The Role of Strategic Groups in Understanding Strategic Human Resource Management

The current issue and full text archive of this journal is available at www. emeraldinsight. com/0048-3486. htm The role of strategic groups in understanding strategic human resource management Judie M. Gannon Oxford School of Hospitality Management, Faculty of Business, Oxford Brookes University, Oxford, UK The role of strategic groups 513 Liz Doherty Business School, Shef? eld Hallam University, Shef? eld, UK, and Angela Roper School of Hospitality & Tourism Management, University of Surrey, Guildford, UK AbstractPurpose – This article aims to explore how understanding the challenges faced by companies’ attempts to create competitive advantage through their human resources and HRM practices can be enhanced by insights into the concept of strategic groups within industries. Based within the international hotel industry, this study identi? es how strategic groups emerge in the analysis of HRM practices and approaches. It sheds light on the value of strategic groups as a way of readdressing the focus on ? rm and industry level analyses.Design/methodology/approach – Senior human resource executives and their teams across eight international hotel companies (IHCs) were interviewed in corporate and regional headquarters, with observations and the collection of company documentation complementing the interviews. Findings – The ? ndings demonstrate that strategic groups emerge from analysis of the HRM practices and strategies used to develop hotel general managers (HGMs) as strategic human resources in the international hotel industry. The value of understanding industry structures and dynamics and intermediary levels of analysis are apparent where speci? industries place occupational constraints on their managerial resources and limit the range of strategies and expansion modes companies can adopt. Research limitations/implications – This study indicates that further research on strategic groups will enhance the theoretical underst anding of strategic human resource management and speci? cally the forces that act to constrain the achievement of competitive advantage through human resources. A limitation of this study is the dependence on the human resource divisions’ perspectives on realising international expansion ambitions in the hotel industry.Practical implications – This study has implications for companies’ engagement with their executives’ perceptions of opportunities and threats, and suggests companies will struggle to achieve competitive advantage where such perceptions are consistent with their competitors. Originality/value – Developments in strategic human resource management have relied on the conceptual and theoretical developments in strategic management, however, an understanding of the impact of strategic groups and their shaping of SHRM has not been previously explored.Keywords Strategic groups, Strategic human resources, Strategic human resource management , International human resource management, Hotel and catering industry, International business Paper type Research paper The authors would like to express their thanks to the organisations who participated in the research and the reviewers and Editors who provided insightful and excellent feedback on early drafts. Personnel Review Vol. 41 No. 4, 2012 pp. 513-546 q Emerald Group Publishing Limited 0048-3486 DOI 10. 1108/00483481211229401 PR 41,4 14 Introduction Most developments in strategic human resource management (SHRM) and international human resource management (IHRM) have drawn heavily on the strategic management literature (Becker and Huselid, 2006; Schuler and Jackson, 2007). Some of the earliest models associated with SHRM (such as Fombrun et al. , 1984; Beer et al. , 1984; Hendry and Pettigrew, 1986 and Guest’s (1989) model) provide insights into how leading HRM thinkers have approached the strategic dimensions of HRM. Such insights have focused on the links or ? be tween strategy and HRM, environmental analyses as the basis for strategic management informing (and in some cases informed by) HRM, and borrowing concepts and theories with their origins in the strategic management literature, such as organisational and product life cycles, and competitive strategies (Schuler and Jackson, 1987; Sanz-Valle et al. , 1999; Miles and Snow, 1984). Despite the advances made in both areas there has been minimal consideration of the ways that strategic groups, not only industries and ? rms, in? ence HRM strategies and practices in the pursuit of competitive advantage (Boxall, 2003). Strategic group research identi? es how groups of ? rms engage in similar strategies in order to compete effectively within industries and shape industry structure and competition. Panagiotou (2006 p. 440) de? nes strategic groups as: [. . . ] those groups of ? rms within an industry, which are characterised by similarities in their structure and competitive beliefs as well as t heir tendency to follow similar strategies along key strategic dimensions in a speci? operating environment. The performance differences between strategic groups are the focus for much of this research, but mobility between groups and the structural dimensions of industries have also received attention (Ferguson et al. , 2000; Leask and Parker, 2006; Porter, 1980; Reger and Huff, 1993). As such strategic group research has developed as a central research theme in strategic management. One of the most notable aspects of strategic groups research is that it highlights and reinforces the importance of particular industry contexts.This is an important consideration for the development of SHRM research as there is now growing recognition of the value of industry and sector speci? c SHRM research where the nuances and structural dimensions of industries are emphasized (Boselie et al. , 2009; Paauwe, 2008; Paauwe and Boselie, 2008; Tyson and Parry, 2008). The aim of this study is to explor e how the strategic group concept can inform SHRM approaches. Speci? cally it sets out to identify how strategic groups can help us understand why companies struggle to achieve sustainable competitive advantage.This aim is achieved by initially investigating the strategic group literature and evaluating where it adds insight and value to the SHRM approaches literature. Thereafter the ? ndings from an in-depth empirical study of the HRM practices and strategies deployed across a global industry are used to highlight the role of strategic groups in constraining companies’ capacities to differentiate their SHRM approaches and practices. Accordingly this article also satis? s the demand for more sector led SHRM research (Paauwe, 2008; Paauwe and Boselie, 2008; Tyson and Parry, 2008). This article unfolds as follows. Initially an evaluation of the strategic group literature is provided followed by an analysis of the contemporary debates in SHRM (Boxall and Purcell, 2000, 2003, 200 8; Boselie et al. , 2002, 2003). The limitations of the SHRM literature are re? ected on in light of the strategic group literature and the potential contribution this ? eld towards a more nuanced understanding of SIHRM approaches and practices.The research design for the study is subsequently outlined alongside an overview of the context of the research, the global hotel sector. The qualitative data analysis is then considered with the HRM practices and approaches which are found to be common across the whole industry, similar across particular strategic groups and distinctive to speci? c companies explored sequentially. The implications of these various layers of HRM practices and strategies, and speci? cally the strategic group dimension, are then discussed in relation to the extant research. Of speci? c note is the way such ? dings reinforce the challenges companies face when pursuing competitive advantage through human resources and how the national, industry and strategic grou p pressures for assimilation limit opportunities to develop idiosyncratic and integrated HRM interventions and strategic human resources. Literature review: building bridges between strategic groups and SHRM approaches Strategic groups The strategic group concept emerged within strategic management as an attempt to better understand the competitive backdrop and demands faced by companies operating in an industry (McGee et al. 1995; Porter, 1980; Short et al. , 2007). Strategic management analysis has typically taken place at the level of the ? rm and the industry, and has omitted the interface of ? rm and industry competitor behaviour. Originating from the broader ? eld of industrial organization economics in the 1970s, strategic groups were identi? ed as clusters of companies within industries (Porter, 1980). Such divisions arise because industries are not collections of heterogeneous companies but subsets of ? ms separated by mobility barriers limiting movement between groups (Fer guson et al. , 2000; McGee et al. , 1995). Strategic group research has facilitated a better understanding of how group structure can shape rivalry and ultimately performance, as well as group identities and reputations. It has also illustrated how strategic group reputations serve to reinforce mobility barriers to other industry competitors (Dranove et al. , 1998; Ferguson et al. , 2000; Leask and Parker, 2006; Peteraf and Shanley, 1997).The analysis of the business environment as an objective reality, achieved classically through cluster or factor analysis of company data (Reger and Huff, 1993), drives most investigations in this area. However, Panagiotou (2006, p. 441) summarises the problems of this prescriptive approach as leading to: [. . . ] a preoccupation by managers that strategic management is all about prescribing strategies for positioning a business in a particular industry structure, having ? rst carried out a thorough economic analysis based on the implicit notion th at industry structures are relatively stable and easily identi? ble. The role of strategic groups 515 More recently a cognitive approach to strategic group research has emerged based on the argument that managers’ simpli? cation of their complex competitive environments and perceptions of similarities and differences among their rivals will shape strategic decision-making (Panagiotou, 2006, 2007; Reger and Huff, 1993). Such managerial insights into competitive groupings offer clearer conceptions of the way decision-makers perceive their own organisations and their rivals and therefore how these determine and implement strategies.These arguments suggest that strategists’ PR 41,4 516 understand (and approach) their competitive environments in similar ways, and are related to the ideas of institutional assimilation and isomorphism (DiMaggio and Powell, 1983; Powell and DiMaggio, 1991). Therefore, the capacity of ? rms to pursue distinctive practices for competitive advant age may be limited by constraints, such as organisational inertia and forms of isomorphism (Reger and Huff, 1993; Boon et al. , 2009). Strategic groups are then another important aspect of the structural dimensions which foster this organisational sluggishness.These are critical insights where the pursuit of competitive advantage through human resources, HRM practices and strategies has gained substantial support in recent years (Becker and Huselid, 2006; Boxall, 2003). However, this quest for distinctive or idiosyncratic HRM practices and strategies to attain competitive advantage needs to be resolved against the pressures to conform and achieve social legitimacy within sectors. The next section evaluates the contemporary SHRM approaches and highlights where the strategic group literature contributes to their enhanced understanding.The strategic HRM approaches Three main SHRM approaches have emerged as the keystone for understanding and achieving sustained corporate success through human resources (Purcell, 1999, 2001; Boxall and Purcell, 2003, 2008). While the opportunities for simultaneously enacting these approaches are now well-rehearsed it is useful to revisit them brie? y as part of developing the theoretical connection with the strategic group literature. The best practice SHRM approach encourages companies to adopt sophisticated or â€Å"high performance† practices across their human resources in order to achieve competitive advantage (Pfeffer, 1998; Huselid, 1995).Considerable criticism of the best practice SHRM approach occurs in relation to what actually represents â€Å"sophisticated† HRM practices and the empirical basis on which these practices are suggested (Marchington and Grugulis, 2000; Boxall and Purcell, 2003, 2008). Furthermore, the conventional best practice SHRM approach suggests that these superior HRM practices should be adopted regardless of different industrial and national boundaries (Marchington and Grugulis, 2000; B oxall and Purcell, 2003, 2008).Recent evaluations of the â€Å"best practice† SHRM approach have emerged recognising that within industries there may be certain HRM practices and approaches which are obligatory (Boxall and Purcell, 2003, 2008). The â€Å"table stake† concept suggests there are established (HRM) practices adopted by all businesses in an industry which serve to legitimise their position in that industry. This concept has thus been recognised as an adaptation of the â€Å"best practice† SHRM approach (Boon et al. , 2009; Bjorkman, 2006; Boxall and Purcell, 2003; Paauwe and Boselie, 2003).The â€Å"table stake† version of best practice SHRM approach is based on the institutional assimilation literature where organisations struggle to distinguish themselves from their industry associates while simultaneously achieving legitimacy (institutional ? t) in their sector (DiMaggio and Powell, 1983; Powell and DiMaggio, 1991; Oliver, 1997). Isomorphis m is the process which constrains organisations’ attempts to differentiate themselves within the same institutional context (DiMaggio and Powell, 1983).Isomorphism emerges in two broad variations; competitive isomorphism where market pressures and performance targets are emphasised and institutional isomorphism where institutional factors associated with socio-cultural, technological and economic parameters are highlighted. The adoption of best practice SHRM approach across an international setting has also been roundly critiqued (Brewster, 1999, 2006; Sparrow et al. , 2004) due to the ingrained national institutional and cultural conventions, which are seen to regulate the value of various high performance HRM practices in other countries (Brewster, 1991, 2006; Sorge, 2004).However, this does not mean that across a country all industries have the same HRM practices. Much of the IHRM literature could be seen as disproportionately focused on the parent and host country culture s and systems in light of the evidence on SHRM approaches and practices in hospitals, local government and hotels (Boselie et al. , 2002, 2003). Such studies indicate that institutional and competitive isomorphisms differ across industry contexts creating distinct table stake HRM practices in different industries within the same country (Boon