If you have spent some time developing and creating an original design, you should make sure you stop competitors from copying your hard work. Copyright and design registration are two areas of law that you can use to protect your artistic works. There are a number of differences between copyright and design protection. Unfortunately, you can usually only rely on one form of intellectual property to protect a particular work. It is therefore important to understand these differences so that you can choose the appropriate type of protection.

What is Copyright?

Copyright protects the expression of ideas. It gives the copyright owner exclusive rights to use their work however they want, including rights to:

  • reproduce the work;
  • communicate the work to others; and 
  • create derivative works. 

Copyright automatically attaches to certain types of artistic works, such as:

  • pictures; 
  • photographs; 
  • sketches; and 
  • sculptural works. 

In order for a work to have copyright protection, it must be original and there must have been some skill and effort involved in creating it.

Copyright exists as soon as a work is created. It does not require any registration process or fees. Copyright protection typically lasts longer than design protection. Usually, copyright lasts the lifetime of the creator plus 70 years. 

While the above seems to suggest that copyright is the ideal protection to rely upon for your design, it has certain disadvantages. Copyright, as the name suggests, focuses on protecting a creator from others ‘copying’ their work. To claim copyright infringement and enforce your rights, you need to show that an alleged infringer has copied your original work. If the alleged infringer had come up with the same work independently, copyright would not be enforceable. This is not the case for design registration. 

What is Design Protection?

Design registration protects the new and distinctive visual features of a product’s appearance. 

For example, you may have designed a visually distinctive water bottle or an interesting looking shoe. You could register the design of the bottle or shoe.

It is worth noting that design registration only protects the appearance of the work and not the function. However, you can still register a design even if it has a function associated with it, such as a decorative belt. This will only protect the design of the belt, not a unique function. 

Unlike copyright, you must register your design with IP Australia. It can take several months to successfully register a design. To be eligible for registration, your design must be new and distinctive. It cannot be identical or substantially similar to another design. Unlike copyright, design registration requires you to pay a fee. You may also need to pay the professional fees of a lawyer if you need one to help you with registration. Once your design is registered, you have exclusive rights to commercially exploit it for up to 10 years. 

Unlike copyright, design registration protects you against another person creating a similar or identical design regardless of whether the infringer intended to copy your work or not. 

How Do Design and Copyright Overlap?

The law prevents a design from being protected by both copyright and design registration. Therefore, you must weigh up the advantages and disadvantages of both forms of protection and choose the option which best protects your: 

  • particular work; and
  •  intentions and purpose for that work. 

Copyright usually only protects designs which have not been commercially exploited. This means that you will lose copyright in a design that you have industrially applied. If a design is applied to more than 50 items it will be considered industrially applied. This means that copyright may not provide protection if you intend on mass manufacturing your design. 

If you decide to register a design, you should keep your design secret until you submit your application for registration. You should use confidentiality or non-disclosure agreements if you have to share your design with third parties before registration to ensure it remains secret. 

Key Takeaways

Copyright and design registration both have advantages and disadvantages. It is especially important to consider registering a design if you plan to make multiple copies for manufacturing, wholesale or retail. However, if you are making bespoke or hand-made items, copyright may be the better option.

By understanding the benefits and limitations of each option, you can make an informed decision on what protection to rely upon. If you need assistance protecting your designs, contact LegalVision’s IP lawyers on 1300 544 755 or fill out the form on this page.

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