetween design and business in the SME

new possibilities were opened up for design tocontext, leading to innovation (Norman &play:business

Verganti, 2014). Innovation is the key to bothdevelopment, industrial and social innovationcompetitiveness and growth (Borja de Mozota,

and, recently, digital and responsible economy2011). Consequently, DM is rather placed

domains (Hack et al., 2013; Inglewood &within the area of strategic management

Young, 2014; Morelli, 2007).

where network dimensions play a crucial rule,

Designoffeasible

design-driven

withinconcepts

large-scale

manufacturing,usedefficientorganizational

experienceandfeasible

generation.

collaboration

manufacturing any longer, but also for daily

affect SME performance in the regional

life. It acts as a driving force on the entire

context.

and

just

and

of

connecting and intertwining dimensions thatprocess

notinterplayformanufacturing

is

an

the

entireBut today, innovation is increasingly

lifecycle. Design affects the entire ecosystemcomplex, fast, interactive, and requires theand leaves positive ecological, environmental,

connection
31

ofexternalandinternal

Journal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592

knowledge bases (Pavitt, 1984; Chesbrough,intellectual property rights as well as

2003; Asheim & Gertler, 2005; Malerba, 2005;

safeguard that unique product design that isPrause & Thurner, 2014). Consequently,

distributed and used globally. Unfortunately,

firms acquire knowledge from a variety ofprotection of design is not unique organised

sources and actors at various spatial scales

globally. Furthermore, there exists huge

(Smith,2006),

difference compared to patents that are

combining it with internal knowledge andapplicable all around the world. In the EU

competences. For this purpose, firms may

member states, one needs just to pay a fee andmaintain

meet

2000;

and

Tödtling

use

et

al.,

different

types

of

other

formalrequirements

for(e.g. Community designatinteractions and transfer channels (Gilsing etregistrational., 2011). Localized design expertise is crucial

EUIPO, Germany, France, Spain). Anotherfor competitiveness as innovation processes

approach appears for the Member States ofrely on the interplay between local andthe World Intellectual Property Organisation

complementary global knowledge and design(WIPO), where a registration of productexpertise (Gertler & Levitte, 2005; Boschma

design within the WIPO protects the design& Ter Wal, 2007). Thus, globalisation andin line with an examination by the designatedemergence of global networks, new social andMember States as well as in accordance withenvironmental challenges have jeopardised

the Geneva Act of the Hague Agreement (DPA,

innovation and growth opportunities. This is2017).

especially true for the SME sector andProtection of product design can be

performance of individual regions of the EU.

located in the context of Responsible Research

Certain EU regions located outside the core ofand Innovation (RRI), which is the mostindustrial activity or being more remoted

recent and mainstream discourse in the EUfrom metropolitan areas are subject to a(EC, 2012b, 2013d). RRI can be considered as

fiercer competition from other economicallypart of a set of ideas and initiatives

strong regions or global players. SMEs are

addressing socially responsible innovation. It

regarded as a backbone and vehicle ofdescribes research and innovation processes

regional and national economy. Thus, in ordertaking into account effects and potential

to strengthen regions that are exposed to

impact on the environment and society. This

competition more than the other, there isapproach is part of the European Researchneeded support for SMEs. They play crucial

Agenda and has been integrated into EUrole in generating growth, attracting new

programmes and projects. Until now, a large

investments

enabling

number of EU projects have been funded byclusters to evolve and ensuring employability

the European Commission in order to developof regional people (EC, 2012a, 2013a, 2013b,

the RRI governance framework (Res-AGorA,

2013c, 2015, 2017; GII, 2018).

2014).

Sinceandbusinesses,

product

designplays

an

By accessing protection of productimportant role for the company’s businessdesign from the IPR point of view, thesuccess, the questions arise how to protect

questions appear often in the context of open
32

Journal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592

source and user-driven innovation. It is

and entrepreneurial management practices.

because of the open distribution of forms andExisting DM concepts appear to either to be

their products in the globalised economy.

absent or distant from their feasibility in
SMEs (EC, 2009, 2013; Prause et al., 2012).

