Have you ever wondered how retailers can sell knockoffs or replica furniture without getting into hot water? Decking out your pad with genuine designer furniture is often not an affordable option. As such, replica furniture is always in high demand. Australian companies such as Matt Blatt, Bunnings, Targets, Milan Direct and Zanui sell replica furniture for a fraction of the price of an original. This article will look at the Australia position on replica furniture, as well as examine a recent UK ruling on copyright law.
Australia’s Position on Replica Furniture
In Australia, designers have minimal legal protections available to their work and are often deprived of royalties they deserve. The Designs Act 2003 (Cth) requires a design to be registered before it is manufactured. In order to be eligible to register a design, it must be novel and distinctive. What does this require? A design must not be identical to any design previously disclosed in the world, and the design must substantially differ from other designs published in Australia and the world.
The protection afforded to designers via registration is limited to ten years in comparison to the 70 years offered to architectural works, proving the battle designers face to have the protection afforded to their work. After the ten year period, replicas may start popping up and counterfeits manufactured for little or no monetary compensation or royalty.
By registering a design, you will be getting exclusive rights to make and sell the design. You may also assign or license others the right to exploit the design. For instance, if you are a boutique designer and have made a custom lamp, you can choose to register the design. If a large furniture retailer wants to sell and manufacture this design on mass, you may assign or license your design to this retailer.
A downside to design registration is that copyright which is automatic in Australia is lost when you register a design or 3D artistic work industrially as dual protection is not possible. This means that you will lose the lifetime + 70 years protection available under copyright. Designers should err on the side of caution when solely relying on copyright protection. A flaw is that copyright may not apply to a design industrially but to the drawing of the design only.
In Australia, it is legal to advertise furniture as “replica” and can be easily located online or in shops. This is because the replica furniture is often copies of designs from the 1960s and 70s where the copyright protection has expired or was never in place. To protect yourself as an Australian designer, it may be a good idea to trade mark your name and the name of your design so that it can be identified easily and your name cannot be used to advertise the replica product made.
A new UK ruling has decided to extend copyright from 25 to 70 years after the designer’s death. If copyright does not comply with, criminal charges could result, in a push to adhere to EU IP laws. The UK’s coalition government has repealed section 52 of the Copyright, Designs and Patents Act 1988 with implementation to occur in 2020. This change will allow companies time to comply with the changes. There has been a push to fast track the changes to April this year. This change will have severe implications for companies that profit and sell replica furniture online.
Unlike Australia, where copyright is not afforded to industrial designs, changes are being made in the UK’s Intellectual Property Office to extend copyright law and protection for work of artistic craftsmanship to have the same coverage as paintings and sculptures.
The CEO of the Australian Design Alliance has raised the issue of Australia’s weak IP laws relevant to industrial design. Should legislation change in the EU and UK for the copyright of designs, Australia may become a global hub for replica products, impeding the rights of designers past and present. Australia’s industrial design protections are under review by the Productivity Commission, and results will be released in April this year.
Australia’s protection for industrial design needs a review to reflect the reforms in the UK. Australian designers currently do not even have the one year copyright protection afforded to industrial designs under international treaties. The reforms in the UK can serve as a lesson to Australian designers. It is important to provide protection to industrial design and support the creative industry. If you have a question about design, contact our IP lawyers today.