Dual Protection in Design and Copyright - Essay Example

?Dual Protection – Design & Copyright Introduction Designs and Copyright systems are two different mechanisms that aim to protect two separate types of intellectual property material, and usually the content protected would be different1. However, since a long, there has been certain overlap between the protection that has been offered to copyrights for the protection of artistic works and those that are offered to designs by the process of registration. This has led to an uneasy relationship between the copyrights and designs. The legislation has been in a compromised situation regarding this and to certain extent has allowed a dual level of protection under both deigns and copyrights2. An important question arising in this matter is that how to separate branches of protection designed by law to protect different areas of intellectually property can ultimately in principle protect substantially similar subject matter. Besides, under what circumstances can dual protection are offered. Body Firstly, it is important to understand the differences between copyright protection and design protection. Though both are intellectual property and both aim to protect the rights of the IP holder, the objectives and techniques of protection of each would differ. The copyright protection would aim to protect the designer from any abuse of his or her rights whether or not the particular property has been registered or not. On the other hand, the industrial design would aim to provide security to the industry. Hence, simply based on their means of protection, there would be divergences. With relation to the duration of protection, copyright laws ensure an almost perpetual protection, whereas the design laws would only protect for a specific duration. Design laws have to be renewed every 5 years and to a maximum of 25 years in total. Hence, even if copyright and designs could be applied simultaneously, once the design term is over, hardly anybody would be interested in the copyright existing. Another important difference is regarding the infringement processes associated with the design. Designs do offer protection even from innocent violators who may not know that a particular design is already registered and is protected. On the other hand, copyright provides for a wider fair use circle that would effectively protect innocent and non-commercial users. By the very nature of the mechanism of protection, it can be asserted that both designs and copyrights are present for different purposes. The next important difference is the extent of protection, though copyright would protect only expressions of ideas and not ideas, it protects the design in every conceivable form including when it may be used in a 2-dimensional or a 3-dimensional form. However, a design would only protect the appearance or the aesthetic appearance to the article for which it is registered. The final difference noted is that copyright does not require a registration process due to which 99% of all designs are actually registered by this mechanism. This has lead to protection of designs for longer duration and in all conceivable forms3. The dual level of protection has arisen from the definition of artistic work4 under the copyright Act and the general definition of design under the Design Act (Section 1)5. The criteria for fulfilling copyright, is that the work should be original and should have been created by the author, and there it is not necessary that the work be registered. Artistic work more often represents visual representations of intellectual work or ideas to be presented in a material form. One possibility is that drawings or works of craftsmanship which is in fact artistic work may also be design drawings of industrial products or articles of manufacture of various goods. Copyright law offers certain rights to the owner including the right to make copies of the work, the right to distribute or communicate the work to the public, the right to translate or reproduce the work from one form to another (e.g. from a 2-dimensional work to a 3-dimensional work), right to adapt the work, etc. Hence, when any of these rights are infringed by directly or indirectly doing what would be the rights of the true owner or has substantial copies of the author’s work6. A design on the other hand can be applied to in a 2-dimensional or 3-dimensional manner, such as including shapes or configuration. The design should affect the aesthetically and not functionally and must be for an article of manufacture. It should be on an article intended for multiplication by an industrial process. Like copyright, industrial designs would also apply to original work, but here is the additional necessity that the design should be new and should apply aesthetically and not functionally. Unlike, copyrights, the designs can be obtained by the process of registration and not automatically (like what applies to a copyright wherein automatically the work has a copyright existing once created). Once the registration of the design is done, automatically the owner would have several rights including the right to make, sell, import, dispose of the design on a different or same article or using a substantially similar design. Hence, copying of the design would violate the rights of the owner7. For a design in which a copyright subsists, design protection can be sought for the artistic work (under copyright), but the artistic work should be applied to an article of manufacture and should have aesthetic and not functional implications. Besides the design must possess features such as shape, configuration, and pattern or can be ornamentally applied to the article. It should appeal to the eye and should not have functional characteristics. Besides, such a design should not be sold, letting for hire or offer, etc, basically necessitating that the novelty clause be fulfilled. If the article has been disclosed previously, then the novelty clause could be defeated. To determine infringement for both copyright and designs are made visually. On the other hand, copyright