(2) Theoretical background

Existing approaches and models are rather

Traditional manufacturing SMEs are

driven by transfer of best practices from large

forced to search for new innovative andcompanies, which made them less feasible forsustainable solutions in order to survive on

SMEs,

the macro-regional or global scale. It might beconsidering the environmental ecosystem ofargued here that in order to better equip for

SMEs, addressing less their specific needs

the global competition, local and regionaland challenges, SMEs performance practices

needs and challenges need to be tackled first,

and networking interactions (Gerlitz et al.,beforescale.

2016; Gerlitz, 2018; Gerlitz & Prause, 2017).

Generating innovation and focusing on theConsequently, there is missing a conceptual

local and regional context needs to be focused

DM approach to innovation in SMEs from theon in order to make a stronger use of theprocessual perspective: how to employ tools,“glocalisation”. This term refers to addressed

what challenges and opportunities are related

local and regional needs and challenges

to the DM embeddedness process and how

instead of concentrating on global integration

does management of design integration take(Courchene, 1995; Porter, 2000; Wolfe, 2002).

place. Furthermore, knowledge is missing on

Here, Design Management (DM) concept canorganisational changes that are based on

help SMEs to strive and achieve innovation as

opportunity

well as to better adopt to globalisation. This

organisational strategy and culture (Gerlitz,

might happen by developing new ways of2018). In addition, we deal here with non-makingutilised potential of DM: design integration

proceeding

adoptingandtoselling

theglobalproducts,

organisational

services,

processes

as

they

were

detached

recognition,

frominnovation,andand utilisation. This appear to be especially

implementing visions that are in line with thetrue for the SME context as well as in policy

needs and challenges of the local and regionaland governance domains and measures thatsetting (Candi, 2006; Steffen, 2010; Figurska,

would enable to decrease the gap in2014).

knowledge and research on what processes
Despite increasing trends of DM

andframeworks

may

be

adoptedbyutilisation within the global scale and in large

enterprises to assist them in becoming

organisations, DM theoretical contributions

design-oriented. As noted by Whicher &and practical applications within the SMEs

Walters (2014), only a few regions in Europe

context is rather scarce (Hack et al., 2012,

have integrated design into their regional or2013; Gerlitz & Prause, 2017). Screening ofmacro-regional innovation policy on regional

the worldwide databases, DM concepts forand local policy levels (p. 4). Thus, practical

SMEs yield just a few entries (Gerlitz, 2018).

application of DM concepts through research

Parallel, DM is marginally utilised in SMEs

projects is demanded (Acklin et al., 2006).
33

Journal of Japanese Management Vol.3, No.1, November 2018

New dynamics in the interaction of
innovation,

entrepreneurship,

as well as the share of the knowledge with theandother. Here, again the already mentioned

regional development appear with the rise ofcases for open design driven innovation likethe smart specialisation and the Industry 4.0

Braun products of Dieter Rams or theconcepts (Gerlitz, 2016; Prause, 2014). BothRussian “Gopniki” fashion look underpins theapproaches embrace distributed networking

importance of the flow of design innovations

interaction

among

and

allow

DM

ISSN 2189-9592

acquisition

of

open

innovation

andonlineknowledge and expertise from a variety ofcommunities around the world. But there

different sources. Especially, for the design

should be a legal framework for these

sector, an inspiration and use of global

considerable transfers of value, providing

patterns, icons, forms or ornaments together

sustainability and a minimum of balance ofwith the protection of their intellectual rights

interests of both users and companies. Legal

becomes crucial for competitiveness and thepractitioners should familiarise themselvesprospect of a company. The no-universal

with user-driven innovation business models“design patent” as a global form of legal

and the implemented technologies (Kerikmäe

protection of design until now made first steps

et al., 2018).

toward patenting industrial design right in

From a legal point of view, there is little

some countries and institutions. On the

demand for a balance of interest to be

European level, there are forms of registeringachieved by instruments of intellectual

design for both the WIPO members andproperty law, as free use of otherwise

several countries all around the world (DPA,

protected rights forms the essence of the2017).

