Professor Sean Flynn delivered the following statement at the World Intellectual Property Organization Standing Committee on Trademarks on the proposal by the United States and others for a Joint Recommendation on Graphical User Interfaces.
The Global Expert Network on Copyright User Rights is an association of IP professors around the world which includes many who also specialize in design law. We support the proposal by the African Group for a study on GUIs before moving further on the proposal for a joint recommendation.
In particular, I draw attention to the work of Professor Sarah Fackrell Burstein, who has studied the use of design law protection on GUIs in the USA. She pointed out in correspondence with me that in the USA “Copyright protection is generally available for this subject matter,” but companies use design protection for GUIs “so they can subvert the low standards of copyright.” In her work Uncreative Designs, 73 Duke L.J. 1437 (2024), she describes how in the USA GUIs are sometimes granted protection that would not meet the copyright standard by the Supreme Court in Feist v. Rural Telephone, which held that information alone without a minimum of original creativity cannot be protected by copyright. One can see many interesting examples of such GUIs at her BlueSky hash tag #SubFeistDesigns https://bsky.app/hashtag/SubFeistDesigns
The US experience suggests that the terms in the joint recommendation may be very important and guidance may be needed for countries that do not want to promote extending protection to GUIs that is beyond that normally available under trademarks and copyrights in most countries already.
It may be especially useful to study the potential impacts on large generic markets, such as those for cell phones, where expanding IP promotions for GUIs may negatively affect emerging industries.
We would be happy to work with the African Group and others interested in engaging the scholarship in this area.