infringement would take into consideration even the functional aspects of the design to determine similarities. In general, the copyright protection would be aimed at protecting the artistic portion of the industrial design, whereas the design would be aiming to protect the non-functional aspects. The functional aspects of the device on which the design may be applied may be protected by the patent or other mechanisms of protection8. Before the Copyright Act 1911, design laws did not aim to protect anything that was protected under the Sculpture Copyright Act. However, once the 1911 Copyright Act was being implemented, it protected original artistic work whether or not they possessed aesthetic merit or quality. Hence they began to overlap the realm of design laws and copyright laws, and due to this dual protection, complexities began to arise9. From then on, only limited efforts were being made to ensure that a particular artistic work did not get dual protection. For example, for a design capable of being registered, once it was created it would automatically get a copyright. Design could be claimed only if the article was registered. In the Popeye case, King Features Syndicate Inc v O M Kleeman Ltd10, there was a copyright in the drawings of the cartoon figure Popeye. Under Section 10 of the Copyright Act 1956, the existence of copyright in the industrial design was being understood, but the manner in which the copyright was infringed was restricted11. For example, a 3-dimensional design is copied and made a drawing or a model. Such an action would constitute a copyright infringement as the artistic work is copied and whether or not the design is registered or not. However, in general, the copyright mechanism should not be considered as a backdoor means of protection of non-artistic work, as usually artistic works would be protected by the copyright. The Design Act was introduced mainly to protect 3-dimensional designs and also non-artistic work, and in such circumstances, it would be the design act that would be more applicable than the copyright12. Conclusion In the UK, when both designs and copyright exists in a particular work (copyright by subsistence and design by registration), the Copyright protection would take precedence over the design. Dual protection would exist only in certain circumstances. However, when an infringement of copyright would be made, it may not always be an infringement of design rights. For example, a sculpture of the face is an artistic work, and copying the same may be an infringement of the copyright act, but not an infringement of the design rights. On the other hand, if it is a non-artistic work such as the shape of a car, it would not be an infringement of copyright to copy the same, but would be considered an infringement of the design rights. To avoid further confusion, many nations such as Malaysia have amended their design legislation in such a way that once a registered design capable of copyright protection is given design protection, it would automatically lose its copyright status. Further, the design infringement is viewed objectively rather than subjectively, and a copyright infringement can be viewed both subjective and objectively in order to determine direct and indirect infringement13. Another advantage of using the copyright mechanism for protection, it would ensure that protection is granted perpetually rather than for 25 years granted for registered designs in the UK. In the US, there is no separate protection for designs, and if a design fulfils a high level non-obviousness and novelty, it is eligible to be protected as a design patent14. In Australia, any 3-dimensional design would lose its copyright status in case it would be applied industrially, whether it is unregistered or unregisterable15. In general, each intellectual property would aim to protect different aspects. The copyright protection would be aimed at protecting the artistic portion of the industrial design, whereas the industrial design would be aiming to protect the non-functional aspects. The functional aspects of the device on which the design may be applied may be protected by the patent or other mechanisms of protection16. In the US, the non-functional aesthetic portion of the device may be protected by a design patent as the US does not have a separate design act. Hence, even though it may appear that a design has dual protection, in general, they aim to protect different aspects. Bibliography Alistair Hindle & Associates, ‘What unregistered protection do designs have in the UK?’, (AHA, 2005), < http://www.hindlelowther.com/design12.htm >, accessed 24 April 2012. APAA, ‘APAA Design Committee Questionnaire (2008), (APAA, 2008), < http://www.apaaonline.org/pdf/APAA_55th_council_meeting/designscommittee/2008_Malaysia_Group_Answer_to_Special_Topic_Questionnaire.pdf > accessed 24 April 2012. APAA, ‘ APAA Design Committee Questionnaire’, (APAA, 2008), < http://www.apaaonline.org/pdf/APAA_55th_council_meeting/designscommittee/2008_Singapore_Group_Answer_to_Special_Topic_Questionnaire.pdf> accessed 24 April 2012. Daniel Stewart, ‘The relationship between copyright and design’, (Australian National University, 2011), < http://law.anu.edu.au/Itlaw/10_Designs/Text10-08.htm > accessed 24 April 2012. Herman Cohen Jehoram, ‘Cumulation of Protection in the EC Design Proposals’, (IVIR, 2010), http://www.ivir.nl/publications/cohen_jehoram/Cohen1.doc accessed 24 April 2012. accessed 24 April 2012. Macqueen, Waelde, Laurie & Brown, ‘HISTORY OF UNREGISTERED DESIGN PROTECTION IN THE UK’, (Oxford University Press, 2010), < http://www.oup.com/uk/orc/bin/9780199575329/resources/z_bonusmaterial/unregdesignprotection.pdf >, accessed 22 April 2012. Owen Dean, ‘The Interplay Between Copyright and Design Protection’ (Spoor & Fisher, 1 January 1990), < http://www.spoor.com/home/index.php?ipkArticleID=275 > accessed 24 April 2012. UK Copyright Service. ‘Designs and design rights’, (UKCS, 29 July 2004), < http://www.copyrightservice.co.uk/protect/p15_design_rights >, accessed 24 April 2012. Total Word Count =~ 2000 words (only text) Read More