“Open Source Scene’s Spirit”. This means thatSpecial forms of exchange of design

all parties involved in open source innovation

patterns is related to open and user driven

are aware that they – expressly or impliedly –processes that are organised by online

waive their respective IP rights, driven by thecommunities. Following Bartl (2008), theseawareness that they jointly improve a

processes are covered by an open innovation“common good”. But not all open or user-

approach, which underscores the way of going

induced innovations contribute to public

beyond the corporate boundaries, i.e. an

goods. The innovation beneficiary more andactive strategic deployment of environmental

more often happens to be a private and profit-

cloud or external factors of influence tooriented company, making the private user

increase its own innovation potential (Hack etproviding innovation not any more to a publical., 2012, 2013). As a result, innovation occurs

good, but to private assets of that company,

and ideas and design are generated in such ae.g.

society through the interactive creation ofcarpenter’s design cupboard creation onvalue.

innovation

Instagram, which is then found and copied byencompasses such manifestations as to bea furniture company (see further examples atopen for the knowledge of the other,

Baldwin et al. 2006). The value generated bygeneration of the knowledge as a joint action

this innovation is not any more freely

Additionally,

open

34

the

photographyofanamateurJournal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592

available on the market, but has to betechnologicalpurchased by each buyer (or other kind of(Schomberg, 2013). The first steps on the EU

customer) individually. In this situation, thelevel have been scientifically narrowed down

exchange of interest is not as balanced as inby Owen et al. (2012) to the three key points

the “Open Source Scene”, and correctionof democratic governance, responsiveness andmeasures imposed by law may be required. As

framing of responsibility, which are to large

these

immaterial

extent overlapping with the EU framework.

character, these correction measures – in

In addition, Stilgoe et al. (2013) highlight asother words forms of legal protection – must

main features for RRI the four dimensions of

be sought among the existing protection

anticipation,

schemes intellectual property.

responsiveness. Thus, meanwhile the RRI

contributions

are

of

advances

reflexivity,

in

our

societyinclusionandOn the European level, the question of

approach found their way into the strategic

protection of product design falls into the area

documents and objectives of the Europe 2020of RRI, which refers to the comprehensive

Strategy to create Smart Growth or into theapproach of proceeding in research andinnovation in ways that allow all stakeholders
that are involved in the processes of researchand innovation at an early stage (A) to obtainrelevant knowledge on the consequences ofthe outcomes of their actions and on the range
of options open to them and (B) to effectively
evaluate both outcomes and options in termsof societal needs and moral values and (C) to
use these considerations (under A and B) as
functional requirements for design anddevelopment of new research, products andservices (EC, 2012b, 2013d). A framework of

Horizon2020

programmes

andrelatedprojects of the European Union, including the
Res-AGorA project (Res-AGorA, 2014).
(3) Methods
The research process described in thepaper followed a manifold research path.
Diverseresearchmethods

have

been

intertwined, considering respective research
approach and research tool. Five techniques
were employed in exploring the objectives ofthe present paper:

RRI consisted of six key points and is

Research types: analytical, qualitative,
historical, empirical, practice-based;

Union



Research approach: qualitative;

highlighting engagement, gender equality,

Research methods: descriptive anddescribed

bytheEuropeanscience education, open access, ethics andqualitative – case studies, semi-

governance. As a result, RRI can be defined as

structured"a transparent, interactive process by whichassessments and observations; andsocietal

actorsandinnovators

becomeinterviews,

expertResearch scope: different researchmutually responsive to each other with a view

activities between 2013 and 2018.

to the (ethical) acceptability, sustainability

The reasoning behind the selection ofand societal desirability of the innovation

the following techniques in the research

process and its marketable products in orderprocess is elaborated in the following.

to allow a proper embedding of scientific andWith regard to the research types, the35

Journal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592

paper has chosen analytical, qualitative,

filing in the application (respectively on that

empirical and practice-based way, sincedate, where a first alleged infringement has

during the research process the facts andtaken place in case of non-registered designs),.

empirical

wereThis means that no design that is identical orappropriately analysed and subject to adiffering only in immaterial details from thecritical assessment. The core of the research

design in question has been published,process is the qualitative research approach.

exhibited or put on the market in any other

Important insight views were given in

way before that respective date. Furthermore,qualitative expert interviews and the analysis

a design must have individual character, thusof case studies (Hack et al., 2012, 2013;

meaning that its overall impression must

Prause & Thurner, 2014; Hoffmann & Prause,

differ from already existing designs. In this2015; Gerlitz & Prause, 2017).

context, neither the view of a layman nor theevidence

gathered

opinion of a product designer is decisive. It is(4) Design protection schemes in user-driven

rather an overall impression produced by theinnovation

design on the so-called “informed user” that is

1. International design protection

relevant.

