Copyright Law and Industrial Design

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Protection For Designs: Copyright Too Expensive to Afford?
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L. Linda Beatrice
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IV Year B.A. LL.B. (Hons.)

NATIONAL LAW SCHOOL OF INDIA UNIVERSITY
BANGALORE

Contents
Introduction3
The Origin of Design and Copyright4
Design Protection: Its Rationale and Incidents6
Doctrine of Separability: Unity of Art and Theory of Disocciation6
The Overlap8
Its genesis and treatment8
A compromise9
Over Protection or Under Protection?10
The Economic Ripple11
Conclusion13
Bibliography14
Table of Cases23

Introduction
The history of intellectual property law represents, in its essence a bargain between the interests of society from being able to utilize and copy innovations, and literary and artistic works, and the interest in protecting the benefit to the creator so as to stimulate further such work. Enactment of copyright legislation was not based upon any natural right that the author has upon his writings but upon the ground that the welfare of the public will be better served by securing to authors for limited periods the exclusive rights to their writings. Property rights represent the principal vehicle for enabling creators and producers to appropriate the value of their efforts. Preserving a delicate balance therefore, is of paramount importance. However, intellectual property rights have, in certain circumstances, begun to overlap and provide simultaneous or sequential protection for some inventive and creative works mainly by accretion rather than design. The traditional channeling doctrines used to determine which area protects a certain interest have had their boundaries blurred, and overlapping areas has become a phenomenon, its most prominent manifestation being the overlap of protection afforded to designs under the design laws and the copyright laws. This paper, by tracing the source and genesis of the rights afforded to industrial designs, the varying nature of the protection afforded and the rationale behind it, will attempt to argue that the conceptual separation between the protectability of copyrightable works and designs necessitates a very strict exclusion of all designs or applied art to be removed from the ambit of copyright protection. By clearing up the confusion surrounding the law of development of designs and the ambiguous nature of the protection afforded which has led to the current status of overlapping protection, the paper will present an overview of its implications and defend status quo.

The Origin of Design and Copyright
Stemming from the age old understanding of property rights and the entitlements carved thereto, the very basis of copyright law is to allow the creator of a work the right to enjoy the fruits of his labour and derive benefit from it. The concept of limitation, however is inherent in it, and it has been universally held that the author / artist of a work cannot enjoy the monopoly forever. This concept of a limited right is of grave importance in this paper, since the development of various strands of law is crucially linked to its limitation. Copyright law then, evolved to bestow upon the creator the right to distribute, to perform, display and to prepare derivative works based upon the copyrighted work and prohibit all unauthorized, economically significant uses of copyrighted works. Copyright law has traditionally had a ‘useful article’ exception. According to the legislative history of the 1976 Copyright Act, the purpose of excluding useful articles from copyright protection was “to draw as clear a line as possible between copyrightable works of applied art and uncopyrightable works of industrial design.” The objective of excluding useful articles was fundamentally linked to the nature of copyright itself, which protected art for art’s sake, the mere expression. The distinctive philosophy of copyright law protection applied only to art,...
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