IP in the creative world – design rights and copyright

As part of our partnership of the 2016 Good Designs Awards, we’re taking a look at how intellectual property relates to your creative businesses and why it’s important to consider protecting your designs. From students to start-ups all the way through to seasoned professionals, understanding the basics of IP is vital.

For most designers, your creativity is your primary product. It’s the foundation of your business and protecting it should be a consideration.  I get the opportunity to work with many creative start-ups, it’s one of the many perks of my job and when I see beautiful and unique work, I always ask ‘what are you doing about your IP?’  Unfortunately the answer I receive is mostly along the lines of ‘oh I own the copyright’.  

Too often, designers believe they have copyright protection for their products and are disappointed when replicas of their work are sold by more established traders. Understanding the many facets of IP (and its limitations) is key to getting the right mix to protect your creativity. With recent media coverage of large corporate entities copying small designer’s work, it should come as no surprise that more and more creative start-ups are taking notice of the value of their IP and seeking information to make informed decisions about IP protection and management. 

So what’s the right IP mix for creative start-ups?

Copyright

The most common IP right is copyright. It’s also the cheapest because it’s free! In Australia, copyright protection is automatic as long as the work is original and falls within one of the categories of protected material such as artistic works, like music, photography or content on a website. Copyright owners are advised to take a proactive approach to claiming their copyright by placing a copyright notice in a prominent place on their work. The copyright notice might include the © symbol, the name of the creator and the year the work was created. This gives others a clear signal that you claim that IP under copyright. 

Design rights

Design registration protects designs which have an industrial or commercial use. A design refers to the features of shape, configuration, pattern or ornamentation which give a product its unique appearance. There are two stages to registering your design. The first is to submit your application and the second is to have your design examined, which is optional. For a design right to be enforceable the design must be both new and distinctive. Unlike copyright, you will need to apply to IP Australia to register the design and, if you wish to enforce your rights, you will need to have your design examined and certified. If your design meets the criteria at examination, you will be provided with a certificate of examination. Design registration provides an initial protection term of five years that can be extended up to 10 years.

The application process should be easy enough if you take the time to educate yourself on the process and requirements; otherwise working with an IP attorney is recommended.  There is one golden rule to remember - do not publish or exhibit your design anywhere before you apply. This means no mention on websites, Instagram, Facebook (or any other social media site), magazines or in exhibitions. Once you start marketing or manufacturing your design, you may forgo any chance of registering the design.

What's the difference between copyright and a registered design?

Let’s look at where copyright stops and a registered design starts. In a nut-shell, if you are designing a functional product, like a cup, chair or handbag, your copyright protection ceases when the product is commercialised or you make multiple copies. From this point, if you have not applied for a registered design, you are unfortunately open to copycats and any opportunity to take legal action will be limited. You will generally be able to rely on copyright protection if you want to protect a 2D design, a ‘work of artistic craftsmanship’, or a design for an item that you haven’t yet started to exploit commercially. The Copyright Council of Australia has a wealth of resources and information sheets available; in particular they have a great information sheet on copyright and industrial designs.

By Casey, IP Australia

Discover more

If you are interested in protecting your design with a registered design right, then start with the design basics section on our website. 

Good Design Festival 2016

This year, we’re partnering with Good Designs Australia for the 2016 Good Design Festival. Taking place at the iconic Overseas Passenger Terminal at Circular Quay Sydney, in the heart of VIVID Sydney – now the world’s biggest festival of light, music and ideas.

We’ll be presenting a keynote address at the Good Designs Exchange, as well as being on the panel for the forum discussion: ‘Who stole my Design – IP and Design Rights Forum’.

Be sure to keep Saturday 28 and Sunday 29 May 2016 in your diary free to attend this exciting event.

Published: 
29 April 2016

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