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Everything You Need To Know – Designs vs Copyright

In Australia, designs can be protected under both copyright law and design law. In some instances, designs can have ‘dual protection’ of both copyright and design registration. This article will consider the differences between the design registration and copyright and how designers and artists can go about protecting their designs.

Copyright Protection

The Copyright Act 1968 (Cth) protects designs that qualify as ‘artistic works’. This includes works such as paintings, drawings, photographs, sculptures and works of ‘artistic craftsmanship’.

Copyright is automatic and protects any design that is considered an artistic work. The duration of copyright in Australia is for the life of the artist and for a further period of 70 years after the death of the artist. Though there are a few exceptions to the duration of protection, such as when an artistic work is published anonymously.

It is important to note that copyright is lost once your design has been “industrially applied”, for example, by producing more than 50 products of the artistic work.

However, designers may still retain copyright in works that have been industrially designed if their design is a work of ‘artistic craftsmanship’. In determining whether a work is of ‘artistic craftsmanship’, an important consideration is whether the design’s artistic expression is “unconstrained by functional considerations”[1]. This exception to copyright protection only applies to works that have not been registered as a design.

If you are considering commercialising your designs in large quantities, you should consider whether design registration may be more a suitable means to protect your design.

Design Registration

In contrast to copyright protection, design registration protects the overall visual appearance of a design rather than its function (which may be protected by patent). Though in some instances, a design’s visual appearance may also have some association with its function. Importantly, a registered design must be examined and certified as valid before it can be enforced against another person infringing against its design rights.

Registered designs are protected under the Designs Act 2003 (Cth). To obtain a design registration, the design must be considered new and distinctive when compared with other designs, either used in Australia, disclosed in an earlier design registration, or published in a document anywhere in the world, prior to the date that the design application was filed.

Consequently, if you are considering registering your designs, it is important to enter into confidentiality agreements with third parties who you wish to share your designs with, such as manufacturers, and not publish your designs over the Internet.

Dual Protection

Some designs may be protected by both design rights and copyright. This may apply to designs that have not been industrially applied, sold or advertised for sale, or relate to two-dimensional pattern that are applied to a product.

Take-away points

  • Consider whether your design may qualify as a work of ‘artistic craftsmanship’;
  • Designers that wish to commercialise their design should consider registering their design to ensure protection;
  • If you are considering registering your design, ensure that you do not disclose your design publicly.

Sam Gilbert, IP and Technology Consultant, B.A., LL.B  University of Technology, Sydney

 If you would like to know more about this article or or how best to protect your designs, please do not hesitate to get in contact with the team at W3IP Law on 1300 776 614 or 0451 951 528.
Disclaimer. The material in this post represents general information only and should not be taken to be legal advice.

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