et al. , 2009; DiMaggio and Powell, 1983).Furthermore, such evidence recognizes that national institutional dimensions may have less of an impact than competitive institutional dimensions on some industries and their resulting people management practices. This level of industry interplay on the best practice approach is valuable but in light of the strategic group insights it is clear that companies do not compete directly with every other company in their industry. Instead they are likely to have particularly close rivals whose practices, products, managers, innovations and initiatives will be of speci? interest to them (Panagiotou, 2006; Pete raf and Shanley, 1997). As such there may be another layer of consistency and similarity in HRM practices due to the close rivalry of strategic groups, in addition to those identi? ed by the â€Å"table stake† version of the best practice SHRM approach across an industry. The â€Å"best-? t† SHRM approach suggests a ? rm’s market position and strategies drive and shape its HRM policies and practices. Within the â€Å"best ? t† SHRM approach a range of theories have emerged from those that more simplistically link speci? strategy choices to HRM practices and policies (Delery and Doty, 1996; Miles and Snow, 1984; Schuler and Jackson, 1987) to more complex models (Fombrun et al. , 1984; Hendry and Pettigrew, 1986) which envision a range of corporate characteristics (strategies, positions, portfolio characteristics) determining people management practices. Within the IHRM area, much of the research has also focused on the in? uential nature of national differ ences as well as strategic models (Perlmutter, 1969; Bartlett and Ghoshal, 1989, 2000; Edwards et al. , 1996).For example: the models of international orientation (Perlmutter, 1969; Heenan and Perlmutter, 1979); product life-cycle phases (Adler and Ghadar, 1990); and international responsiveness versus integration (Bartlett and Ghoshal, 1989, 2000; Edwards et al. , 1996) are all based on strategic choice arguments derived from the strategic management ? eld. The main thrust of the strategic dimension to IHRM has revolved around the question of whether HRM practices are determined by corporate or business strategies and customised or standardised across national boundaries with many authors providing detailed analyses of the contingency of speci? factors (Boselie et al. , 2002, 2003; Coller and Marginson, 1998; Easterby-Smith et al. , 1995; Ferner, 1994, 1997; Ferner and Quintanilla, 1998; Hannon et al. , 1995; Newman and Nollen, 1996; Rosenzweig and Nohria, 1994; Rosenzweig, 2006; T hompson et al. , 1998). The weaknesses of the â€Å"best ? t† SHRM approach are its distorted attention on the external context as determining strategies and practices based on market positioning, cultural and institutional factors; and its inability to secure competitive advantage where several companies within the same sector pursue similar strategies and marketThe role of strategic groups 517 PR 41,4 518 positions (Boxall and Purcell, 2003, 2008; Kamoche, 2001; Wright and Snell, 1998). Such criticisms are similar to those voiced by contemporary strategic management researchers on the objective and prescriptive versions of strategic management being the primary in? uence on strategic thinking and decision-making at the expense of managers’ and executives perceptions of positions and rivalries (Reger and Huff, 1993).Indeed Panagiotou’s (2006, 2007) research on executives’ perceptions, as opposed to the economic analysis of the competitive terrains, compe titor strategies and industry dynamics shaping strategic groups, highlights that executives whose ? rms belong to the same strategic groups react to events and market factors in similar ways. This suggests, that not only are companies constrained by the suggested strategies and market positions they develop, but that there are limitations to the options they can take to distinguish themselves because of the added level of similarity strategic groups create.Finally, the resource based view (RBV) SHRM approach has been proffered as an alternative to the best practice and best-? t approaches due its internal focus based on creating competitive advantage through the leverage of valuable, rare, inimitable, non-substitutable and rent achieving (human) resources (Morris et al. , 2006; Wright et al. , 1994, 2004). The empirical research supporting the RBV SHRM approach (Boxall and Steeneveld, 1999; Leonard-Barton, 1995; Marchington et al. , 2003) clearly highlights that human resources can ful? l the criteria of resources which deliver competitive advantage.The most valuable human resources are those identi? ed as the â€Å"strategic human resources† or â€Å"rainmakers† who ful? l the RBV criteria of adding exponential supplementary value to companies. By developing HRM practices, which are idiosyncratic and interdependent, the RBV approach argues that companies can capitalise on their proprietary knowledge and transfer it creatively and effectively across its workforce. Several authors (Bonache and Fernandez, 1999; Harvey et al. , 1999, 2000; Taylor et al. , 1996) have adopted this approach and identi? d that capitalising on internal resources to achieve competitive advantage is quite different from the best-? t SHRM approach because it surmounts the external views of the best-? t approach. This view is neatly outlined in the frustrations of Cappelli and Singh (1992 in Wright et al. , 2004 p. 11): [. . . ] many within strategy have implicitly assumed t hat it is easier to rearrange complementary assets/resources given a choice of strategy than it is to rearrange strategy given a set of assets/resources, even though the empirical research seems to imply the opposite.The RBV SHRM approach offers speci? c insights into the value of internal resources in securing successful international operations (Bonache and Fernandez, 1999; Harvey et al. , 2000). Speci? cally particular groups of human resources are seen to have an honoured position within companies where they transfer tacit knowledge to new markets and provide sustainable competitive advantage (Prahalad and Hamel, 1990; Scullion and Starkey, 2000). Taylor et al. ’s (1996) study used the RBV approach to identify the critical role of HRM competence within international ? ms, the part senior management play in identifying the company’s potential to develop HRM competence and the different groups of human resources who constitute ? rm strategic human resources. However, the weaknesses of this SHRM approach are its omission to clearly depict the interplay between internal resources and environmental factors, and the recurring evidence that ? rms struggle with the challenges of their competitive sector to achieve distinctiveness and success through their human resources and HRM practices (Boxall and Purcell, 2003, 2008). Once again the strategic groups literature provides speci? insights here in querying whether the pursuit of competitive advantage through the leveraging of the ? rm’s distinctive resources is restrained by the in? uence of their closest strategic group (Panagiotou, 2006, 2007). Clearly each of the SHRM approaches (table stake best practice, best-? t and RBV) have some resonance and these perspectives are summarised in Table I in terms of their initial focus and the levels of context where their attention is directed. There is an overall tendency across the SHRM literature for tensions, contradictions and imbalance (Boselie et al. 2009) as evidenced in the overly prescriptive best practice approach, the highly contingent best ? t approach (focusing on speci? c market or national context factors) and the RBV’s spotlight on the internal resources of the organisation. Individual adoption of these approaches is unlikely to provide a meaningful depiction of how companies might pursue competitive advantage via their human resources or HRM practices. Instead it is argued that companies can use a combined and simultaneous version of the three SHRM approaches in an attempt to balance the external and internal perspectives adopted by the best-? and RBV approaches, while also recognising the important in? uence industry isomorphism (table stakes) has on the creation of a set of HRM practices (Boxall and Purcell, 2003, 2008). Even where such a combined and simultaneous model of SHRM has been advocated (Boxall and Purcell, 2003, 2008) there appears insuf? cient understanding of, and insight into, the industry or sectoral level of analysis (Boselie et al. , 2009; Boxall, 2003; Paauwe, 2008; Paauwe and Boselie, 2008). By exploring SHRM practices and approaches across an industry, rather than across speci? national or company contexts, a better understanding of the internal and external challenges faced by competing organisations to achieving distinctive HRM strategies and practices becomes manifest. Alongside this evaluation of the SHRM approaches, the strategic groups literature highlights that these clusters of close rivals may compound the SIHRM approaches Primary focus Level Company/? rm The role of strategic groups 519 Resource based view (RBV) Competitive advantage achieved through developing resources Internal which are Valuable, Rare, Inimitable, Non-substitutable and Rent achieving Best ? Based on crafting HRM practices tied to strategic management External models – typically through strategic analyses tools of market position Based on aligning HRM practices to different in ternational and domestic cultural and institutional contexts and company demand for standardisation Best practice Originally identi? ed as sophisticated practices capable of External achieving competitive advantage Now associated with HRM practices which are â€Å"table stakes† essential for operating with social legitimacy within an industry Competitive market National contexts and competitive market Industry Table I.The initial focus of SIHRM approaches PR 41,4 challenges ? rms already face in realising differentiation through their human resources and HRM practices. Indeed where industry analyses highlight the importance of conformance of industry members, to particular HRM practices and systems, strategic groups suggest another layer of orthodoxy among closest rivals which limit the pursuit of distinctive competitive advantage by ? rms. Research design Analysis of strategic groups requires an industry focus and this research was undertaken within the context of the intern ational hotel sector.This sector has been identi? ed as international by nature (Litteljohn, 2003; Litteljohn et al. , 2007) with companies achieving growth through a range of market entry modes, typically engaging with different equity partners (Whitla et al. , 2007). Managing portfolios of hotels with diverse ownership arrangements (such as the asset light options of management contracts, franchises and part equity agreements) has created challenges for international hotel companies (IHCs) (Beals, 2006; Eyster, 1997; Gannon et al. , 2010; Guilding, 2006).Traditionally hotel general managers (HGMs) have been seen as strategic human resources (Boxall and Steeneveld, 1999; Marchington et al. , 2003) responsible for creating pro? table hotel units through their leadership and operational expertise in the hotel industry (Forte, 1986; Kriegl, 2000; Ladkin and Juwaheer, 2000). However, the asset light market entry modes developed more recently as a result of IHC portfolio expansion have resulted in managers and executives experiencing different challenges and requiring enhanced skills sets.At the heart of this study was the aim to explore how IHCs have developed IHRM strategies and practices to manage their international managerial resources within the broader context of the sector’s competitive forces, growing industry concentration and in the presence of strategic groups (Curry et al. , 2001; Litteljohn, 1999; Roper, 1995). Any attempt to capture people management strategies and practices across an industry, as well as at the ? rm level, involves the adoption of a comprehensive sample of organisations. This study used an industry de? nition of global operations based on companies operating hotels across ? e out of the six economically viable continents, as a purposive sample technique (Saunders et al. , 2000). This research stage comprised substantial secondary data collection on the broader international hotel industry with information on service levels, ownership modes, brands, portfolios and geographical penetration and the information is captured in Table II. Only nine companies met these global criteria and eight of these nine companies granted access to their senior human resource executives (typically Vice Presidents of Human Resources) and administrative teams, and HR systems and materials.The ? eldwork interviews took place at the European corporate headquarters, regional of? ces and in hotel units for the eight companies. Interviews with the senior HR executives for each of the eight companies form the main part of the data. These interviews lasted around four hours on average. In addition, time was also spent with administrative teams, reading documentation and observing meetings. A checklist was developed to complement the interview questions and data, and to systemise the collection of company documentation, observations and interactions with the administrative teams (Robson, 2002).Documentation included HRM policies, pe rformance appraisal forms, training manuals, organisational charts, company communications, job descriptions, succession plans and demonstrations and hard copies of HR databases. The interview 520 International hotel companies Suggested strategy and methods of growth Differentiation strategies – based on the power of the company’s hotel brand name. Expansion in prime city centre and resort locations and the development of hotel clusters in countries or regions achieved through management contracts and joint ventures Various strategies deployed at the different market levels.Budget brands operate on a no frills strategy. International luxury properties follow a differentiation (premium price) strategy. One third of properties are owned and two-thirds are management contract arrangements. Growth through management contracting, franchising or marketing agreements and some ownership Focused differentiation strategy based on distinctive design and architectural features ass ociated with properties and attention to detail service style. Grows solely by securing management contract agreements with select investors Differentiation strategy based on developing modern and ef? ient ? rst class hotels. Growth achieved through management contracting, rather than ownership, and a global partnership with one of America’s largest international hotel corporations Operates at different market levels – particularly concerned with distinctiveness and value for money and therefore a broad hybrid strategy is identi? ed Mixed type of operation is used across portfolio; approximately 46 per cent owned, 21 per cent leased, 22. 5 per cent management contracts and 10. 