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Thursday, 16 May 1968

Mr BOWEN (Parramatta) (AttorneyGeneral) - I move:

That the Bill be now read a second time.

This Bill is a companion to the Copyright Bill which I have just introduced. I explained, in the course of my second reading speech on that measure, that it traces out a new borderline between copyright protection and industrial design protection. Honourable members will appreciate that many artistic works can serve as the basis for an industrial design. A painting of a vase of flowers may be applied as a design to chinaware. A statuette may serve as the design for the base of a lamp and be reproduced in quantity for this purpose. It is the function of the designs law to provide a system of protection for industrial designs. That system differs from the protection under the Copyright Act in four ways that are relevant to the present problem.

In the first place, it depends on registration. No protection is given to a design under the Designs Act unless it has been registered. Registration is not a prerequisite for protection under the copyright law. Secondly, a design may not be validly registered unless, at the date registration is applied for, the design is both new and original. A work is protected by copyright, notwithstanding that it is not new, so long as it is not derived from a previous work. Thirdly, design registration confers a monopoly type protection, so that a person who uses a registered design without authority from the owner, commits an infringement whether he copies the registered design or derives the design quite independently. Fourthly, copyright lasts for a longer period than design registration. Copyright in an artistic work lasts for the lifetime of the author and 50 years thereafter; design registration lasts for a maximum of 15 years.

A person who makes an artistic work, intending to use it as an industrial design, gets no copyright protection under the existing law. If the work is not made for this purpose but is subsequently applied as an industrial design, he does not lose the copyright protection which attached to the work when it was made. This system is unsatisfactory in a number of respects. In the first place, the author of an artistic work made for the purpose of applying it as an industrial design has no copyright protection, even though registration of the work as an industrial design may not cover the whole field of possible application of the work. Secondly, third parties cannot easily ascertain whether an artistic work which has been applied as an industrial design is subject to copyright protection, since this may involve an inquiry into the intention of the author of the work when it was made.

A different approach to this question of the borderline between copyright and industrial design is now proposed. In summary, it is intended that the use as an industrial design of an artistic work will not affect the protection of that work under the Copyright Act for purposes other than the use of that work as an industrial design. If the owner of copyright in an artistic work applies it as an industrial design, copyright protection will cease in respect of the field in which the work is applied as a design. At the expiration of 15 years from its first use as a design, copyright protection will cease altogether in respect of the application of that work to any articles for which it might have been registered as an industrial design. If an artistic work is to be applied as an industrial design, and the author of the work wishes to have protection in respect of that use of his work, he should obtain registration under the Designs Act. The purpose of this is twofold. In the first place, design protection lasts only for 15 years from the date of first registration. The limited protection given to industrial designs is intended to stimulate inventiveness in the design field and the development of new designs. Secondly, it is intended that the public should be able to know, by searching the Register kept under the Designs Act, what may or may not be used as an industrial design.

A design can be validly registered under the Designs Act only if it has not been published before the date of registration. Unless some change is made in the Designs Act, therefore, the new copyright law would put the owner of the copyright in a published artistic work in a dilemma. If he applied his work as an industrial design, he would lose his copyright protection in the field in which it was so applied. On the other hand, he could not register it as an industrial design because it had become known to the public. This Bill provides the following solution to this dilemma. The owner of the copyright in an artistic work may register it as an industrial design under the Designs Act. The validity of his registration will not be affected by any previous publication of the work, but he must apply to register it before he uses it as an industrial design. If he does not do so, he cannot get a valid design registration. Furthermore, so that the copyright owner may obtain maximum protection under the Designs Act in the application of his work as an industrial design, the Bill also provides that the registered proprietor of a design may subsequently register it in respect of additional articles. The subsequent registration, however, endures only during the life of the original registration. These provisions could lead to the situation where design registration would last beyond theperiod of copyright protection. For example, a photograph is protected under the Copyright Act for 50 years from first publication. If that photograph were registered under the Designs Act, 40 years after publication, for application to plates, the design registration could last for 15 years; that is, beyond the lifetime of the copyright in the photograph. Clause 8 of the Bill therefore provides that in such cases the design registration is deemed to expire when the copyright expires.

The Bill makes a third change to the present designs law. It is intended to exclude from the registration under the Designs Act designs for articles which are primarily literary or artistic in character. Clause 5 of the Bill empowers the making of regulations to provide for this exclusion. It is intended to exclude from registration under the Designs Act works of sculpture, other than casts or models which are used or intended to be used for patterns to be multiplied by the industrial process, wall plaques and medals and printed matter primarily of a literary or artistic character such as greeting cards, postcards, stamps and the like. The purpose of excluding these articles from design protection is to make it clear that copyright protection is not lost by reproduction of an artistic work in these fields. I commend the Bill to the House.

Debate (on motion by Mr Connor) adjourned.

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