By registering a design under the Designs Act 2003 (Cth), for example a design for a kettle, the owner obtains a monopoly in that design. However, unlike with copyright, the protection is only for a maximum of ten years and not for the life of the owner. With copyright the owner does not obtain a monopoly. If two people independently prepare a drawing of a kettle neither infringes copyright in the other's drawing. The registration of a design gives the owner a monopoly in that design and the owner can prevent another applying the design, or any fraudulent or obvious imitation of it, to any article in respect of which the design is registered [see Designs Act 2003 (Cth) s 71(1)].
The Copyright Act 1968 (Cth) attempts to deal with the potential overlap between copyright and designs protection [Copyright Act 1968 (Cth) ss 74 - 77]. Copyright protection is lost once the corresponding design is registered [s 75], or when it is applied industrially and the articles made are sold, let for hire or offered or exposed for sale or hire in Australia or elsewhere [s 77]. Under the Act an article is industrially applied when, with the consent of the copyright owner, fifty or more items are made from it [s 77, Copyright Regulations 1969 (Cth) r 17]. If the design is not able to be registered, for example because it is not new and original, it will still lose copyright protection once it is commercialised [s 77].
Dual protection under both the Copyright Act 1968 (Cth) and Designs Act 2003 (Cth) is now possible for two dimensional artistic works which are used industrially in a two dimensional way, for example as a pattern printed on a T Shirt. Such designs will still qualify for copyright protection if registered, or if not registered and industrially applied in a two dimensional form.
Works of artistic craftsmanship can be registered but in doing so will lose some copyright protection [Copyright Act 1968 (Cth) s 75]. If works of artistic craftsmanship are not registered they remain covered by copyright even if industrially applied.
Certain designs are specifically excluded from protection under the Designs Act 2003 (Cth) by Designs Regulations 2004 (Cth) r 1.04. Such works remain protected by copyright.
For further information on Design and copyright issues see the Australian Copyright Council's factsheet entitled "Design for Functional Articles".
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.