5 per cent franchised (continued) 150 ? Prestige international brand National UK mid-market brand 48 Number of hotelsBrands Number of countries Anglo-American Premium Britbuyer 900 Nine brands at international and domestic levels: Upscale Mid market Budget 50 Contractman International 200 Four lu xury or upscale brands 35 Euroalliance One upscale brand 16 50 * Euromultigrow 2,500 ? Seventeen brands split into: Upscale and midscale Economy and budget Leisure hotels 73 521 The role of strategic groups Table II. Pro? les of global hotel companies in sample PR 41,4 522 International hotel companies 2,300 ? Five brands: two at mid market Prestige brand Budget brand Holiday resorts 63 FranchiseKing GlobalallianceUSBonusbranda 700 Seven brands Two at both mid market and budget levels Prestige brand Suites Holiday resorts Prestige brand Mid-market brand – North America 63 35 USmixedeconomy Note: a This company did not participate in the ? nal stages of the research Table II. Number of hotels Brands Number of countries Suggested strategy and methods of growth Hybrid strategy based on presence across a range of market sectors but competitively priced in each sector. Company documentation states the aim as â€Å"To be the preferred hotel system, hotel management company, and lo dging franchise in the world.To build on the strength of the FranchiseKing name utilising quality and consistency as the vehicle to enhance it’s perceived ‘value for money’ position in the middle market. † Focused differentiation strategy based on international exposure and expertise in the luxury hotel market. Growth through management contracting, franchising or marketing agreements and some ownership Deploys several strategies including a hybrid strategy for its domestic units and a differentiation (with premium price) strategy for most of its international properties at the prestige level.Growth through management contracting and franchising, with limited ownership Adopts a variety of strategies including a hybrid strategy for its domestic units and a differentiation (with premium price) strategy for most of its international properties. Growth through management contracting some ownership and franchising 190 Prestige brand Mid-market brand – Nor th America 70 460 transcripts, ? eldwork notes and documentation allowed cases to be written for each company which were sense-checked by industry informants and against the research team’s notes and observations.Access was granted to the eight companies on the basis of offering con? dentiality to participants and organisations. Each company was protected through the allocation of pseudonyms and all data and notes collected removed company names and trademarks to provide con? dentiality. This is in keeping with the widely acknowledged dif? culties of gaining access within this industry (Litteljohn et al. , 2007; Ropeter and Kleiner, 1997). The cases built on the interview transcripts, observations and company documentation data meant that ualitative analysis was achieved through the tools and computer aided techniques recommended by key authors (Miles and Huberman, 1994; Silverman, 1997, 1999). The process of initial coding identi? ed HRM practices, management criteria and co mpany strategies and characteristics. Descriptive coding was then used to highlight speci? c activities and relationships between HRM practices and approaches, and company characteristics. Further interpretive coding and analytic coding were highlighted through the themes presented by the respondents and the theoretical relationships arising from the data and initial coding (Silverman, 1997, 1999).Of particular importance were the themes of similar and distinctive HRM practices deployed by the companies, strategic groups and across the sample. Results Across the sample of eight IHCs evidence of common HRM interventions deployed included: a reliance on strong internal labour markets for unit management positions; training programmes with universal components; the use of performance appraisal as a mechanism for monitoring and evaluating human resources talent, the deployment of speci? c contractual agreements and conventions; the recurrent use of corporate communications channels; and speci? HRM responses to cultural and international challenges. The shared aims of these practices indicated that the IHCs were adopting the table stake version of the best practice SHRM approach across their international portfolios (Boxall and Purcell, 2003, 2008; Boselie et al. , 2003, 2009). The next stage of data examination involved the identi? cation of company speci? c HRM practices based on the best ? t and RBV SHRM approaches. However, subsequent analysis of the qualitative data began to identify another layer of similar HRM interventions centred on the appearance of strategic groups within the sample.There appeared to be similarities between the companies based on strategic variables such as parent company ownership, the scope of the hotels organisations’ activities (levels of internationalisation, geographical coverage, and market segments); resource commitments (including size, brands and market entry modes); and centric and transnational orientations. As a resul t the sample was demarcated into three strategic groups. These are labelled the Multi-branders, Mixed Portfolio Purchasers and Prestige Operators.Table III summarises the strategic similarities and differences between the three groups and their IHC members. Patterns of HRM interventions across the three strategic groups are apparent from the data supplied by the executives, their teams and the documentation. These patterns focus around six areas: The role of strategic groups 523 PR 41,4 Similarities Differences 524 Table III. International hotel company strategic groups Strategic Group 1 – The Multi-branders (two companies) National cultural origins FranchiseKing and Parent companies – related horizontally Euromultigrow diversi? d Mid-market brand dominates in Large size – 2,000 ? hotels one company while distinct High levels of internationalisation but brands used for different market strong domestic base (French and USA) segments by other Multiple brands (luxu ry to budget) Dif? culties aligning parent company, brand One company uses more names and operations franchising Hybrid strategies Range of market entry modes Ethnocentric orientation Global organisation Strategic Group 2 – The Mixed Portfolio Purchasers (two companies) Britbuyer and Similar size (between 400 and 1,000 hotels) Diversi? ation of parent companies is different USmixedeconomy Mid-position in internationalisation index Strong domestic presence and distinctive One company has more international operations ownership/partial ownership of Range of market entry modes hotels Acquisitive growth of European prestige brands One company has much smaller Brands offered at similar market levels Challenges of aligning disparate domestic budget brand domestic interests and international portfolios, corporate strategies and new acquisitions Ethnocentric orientation but with some geocentric aspirations Multinational rganisation Strategic Group 3 – The Prestige Operators (f our companies) Two companies have separate Parent companies – related diversi? ed Anglo-American domestic operations Similar size (between 50 and 202 hotels) Premium Similar levels of low internationalisation Contractman Two companies have grown Focus on luxury, ? st class hotel market International through strategic partnerships (resort and business) Euroalliance Strategies broadly differentiation and Globalalliance One company uses a broader focused differentiation range of market entry modes Growth primarily through management contracting Broadly geocentric but with some aspects of ethnocentrism Transnational organisation (1) (2) (3) (4) (5) (6) the levels where HRM is focused; different views about management skills and transferability across brands; how international and domestic operations function; extent of owner in? ence and cultural differences; how and where managerial talent is found; and where speci? c career interventions emerge. Table IV captures some of the co mments from interviews across these six levels and the three strategic groups. The HRM interventions and features developed by the three strategic groups are outlined in Table V along with the strategic variables which distinguish the groups. Strategic group 1: Multi-branders The sheer size and scale of their multi-branded operations indicated parallels between the HRM approaches taken by the Multi-branders (see comments in Tables IV and V).Both companies boasted a critical mass of hotels in key countries or regions of the world resulting in more localised recruitment and development approaches. For example, they operated â€Å"UK only† management training schemes and then speci? c recruitment initiatives tailored to educational systems, notably the French training and German apprenticeship schemes. The size of these two companies also meant they allowed their distinct brands to develop individually which had apparently resulted in some speci? brand HRM practices. Both compan ies recognised there were few opportunities for managers to transfer between the different brands leading to bottlenecks in internal labour markets, where some brands grew more quickly and offered extensive transfer and promotion possibilities. The Multi-branders had attempted to deal with these issues in slightly different ways, though both now had structures, enabling moves between managerial levels across brands to achieve some overall parity across their company.In one company (Euromultigrow) there was a guide to the different positions within each brand to encourage internal brand transfers of human resources. This guide was based on extensive negotiations with managers across the company’s brands, although parent country nationals (PCNs) dominated among these managers and the company’s University was responsible for the roll-out training for this guide. Franchiseking had developed a competency-based HRM system designed to identify common areas of expertise across its brands and as one HR executive identi? d all managers with line responsibilities had to attend and use this framework. The competencies were developed in accordance with a HRM consultant ? rm and used existing and future â€Å"high potential† managers across the company’s portfolio to identify appropriate behaviours of successful managers. Competencies were heavily in? uenced by the company’s existing management team comprising mainly PCNs. The company then ran a series of training sessions for its senior managers so the competencies formed the basis for all selection, performance appraisal, promotion and training decisions and activities.These attempts to closely manage their large portfolios of standardised brands across geographically disparate locations meant the Multi-branders adopted an ethnocentric orientation to internationalisation with PCNs dominant in subsidiary management positions, which runs somewhat counter to their critical mass of units and attempts to localise too. The Multi-branders commented less extensively, compared with the members of the other two strategic groups, on the level of interference from property owners where management contracts were used.They argued this was probably because their highly standardised brands, even at full-service levels, meant owners knew what to expect, and they did not attempt to interfere in the day-to-day management of hotels. The selection of managers for managed properties was also less troublesome for the Multi-branders. In most cases executives could appoint whomever they wanted and The role of strategic groups 525 PR 41,4 526 The levels of focus for HRM Table IV.Responses from HR executives from the strategic groups Multibranders â€Å"Our area, regional human resource executives run national versions of our company University training and recruitment programmes to ? t with national vocational education. † Assistant HR director for Euromultigrow EAME â€Å"We have a critical mass of hotels in certain countries and have built real presence so we need to adopt some of their practices as long as they ? t now with our competences. † Corporate Training and Development Director FranchiseKing â€Å"In France, Germany, the UK and the Benelux and Scandinavian countries, where we have critical mass, they have some ? xibility for recruitment and training. It has been a bit of a struggle with our acquisition of M to get this right, though. † Britbuyer HR EAME director â€Å"Some areas, with more hotels, have a little bit more autonomy than others and we have them do their own management recruitment and training, based on our head-of? ce materials. † Vice President HR USmixedeconomy Mixed Portfolio Purchasers Prestige Operators â€Å"We run a graduate management programme to ensure we have our next crop of managers waiting in the wings. We also have an executive management programme which includes an MBA – both are designed to g et us the GMs of the future. Corporate Director of Human Resources Globalalliance â€Å"Our graduate management programme is being revitalised for next year and we’ll be targeting the brightest from the hotel schools in Holland and Switzerland for EAME. All our graduates must have language skills and meet speci? c knowledge requirements. † Anglo-American Premium Vice President of HRs â€Å"I don’t think graduate management schemes per se work. Instead we recruit graduates, mainly from Switzerland and the Dutch schools, into real jobs and although they’re a hotel resource, we (headquarters) monitor their progress and target them with speci? courses to try and bring them on. † HR Vice President Euroalliance (continued) Multibranders â€Å"We had to respect what was there. The predominant national culture of the newly acquired company) meant that we had a lot of communicating and educating to do within our company and within theirs. We moved managers within (names the acquired company) between units to give them a fresh start and many of them are still with us. It worked out well really. † Regional HR director USmixedeconomy Mixed Portfolio Purchasers Prestige Operators Views about management skills â€Å"No, not so many people transferred.It was and transferability across brands quite common between one brand and also quite common between (names two other company brands at the same market level) but not at all between the others. It was dif? cult, not good. Now we will have a stronger parent company from this new structure. † HR Vice President for Euromultigrow GMs skills needs â€Å"fall into four skill sets which†¦ one is managing myself based on the premise that if I can’t manage myself then I can’t really manage anybody else. Then managing others and then the third one is problem solving and decision making and the fourth one is pro-active achievement.Very dif? cult to measure, but the actu al achievement levels and the go for it and taking that extra risk, the entrepreneurial part. And then there is the languages and â€Å"We have been training them in the use of behavioural event interviewing to help them, â€Å"When we acquired company [M] there was cultural bit. † HR Vice President Euroalliance . . . to spot the