However, if the creative work heads down the industrial path, copyright protection may be lost, leaving other forms of intellectual property (IP) as alternatives.

The various forms of IP differ considerably in the scope of protection. The practical implications are interesting and sometimes alarming. Because it is a do or die issue, it is worth revisiting Australia’s unusual position on the copyright/design overlap when a two-dimensional design is embodied in a three-dimensional work.

No matter how many times you do the mental gymnastics, the end result seems odd.

• Designer makes sketches of a bagel-shaped ottoman. Don’t let the bagel throw you, it could be anything from a mundane milk bottle to a cartoonish tea-cup-shaped bath. Copyright subsists in the drawing as an artistic work.

• Designer makes a prototype of the bagel ottoman. Copyright subsists in the prototype as an artistic work.

• People love the bagel ottoman concept and it is produced commercially. As soon as fifty ottomans have been made and sold, copyright protection is lost and cannot be enforced anywhere in the world.

• In broad terms, Designer may still have IP protection if she has filed an application to register bagel ottoman as a registered design (this protects the visual appearance but not how the product works) or patent (excludes others from practising the invention but only available if this is a new, useful, non-obvious invention).

• If Designer has not filed for a design or patent before public disclosure/commercialisation, then there is no form of protection to prevent reproductions of the bagel ottoman.

This outcome may not concern you or indeed Designer, but the anomalies in the protection offered by the IP regimes are at least interesting. The lack of adequate protection for three-dimensional items is exemplified by the issue (and fast becoming old chestnut) of replica designer furniture.

The replica practice is huge and an industry in its own right. Traders even compete by claiming that they produce the best quality replica.

Aspirational descriptors such as Herman Miller, Eames, Barcelona chair, Le Corbusier, Harry Bertoia diamond chair, Mies van der Rohe, Arne Jacobsen, swan lounge and egg chair are liberally used by many traders to promote their particular goods.

Of course, these traders have no connection with the real thing and they quietly mention that in a well-crafted, well-placed disclaimer to absolve themselves of any liability to the design houses who still produce and license the genuine and typically expensive article. The savvy ones also take great care to ensure that the brands are not used as trademark.

The rights and wrongs of the modern-classic reproduction industry usually engender passionate philosophical debate. However, the real problem is that this is not confined to big note designers and not confined to purveyors of ye-olde modern furniture and lamps.

The real problem is that that the limitation of protection applies to anything three dimensional in Australia. Further, the problem extends beyond mid-century designs to up-to-the-minute designs.

There are also anomalies as to the duration of protection. Assume Designer does obtain some protection via a registered design for the bagel ottoman. This registration would provide a maximum of ten years to produce the bagel ottoman and rely on the design registration for protection against the copycats.

Curiously, Designer would have much stronger rights creating a fabric pattern for the bagel ottoman. As long as the fabric is purely a representation of two-dimensional features of pattern or ornamentation applied to its surface (as distinct from woven into
or otherwise embodied by the fabric), copyright will subsist in the fabric.

Designer will enjoy copyright protection (and all its wonderful licensing opportunities) for her entire life and her heirs will continue this for a further seventy years following her death. Ironically, unlike other forms of IP, Designer need not take formal steps such as registration in order to obtain copyright protection.

Assume Designer registers BAGEL as a trademark in connection with furniture. If the brand is properly managed such that BAGEL operates as a trademark and is in continuous use, the trademark registration lasts ten years and can be registered indefinitely, provided the registration is renewed.

Savvy traders use the long duration of copyright to their advantage and rely on a suite of IP rights for their armoury.

There are, of course, purveyors of goods featuring big brands, well-known trademarks and copyright works, which also have no connection with the genuine trade source. However, in stark contrast with replica modern furniture, these goods are illegal, their purveyors face criminal penalties and the goods may be subject to seizure and destruction.

Aside from duration, each IP right does offer different protection in terms of scope. However, on the question of whether any protection exists and the duration of protection, three-dimensional articles have a very curious position in the IP regime. 

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