On 7 May 2015, the Advisory Council on Intellectual Property (ACIP) released to the public the Final Report for its Review of the Australian Designs System after having reported its findings to the Federal Minister for Industry and Science, the Hon Ian Macfarlane MP, in late March 2015.
Among other things, the Executive Summary states that:
- “ACIP sees a clear need for increased harmonisation with international practices and treaties…”;
- “There is a clear scope to improve design protection and clarify the law…”; and
- “ACIP sees benefits in… improving consistency between designs and copyright legislation”.
As expected, ACIP recommends addressing anomalies in the Designs Act 2003, commencing an investigation into the implications of joining the Hague Agreement (a system administered by WIPO that aims to streamline international design registration) and an extension of the term of protection for registered designs to 15 years if Australia does join.
Importantly for Arts Law’s clients, ACIP also recommends that steps should be taken to make section 18 of the Designs Act consistent with the overlap provisions of the Copyright Act 1968.
Interestingly, ACIP also recommends no change to the design system to respond to 3D printing and scanning technologies at this time.
As discussed by Arts Law here, the copyright/design overlap provisions limit copyright protection for artistic works which are also designs for mass-produced products. ACIP notes that the current copyright/design overlap provisions are “contentious and unsatisfactory” and have led to difficulties in the case law. However, ACIP states that it is not in a position to make any significant recommendations concerning reform to the provisions because its remit is confined to the Designs Act and there was little consensus among stakeholders in relation to how to amend these provisions.
ACIP did however summarise those submissions that provided detailed arguments about the overlap provisions, including Arts Law’s submission – see Part 2.6 of the FInal Report (page 34).
Although not prepared to make broader recommendations for wholesale reform of the copyright/design overlap, ACIP agreed that inconsistency between the Designs Act and the Copyright Act was unsatisfactory and ought to be remedied. Arts Law looks forward to greater clarity concerning the copyright/design overlap provisions and the implementation of ACIP’s other recommendations.
For more information:
- about the ACIP review, read Arts Law’s submissions to the Issues Paper and Options Paper.
- about how designs law can protect your work, see Arts Law’s “Protecting your designs” information sheet and the Australian Copyright Council's “Designs for Functional Articles” information sheet.
- about the copyright/design overlap provisions, read Arts Law's “Copyright for designers – why do they miss out?” article.
 Advisory Council on Intellectual Property, “Review of the Designs System Final Report”, March 2015, page 8.
 Ibid, page 10.
 Ibid, page 11.
 Ibid, page 33.
 Ibid, page 35.