competencies. This allows us a bit of a standoff basically because they to see where in the portfolio of brands they wanted to be acquired by somebody else†¦ It â€Å"It feels it is dif? ult to see where a young manager’s next move is in an international can move to† Corporate Training and didn’t help that the CEO of our company company without the right language skills Development Director FranchiseKing went ‘round their hotels saying ‘get rid of this’ or ‘do that’. Things have changed now, to allow widening of transfer options. †Anglo-American Premium Vice again. There’s more a ppreciation of what President of HRs [acquired company] does right on the international scene and we’re a lot more â€Å"There are core or critical parts to our open to learning from them.It’s now twobusiness; marketing and sales, managing way. † Britbuyer HR EAME director human resources, ? nancial management, creative decision –making and leadership. These need to be displayed across cultures across properties to make it as a GM. † Vice President HR Contractman International (continued) The role of strategic groups 527 Table IV. PR 41,4 528 How international and domestic operations function â€Å"For an international GM you need languages and international experience – that is why some managers from brands back home don’t make it. Vice President HR USmixedeconomy Table IV. Multibranders â€Å"Most of these potential GMs do tend still to be the same nationality as the company, but I don’t know why. We don’t necessarily want that, at all. † HR Vice President for Euromultigrow â€Å"All GMs are informed that the best way to read and become familiar with the (competency) guide is to read the English version ? rst – this is the authoritative version. † Corporate Training and Development Director FranchiseKing Mixed Portfolio Purchasers Prestige Operators â€Å"Why the four different parts of the world?Well each one has some strengths. I mean that States you take marketing and very different human resources. Asia you still have the luxury of being able to have a lot of employees and a far bigger budget because costs are lower. Japan because the way, the mentality of the Japanese market and customer is different, and Europe to do same thing but with a very tight budget because costs are so high. † Vice President HR EAME Contractman International â€Å"Our domestic brand managers aren’t our international mangers. There is no transfer, well ok I can think of one or two. You need international experience which creates a bit of a catch 22 – because it is the old thing of ‘you can’t get the job without the experience and you can’t get the experience without the job’. † Britbuyer HR EAME director â€Å"A future GM must have worked outside his or her home country before they can be promoted to this level. It is important for managers to have language skills not only to help them operate in particular locations but also because there are far more career opportunities for those individuals who can demonstrate language pro? ciency. Transfers are then an important aspect of developing a career. Anglo-American Premium Vice President of HRs (continued) Multibranders â€Å"Well most of the time, it depends on the case of course, most of the time, the shareholder of the hotel will be an investor but he will not be an operational actor. He is interested in the bottom line, not what goes on inside the hotel. † HR Vi ce President for Euromultigrow Mixed Portfolio Purchasers Prestige Operators â€Å"Usually owners interview the three candidates we put forward for each GM position and invariably, well they select the candidate preferred by the company, though Vice Presidents often have to use some powers of persuasion. Anglo-American Premium Vice President of HRs â€Å"We have to know our owners really well to give them the GMs they want and need. That’s a tough call when you’re growing so much. † Vice President HR Contractman International â€Å"Some owners are really dif? cult and have to be managed carefully. That’s where our Regional guys come in. Others are great and they are our business partners, with us for the long haul. â€Å" HR Vice President Euroalliance â€Å"Owners do have a lot of in? uence because if we give them somebody and they say ‘we don’t think this guy’s any good’, well!Although we could force them on them it isnâ⠂¬â„¢t a very sensible thing to do. So the owning company does have a big bearing on the GM slot. † Corporate Director of Human Resources Globalalliance (continued) Extent of owner in? uence and cultural differences â€Å"We have owners, for example, . . . but we have owners who are very, very clear about the people who we are likely, or more often than not, we can’t employ. Usually it’s in terms of nationalities and colours, race and sexual preferences they don’t like.It is their hotel and if they say ‘I don’t want somebody with red hair’ then you don’t put somebody â€Å"Owner interference depends on our brands, with red hair in, it’s as simple as that. † Britbuyer HR EAME director the more exclusive the brand the more in? uence but mainly we propose people ‘this candidate has our ? rm support’. â€Å"The frequency of moves our managers Obviously the quality of the relationship make are also driven by how tightly an with the owner is very important and you owner wants to hang on to them.So we’re must respect their wishes pertaining to GMs constrained by hardship factors, and but it doesn’t cause us much trouble really. † owner’s predilections and preferences. † Vice President for HR FranchiseKing Regional HR director USmixedeconomy The role of strategic groups 529 Table IV. PR 41,4 530 How and where managerial talent is found Table IV. Multibranders â€Å"We have our area, regional human resource people help our GMs identify their managers who might one day make it, who have the potential to be GMs too. The area human resource people then run some courses and do the training we have developed through our company university. HR Vice President for Euromultigrow Mixed Portfolio Purchasers Prestige Operators â€Å"How do we manage our GMs? Well we include all managers here – well it’s a very integrated approach to career development , or management development and the annual appraisal and it all comes together with succession planning and the work we coordinate here (gestures to the corporate head-of? ce). † Corporate Director of Human Resources Globalalliance â€Å"We’re [the executive team] in the hotels a lot, and the President was really great, yesterday he was saying ‘You know everybody whether you’re ? ance or business development or marketing, when you’re in the hotels and you spot people who are really good, notice it, you know get a note of the name, make sure that we’re also all talent spotting our own people. † HR Vice President Euroalliance â€Å"We must therefore nurture excellence in every one of our employees, especially our local nationals – the people who live in the countries where we operate hotels. † Vice President HR EAME Contractman International â€Å"At the Vice President and divisional director levels we’re always trav elling, listening to what are people are saying and telling them about what’s happening across the company.And spotting talent too. † Anglo-American Premium Vice President of HRs (continued) â€Å"I mean I am very conscious from this conversation we are not doing all we could to develop the next generation of GMs. It is partly because the number two position in some units has disappeared. So there aren’t enough opportunities for heads of departments to move on and develop their experience. We haven’t had a problem so far but as we increase (grow) we might be struggling for the right calibre of GMs in a â€Å"Some of our approach to identifying GM few years time. Britbuyer HR EAME potential is systematic, some is opportunistic. We’re trying to become more director systematic, through the new competencies process. We’ve recognised we have to have â€Å"You must realise that traditionally we have more local nationals and fewer expatriates. â €  consciously developed very good resident managers/EAMs (Executive Assistant Corporate Training and Development Managers) so when these individuals took Director FranchiseKing over their own units there was a very low risk of failure.Since our purchases and down-sizing, however, there are now some properties that no longer have a number 2 manager. Thus we have effectively stopped developing this ‘almost’ risk free human resource – it may cause us problems in the long term. † Vice President HR USmixedeconomy Multibranders â€Å"Our restructuring of brands and growth in franchising means we have to be clear about what managers do to make the hotels successful. Our company university is critical for training to our brands so all our managers know. † Assistant HR director for Euromultigrow EAME Potential GMs . . â€Å"It’s very intensive (the assessment centre) with personal counselling, tests to see where their stresses and strains are, and management skills across the board, running from 8 in the morning to 10 at night. It’s really very intensive and we have people â€Å"When we go outside, well we steal from the from across the world, with different â€Å"Performance of our business is crucial and competition and just rely on the grapevine or languages and cultures, the mix of people is seen to be the best element of these maybe on-spec applications.There’s some that is why so much investment and events. †Anglo-American Premium Vice development had been made in this area of use of executive search but that’s very President of HRs expensive. † Regional HR director competencies and performance management. There’s been a clear growth in USmixedeconomy â€Å"For the assessment centre a report is pro? ts since the competencies were ? rst written on them based on what we feel they developed. † Vice President for HR demonstrated, in the way they acted during FranchiseKing th e course.What is okay and the right way, what’s to be demonstrated and what’s to be discussed, where they feel they need development in, and from that we can more or less determine the time span its going to take so that they’ll be ready to be a GM, and what has to happen in-between so the individual development is planned. † Corporate Director of Human Resources Globalalliance â€Å"In fact it is incredibly incestuous and people just seem to appear or materialise. We wouldn’t directly poach someone, well . . . , but if someone made it clear to us they’d be interested then we’d feel ? e about calling them up. † Britbuyer HR EAME director â€Å"They all go on a leadership development programme and I design and I teach those with a co-trainer, I like to see that I’m there with them for a full week and we run an assessment process with the leadership development programme. So they’re booked for tests and exercises ba sed on the four management skills areas and they have individual feedback during the brief to let them know how they’re doing. This sets them with an individual plan for the future. † HR Vice President EuroallianceMixed Portfolio Purchasers Prestige Operators Where speci? c career interventions emerge The role of strategic groups 531 Table IV. PR 41,4 Strategic groups Strategic group variables HRM outcomes Brands and market segmentation Multi-branders Hard brands, serving several different market levels 532 Mixed Portfolio Purchasers Prestige Operators Allows more localisation of management talent due to standardisation and clear criteria for operating brands Movement within and between brands facilitated to prevent career bottlenecks Some soft (international) and some Dif? ult to facilitate movement hard (domestic) brands between international brands due to recent purchases, no transfer between domestic and international brands due to skills mismatch Importance of comm unication to assimilate new acquisitions Softer brands Emphasis on transfers to develop managerial experience of different countries/markets, and types of hotels Encourages and facilitates employees at all levels to gain international experience Large diverse organisations, structured on the basis of brands and some geographical factors Critical mass of units in some locations Organised on International and domestic divisions.Slow assimilation of newly purchased international brand Some critical mass of units Companies have developed guides to articulate management positions and skills across brands Critical mass allows multi-unit UGMs and more local recruitment and selection activities Some local recruitment and selection, less development through strong internal labour market and more acquisition of management talent Critical mass allows more localisation of management talent but not co-ordinated effectively throughout the companies Regional of? es co-ordinate transfers and HRM pr actices but also learn from subsidiaries to pass experience, knowledge and expertise on across other regions. IT plays an important role here Across company recruitment and development schemes rather than localised versions. Provides single ports of entry at (sub) department management level to locals (continued) Structure and organisation Multi-branders Mixed Portfolio Purchasers Prestige OperatorsSmaller portfolios organised on regional lines Limited critical mass of units Table V. The IHC strategic groups, their strategic variables and the HRM outcomes Strategic groups Centric orientation Multi-branders Strategic group variables Primarily ethnocentric HRM outcomes The role of strategic groups Mixed Portfolio Purchasers Prestige Operators Highly standardised services seem to facilitate low reliance on PCNs at subsidiary level though they are prevalent at executive level Dif? ult to discern – bypassing of PCNs still mainly in place for acquired companies, some stages through acquisitions locations with HCNs (critical (McKiernan, 1992) mass) but dominated by Western nationals Aspiring geocentric Attempts to harness managerial talent from around the world regardless of nationality through co-ordinated and integrated HRM activities UGMs still primarily from Western (European and American) backgrounds, executives in particular 533 Methods of growth and market entry expertise Multi-branders Growth through hard brands and the development of suitable investors (master franchisees and owners)Mixed Portfolio Purchasers Prestige Operators UGMs have speci? c knowledge and skills in operating highly standardised hotel services and passing knowledge onto others (franchisees) HRM mechanisms de? ne performance and selection criteria for managers and employees Acquisition used alongside mixed UGMs are likely to have expertise methods of market entry (mainly in exploiting value from purchased properties management contracts) De-layering of organisational hierarchies (d isappearance of deputy UGM position) and local recruitment initiatives were seen to help realise returns on their acquisitions Managers demonstrate speci? Growth primarily through pro? ciency in managing more management contracting, some marketing agreements, and equity luxurious and culturally adapted hotels and their owners investment. Global but local More extensive and integrated outlook HRM interventions, which support extensive transfers and development opportunities, throughout human resources, not just managers Table V. PR 41,4 534 only in a few hotels or in speci? c countries and with speci? c types of owners (for example, governments) were there two or three managers presented to owners in a â€Å"beauty parade†.The Multi-branders were more concerned about the co-ordination of franchise operators and training and communication were seen to be vital mechanisms for managing these issues. These were the only companies who identi? ed mandatory training courses for manag ers and held speci? c courses that their franchise partners were obliged to attend. Constant travelling by corporate executives was seen to further reinforce company values and assist in harmonization between geographically disparate franchised, managed and owned units.Both companies showed evidence of strong similarities associated with managing their multi-branded, and multi-market entry strategies and large, diverse portfolios. Dividing their HRM interventions into areas or countries where there was a critical mass of units was appropriate given the scale of their operations. Strong values, often based on the origins of the company, ? were communicated through frequent communiques and training opportunities further reinforced the brand standards and achieved appropriate levels of corporate synergy in the face of competition from their smaller but potentially more nimble competitors.Strategic group 2: Mixed Portfolio Purchasers The Mixed Portfolio Purchasers had been through consi derable periods of change and growth prior to the researchers’ ? eldwork. In addition to acquiring smaller European hotel chains they had substantially expanded their domestic and international portfolios through other acquisitions and mixed market entry methods. Both had international and larger domestic sections which were managed almost completely separately, although

