Copyright
7. Copyright & IP Protection
Last updated: 10 Jul 2015
- Copyright is an unregistered right in Australia unlike patents, designs and trademarks. It is not possible to register copyright in Australia and copyright automatically exists upon creation of the works.
- Copyright law protects against unauthorised copying of a copyright work. It does not protect the idea embodied in a copyright work only the way in which that idea has been expressed.
- It differs from patents that protect ideas and functionality. It also differs from trademarks that protect signs as to the origin of products and services.
- Copyright in relation to artistic works is perhaps the most similar to registered designs which protect visual features claimed in the design.
- Certain creations may be eligible for dual protection if they qualify both as 'artistic works' under the Copyright Act 1968 (Cth) and are registrable as designs under the Designs Act 2003 (Cth).
- An example might be the visual appearance of a lamp which may be registered as a design while the drawing of the plan for the lamp is also an artistic work protected by copyright.
- Australia has an unusual position on the copyright or design overlap when a two dimensional design is embodied in a three dimensional work. Copyright protects an artistic work. If the creative work heads down the industrial path copyright protection may be lost and the product must be registered as a design in order to enjoy IP protection.
- The laws relating to copyright or design overlap in Australia are complicated and require careful analysis in relation to each creation. If you think you may need legal advice you can use our free Find a Lawyer directory to contact an experienced intellectual property lawyer near you.
- Some general principles are:
- a copyright owner who registers a design corresponding to the relevant artistic work where that design relates to the three-dimensional shape of a product will be prevented from enforcing their copyright against infringers and must rely on design law;
- a copyright owner who registers a design corresponding to the relevant artistic work where that design relates to the two-dimensional pattern on a product such as a wallpaper design will retain their copyright protection in the artistic work and potentially achieve dual protection; and
- a copyright owner who treats the relevant artistic work as industrial property and mass produces objects using the corresponding design will be unable to enforce their copyright unless the work is one of artistic craftsmanship in which case copyright will still be enforceable.
- Periods of protection are as follows:
- 70 years after the creator’s death for copyright;
- up to 20 years for patents or up to 25 years for pharmaceutical substances; and
- 10 years for registered designs.
- Trademark registrations are in force for 10 years and provided a mark is used and the registration is renewed the rights can exist indefinitely.
- In addition to the complicated design overlap described above copyright may subsist in conjunction with other intellectual property rights. For example:
- a logo trademark may, in addition to trademark rights, comprise copyright in the image as an artistic work; and
- software that may comprise part of a patented process or product may also comprise copyright in the code as a literary work.
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