Protection of designs is globally not yet

These criteria are covered by the

harmonised, as it is e.g. already in case fornational design protection law in terms of thepatents, which can be effective all around thefollowing

world. In contrast to other industrial property

harmonised: The U.S. design patent, forrights, protection is granted not only upon

instance, is a form of legal protection granted

registration, but also – similar to copyrights –to the ornamental design of a functional item,by making design available to the public,e.g. jewellery, furniture, beverage containers

despite the fact that the scope and period ofor logos. Providing another example, theprotection is lower for these unregistered

Germandesigns. Both design protection forms shareappearance of industrially manufactured or

anyway some common protection criteria: It

manually crafted products, e.g., clothes,can either protect the design of a flat surface,furniture, vehicles, fabrics, decorative objects

e.g. of a textile or wallpaper, or the design of aor graphical symbols. Parts of products canthree-dimensional object. In this context, thealso be protected by a registered design, forfollowing features as lines, contours, colours,

example, the sole of a sports shoe or the cap ofshape, texture or the materials of a producta writing instrument. Under the German law,play a crucial role. Here, a product is anya registered design (German: “Eingetragenes

industrial or handicraft item, including

Design”), formerly called “Geschmacksmuster”

packaging, get-up, graphic symbols and(in English, “aesthetic model”), is a form of

typographic typefaces as well as parts

intellectual property that extends industrial

intended to be assembled into a complex

design rights over the visual design of objects

product.

that is not purely utilitarian. The term of aA design must be new on the date ofcontents

registered

that

are

designs

generally

protectthe“Geschmacksmuster” is twenty-five years (§36

Journal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592

27 (2) GeschmMG) old. It is used for thenational application and registration process

Community design (Bulling et al., 2004;(multilateral

Eichmann & Kühne, 2015; GPA, 2017).

international regulations works establishingIn

general,protection

follows

international

autonomous

new, uniform design rights applicable on the
territory of several nation states. An example

territoriality, i.e. design rights are granted byfor the latter – here for the EU legal space –and under the legal systems of individualis the Council Regulation (EC) No. 6/2002 ofstates. Thus, their protection is generally

12 December 2001 on Community Designs

restricted to the territory of the state that is(Community Designs Regulation), which

granting the design right. As a result, any

grants a unitary right covering all the EU

protection beyond that territory can only be

Member States for up to 25 years forachieved on this basis if parallel national

registered rights (as far as every fifth year thedesignrenewal fees have been paid) as well as threeareprinciple

orofrightsthedesigntreaties)

obtainedinseveralindividual states, usually chosen by the

years for unregistered design rights.

degree of economic interest for product sales.

The community design is granted

On this basis, a bundle of rights can beadditionally to national design protection,

created, covering the relevant geographic

which in the European legal space has

area as a whole. But in fact, such “bundled

anywaytolarge

degreenational rights” are rarely applied for inharmonised

by

the

practice,

implementations into national laws of theconsidering

there

is

a

basic

98/71/ECofalreadythebeenrespective

protection as unregistered design anyway,

Directive

Europeanand there are substantial costs involved in the

Parliament and of the Council of 13 Octoberaccumulation of national rights (filing fees,

1998 by setting up the harmonised standards

publication fees, legal fees, etc.), especially infor eligibility and protection of most types ofcase of design protection of non-durable

registered design.

consumer goods as produced by the fashion

Beyond the EU, the Hague Modelindustry or toy industry, etc. Yet, even

Convention is today the most importantcompanies in branches producing longer-

treatylasting products as, e.g. in the automotive

procedures (but no direct effect, as substantial

industry, electronics industry, etc. usuallynational design law remains applied) in all

restrict themselves to design protection in key

the Member States. This is similar to thesales markets (Hasselblatt, 2017).