Copyright Law and Industrial Design Essay

Introduction The history of intellectual property law represents, in its essence a bargain between the interests of society from being able to utilize and copy innovations, and literary and artistic works, and the interest in protecting the benefit to the creator so as to stimulate further such work. Enactment of copyright legislation was not based upon any natural right that the author has upon his writings but upon the ground that the welfare of the public will be better served by securing to authors for limited periods the exclusive rights to their writings. Property rights represent the principal vehicle for enabling creators and producers to appropriate the value of their efforts. Preserving a delicate balance therefore, is of paramount importance. However, intellectual property rights have, in certain circumstances, begun to overlap and provide simultaneous or sequential protection for some inventive and creative works mainly by accretion rather than design. The traditional channeling doctrines used to determine which area protects a certain interest have had their boundaries blurred, and overlapping areas has become a phenomenon, its most prominent manifestation being the overlap of protection afforded to designs under the design laws and the copyright laws. This paper, by tracing the source and genesis of the rights afforded to industrial designs, the varying nature of the protection afforded and the rationale behind it, will attempt to argue that the conceptual separation between the protectability of copyrightable works and designs necessitates a very strict exclusion of all designs or applied art to be removed from the ambit of copyright protection. By clearing up the confusion surrounding the law of development of designs and the ambiguous nature of the protection afforded which has led to the current status of overlapping protection, the paper will present an overview of its implications and defend status quo. The Origin of Design and Copyright Stemming from the age old understanding of property rights and the entitlements carved thereto, the very basis of copyright law is to allow the creator of a work the right to enjoy the fruits of his labour and derive benefit from it. The concept of limitation, however is inherent in it, and it has been universally held that the author / artist of a work cannot enjoy the monopoly forever. This concept of a limited right is of grave importance in this paper, since the development of various strands of law is crucially linked to its limitation. Copyright law then, evolved to bestow upon the creator the right to distribute, to perform, display and to prepare derivative works based upon the copyrighted work and prohibit all unauthorized, economically significant uses of copyrighted works. Copyright law has traditionally had a ‘useful article’ exception. According to the legislative history of the 1976 Copyright Act, the purpose of excluding useful articles from copyright protection was â€Å"to draw as clear a line as possible between copyrightable works of applied art and uncopyrightable works of industrial design.† The objective of excluding useful articles was fundamentally linked to the nature of copyright itself, which protected art for art’s sake, the mere expression. The distinctive philosophy of copyright law protection applied only to art, where the sole purpose of the art was its aesthetic value and was extended only gradually, and against considerable opposition, to ‘works of art applied to industry.’ The separation of ‘beauty’ from ‘utility’ was opposed on the ground that art remained art even when applied to useful objects. But the fundamental object of the design being economic aims, it only came into its own when the industrial revolution had made it possible to reproduce useful articles in series and which then assumed the eminently practical task of increasing sales of goods on the general products market. Industrial design, made for a commercial purpose, did not qualify and were always disqualified from the wide ambit of copyright protection. It was considered appropriate to treat artistic works applied to products produced in certain industries separately from other works which enjoyed full copyright protection. For the simple reason of being applied art, being embodied in a useful article and necessitating a different approach, design law evolved from copyright as an exception for artistic designs applied to specific classes of industrial goods, or goods within particular industries. In obtaining protection, the design had to satisfy the requirements of novelty, non obviousness and creativity. Essentially given as a right to protect fabric designs, the extent of protection grew until was no requirement for registration. Now, according to the Industrial Design Act, a â€Å"’design† or an ‘industrial design’ means features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye. A registered design is a statutory monopoly, of up to 25 years duration, which is intended to give protection to the aesthetic appearance, but not the function, of the whole or parts of a manufactured article. The visual impact or impression counts. The design may be applied to any of the surfaces of the article and hence, it may be the shape or surface decoration. It is the design, not the article itself which is protected by registration. Surface designs were two dimensional designs and were mostly just achieved by ornamentation and the like, and when the design involved shape and structure changes in the article, they were shape designs. To be qualified for registration, a representation of the design, a statement of novelty identifying its unique features, and the set of articles in respect of which monopoly is claimed was required to be submitted. The required level of originality for a design to qualify is disputed. While in some cases, it is only required that the design not be in existence, in other cases, creativity and aesthetic appeal was required. It would seem, however, that the latter requirement more truly reflects the incidents of the law, since the separability analysis requires that decorative features be identifiable. Design Protection: Its Rationale and Incidents Design protection law, from its very inception, attempted to provide a monopoly status to the design only with respect to a specified category of articles, and not to every object which might utilize the design. This deviation is highly significant for the purpose of this analysis, since it exemplifies one of the most fundamental distinctions between the law of design protection and copyright. From affording protection only to ornamentation of designs, the Act started to cover a new and original design for an article of manufacture having reference to some purpose of utility. The reference to ‘utiltity’ whether as an exclusionary or determinative factor in deciding legal protection for the design, play a pivotal role in the development of design law and thus, its relation and dependence upon the functional aspect of the article could not be divorced. The result of design protection to manufactured articles therefore, may be to secure important advantages in reference to a mechanical object, if these advantages should be the result directly or indirectly of the shape adopted. It is in this context that the separability analysis acquires significance. Doctrine of Separability: Unity of Art and Theory of Disocciation The mere expression of the design as an artistic work would receive protection under copyright, but where the article embodying the design did not have the sole purpose of being of aesthetic appeal alone, it became a design. Thus, only that aspect of a design which could be separated from the utilitarian aspect of the article would receive protection, otherwise the aesthetic appeal of a useful article would go unnoticed since the functionality doctrine negates the aims of copyright law. Design law protected any feature of the design which was dictated entirely by the dictates of functionality would not receive protection, since it was the creative nature of the design which was sought to be protected, and not the entire article. The unity of art theory asserts that industrial art is art; the theory of dissociation starts from the premise that industrial art is inextricably bound up with industrial products. The unity of art doctrine glossed over the affinity of ornamental designs of useful articles to industrial property, an affinity recognized by the Paris Union at the International Convention for the Protection of Industrial Property in 1883. The doctrine of separability, as developed in the context of copyright law is of great significance in this analysis. According to this, protection is afforded only to that part of the design which is separable from the utilitarian aspects of the article. When the shape of an article is dictated by, or is necessarily responsive to, the requirements of its utilitarian function, or if the sole intrinsic function of an article is its utility, the fact that it is unique and attractively shaped will not qualify it as a work of art, but if the same functionality is capable of being obtained from a different design, the design is eligible for protection. The notion that the shape of an article dictated by the requirements of its utilitarian function, should not be protectible in copyright law is accepted nearly everywhere because such protection would circumvent the strict requirements of the patent law. If there is no physical separability, the examination then moves on to whether the utilitarian and aesthetic features can be imagined separately and independently from the useful article without destroying the basic shape of the useful article. Of course, all industrial designs are â€Å"functional† in the sense that they are embodied in products that perform a function. As a matter of practical reality the design will be inexorably and intimately related to the product. The separable analysis, while useful to distinguish the actual design sought to be ornamented, cannot denigrate from the fact that the design, is meant for a specified article, and hence the protection affordable to it is intricately connected to the factum of it being embodied in an article. The Overlap Its genesis and treatment The Indian Copyright Act provides for exclusion of designs which are registrable under the Designs Act. S. 15 excludes the application of the Act to all designs registered under the Designs Act and S 15(2) states that: (2) Copyright in any design, which is capable of being registered under the Designs Act, 1911, but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person. The overlap between copyright and design protection which has caused so much confusion is intricately connected to the very nature of the rights afforded under each. The 1911 Act in the UK provided that all designs capable of being registered would be deprived of copyright. A design capable of registration, continued to have copyright protection, until the article using the design had been reproduced more than fifty times by an industrial purpose, at which point, only the protection affordable under the Registered Designs Act was applicable. However, this did include prints, which could not, rationally be said to not constitute an artistic work and hence, case law had to specify that the exclusionary clause did not include artistic works and prints. S. 52 of the CDPA, reproducing this notion is indicative of the tendency of the law to determine extent of protection based on whether or not the design was to be mass produced in a class of articles. It has also caused considerable confusion, especially with respect to whether, if an artistic design, meant solely as such, and hence eligible for copyright protection, but later reproduced in an article, would suffer the exclusions, or whether, its objective elements rendering it capable of being used in an article would bring it under the rubric of the exclusion. The scope of the design to be mass produced thus, played a great role in determining what protection it become eligible for, whether copyright or design, the latter more alike to patent protection. The point at which an object became ‘commercialised’, and part of industry, the terms and nature of intellectual property accorded to it changes. The main rationale of this exclusion was to limit the protection afforded under the copyrights subsisting in the design to the exact period of time design registration would have subsisted, and only those rights. A comparison of this development of the law with the law of patent reveals a similarity. While copyright subsisting in literary or artistic works, where the form of expression is sought to be protected for a term of life plus 50 years, articles which have utility attached to them, such as patentable innovations, receive protection for a shorter time limit, since the functional aspect of the article requires that monopolistic privileges be removed as soon as possible. In the development of design law therefore, a trend can be noticed. As long as a design was just that, an expression, copyright protection existed. Its materialization in a functional article created by an industrial process, reduced the term of monopolistic privileges granted to its creator. Thus, even if the protection was to the artistic design, its relation to the product cannot be divorced. A compromise The controversy surrounding the overlap between copyright and design protection and the issues within it stem from a basic confusion of the objectives behind both types of laws. Copyright law seeks to achieve the double objective of widest possible production and dissemination of original creative works and at the same time, allow others to draw on these works in their own creative and educational activities, through a scheme of carefully balanced property rights that still manages to give the authors and producers sufficient inducements to produce such work. The balance that copyright law seeks to achieve is based on a judgment about social benefit. To give greater property rights than are needed to obtain the desired quantity and quality of works would impose costs on users without any countervailing benefit to society. Concurrently, allowing one form of protection to expire, only for the article to claim protection under another regime would be a colourable devise to achieve the same object, a roundabout way to receive more protection that intended. It is for that reason that designs have to be clearly excluded from copyright law and the utilitarian theory seeks a middle ground between absolute ownership of intellectual property and none whatsoever. Over Protection or Under Protection? The duality of art hypothesis that ornamental designs were normally ineligible for copyright protection because their dependence on useful articles made them primarily objects of commerce and deprived them of the independent existence deemed a basic attribute of true works of art. The distinctive philosophy of protection that characterizes copyright traditionally protected only art, where the sole purpose of the art was its aesthetic value and was extended only gradually, and against considerable opposition, to ‘works of art applied to industry.’ The separation of ‘beauty’ from ‘utility’ was opposed on the ground that art remained art even when applied to useful objects. But the fundamental object of the design being economic aims, it only came into its own when the industrial revolution had made it possible to reproduce useful articles in series and which then assumed the eminently practical task of increasing sales of goods on the general prod ucts market. The industrial design is often seen as an analogue of the utility patent owing to its effects on commerce, and its legal status has been influenced to a certain degree by the characteristic principles of industrial property law. The very insistence on the seperability doctrine to afford protection to the design, reveals the importance of the utilitarian aspects in the paradigm of design law despite the repeated attempts to focus on the separable, aesthetic aspects of it. The consequence of this ‘functional’ aspect of industrial articles qualifying for industrial design protection is the limited term of protection afforded to it. No modern designer ignores the function of the article he shapes. Since the chief objective of those designs is industrial and commercial exploitation, the chief characteristic of designs and models, makes the Copyright Law hard to apply. The parallel tracks of design law and patent law cannot be avoided. The Copyright office of the U.S, until 1949, refused to give copyright protection to three dimensional shapes because it would come within the category of multiple commercial productions of applied arts, which, they held was only eligible for patent protection and resorting to the less stringent requirements of copyright went against that. The flexible treatment to improvements under patent law is not afforded to designs, and hence, the scope of innovation is restricted. Narrow scope of protection is necessary to avoid protecting style trends of which the protected design is a part. The indefinable relation between the art and its application means that copyright protection will end up removing much more than the expression, and also some forms of its application, which upsets the traditional bargain in intellectual property law. The Economic Ripple Traditionally, the right to copyright protection is premised on a claim that certain industrial designs are entitled to legal recognition as art in the historical sense. The economic repercussions of such recognition flow principally from the industrial character of the material support in which ornamental designs are embodied. The incidence of these repercussions upon any given system varies with the extent to which the claim to recognition as art is itself given effect. As copyright protection for designs of useful articles expands, the economic effects of this expansion on the general products market are counterproductive. This is just one of the effects. In general, overprotection results from the progressive monopolization of ever smaller aggregates of inventive activity, which elevate social costs in return for no clearly equilibrated social benefits. But the rescue of artistic of designs from the exigencies of patent law, were now converting copyright law into a de facto industrial property law without the characteristic safeguards of the industrial property paradigm. A significant effect of awarding copyright protection thus is the economic effect. An analogy from the law of patent proves this point. Patent doctrines such as the rule of blocking patents and the reverse doctrine of equivalents offer some protection to the developers of significant or radical improvements who can thereby allocate gains from their invention. Copyright doctrine however, extends to cover any â€Å"copy† or adaptation or alteration of the original that is nonetheless â€Å"substantially similar† to the original work. An important difference between copyright and registered designs is that the latter can be enforced against a third party who has not copied the proprietors design. The exclusive right conferred for designs was in the nature of a monopoly right, which means that it was infringed by another party who employed that design or one not substantially different from it, regardless of whether that other party copied from the owner or created his own registered design independently. The right is thus fundamentally different from unregistered design right and copyright for both of which copying is an essential ingredient for infringement. The fair – use exception which arises when a person uses copyrighted expression in a way that the law deems to be fair is indeterminate, and this characteristic of design law makes it even more difficult to apply it. Dynamic societies need small improvements and massive breakthroughs in art and technology to prosper. Yet it is difficult to develop incentives that can spur the less dramatic type of creativity without imposing crippling costs. For instance, subtle innovations usually generate small benefits that are exceeded even by the mere cost of administering a property rule. In addition, the margin of error for protecting these improvements is slim because their life span is so short. Esthetic designs and other marginal improvements, by contrast, have an optimal term of only a matter of months and a mistake that gives an additional six months of protection to designs creates a much greater distortion in the incentives for developing commercial art which is not the case in copyright. Conclusion The availability of overlapping intellectual property protection in all of its forms presents a serious threat to the goals and purposes of federal intellectual property policy and must be addressed as a single issue. The 1842 act, instead of re defining designs to prevent overlap, the definition was left broad but was subject to an express exclusion of all designs covered by the other Acts thereby necessitating interpretation of two acts, set a pattern carried through to the present day. The true scope and effectiveness of design law will depend on the extent to which the scope of protection it affords which is undermined by the concurrent availability of copyright protection for industrial art. If a country makes it easy for industrial art to qualify for copyright protection as applied art, designers will have less incentive to make use of a special design law and design protection will increasingly be characterized by the copyright approach, the harmful effects of which have been proved. Design laws, therefore, have to be structured so that obtaining copyright protection is difficult and most designs fall within their jurisdictional sweep. The legal history of industrial art in the twentieth century is an effort to establish special regimes of design protection without unduly derogating from the general principles of copyright law and laws should be structured that way. One should not forget that this theory was spawned by a false conflict between art and industry. By fighting for the artistic value of a shape, one has supposedly justified drawing into the orbit of copyright law a body of intellectual products that bear only an apparent resemblance to the creations covered by this regime. The evidence is persuasive that the costs of a property right outweigh the benefits. That judgment is reinforced by the observation that, notwithstanding the lack of protection afforded to commercial art, consumers already have an incredibly diverse selection of product designs from which to choose. The difficulties of interpretation caused by exclusions to exclusions to exclusion seem to be endemic to industrial design law, and the problem of overlap therefore has to be treated differently. Bibliography Books: P. Goldstein, Copyright (2nd edn., Vol 1.New York: Aspen Law and Business 2002). S. P. Ladas, Patents, Trademarks and Related Rights: National and International Protection (Harvard: Harvard University Press 1975). Laddie, Prescott, Vitoria, The Modern Law of Copyrights and Designs (3rd ed., Vol. 2, London: Butterworths 2000). B. L. Wadhera, Law Relating to Patents, Trademarks, Copyright, Designs and Geographical Indications (New Delhi: Universal Publishing Co. Pvt. Ltd 2004) M. Howe, Q.C, Russell, Clarke and Howe on Industrial Designs (7th edn., London: Sweet and Maxwell 2005). Articles: V.R. Moffat, â€Å"Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Protection† 19 Berkeley Technology Law Journal 1473 (2004). The article deals in great detail about the problems of overlapping intellectual property right protection. Beginning with an analysis of the process involved in affording protection to any intellectual property, the article describes the bargain that is struck between the society and the inventor / creator, for the better good of all, since providing protection incentivizes and after a certain period of time, the invention / creation is required to be relegated to public use in return for the subsisting monopoly. The article then describes how the problem of overlapping protection, how it is more be accretion rather than by design, helped along by the judiciary, the insidious influence of ever increasing demands, and goes on to characterize the problem of overlap, and suggests ways to stop it. P.K Schalestock, â€Å"Forms of Redress for Design Piracy: How Victims can use existing Copyright Law† 21 Seattle University Law Review 113 (1997). The article looks at the various forms of protection available to the designers of clothes, since the current framework of copyright laws in the U.S, outlaws all forms of protection for useful articles. The design of clothes could only be protectable so far as that design was seperable from the functional aspect of clothes, which, as the author proceeds to argue is an impossible task since clothese were inherently meant to be useful but the cut, shape and colour greatly contributed to its value as well. The author, reviewing design piracy in the clothing industry, explains how the advancement of technology has made this all the more worse. He points out how the existing framework fails to provide a remedy, and then provides suggestions and remedies whereby this lacunae in the law could be remedied. M.C. Broaddus, â€Å"Designers Should Strive to Create ‘Useless’ Products: Using the Useful Article Doctrine to Avoid Separability Analysis† 51 South Texas Law Review 493 (2009). The article deals in detail with the irony of the inability of intellectual property law to afford protection to useful articles. It deals in detail with the evolution of the separability doctrine, its variants, and the judicial treatment of the same. It starts with a brief description of the history of the development of the law of industrial designs, the lacunae that existed previously due to the refusal of copyright law to recognize the applied art in industrial articles, and the need for protection of the art in those articles nevertheless. It discusses cases in which the separability has been in question and shows how, judicial discretion in having to make this distinction is actually leading to the judiciary making decisions about what constitutes art and what does not. Hence, the article suggests some differential means of analysis to avoid this confusion. A. Muhlstein, M.A. Wilkinson. â€Å"Whither Industrial Design† 14 Intellectual Property Journal 1 (2000). A seminal article on the development of the law of industrial designs, it provides a thorough overview of the genesis of the law, problems faced in its historical development and its current status. It situates the problem of overlap in the historical context and demonstrates linkages. The article does a comprehensive study of the current legal systems in place to protect industrial designs, identifies the elements within them and situates them in the larger paradigm of intellectual property law to understand the origin of the rights better. It also briefly survey the international framework in place to deal with industrial designs, the compromises sought to be reached and the harmonizing measures so far undertaken to afford protection to industrial designs. Dr. Ramesh, â€Å"Registration of Designs: Need a Fresh Look† 32(1&2) Indian Bar Review, 83 (2005). The article does a brief review of the need to protect industrial designs, about the intrinsic value of a useful good which also looks attractive and appealing and the economic benefits to be derived from it. It gives a historical perspective of the development of design law and the requirements of the law as it currently stands. It gives a short description of the application procedure, and then, by drawing a linkage between the objective of the law and the rights given it reviews the remedies for infringement and analyses whether they are adequate or not. It also points out some flaws in the existing design protection framework in India and makes a very good argument for such flaws to be corrected. S.H.S. Leong, â€Å"Protection of Industrial Designs as Intellectual Property Rights† Journal of Business Law 239,243 (2003). The article