| Designs |
Design Copyright In the UK, Copyright law generally provides protection against unauthorised copying of artistic, literary or musical works for up to 70 years following the creator's death. This protection is also available for original designs, including 3-dimensional designs (e.g. sculptures), provided that such designs are not industrially exploited. The UK Copyright, Designs and Patents Act 1988 (CDPA 1988) included a number of complex, interacting provisions amending the previous law of Design Copyright, introducing an Unregistered Design Right (see above) and updating the 1949 Registered Designs Act. One clear intention (which was not perhaps so clearly implemented) was to remove the anomaly that previously allowed functional designs of no artistic merit (which were not entitled to Registered Design protection) still to benefit from the protection of Copyright Law (under the Copyright Act 1956 and the Design Copyright Act 1968) for a much longer period. The objective of the CDPA 1988 was to differentiate between the treatment of industrial designs (i.e. designs intended specifically for commercial exploitation and replication) and artistic designs (i.e. designs produced originally as sculptures or works of genuine artistic craftsmanship). An industrial design which has "eye appeal" when applied to "an article" (i.e. a product) whose purchase is arguably influenced by this "eye appeal" may be protected as a Registered Design (for up to 25 years). An industrial design, which is functional (i.e. where "eye appeal" is not a relevant factor) is not entitled to Registered Design protection, but may be protected under Unregistered Design Right (for a maximum of 15 years - see above). Artistic designs, not originally produced for industrial application, remain entitled to the full protection of Copyright Law (potentially for the lifetime of the creator + 70 years), unless and until they are industrially applied. A design is Statutorily defined as being "industrially applied" if more than 50 reproductions are made and marketed (i.e. offered for sale). Thereafter, Copyright in such designs expires 25 years from the date of first marketing. Outside the UK, most countries provide for a form of Registered Design protection for original industrial designs, but do not normally extend Copyright protection at all to 3D industrial designs. In many countries, functional designs are not given any protection and only original designs with "eye appeal" can be Registered. In some British Commonwealth (or ex-Commonwealth) countries which still have laws based on the old British formulation, Copyright Law continues to apply to protect three-dimensional copying of original designs. (This group of countries presently includes Bermuda, Channel Islands, Gibraltar, Isle of Man and New Zealand). As always, when seeking to rely on Copyright Law, it is necessary to prove both subsistence and ownership of Copyright. It is essential, therefore, to keep complete records of the design/creative process, and to obtain assignments of the rights from the designer(s)/creator(s) (if not yourself). Unlike Registered Design and Unregistered Design Right, ownership of Copyright does not automatically fall to the party commissioning a design. Ownership of the Copyright must be assigned in writing.
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