Madrid Trade Mark Convention, which also

Still, a maximum of international

providinguniform

registration

unifies only the filing and registration

protection is and has always been envisaged

procedure.

bymaintained by the WIPO Office located in

producers,

just

as

measuresofharmonisation have been induced and partly

international

These

measurestreaties

consistharmonisingproceduresareGeneva.

also already achieved by the international
community.

Registration

The Hague Model Convention consistsofof three separately amended versions of thetheoriginal Convention of 1925, being the37

Journal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592"London Version" (2 June 1934), the "Hague

exceeds by far employees’ motivation (Alexy &Version" (November 28, 1960) and theReitzig, 2013).

“Geneva Version” (July 2, 1996), which are all

In spite of this, there are at present noparallel in force, as they addressed different

gratification schemes, which would enhance ainternational needs. It is thus essential tobalance of interest between these voluntary

specify exactly to which version of the Hague

innovators and companies “harvesting” these

Model Convention is referred to.

contribution, which – being of immaterial
character – can only be corrected by

2. Design protection in user-driven innovation

adjustments in the existing intellectual

From an IPR perspective, there are two

property protection schemes for design among

types of user-driven innovation, which differ

protection

by the nature of the “innovation target”,

granted registered design is a strong andwhich may be either a public (i.e. freely

effective right, and also the unregisteredavailable)

good

to

design grants the creator of the design acontributeonentirely

an

which

innovators
privatesystems

discussed

above.

Aandrange of rights ranging from monetaryvoluntary base to a public good, or innovatorscompensation for past infringements tocontribute their achievements in corporate

injunctions against future infringements.

environments on behalf of the employing

In fact, every design made available via

company, which has to re-finance these

online communities is (if the respective

investments via licenses or selling items incriteria in terms of novelty individuality are

which the innovation has been realised. The

given) is at least protected as an unregisteredfirst model is known as “private-collective

design holder according to national law or – ininnovation” (von Hippel & Krogh, 2003) andthe EU – according to the community design

is regularly found in the IT branch, where thisregulation. As most users making their

way open source software is developed ordesigns available in public are not aware ofmaintained (see e.g. Linux); eventual arising

this, in most cases there is little practical

IP rights are deliberately waived. The second,

impact of their disclosure. But the situation

traditional model, has on the other hand tochanges if the private company copies that

protect their innovation in form of IP rights indesign found online and seeks protection of its

order not to be deprived of the profits of its

legal position from the usage of that design

investments

against other third persons: In the caseAnyway, also companies often waive

presented above, the furniture company may

their IPRs, as they realise more and more

eventually intend to apply itself for designthat making their technical state-of-the-art

protection based on the design disclosed on

freely available has the potential to generate

the internet by the amateur carpenter. Whena much higher return in innovation than theit will hand in a respective application for a

private-investment model (Henkel et al.,design at the competent office, in most legal2013), as the intrinsic motivation of thesystems the office will check – among othercontributors forconditions – the novelty of the design. If thetheir freecommitment
38

Journal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592

company did not disclose itself the origin ofregistrations concerned furniture (ca. 12,000),

the design, a research by the office may reveal

followed by clothes (ca. 10,000) and graphic

the amateur carpenter as creator, who, in thisdesign objects (ca. 7,000). All in all, thecase, also made his design publicly available

number if design registrations decreased by– depriving it from its novelty. But theabout 22% compared to 2016 but during thecompany’s situation is even at stake if it does

period from 2010 to 2016, the number of

not apply for design protection, but simply

annual design registrations ranged aroundstarts mass production within three years

50,000. Interesting wise, the 2016 figures

after design disclosure, as the initial creator

reveal that the top three leading company

will in many cases be protected at least as

with design registrations consisted of anholder of an unregistered design right.

