Copyright and designs in industrial produced articles
Most people would assume that articles, such as a song, novel or painting have automatic intellectual property protection as a work of artistic craftsmanship. But what about mass produced products, for example a boat hull, produced from a design?
Copyright protects the expression of ideas or information that is fundamentally distinct in an article. It does not protect the ideas themselves.
For copyright to subsist in an article, it must fall within the categories as set out in section 31 of the Copyright Act 1968. Importantly, articles that fall within the category of "artistic works", must also consider the interaction between copyright law and designs law.
A design is the overall appearance of the article and encompasses the shape, configuration, pattern and ornamentation which, when applied to the article, gives its unique appearance. Unlike copyright, a design must be registered and for it to be registrable, the design must be new and distinctive.
The interaction between copyright and designs law is complex. It considers that where a work is essentially functional and intended for mass production, it should not receive the extensive protection of copyright law.
This means, if the article is mass produced and its design is not registered or un-registrable, there may not be infringement of copyright if the design is either "industrially applied" by the owner and offered for sale or otherwise made public. This is known as an "Industrial Exception".
However, an "Industrial Exception" does not apply if the design is a "work of artistic craftsmanship".
The courts have held that in determining whether a design is a "work of artistic craftsmanship" the beauty or aesthetic appeal of the design is not the primary consideration. Rather, it is more reflective on the consideration put into the functional components of the article.
For example, a yacht designed to sail as fast as possible with the constraint of an overall length of 9 metres was held to be functional and not artistic. Consequently, the design did not receive copyright protection.
If you are looking to mass produce articles you should seek advice from an appropriately qualified lawyer, as not following the correct steps may result in loss of protection when it comes to the intellectual property of your articles.
For further information about this publication or other intellectual property matters, please contact Russell Morley, Senior Lawyer, at rmorley@talbotolivier.com.au.
