Is copyright protection sufficient for my new product?

Now you have developed a brand new product – and you are prudent enough to mark the product with the words “Copyright 2012 – All rights reserved” – but then you wonder, “Is this really enough to protect my new product from someone who tries to copy it?”

It is true that the Copyright Act 1968 (Cth) gives automatic copyright protections of the broad categories of materials that fall within the meaning of “artistic works”. They can be “paintings, sculptures, drawings, engravings and photographs”, “building and models of buildings” and “works of artistic craftsmanship”. Engineering and design drawings, architectural plans, models and design prototypes can fall within these categories, and can therefore be protected by copyright even though they exist purely for utilitarian purposes. However, the Copyright Act contains provisions that are intended to prevent dual protection under designs and copyright law. Therefore, where something is, or could be, registered as a design, and is intended to be mass-produced, then the protection under the copyright law is very limited.

Under the Designs Act 2003 (Cth), a design is defined as “the overall appearance of a product, which includes the shape. configuration, pattern and ornamentation which, when applied to the product, give it a unique appearance”. Therefore, the protection of “design” under the Designs Act is not confined to the visual designs of items, such as clothing, furniture, ornaments or jewelleries. The protection extends to more purely functional articles in an item, such as, industrial parts, that are embodied in an item.

In many cases, if you need a protection for functional or mass-produced items which are “industrially applied”, you will need to consider registration of the design under the Designs Act. A design will be taken to have been applied “industrially” if it has been applied to more than 50 articles.

On the other hand, you will generally be able to rely on copyright protection, if your design is a two-dimensional design, or a “work of artistic craftsmanship”, which has both aesthetic appeal and craftsmanship, or a design for an item that you have not yet made commercially available.

While the process of registration of a design is relatively simple, the interaction between design and copyright law is complex. If you are intending to commercialise your new product you should obtain specific legal advice on how to protect it as early as possible. Once you start marketing the product, or even start manufacturing the parts for the product, it may be too late.