Italian company (4,200 registrations), a

Depending on the respective legal regime

German enterprise (2,230) and an Austrian(national or international law, depending on

company (1,116). At the end of 2017,

the function of the design office), the amateur

altogether 312,860 design registrations werecarpenter could file a notice of opposition

enrolled in the databases of the German

within a special opposition period, and also

Patent and Trademark Office (GPTMO, 2017).

without such an opposition the company

Although a clear demand for theremains endangered that the user will later

regulation of these forms of cooperation exists,

hand in an action for nullification of thethe legal protection of user’s interest in thedesign, as the conditions for its grant had notcontext of user-driven innovation has not yet

been met, or sue for cease and desist from thebeen settled. Still, there is a similar

usage of his design in case the company did

constellation of interests, which already has

not apply for design protection, but trusted tobeen regulated in detail by law. Just as inhave an unregistered design.

user-driven innovation, an employee not

In

other

words:

Ifacompany

holding any personal shares in the profit of aendeavours the complete exploitation of acompany generates innovation through own

design – and the more attractive the design is,design creations he or she develops throughthe more probable this endeavour will be –, itdaily

has in some way to cooperate with the creator

production, which usually – if they are high-of that design. Otherwise, it will run thequality design ideas – find their way to theconstant risk of a later revocation of its design

company’s management, are respectively

right, including a court order to cease andimplemented into production, hence lead todesist from usage of that design.

the attraction of these products and increase

contact

withproducts

or

their

the profit of the producing company.
(5) Findings and Discussion

The European Commission took from

A closer look at the German statistics

2010 cross-cutting RRI actions and financed aconcerning design protection reveal that incouple of international research projects in2017 about new 44,300 design registrations

order to develop a RRI governance framework.

were executed, and the largest number ofDriving force were here the EU constitutional
39

Journal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592

values comprising respect, for human dignity,

successful and artistic design creations,liberty, democracy, equality, the rule of law
and respect for human rights, including therights of persons belonging to minorities.

German Copyright Law grants the author in

Background idea was that innovation andbusiness relations is customary and fair,

new technologies should meet the global

given the nature and extent of the possibility

challenges by respecting the European valuesof use granted, in particular the duration,andfrequency, extent and time of use, andsafeguarding

development,

sec. 32 II 2 an equitable remuneration at an
amount which “corresponds to what insocialcohesion and the maintenance of economic

consideringallcircumstances”

prosperity in the frame of the EU2020

2014; Hasselblatt, 2017).

(Schwab,Strategy (EU, 2012b, 2013d). Important key

This regulation provides at least a

points were dedicated to open access andgeneral approach of how interests of the

ethics as well as to certain extent governance,

creator of a successful design and thewhich are covering the topics of this paper.

employer in the situation of “employee-driven

Among the initiated EU research projects oninnovation” can be balanced. It may be argued

RRI, some were touching design protectionthat this model cannot be applied directly on

and user-driven innovation including the Res-the situation of user-driven innovation, as

AGorA and the IRRESISIBLE projects (Res-there is an essential difference. While the

AGorA, 2018). Both projects looked at the casedesigning employee and his employer are

studies in design and smart manufacturing

bound by a joint employment contract, there

sector and investigated the contextual RRI

is no contractual relationship between theframework. Yet, the legal aspects of ouruser providing attractive design in a virtualresearch have not been discussed, especiallycommunity and the innovation-exploiting

employee’s design rights were not in thecompany.

centre of the research projects so that a clear

But just as the gratification paid to theand generally accepted legal framework is

designing employee does not arise fromstill missing.

contractual

In terms of law, employee’s design
rightsgenerallybut

simplydistributes a respective share of the profit

automaticallymade by the company expected on base of thetransferred to the employer, see e.g. sec. 7 II

new design, the duty to pay a respective

German Design Act (DesignG), unless thegratification on base of copyright law – in ourdesign has been created explicitly beyond theexample sec. 32 I UrhG, including its

creator’s contractual tasks. In contrast to

calculation methods – can be respectively

employee’s inventions, which entitle theapplied to the favour of users in user-driven

employee in return to a respective monetaryinnovation as well, serving exclusively thatgratification

balance of interest also envisaged in user-

(art.

