Design creations are creator's intellectual properties that should be protected properly. Some of the design works are incorporated into commercial articles and produced in industrial process. By juxtaposition of thetwo types of intellectual property rights (IPRs) closely related to industrial design —copyright and registered design, this article will discuss similarities and differences with regard to the two IPRs.
Introduction of copyright
and registered design
Copyright is a right for protection of original works. According to the Copyright Ordinance (CO), the right subsists in literary, musical, dramatic, artistic works, as well as sound recordings, films, broadcasts or cable programmes, and the typographical arrangement of published editions. In addition, copyright does not protect any intangible idea per se but the expressive form of the idea in which the idea is embodied in a particular medium of expression. As copyright is an automatic right, it arises upon the creation of a work. In Hong Kong, there is no registration procedure for copyright, whereas in China, a copyright can be officially registered. Copyright law in Hong Kong does not require a work to have aesthetic value or being creative as originality weighs more for copyright.
Registered Design covers shape, configuration, pattern or ornament applied to an article by any industrial process, as stated in the Registered Design Ordinance (RDO). The owner of a registered design has exclusive right to prevent others from making, importing, using, selling and hiring the design product. Compared with patent which can protect functional features of a product, registered design protects the appearance of the product. The features being protected in the finished article should be judged by the eye. A registered design is required to be repeatable for industrial-scale reproduction. In other words, a design is deemed to be "applied industrially" when the number of articles being manufactured is more than 50 and the articles are not handmade.
Apart from the above, there are differences between copyright and registered design in various aspects:
Nature of Right
As mentioned, copyright is an automatic right whereas registered design only subsists after registration. Copyright emphasizes originality whereas registered design emphasizes novelty.
Duration of Rights
The copyright subsists from the completion of work until 50 years after the author of the work dies. On the other hand, registered design in Hong Kong can at most lasts for 25 years from the filing date while design patent in China lasts for 15 years from the filing date.
Protection Scope
Copyright can merely protect an original work against copying and it is not a monopoly right, whereas registered design protects a design product by giving exclusive right against another independent creation not substantially different from the registered design.
Overlap of Copyright and Registered Design
From the above, it is conceivable that the scope of subject matters of copyright is boarder than that of registered design. Copyright almost covers all types of original creations. One overlapping subject matter of copyright and registered design is artistic work.
Pursuant to Section 5 of CO, artistic work includes:
(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality;
(b) a work of architecture being a building or a model for a building; or
(c) a work of artistic craftsmanship.
Accordingly, artistic work encompasses common forms of registered design such as design drawings which belong to graphic works.
Pursuant to Section 87 of CO, copyright protection of an artistic work incorporated into industrial articles can last for 25 years from the first marketing date of the articles if the work is a registered design and 15 years if the work is unregistered.
Knowing that copyright subsists automatically in some designs, someone may ask if it is worth it registering a design, especially considering that a registered design can at most last for 25 years from the filing date, which is much less than the protection term of copyright.
Nevertheless, copyright can only do good against copying but not an independent creation. As mentioned above, the burden of proof for copyright enforcement is higher compared with that of registered design. A significant advantage having design of artistic work to be registered is for swift enforcement of right. On some occasions such as in exhibition, the owner of registered design can effectively stop the infringing exhibit being shown in the exhibition. If the owner would like to register his design, it should be done before disclosure of the design to the public. Besides, if the creator of an original work wants copyright to show its value, it is recommended to keep all the drafts labelled with the dates, illustrating process of the creation, which can be crucial for proving the subsistence of the right in the count of proceedings.
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