What are the differences between copyright protection and industrial design protection for designs?

In some countries, the applicable law recognizes copyright protection for certain designs, for example, in the design of textile and fabrics.

In many countries you may obtain cumulative protection, (i.e., copyright protection and industrial design protection) which can exist concurrently for the same design, while in a few countries, the two forms of protection are mutually exclusive.

The first step before taking any decision on how best to protect your design is to understand the differences between these two forms of protection. Some of the main differences are outlined below:

Registration

• Under industrial design law the industrial design generally needs to be registered by the applicant before publication or public use anywhere, or at least in the country where protection is claimed. The registration certificate, provided by protection under industrial design law, may prove useful in cases of infringement, as it provides a more solid basis from which you may enforce your exclusive rights.

   

• Copyright in works considered to be original subsists without formalities. While registration is not necessary for protection, copyright depositaries exist in some countries where you may deposit your design and obtain a certificate.

Duration

• Industrial design protection generally lasts for a period that varies between 10 and 25 years depending on the country where protection is sought. It must also be borne in mind that the process of registration of industrial designs may take some time, and may not always be adequate for products that are linked to passing trends (e.g. fashion products).

   

• Copyright endures in most countries for the life of the author and 50 or 70 years after his death.

Scope of protection

• The right conferred by registration of an industrial design is an absolute right in the sense that there is infringement whether or not there has been deliberate copying.

   

• To enforce rights under copyright law, the copyright owner must prove that the allegedly infringing work is a direct or indirect reproduction of the work protected by copyright.

Types of products

In most countries, not all designs can be protected by copyright but primarily those that may be considered as works of art. While the distinction may not always be clear, some designs, such as the shape of manufactured products, are unlikely to be protectable under copyright law, while others, such as textile designs, are often covered by both forms of protection.

Costs

Registering your design in the countries you are interested in means that you will have to pay the applicable fees. In addition, it may be useful or necessary to use the services of an IP agent to assist you in drafting the application, which will incur additional costs.

Given that no formal registration of works protected by copyright is required by most national copyright laws, there are generally no direct costs relating to copyright protection. However, there may be costs related to (a) the deposit of the work at the copyright depositary, in countries where it exists, and (b) demonstrating proof of ownership in case of disputes.

In summary, while the protection granted by registered industrial designs is stronger in that it covers even unintentional infringement and provides a registration certificate which may be an important proof in case of infringement, it involves more effort (financial and administrative) because it requires registration, and is shorter in duration.

In any case, and particularly if the design is not registered, it is generally advisable to keep good records of every step in the development of the design. Signing and dating each sketch, and properly archiving them, may help in case of infringement.

Example: In a recent survey of fabric designers in the United Kingdom, 80% of respondents said they always kept a record of their original design documents and were aware of their importance for proving copyright ownership.

 (Source: www.wipo.int)