Design Rights

DESIGN RIGHTS
History
Copyright, Designs and Patents Act 1988 (CDPA 1988)
- conversion damages were available for copyright infringement.
- In 1988, they were abolished for copyright infringement because they were
felt to be too extensive.
- Specific protection for design has existed since the 19 th century; however, the
original protection was only provided after registration of the design, was
short term and required novelty and originality.
- This made the protection offered too restricted and awkward for many
industries.
Registered Designs Act 1949 (RDA 1949)
- Attempts were made to avoid an overlap between copyright and the provision
for registered design.
- these failed in their purpose, reaching the anomalous position (before the
CDPA 1988 came into force) that entirely functional designs received the full
extent of copyright protection, whereas those with an aesthetic aspect were
confined to the protection of the RDA 1949.
- The disadvantages of this were exacerbated by the inability of either law to
distinguish between competitively necessary borrowing and unfair copying.
Characteristics of design rights (competition; compatibility; and an industrial scale of production )
ARTISTIC COPYRIGHT
- Copyright subsists automatically in a qualifying artistic work which includes
design drawings and models and may extend to the article bearing the design
itself as an artistic work.
- How infringed?
 by indirect copying
 by making a copy of a 3D copy of a 2D work and vice versa
 Allows for the possibility of infringement by reverse engineering
(studying an article in order to recreate manufacturing drawings)
Direct copyright infringement

 occurs when a person, without your permission, uses or authorises any
act comprised in your copyright.
This can occur through 3 fundamental ways.
 Substantial reproduction of copyrighted material. For instance
copying someone’s entire article onto your personal blog without
permission.
 Unconscious copying. Unfortunately, you can still directly
infringe on copyright without intending to do so.
 Authorising copyright infringement. This occurs through
enabling others to infringe copyright. For instance, bulk
reprinting of someone’s article without their permission.
 A common example which many people may relate to is through
torrenting and streaming content. The actual creator of the torrent who
enables others to download is directly infringing on copyright.
However, the individuals who are downloading the content from the
torrent source are also infringing the author’s copyright. This is
because when you download a torrent you are also uploading parts of
the torrent for others to download. Consequently, authorising copyright
infringement.
Indirect copyright infringement

 By contrast, indirect infringement occurs where a person deals with
materials that infringe copyright, rather than copying the work
themselves.
 Using the example of someone else’s article, copying the article in the
first instance would be direct infringement. However, selling the article
would be an indirect infringement on copyright.
 Indirect infringement can even occur if a venue is allowed to be used
for an infringing public performance. This is important to note as
changing the medium through which work is presented can still infringe
on copyright.
To reiterate, direct copyright infringement involves the actual copying of work.
Comparatively, indirect infringement involves dealing with an object which infringes on
someone’s work.
To ensure you don’t fall victim to someone infringing on your copyright be sure to
protect your work. One way to protect your intellectual property is by creating an
intellectual property agreement.
How to avoid copyright infringement

- A common misconception is that changing a work by 10% or more is
sufficient to avoid infringing on copyright. This isn’t true and doing this can
make you liable for infringement.
- One important consideration to have is to use caution if it isn’t your own work.
Consequently, if you do find work you wish to reproduce or copy that isn’t
yours make sure to thoroughly read the licensing or permission terms. These
can be confusing to understand so if you’re unsure, make sure to minimise
your own risk and contact a copyright lawyer.
- Another tip to avoid infringing on copyright is to seek an exception. One
exception is fair use which can allow the use of a creative work if it’s for
educational or non-commercial purposes.
3 Views of Interpretation – ARTISTIC WORK

1st view – Because designs for an artistic work fall outside the section’s ambit, by
implication of law, artistic ‘quality’ will be relevant to “a work of artistic craftsmanship”
(Sec. 4(1)(c)) of the CDPA 1988, although it is not clear whether this is a reference to
the merit of work, or its nature. Should the design document be for a work falling within
the following: (a graphic work, photograph, sculpture or collage, irrespective of artistic quality) this may not
preclude consideration of the artistic nature of the work.
2nd view – Uncertainty whether a design document has been made ‘for’ an artistic work.
- Case example: A cartoon drawing was made for public in a comic strip but
subsequently merchandised as a toy.
- Issue: Would the original cartoon drawings be regarded as a record of a
design made for the toy?
- Distinction between ‘copyright drawing’ and ‘design document’
- Either the artist’s intention in making the drawing will be considered asking
whether the article is an artistic work or an industrial article.
TEST
1. If a test of intention is adopted and full copyright protection is awarded to
the cartoon drawing, then:
 Any subsequent industrial application from an artistic work will be
subject to the reduction of copyright term imposed by Sec. 52 of the
CDPA 1988.
 What is the duration of copyright protection? In the
Philippines, copyright protection for artistic, literary and
derivative works lasts during the lifetime of the author plus 50
years after the author's death. This term of protection also
applies to posthumous works.
 Subjective Intention or Objective Intention? (Unclear)
Subjective intent refers to the actual state of a person's mind, as
opposed to objective manifestations of his or her intentions.
Objective intention occurs only if the words used in the contract
are known by both parties.
 ‘Surface decoration’ has been excluded from the definition of design.
 While this would appear to remove two-dimensional decoration
from protection under s 51 of the CDPA 1988, it remains to be
seen whether this will be extended to decorative three-
dimensional designs, such as the grooves applied to the seats
and backs of garden chairs in Sommer-Allibert v.Flair Plastics
(1987).
 The statement of novelty claimed all the features of
shape and configuration of garden chairs, but they ran in
different directions. The Court of Appeal held that the
grooves were features of shape and configuration, rather
than pattern and ornament and, although without the
grooves the chairs were markedly similar, the differences
in the grooves made the two designs substantially
different.
Definition of Terms:
Rights – these are legal, social, or ethical principles of freedom or entitlement
embedded with the fundamental normative rules about what is allowed of people or
owed to people according to some legal system, social convention, or ethical theory.
Copyright – the legal protection extended to the owner of the rights in an original work.
“Original work” refers to every production in the literary, scientific and artistic domain.
Copyright Term - the length of time copyright subsists in a work before it passes into
the public domain. In most of the world, this length of time is the life of the author plus
either 50 or 70 years.

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DESIGN RIGHTS

Characteristics of design rights (competition; compatibility; and an industrial scale of production )

Direct copyright infringement

Indirect copyright infringement

How to avoid copyright infringement

3 Views of Interpretation – ARTISTIC WORK

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