essentially deals with the development of the law of industrial designs in Singapore, and it does this by comparison with the English Law. It gives a short description of the transitory changes from the 1842 Act to the 1911 Act, then from the 1956 Act to the 1976 Act in Copyright, and demonstrates how needs of the particular time resulted in the changes embodied in these different laws. It also talks about the necessity of laws like the Unregistered Designs Act, Community Designs Act etc, as available in Europe, so that designs which are not judged to be ‘aesthetically appealing’ but which nevertheless contribute to the value of the product, are protected. It discusses the possibility of shapes being protected under trademark law and patent law, and concludes that a separate law to deal with designs is very necessary. E. Setliff, â€Å"Copyright and Industrial Design: An â€Å"Alternative Designs Alternative† 30 Columbia Journal of Law and the Arts 49 (2006). The article, by a brief review of the historical development, points out how crucial the separability doctrine has become, due to the traditional reluctance of Court to recignise applied art as having artistic value. The article argues vehemently at such an assumption. It argues that industrial design actually embodies aesthetic expression to a much greater extent than function. Although its primary purpose might have been to make the products of industry more commercially successful by changing, and even disguising, their aesthetic appearance, its artistic value cannot be denigrated from. It critics some of the literature thus far which celebrates the lower quality of the work in designs, and explains why the separability of the design has become problematic specially because it depends on the court’s subjective notion of what constitutes â€Å"art† who go by traditional choices and the author demonstrates the dangers of this approach. G. Scanlan, S. Gale, â€Å"Industrial Design and the Design Directive: Continuing and Future Problems in Design† Journal of Business Law 91 (2005). This article examines the impact of the overhaul of EC industrial design law on English intellectual property law. It starts out by considering the policy behind the Council Directive. It traces all laws relating to protection of industrial designs in the European context and reviews as to how the directive changes it. It reviews changes to the definition of design, the requirements for novelty and individual character, the relationship between copyright, registered and unregistered designs, the differing treatment of works of artistic craftsmanship and artistic works per se, the treatment of applied designs and the abolition of the compulsory licence regime. On the whole, although the directive, in achieving its stated purpose of harmonizing laws, was forced to be selective in its changes, it nevertheless has a much desired effect. J.H. Reichman, â€Å"Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976† Duke Law Journal 1143 (1983). This article attempts to study the complex interactions of the different branches of intellectual property law that seek to regulate the degree of protection to be accorded ornamental designs of useful articles. A circular pattern, the article argues, can be discerned in the treatment of these designs in both foreign and domestic law. The tendency of industrial property law to breed still further instances of underprotection or overprotection then fosters renewed pressures for the regulation of industrial art within the framework of the laws governing literary and artistic property. It uses an extremely detailed analysis of the law in the U.S.A to explain the disjunct. The article also compares the tradition of protection of industrial designs in France, German, the Beneleux countries, and provides a thorough overview of the variety of doctrines that have had a role to play in the current state of law relating to designs. It also, looks at policy objectives, the commercial features of the current legal status, some amendments proposed and the effect of those amendments as well. Umbreit, â€Å"A Consideration of Copyright† 87 University of Pennsylvania Law Review 932 (1939) A foundational work on the development of copyright law, the article gives a very detailed analysis of the components of the protection afforded by copyright, and what works would necessarily qualify for the protection. It focuses extensively on the idea / expression dichotomy in the law of copyright and demonstrates how this demarcates the boundary of copyright protection. The elements of copyright, as described in this article, is highly demanding of the qualities of originality and creativity, and it traces the link from the policy objectives of affording any kind of protection to such artistic work at all, to the categories of creative work considered generally to be within its scope. C. Thompson, â€Å"Not such a Crafty Corkscrew? Sheldon v. Metrokane and the Status of ‘Industrial Designs’ as Works of Artistic Craftsmanship Under Australian law† 26(12) European Intellectual Property Rights Review 548 (2004). A case comment on Sheldon v Metrokane, the article gives a definitive analysis of the exact link between the utilitarian aspects and the design aspects of an article. While the protection is sought to be afforded to the design aspects alone, how this conceptual separability was treated in Sheldon was reviewed. The article also cited some interpretations of the case, which, it viewed as misplaces and suggested a differing analysis of the opinion. S.W. Ackerman, â€Å"Protection of the Design of Useful Articles: Current Inadequacies and Proposes Solutions† 11 Hofstra Lew Review 1043 (1983). It illuminates the policies underlying copyright law, and argues that protection should be extended to the design of useful articles. It contrasts the extent of protection provided by the copyright system with that of the patent system and by a comparison of the amount of effort required on the part of the inventor / author to trigger the protection, conludes that such protection is hardly sufficient. The design of useful articles seems to fall in between these systems, and hence is left largely unprotected.It surveys case law, the danger of judicial discretion and suggests a hybrid theory of patent and copyright to protect designs sufficiently and justifiably which encourage the creation of designs by providing rights to protect against commercial exploitation but not extending those rights to the utilitarian features of the protected article. J.C. Kromer, â€Å"Claiming Intellectual Property† 76 University of Chicago Law Review 719 (2009). The article explores the claiming systems of patent and copyright law with a view to how they affect innovation. The object of this article is to trace the law relating to improvements, in juxtaposition with the stated objective of law of intellectual property rights to achieve the maximum social good. The article approaches the subject from the inventor’s perspective and examines whether the current system of protection of improvements in speech is fair. While patent requires patentees to articulate by the time of the patent grant their invention’s bounds, thus effectively allowing all improvements not within such bounds, copyright law only requires the articulation of a prototypical member of the set of protected works. The law relating to improvements in designs also, follows a similar pattern. All substantially similar works, therefore, could be held as infringement. Copyright therefore, allows far less improvement and deviation from the protected product as allowable than patent, where, anything outside the specified bounds was allowable. J.P. Mikkus, â€Å"Of Industrious Authors and Artful Inventors: Industrial Works and Software at the Frontier of Copyright and Patent Law† 18 Intellectual Property Journal 174 (2004). The article first examines the protection granted by copyright law for functional works typically found in an industrial environment. The article then explores the challenges of copyright protection for the non – literal aspects of computer software and problems faced by inventors and software developers when obtaining patent protection in relation to software. The article criticizes current status of law relating to copyright and patents, in that creative work related to industrial purposes does not get adequate protection in either of the regimes since they show limited openness to intangible products of industry. The critique thus, necessarily involves analysis of the level of originality that an invention / work is required to possess to qualify for protection and exposes anomalies in that regard. W. M. Landes, R. A. Posner, â€Å"Indefinitely Renewable Copyright† 70 University of Chicago Law Review 471 (2003). The article examines the economic rationale of limiting copyright and patents. While the nature of patents is such that the expiration of the rights is a necessary evil to increase the social good, copyright, the article argues, should be afforded for an even longer period of time in the absence of any strong reason not to. In this context the article makes a difference between perpetual copyright and indefinitely renewable copyright. Although the latter concept could turn into the former under very specialized conditions, the article argues that the resulting benefit accruing to the author / artist is much greater than societal loss, and attempts to prove this hypothesis by some statistical evaluations. It points out that works in the ‘public domain’ do not always get negatively affected when copyright protection is expanded, since the greater incentive would spur further creativity. T. Scassa, â€Å"Originality and Utilitarian Works: The Uneasy Relationship between Copyright Law and Unfair Competition† 1 University of Ottawa Technology Law Journal 51 (2004). This article deals with the problem of protection afforded to utilitarian, creative works from a competition perspective. It examines the concept of â€Å"originality† in light of the shifting purposes of copyright law and of the historical relationship of utilitarian works to copyright law. It emphasizes on the overwhelming role that then judiciary in Canada has played in allowing copyright protection for utilitarian works, and this has resulted in a constant swing in the status of the law. It argues that, protecting utilitarian works by copyright has reusled in a loweing of the originality creativity threshold in copyright, which in turn has changed the character of copyright law in some instances and hence creates competition distortions. The problem the article argues, lies in the tension between copyright and unfair competition, primarily in relation to utilitarian works and this results in counterproductive pressures. P. Borderland, â€Å"Where Copyright and Design Patent Meet† 52 Michigan Law Review 33, 43 (1953). This article deals with the fundamental conflict that the protection of industrial artistic design embodies in the paradigm of the law of intellectual property rights. It points out that copyright and patent are basically supposed to protect very different things.The concept of industrial designs, thus, creates an overlap leading to a borderland issue between copyright and patent areas. The paper explores the issues within this boundary confusion, giving attention to the policy considerations involved and attempts to give suggestions towards drawing a sharper boundary between the two. The article theorises that in such a hypothesis, designs would fall more into the realm of patent than copyright, although having unmistakable copyright features. J.H. Reichman, â€Å"Legal Hybrids between the Copyright and Patent Paradigms† 94 Columbia Law Review 2432 (1994) A detailed and comprehensive review of the development of law of intellectual property, the article describes the bargain that is truck in both patent and copyright paradigms and the delicate balancing of interests sought to be achieved. It uses the Paris and Berne Conventions as a starting point, and, working backwards from there demarcates the area of copyright and patent laws. The most prevalent of the hybrids between the two is the existence of commercial designs, and by a thorough analysis of the objectives of law of intellectual property rights, the rights that can be afforded to be protected, concludes that design protection does not fall seamlessly into the copyright paradigm. In this context, it also talks about the law relating to improvements, the necessity of the law, problems facing it and possible solutions. P.J. Saidman, â€Å"The Crisis in the Law of Designs† 89 Journal of the Patent and Trademark Office Society 301 (2007). The article does a very thorough analysis of the functionality doctrine which has led to so much confusion. Firstly, it attempts to dispel some misconceptions, such as the allegation that artistry must necessarily be useless to qualify for copyright protection. Commenting on the lacunae in the current structure of design laws, the article states that the judicial trends in determining whether or not the functionality and separability test are fulfilled has resulted in the meager forms of protection available to industrial designs weaker than ever. The article suggests that the judicial principle currently in existence in the U.S are flawed, operating upon a narrow understanding of copyright law, and by a comparison with the European system, advocates that the system be employed in the U.S as well. M.A. Lemley â€Å"The Economics of Improvement in Intellectual Property Law† 79 Texas Law Review 989 (1997). This article deals with the crisis in intellectual property law of attempting to protect improvements while discouraging imitation. The law must distinguish between improvement, a necessary part of innovation, and generally to be encouraged, and imitation, which is generally considered both illegal and even immoral. This distinction, the article points out, is not easy to make, but it is critical to achieving the proper balance of intellectual property rights. Allowing too much imitation will stifle the incentives for development and commercialization of new products. Discouraging improvements on the other hand will freeze development at the first generation of products. The article carries out a thorough economic analysis of the issues involved, and proposes alternative models to make the boundary between imitation and improvement clearer and leave less to the discretion of the courts. N. Snow, â€Å"Proving Fair Use as a Burden of Speech† 31 Cardozo Law Review 1781 (2010). The article deals with the fair use exception in copyright law. It traces the origin of the exception in copyright law, and explains the problems that the flexible doctrine is fraught with. Through a detailed analysis of case law, the article points out the extent of judicial discretion that the doctrine allows. The article evaluates the fair use exception in the context of free speech, and argues that the current judicial trend of requiring defendants to prove that they had used material which were not protected in their expres sion is chilling free