Reading time: 4 minutes

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.

Webinars

Redundancies and Restructuring: Understanding Your Employer Obligations

Thursday 7 July | 11:00 - 11:45am

Online
If you plan on making a role redundant, it is crucial that you understand your employer obligations. Our free webinar will explain.
Register Now

How to Sponsor Foreign Workers For Your Tech Business

Wednesday 13 July | 11:00 - 11:45am

Online
Need web3 talent for your tech business? Consider sponsoring workers from overseas. Join our free webinar to learn more.
Register Now

Advertising 101: Social Media, Influencers and the Law

Thursday 21 July | 11:00 - 11:45am

Online
Learn how to promote your business on social media without breaking the law. Register for our free webinar today.
Register Now

Structuring for Certainty in Uncertain Times

Tuesday 26 July | 12:00 - 12:45pm

Online
Learn how to structure to weather storm and ensure you can take advantage of the “green shoots” opportunities arising on the other side of a recession.
Register Now

Playing for the Prize: How to Run Trade Promotions

Thursday 28 July | 11:00 - 11:45am

Online
Running a promotion with a prize? Your business has specific trade promotion obligations. Join our free webinar to learn more.
Register Now

Web3 Essentials: Understanding SAFT Agreements

Tuesday 2 August | 11:00 - 11:45am

Online
Learn how SAFT Agreements can help your Web3 business when raising capital. Register today for our free webinar.
Register Now

Understanding Your Annual Franchise Update Obligations

Wednesday 3 August | 11:00 - 11:45am

Online
Franchisors must meet annual reporting obligations each October. Understand your legal requirements by registering for our free webinar today.
Register Now

Legal Essentials for Product Manufacturers

Thursday 11 August | 11:00 - 11:45am

Online
As a product manufacturer, do you know your legal obligations if there is a product recall? Join our free webinar to learn more.
Register Now

About LegalVision: LegalVision is a commercial law firm that provides businesses with affordable and ongoing legal assistance through our industry-first membership.

By becoming a member, you'll have an experienced legal team ready to answer your questions, draft and review your contracts, and resolve your disputes. All the legal assistance your business needs, for a low monthly fee.

Learn more about our membership

Charlotte_Hale
Need Legal Help? Submit an Enquiry

If you would like to get in touch with our team and learn more about how our membership can help your business, fill out the form below.

Our Awards

  • 2020 Innovation Award 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Award 2020 Employer of Choice Winner – Australasian Lawyer
  • 2020 Financial Times Award 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year Award 2021 Law Firm of the Year - Australasian Law Awards
  • 2022 Law Firm of the Year Winner 2022 Law Firm of the Year - Australasian Law Awards