To start with, the main divisions of the intellectual property rights are: –
- Trademark rights which are available for name, shape, logo etc.;
- Copyright which is available for artistic creative works in art, literary, music etc.;
- Patent that grants monopoly to use and exploit a particular product or process for a certain period; and
- Designs rights which gives protection for the 3D objects like cutlery, trade dress, motifs and patterns on fabric/ceramic etc.
Copyright
This means that the owner of the intellectual property has complete rights over it, and no other person can copy it directly. Copyrights law protects the original content of the owner from being infringed or duplicated. An original work is when, the owner, with his own thoughts writes a content, void of duplication. This type of work is known as an Original Work of Authorship (OWA). Any person with his original work, done by his intellect, has a copyright automatically. But the owner can get it registered if he wants to, so that there would not be any legal problems in the future.
Although copyrights, trademarks, and patents are frequently used interchangeably, they offer different forms of protection for intellectual property.
For the copyright in Australia, it is an automatic process, i.e. you do not have to apply for copyrights protection like in India. It gets protected as soon as it takes a physical form. However, it is necessary to understand that one cannot protect mere ideas. It has to have a tangible form to protect it.
Once it is protected, one has to get the author’s authorization to reuse it, else, it is called infringing the owners right. But it is necessary that for infringing the owners right, the person should have used a substantial part of it. Every rule has an exception, so does this. One can use these without the consent of the owner for the following purposes:
- As a study material
- Criticism of the owner’s view
- Reporting to media, etc.
It is also important to make sure that, the content material should be fair, the degree of which differs from case-to-case.
Protection in copyright is granted from the moment it is created.
Design protection
This includes making, offering, putting on the market, importing/ exporting a particular design that can be used only after the authorization is given by the owner of the design.
Once you create a design that meets the needs of the person who asks you for the design, then, such a plan can be implemented/ executed, only after the registration of such.
As per Indian Law, under the Design Act of 2000, Industrial Design protection is a type of intellectual property right that gives the exclusive right to make, sell, and use articles that embody the protected design, to selected people only.
The pre-requisites for a design to qualify for protection are as follows:
- It should be novel and original.
- It should be applicable to a functional article.
- It should be visible on a finished article.
- It should be non-obvious.
- There should be no prior publication or disclosure of the design.
Designs have the shortest term of 15 years–10 years further extendable to another 5.
Say, you write sown a tune of your own, with your own intellect, and you protect it under Copyrights Act of 1957. But later, you upload it, or use it for some other purpose, and many people listen to it and use it, then it loses its copyright and comes under the realms of design law.
It was held in the case of Samsonite Corp vs Vijay Sales[1] that once an object has been sold in over 50 units, the only protection is under the Designs Act. The design sought for protection must be new or original, i.e., not disclosed to the public in India or elsewhere in the world by prior publication or by prior use or in any other way. Furthermore, the design shall not include any scandalous or obscene matter or any feature that is purely functional in nature.
Differences
- Copyright is an automatic right which protects original literary, dramatic, musical and artistic works. A Design right protects the visual appearance of an object or part of an object.
- A bare perusal of the Copyright Act, 1957 (“Copyright Act”) would reveal that a copyright subsists is any original work which grants the author an exclusive right over such work. The Designs Act, 2000 (“Designs Act”) defines a design as an external feature that is applied to an article and judged solely by the eye.
- Protection under copyright starts when the work gets a tangible form, but only when the design is registered it is protected.
- Copyright is an inherent right, whereas the design is a statutory right.
- An owner of a design will have to forego protection under copyright law, once the design has been granted registration.
A case in Delhi High Court[2] held that that a copyright in an unregistered design shall cease, as soon as the article to which the design has been applied, has been reproduced more than fifty times by an industrial process.[3]
“The views of the authors are personal“
Reference:
[1] 73 (1998) DLT 732
[2] Ritika Private Limited v Biba Apparels Private Limited MANU/DE/0784/2016
[3] Section 15(2) of Copyrights Act, 1957
