Overlapping rights: Copyright Act & Design Act

Overlapping rights

There can be considerable overlap between the laws of copyright, registered designs and design right, in that all three may be relevant to the same article (see box, Overlap between copyright, registered designs and design right). To understand the relationship between them, some explanation of their legislative background is required. In summary, prior to the CDPA:

• Design drawings were protected by copyright as artistic works for the life of the author plus 50 years.
• Aesthetic designs which qualified for registration under the RDA were protected for 15 years.

This had the unintended and anomalous effect that purely functional designs, which did not qualify for protection as registered designs for a 15-year period, were instead protected by copyright as artistic works for the life of the author plus 50 years.

The CDPA reformed much of the law relating to the interaction between copyright and registered designs, as a result of which:

• The period of protection for "aesthetic" registered designs was extended from 15 to 25 years (the requirement for aesthetic appeal was subsequently removed by the Designs Regulations).
• A new unregistered design right was created to include functional designs.
• Three-dimensional designs were, generally, removed from protection under the law of copyright, unless they were artistic works. (Generally speaking, the circumstances in which a three-dimensional design will constitute an artistic work are fairly limited − examples of three-dimensional articles that would qualify as artistic works are works of artistic craftsmanship, sculptures or engravings.) In the case of artistic works, the period of protection is broadly:
  • the life of the author plus 70 years; or
  • for artistic works which are made by an industrial process (which applies where more than 50 articles are made), 25 years from the end of the year in which the relevant article was first marketed (section 52, CDPA; see Permitted Acts).

Section 236 of the CDPA provides that, where copyright and design right subsist in a work, it is not an infringement of the design right in the work to do anything that would infringe the copyright in the work. Effectively, this means that where copyright and design right both subsist in a work, copyright is the IP right which has to be relied on.

See box, Copyright, registered designs and design right: a practical comparison for a comparison of how the law of copyright, registered designs and design right apply in practice.