are

relationships,

9-12

ArbNErfG),

theGerman Design Act does not provide any

drivenregulation gratifying the employee for his orcompany’s design strategy sustainable. As theher contribution. Still, in cases of truly

user does often not know, which company may
40

innovation

andrenderingtheJournal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592

exploit his design in future, and as there

effects

andpotential

would not be any duty to inform anybody

environment

about eventual designs for users anyway, theimportant basic points dedicated to open

information duties would be reversed, i.e. theaccess, ethics and governance, which areinterested company would be obliged tocovering the protection of design rights indisclose its intention to make use of a specificopen access environments. Some initiated EU

design to its respective author (as far as

research projects on RRI were touchingpossible). If the author does not react within

design protection and user-driven innovationa period of time still to be determined, hisbut a clear legal framework was still missing.

consent would be assumed, thus leaving

The estimation of the benefits of user

untouched his claim for gratification, if heinnovation communities for companies isonly finds out about the use of his design later.

manifold, comprising sustainability aspects

and

impactssociety.

on

These

the
cover

due to stronger user orientation in product(6) Conclusions
The

way

development as well as significant cost
technical

innovationis

aspects due to their analysis of all successgenerated in companies has essentiallydimensions. All phases of the life-cycle supply

changed in recent years, and the trend has

chain

just started. No internal design department ofConsequently, large potentials in the usage ofany company has the resources to compete

design innovations from user communities

with the “creativity of the crowd” provided byhave to be kept in mind when it comes to themillions of private product users every day –evaluation of related tentative IPR payments

in real time, based in real experiences, and –to users.

ofaproductarealsocovered.

so far – at no costs. Thus, companies access

While the exploitation of this design

design ideas or users provide these designs toknowledge is at present basically free forcompanies so far for free, as the “Open Source

private companies and therefore is becoming

Spirit”, which is based on an informal

more and more essential in the firms’ scheme,

understanding of mutual benefit of all actors

the “Open Source Spirit” will sooner or later

involved, leaving any claims for monetary

fade: This is because users will realise thatcompensation aside, is still alive in thethere is not much of a mutual benefit left if

internet community, and as many users dotheir creative contributions that do not serve

not realise that their designs disclosed on thea public good but rather the profit of private

web have indeed an eventually considerablycompanies. This does not mean that the trendhigh market value at all.

to even more user-driven innovation should

The European Union has recognised

be stopped or even reverted. On the opposite,

the importance of these issues and initiatedthe abundant resource of user’s creativity

activities to develop a RRI governanceshould even be explored further, and muchframework addressing socially responsible

more, the communication between users andinnovation. It describes a research andprivate companies should further intensify.

innovation process that takes into accountHence, a legal framework for these41

Journal of Japanese Management Vol.3, No.1, November 2018ISSN 2189-9592

considerable transfers of value is required,handbook of innovation, 291–317.

providing sustainability and a minimum of

Oxford University Press.

balance of interests of both users andcompanies.

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practitioners

familiarise

themselves

Baldwin C., Hienerth C. & von Hippel E.

should(2006). How user innovations becomeuser-driven

commercial products: A theoreticalinnovation business models and implemented

investigation and case study. Researchtechnologies. Such a framework is so far

Policy, 35, 1291–1313.

withlacking in most legal virtual systems, as theBales, R. (2013). US Employment Law

dogmatically closest legal mechanism –perspectives on the issue of who owns

employee’s invention law and copyright law –an employee’s invention. In Pittard, M.;cannot be directly applied on user-driven

Modotti, A.

innovation. This is due to the lack of any legal

Business innovation and the Law.

relationship existing between the innovating

Elgar, 191–2134.

user and the exploiting company. There is still

Bartl,

M.

&(2008).

Danns,WhiteY(Eds.).

Paper:

Open

one element in employee’s copyright law,

Innovation! Available on the Internet:

which is not based on a contract between both

http://hyve.de/cms/upload/f_1599_Whit

parties – a duty to pay a respective

ePaper_OpenInnovation.pdf. [Accessedgratification to the private designer. This duty

15 Jun 2014]

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Borja de Mozota, B. (1998). Structuringuser-driven innovation, respectively – at least

strategic design management: Michael

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