The issue of the relationship between copyright laws and design laws (or as they are called today “design laws”) often arises in relation to the shape of products. The basis of the distinction between the laws lies in the purpose of each law. The purpose of copyright law is to protect works of art such as paintings, sculptures, diagrams, photographs and other works such as literary, dramatic, musical and architectural works. The purpose of design laws is to protect the visual form of products when the protection is on the aesthetic elements of the product and not on functional elements that are required to use it.
Terms for copyright protection for designs
In order to protect a work by copyright, it must meet two minimum conditions listed in Section 4 of the Copyright Law. First, the work must be original, that is, its source must be the creator and no special creativity is required on his part in this regard. Second, the work must have a physical fixation, for example the recording of the musical work or the painting of the artistic work.
On the other hand, my design eligibility conditions are a bit stricter. First, according to Section 6 of the Designs Law, the design must be new, that is, be fundamentally different from all the designs published in the world, whether they were registered in an official register or not. Second, according to Section 7 of the Designs Law, the design must be of a unique nature, creating a different general impression on the user from the general impression created by another published design.
In contrast to the minimum originality condition, the innovation condition is more difficult since it requires a substantial difference from any published design until the design registration application is submitted. On the other hand, the requirement of originality does not exclude copyright protection for a work that is substantially similar to another work as long as both works originate from their creator. Therefore, the protection conditions in design law are stricter than those in copyright law.
The obligation to register in copyright law for designs
Copyright laws do not condition their protection on the registration of copyright in the registry except for a small number of countries that allow copyright registration such as: the United States, Russia, China, France, India and Japan. In the other countries, the protection of the work arises when the conditions of Article 4 are met as detailed above. In any case, it is recommended to deposit the work in a law firm to make it easier to prove the originality of the work and in any case the apparent ownership of it. Our office also handles deposits of this type, you can read more about this option on our website.
On the other hand, the Designs Law establishes a more difficult requirement and waits for the protection of the design to be registered in the registry, therefore registration must be made in any country where protection is desired. However, the new design law added an exception according to which an unregistered design offered for sale to the public within six months of its publication meets the conditions of innovation and is of a unique nature, entitled to protection but for a shorter protection period of 3 years instead of 25 years.
The duration of the copyright protection period for designs
The duration of copyright protection is the longest provided by intellectual property law and is generally granted up to 70 years after the death of the creator (according to Article 38 of the Copyright Law) with several different periods for joint creators (according to Article 39 of the Copyright Law), a work owned by the state (according to Article 42 to copyright law) and the like.
In contrast, the Designs Law entitles protection for 25 years from the date of submission of the application for registration of the design or protection for 3 years from the date of publication of an unregistered design.
Possible models for dealing with the overlapping of laws
Since both religions deal with aesthetic visual elements, there is a tendency to confuse them. The desire to profit is to try to present the design as a work due to the favorable conditions that apply in copyright law in terms of the protection conditions, the registration obligation and the duration of the protection period. There are 3 possible models for the application of the laws:
Cumulative and parallel applicability – if the two laws are compatible, the rights they establish will apply together.
Cumulative and alternative application – the rights are cumulative but the protection is alternative or limited.
Exclusive applicability of one of the arrangements – applicability of only one law.
The model adopted in Israel
Section 7 of the Copyright Law states that if the conditions for the existence of a sample/design are met, copyright law protection will not apply, but design law protection. That is, exclusive application of design laws.
The court’s position supports this interpretation as well. In the judgment Fisher Price Inc. v. Doron – Import and Export Ltd. in which we discussed the law relevant to the protection of a rocking chair on which a painting of a lion is imprinted which, since it has an aesthetic aspect, may seemingly be protected under any of the laws. itself constitutes a design. However, the question was examined as to what the law would be that would apply to a work that is stamped on top of a model. In relation to this matter, Judge Rubinstein established the test of substantial separation according to whether the work can be substantially separated from the object so that it exists separately from it and stands on its own under the conditions of section 4 According to the copyright law, copyright law protection will apply to it. In this case, it was determined that the lion painting can exist separately from the throne and still be seen as a work and therefore copyright law protection applies to it.
Professional support for registration and protection of copyright or design
As a leading firm of lawyers and patent attorneys in the field of intellectual property, our firm has over 30 years of experience in representing over 8,000 clients and great expertise in protecting copyrights and designs of all kinds. The office has a professional team of intellectual property lawyers who provide legal advice to creators and designers both in registering the rights and in legal protection of them in case of infringement.
*The aforementioned in this article and on the website in general should not be considered as legal advice and the things written in it should not be considered as a substitute for individual legal advice, but a personal opinion and/or a general explanation only. Of course, you should not rely on and/or act in accordance with the above without individual legal advice from an attorney
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