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Let’s start with what is copyright? Basically it is how a creator can protect their labour and creativity legally and can sometimes extend beyond economic loss however there are some differences between design and general copyright protection:
- Protection under the Designs Act 2003 (Cth) requires a formal application for registration before rights are obtained. Before you can pursue anyone for infringement of a registered design, it must be examined and certified by the Registrar. Unlike enforcing copyright, which does not require any formal registration or certification process.
- Design registration requires a fee whereas copyright protection is automatic and free (yay!).
What must be met for copyright protection:
- Product meet the definition of ‘artistic work’ (such as a painting, a drawing, sculpture or work of artistic craftsmanship).
- The work must be in material form. This means it cannot be a mere idea or theory.
- The product must be original, artistic work, meaning the work cannot be copied from another person. If you are claiming copyright for it, it must come from you.
If your work/product meets the above then registration for copyright is not necessary as it is automatic. Keep in mind though, you will need to have proof that the work is originally yours so things like progress images, prototypes etc. help disputes of copyright ownership. After all, there’s no point getting the law involved if you can’t prove your background and claim is legitimate.
An important thing to note is the differences between design and copyright protection:
- This protects a product’s appearance but not it’s function.
- However if the function is related to a product’s appearance will not disqualify it from registration.
- It must be distinctly different to existing product designs publicly used in Australia, or published in a document anywhere.
Important Things To Note
- Unless dual protection (copyright and design protection) is possible, copyright protection is lost when a design is registered.
- Once a product has been reduced at industrial quantities, copyright protection is lost and it is also no longer possible to register the design.