speech. G.N. Magliocca, â€Å"Ornamental Design and Incremental Innovation† 86 Marquette Law Review 845 (2003). This article makes an interesting study of the origin and development of design protection law, it analyses the reasons for its slow advancement, the initial reluctance, the controversies and borderline issues that has surrounded the law. Commercial artistry, thus, was more of a problem than it was worth, leading to its neglect for nearly 200 years. The article provides an overview of the political scenario which also created difficulties, deeming designs to be part of the public domain. This Article concludes that there are sound public policy reasons against extending a property right to most commercial art and explores other ways to promote design innovation and since commercial designs occupy a unique position in the law sitting at the confluence of patent, copyright, and trademark doctrine, the article suggests that an ideal solution would require a revamping of the entire existing structure going towards a unified picture of intellectual property law. It also concludes that the economic costs with giving more protection to designs far outweighed the benefits. Table of Cases English Cases Dastar Corp. v. Twentieth Century Fox Film Corp The plaintiff sought trademark protection for its World War II video series that had been, but was no longer, protected by a copyright. The Court denied the trademark claim, in part because allowing trademark protection in this case would conflict with copyright law, creating a species of perpetual copyright. The Court termed this perpetual protection a â€Å"mutant† copyright and held that to permit trademark protection following the expiration of a copyright would infringe upon the public’s â€Å"right to copy† an expired copyright. The Court made an analysis of the bargain that is involved in the protection of any intellectual property right and held that allowing such mutation from one form of intellectual property protection to another would completely defeat the very purpose of the bargain and become counterproductive. Millar v. Taylor 98 Eng, Rep. 201, 4 Burr. 2303 (K.B. 1769). This was one of the first judgments concerning copyright in the history of English law. It concerned infringement of the copyright on James Thomson’s poem, â€Å"The Seasons† by Robert Taylor, and the booksellers won a favorable judgment. The judgment is significant for its recognition of property rights in a literary work for the first time. Sheldon and Hammond Pty Ltd v. Metrokane Inc [2004] F.C.A. 19. After the expiry of Le Creuset’s patent for a lever-action corkscrew, Metrokane engaged a designer to design a new corkscrew with the mechanics of le creuset but with greater aesthetic appeal, and beauty resulting in the rabbit corkscrew. The case involved a challenge of copyright infringement of Metrokane’s modified model,which they alleges was artistic craftsmanship for which drawings existed. The case is significant for its ruling that, even though some beauty was added to the corkscrew by fashioning a new encasement, the primary purpose remained commercial and hence protection could not be obtained. Only the encasement was attractive, and although conceptually separable, the good relied on the mechanism which was in the public domain. Copyright protection to the entire corkscrew, was therefore, denied, since the encasement alone did not qualify for protection due to the design copyright overlap. Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989 (2d Cir. 1980). A jewelry designer obtained copyright registrations for a line of decorative belt buckles inspired by artistic works. The designs became successful and were eventually copied by another company.The designer sued for copyright infringement and the company countered with the argument that the belt buckles were not appropriate copyrightable subject matter because they were useful articles. The Court used the separability doctrine to award in favour of the plaintiff. It came up with the novel concept of focusing its analysis on the â€Å"primary† and â€Å"subsidiary† portions of the useful articles and held that since they were conceptually separable, in that the primary ornamental aspect of the buckles is conceptually separable from their subsidiary utilitarian function, it was entitled to protection. PHG Technologies, LLC, v. St. John Companies 459 F.Supp.2d 640 (2006). At issue in this case were design patents claiming an ornamental design for a label pattern for a medical label sheet. The Court replaced its own prior test for functionality with a new one which requires a court to assess the utility of the proffered alternative designs and determine whether the chosen design best achieves the functional aspects of the article. If it does, then presumably the design choice was made for functional reasons, and any resulting design patent is invalid. In other words, the designer is penalized in the event that their best design choice also happens to lend itself to even marginally increased utility over the design alternatives. The final verdict went againt the plaintiffs in this analysis. Indian cases Samsonite Corporation v. Vijay Sales 73 (1998) DLT 732. The case concerned the alleged infringement of the plaintiff’s design rights in suitcases. The plaintiff alleged that one series of suitcases had been specially designed and surface embellishment chosen for the System 4 Range. The plaintiff’s claimed copyright in the drawings and said that the defendant, stocking a similar type of suitcase from VIP, had infringed upon the copyright and had indulged in the tort of passing off. The court however, first ruled that if any intellectual property subsisted in the cases, it was in the nature of a design right, taking note of S. 15 of the Copyright Act. Secondly, the Court held, enough identifying factors had been used with the series for a normal public acquainted with two famous brands to be impressed by the difference, and hence passing off could not also be claimed. Microfirms Inc. v. Girdhar and and Co and Ors 128 (2006) DLT 238 The plaintiff in this case claimed copyright infringement in respect of designs on the upholstery manufactured and marketed by the plaintiff. An allegation of copying and of passing off was also made. The court rules that, a requirement of registration under the deigns act did not preclude the protection of copyright. If design law was not applicable, civil remedies through copyright would still be available normally. But in this case, since the design’s attractiveness derives from the article in which it is embodied, copyright protection could not be afforded, and S 15 of the Copyright Act expressly delegated designs capable of registration to the area of the design act. Hence, the claims could not stand, since no copyright subsisted. AGA Medical Corporation v. Mr. Faisal Kapadi and Anr 103 (2003) DLT 321. The plaintiff in this case was a pioneer in trans cathartic technologies. Several drawings made for the manufacture of some cathartic devices were registered under copyright in the U.S. The defendant here was alleged to have attempted passing off, and releasing brochures depicting the exact same product using the exact same shape. The Court ruled against the plaintiffs, finding that even if copyright did subsist in the drawings, the minute they were converted into three dimensional products they lost that right by virtue of S. 15 of the copyright Act. The difference between two dimensional and three dimensional reproduction was elaborated on, and the Court gave a very definitive analysis of S. 15(2) and rules that the plaintiff did not have copyright in the drawings, and since the three dimensional objects could not be said to completely copy the plaintiff’s production, no right was infringed. ——————————————– [ 2 ]. P. Goldstein, Copyright 1:35 (2nd edn., Vol 1.New York: Aspen Law and Business 2002). [ 3 ]. Ibid at 1:44. [ 4 ]. V.R. Moffat, â€Å"Mutant Copyrights and Backdoor Patents: The Problem of Overlapping Intellectual Protection† 19 Berkeley Technology Law Journal 1473, 1474 (2004). [ 5 ]. Millar v. Taylor 98 Eng, Rep. 201, 4 Burr. 2303 (K.B. 1769). [ 6 ]. Supra note 1 at 1:10. [ 7 ]. P.K. Schalestock, â€Å"Forms of Redress for Design Piracy: How Victims can Use Existing Copyright Law† 21 Seattle University Law Review 113, 117 (1997). [ 8 ]. M.C. Broaddus, â€Å"Designers Should Strive to Create ‘Useless’ Products: Using the Useful Article Doctrine to Avoid Separability Analysis† 51 South Texas Law Review 493, 494 (2009). [ 9 ]. S. P. Ladas, Patents, Trademarks and Related Rights: National and International Protection 828 – 35 (Harvard: Harvard University Press 1975). [ 10 ]. A. Muhlstein, M.A. Wilkinson. â€Å"Whither Industrial Design† 14 Intellectual Property Journal 1, 10 (2000). [ 11 ]. Ibid at 11. [ 12 ]. 35 U.S.C.  § 171 (1976). [ 13 ]. First copyright act passed in 1709, and in 1787, the first designs act which was passed aimed to give very little copyright protection to those engaged in the arts of designing clothes and those who designed or procured new and original designs for these types of goods obtained the sole right of reprinting them for two months. The protection of designs was considered to be a part of copyright. [ 14 ]. Dr. Ramesh, â€Å"Registration of Designs: Need a Fresh Look† 32(1&2) Indian Bar Review, 83, 85 (2005). [ 15 ]. The designs covered during the historical development of the law of designs were of three types: Pattern or print to be worked on or worked into a tissue or textile fabric, modeling, casting, embossment, chasing, engraving or any other kind of impression or ornament, shape or configuration of any article of manufacture. Design law therefore, sought to protect both shapes and surface decoration. [ 16 ]. E. Setliff, â€Å"Copyright and Industrial Design: An †Å"Alternative Designs Alternative† 30 Columbia Journal of Law and the Arts 49, 61 (2006). [ 17 ]. S.W. Ackerman, â€Å"Protection of the Design of Useful Articles: Current Inadequacies and Proposes Solutions† 11 Hofstra Lew Review 1043, 1061 (1983). [ 18 ]. S.H.S. Leong, â€Å"Protection of Industrial Designs as Intellectual Property Rights† Journal of Business Law 239,243 (2003). [ 19 ]. Supra note 16 at 1053. [ 20 ]. Supra note 9 at 18 [ 21 ]. Supra note 15 at 52. [ 22 ]. There were many who had vested interests in the system which would afford some protection for industrial designs against copyists. The result was that when the Copyright, Designs and Patents Act was passed in 1988, an attempt was made to draw a boundary between copyright and registered designs and to exclude functional designs from copyright protection, but also a new type of monopoly, design right was created. It covers functional designs and was reminiscent of the design protection for articles having some purpose of utility. [ 23 ]. Laddie, Prescott, Vitoria, The Modern Law of Copyrights and Designs 1891 (3rd ed., Vol. 2, London: Butterworths 2000). [ 24 ]. Mazer v. Stein, 347 U.S. 201 (1954) [ 25 ]. Supra note 6 at 117. [ 26 ]. G. Scanlan, S. Gale, â€Å"Industrial Design and the Design Directive: Continuing and Future Problems in Design† Journal of Business Law 91,97 (2005). [ 27 ]. J.H. Reichman, â€Å"Design Protection in Domestic and Foreign Copyright Law: From the Berne Revision of 1948 to the Copyright Act of 1976† Duke Law Journal 1143, 1181 (1983) [ 28 ]. K.B. Umbreit, â€Å"A Consideration of Copyright† 87 University of Pennsylvania Law Review 932, 933 (1939); [ 29 ]. Supra note 26 at 1177. [ 30 ]. PHG Technologies, LLC, v. St. John Companies 459 F.Supp.2d 640 (2006). [ 31 ]. 21 Fed. Reg. 6024 (1956) repealed, 43 Fed. Reg. 966 (1978), 37 C.F.R. 966 (1978) [ 32 ]. C. Thompson, â€Å"Not such a Crafty Corkscrew? Sheldon v. Metrokane and the Status of ‘Industrial Designs’ as Works of Artistic Craftsmanship Under Australian law† 26(12) European Intellectual Property Rights Review 548, 554 (2004). [ 33 ]. Sheldon and Hammond Pty Ltd v. Metrokane Inc [2004] F.C.A. 19. [ 34 ]. Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989 (2d Cir. 1980). [ 35 ]. Supra note 25 at 94. [ 36 ]. S 22(1) provided that when a design was registered, it would not be an infringement of the corresponding copyright to do anything which was an infringement of the design registration, or, after it expired, would have been if it had not expired. [ 37 ]. B. L. Wadhera, Law Relating to Patents, Trademarks, Copyright, Designs and Geographical Indications 491 (New Delhi: Universal Publishing Co. Pvt. Ltd 2004). [ 38 ]. Supra note 22 at 1910. [ 39 ]. M. Howe, Q.C, Russell, Clarke and Howe on Industrial Designs 238 (7th edn., London: Sweet and Maxwell 2005). AGA Medical Corporation v. Mr. Faisal Kapadi and Anr 103 (2003) DLT 321. [ 40 ]. Supra note 16 at 1044: Microfirms Inc. v. Girdhar and and Co and Ors 128 (2006) DLT238 [ 41 ]. Supra note 38 at 259. [ 42 ]. J.C. Kromer, â€Å"Claiming Intellectual Property† 76 University of Chicago Law Review 719, 731 (2009). [ 43 ]. J.P. Mikkus, â€Å"Of Industrious Authors and Artful Inventors: Industrial Works and Software at the Frontier of Copyright and Patent Law† 18 Intellectual Property Journal 174, 194 (2004). [ 44 ]. Copyright law presupposes that, absent subsidies, creators will invest time and resources only if assured of property rights that will enable them to control and profit from it, but it also recognizes that creative efforts necessarily build on the creative efforts which precede them, and hence must be allowed to draw on copyrighted works for inspiration and education. [ 45 ]. Supra note 1 at 1:40. [ 46 ]. Dastar Corp. v. Twentieth Century Fox Film Corp 539 U.S. 23 (2003). [ 47 ]. W. M. Landes, R. A. Posner, â€Å"Indefinitely Renewable Copyright† 70 University of Chicago Law Review 471, 475-76 (2003). [ 48 ]. T. Scassa, â€Å"Originality and Utilitarian Works: The Uneasy Relationship between Copyright Law and Unfair Competition† 1 University of Ottawa Technology Law Journal 51, 60 (2004). [ 49 ]. Supra note 8 at 37. [ 50 ]. Supra note 27 at 935. [ 51 ]. Supra note 26 at 1178 [ 52 ]. Supra note 7 at 493. [ 53 ]. P. Borderland, â€Å"Where Copyright and Design Patent Meet† 52 Michigan Law Review 33, 43 (1953). [ 54 ]. J.H. Reichman, â€Å"Legal Hybrids between the Copyright and Patent Paradigms† 94 Columbia Law Review 2432, 2463 (1994): Samsonite Corporation v. Vijay Sales 73 (1998) DLT 732. [ 55 ]. Supra note 26 at 1143. [ 56 ]. Supra note 53 at 2504. [ 57 ]. Supra note 26 at 1160. [ 58 ]. Supra note 42 at 193. [ 59 ]. M.A. Lemley â€Å"The Economics of Improvement in Intellectual Property Law† 79 Texas Law Review 989,996 (1997). [ 60 ]. P.J. Saidman, â€Å"The Crisis in the Law of Designs† 89 Journal of the Patent and Trademark Office Society 301, 310 (2007). [ 61 ]. Supra note 38 at 73. [ 62 ]. N. Snow, â€Å"Proving Fair Use as a Burden of Speech† 31 Cardozo Law Review 1781, 1786 (2010). [ 63 ]. G.N. Magliocca, â€Å"Ornamental Design and Incremental Innovation† 86 Marquette Law Review 845, 848 (2003). [ 64 ]. Supra note 3 at 1476. [ 65 ]. Supra note 15 at 53. [ 66 ]. Supra note 59 at 313. [ 67 ]. Supra note 26 at 1160. [ 68 ]. Supra note 62 at 847. [ 69 ]. Supra note 38 at 270.