Submission: Enhancing Australian Design Protection  

On 8 August 2023, Arts Law made a submission to IP Australia in response to its Enhancing Australian Design Protection consultation.  

Arts Law submitted that there should be no expansion to the copyright/design overlap under any of IP Australia’s Proposals.  To do so would result in an unfair and unjustified loss of copyright protection for artists. 

What is the IP Australia consultation about? 

Broadly, IP Australia is engaging in consultation on three designs reform issues: 

• Virtual designs: IP Australia has proposed that designs law to provide protection for virtual designs.  Australian design law currently protects designs which relate to the overall appearance of a physical protect. This means that designs law has not protected digital components of physical products, such as graphical user interfaces. It has also not protected purely virtual products, such as products in a virtual reality environment. IP Australia proposals would change this. More information on the proposal can be found in the IP Australia Consultation Paper here. 
• Partial designs: Currently, design law does not provide protection for parts of products, but instead, design law protects the overall appearance of products made in one piece. A designer may develop an innovative part of a product, such as a handle for a cup or mug, or furniture leg. That may then be used across multiple products. IP Australia has proposed that design protection be available for partial designs. More information on the proposal can be found in the IP Australia Consultation Paper here. 
• Incremental designs: IP Australia acknowledges that designers often change their design following prototyping, testing and customer feedback. Designers face a difficult decision about when in their design process they should apply for registration. IP Australia seeks feedback on proposals that would allow a designer to make incremental improvements to a design before registration and after registration.  More information on the proposal can be found in the IP Australia Consultation Paper here. 

What submissions did Arts Law make?  

An issue that regularly affects Arts Law’s clients is the copyright/design overlap. Artistic works that may be both protected under copyright and may be registered as a design. The copyright/design overlap limits the copyright protection available to artistic works. Where an artistic work has been made into a three-dimensional product, mass-manufactured and sold commercially, it is no longer an infringement of copyright for someone else to make that product.  The artist is effectively limited to design protection for the product.  

Arts Law has previously advocated for the copyright rights of artists, submitting that the copyright/design overlap provisions unfairly burdens artists.  General reform of copyright/design overlap was not part of IP Australia’s consultation.   

Arts Law’s submission to IP Australia focused on the copyright/design overlap in the context of the IP Australia Proposals. In summary, Arts Law submitted that the law currently draws a distinction between two dimensional and three-dimensional products. The overlap applies only to embodiments of artistic work in three-dimensions. Any virtual design or partial design amendments should maintain this distinction and there should be no expanded loss of protection for artists under the copyright/design overlap. Copyright protection is a powerful tool for the protection of artists. Any changes to design law should enhance, rather than stifle, design innovation.  

You can read the complete Arts + Law submission here. 

What is happening next? 

IP Australia is currently considering the various submissions which have been made. It will then report to the Government on the outcomes of its consultation. The Government will then decide what it would like to do, which may be to propose legislation or engage in further consultation. 

Do you need help with designs or copyright? 

If you would like to advice on whether IP Australia’s design reform proposals impact you and your art or design practice, or if you would like some advice about designs or copyright, please reach out to Arts Law.  You can submit a legal query to Arts Law here. You may be able to receive free legal advice from Arts Law if you are an artist, or low cost advice if you are an arts organisation.