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Copyright in products
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Many businesses do not realise that the shape and configuration
of a product or its packaging or promotional material can be the
subject of rights under the Copyright Act.
Copyright can only be relied upon to protect against copying -
it does not confer a monopoly. Thus copyright cannot be used to
prevent the production of similar works created by someone else
having no connection with the original copyright work. The onus is
on the plaintiff to prove actual copying. Furthermore, copyright
only relates to the form, expression and appearance of a product.
It does not relate to the underlying idea of the product or its
principle of operation. Patents alone can protect ideas and
principles of operation.
A registered design is essentially a registered form of
copyright. The advantages of a design registration are that it
confers a monopoly, ownership of the design is readily proved, and
it is no defence to claim that the design was not actually
copied.
Copyright should therefore be used only as a secondary line of
defence for innovators who have been unable to obtain patent or
design protection for their product.
Additional Protection
All copyright works and products derived from them should be
marked with the international copyright symbol ©, the owner's name
and the date of creation - eg: © James & Wells 2009.
This marking acts as a deterrent to would-be copiers. It may
also make claiming damages in a copyright infringement action more
straightforward, as the defendant would have difficulty arguing
that the infringement was innocent and the existence of copyright
was unknown to them.
Term
In general, copyright in the design of a product lasts for 16
years from the date the design is industrially applied to
products.
Copyright subsisting in drawings contained in patents and
registered designs ceases when the patent or design registration
ceases.
Licences
The rights of a copyright owner may be readily licensed for
others to use.
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