In principle, copyright on design is quite simple.
You who create works have the exclusive right to dispose of your artistic works! In Denmark, a set of rules and regulations have been drawn up with guidelines for what is allowed and not allowed when it comes to the right to a “work”, namely “Order on copyright law.” Copyright in design gives you exclusive rights to make copies of the work, and the exclusive right to publish and make the work available to the public.
This can be done, for example, through sales, rental or public release, thus ensuring you recognition and financial returns. If someone infringes on your work, please note that you have the copyright and that it is you who decides what to do with your work. And it is here that the difficulties can arise. Enforcing copyright on design can be a maze paved with obstacles and huge financial and personal costs.
Let’s get the concepts under control. Immaterial Rights or intellectual property is a common term for the protection of intellectual property. The protection of intellectual property rights is statutory. Different laws exist for the various protections that are protected. These laws are often referred to as the exclusive laws, and have certain structural features in common. These are copyright law, patent law, utility model law, design law and trademark law. In addition, there is some protection in the Marketing Act.
COPYRIGHT ACT has a wide scope of protection, in which works such as novels, poems and short stories, and professional literature such as articles and textbooks, film works, TV shows, plays, musical works, artworks, photographic works, graphic material and illustrations, paintings and drawings, video games, utility games , industrial design, software, construction and architecture, choreography, are covered. Works that cannot be protected by copyright may protected by design law, and vice versa. Certain things can be protected by both copyright and design rights.
PATENT ACT provides exclusive rights for the commercial exploitation of an invention. The invention must be new in relation to everything that is generally known on the day of application, the inventiveness of the invention, which means that the invention must differ significantly from what is known technique on the day of application and then the invention must be able to be used industrially.
THE UTILITY MODEL ACT provides exclusive rights for commercial exploitation of an invention. A utility model is basically similar to a patent. A utility model registration provides rapid and inexpensive protection of technical inventions. It is possible to convert a utility model application to a patent application.
What is protected by copyright on design?
THE DESIGN ACT protects product design and appearance for up to 25 years. The designer may prohibit commercial use design that provides the same overall impression as the protected design. The protection covers the entire visual impression of the design ie. lines, contours, colors, shape and structure.
THE TRADEMARK ACT protects the special name or characteristics that traders use to market themselves or their products and services. The most common trademarks are logos, company names, product names and domain names, but it can also be a 3-dimensional brand, sound or color.
THE MARKETING ACT provides protection against imitations of products. Competitors may not market a product that is a close or slavish imitation of another product on the Danish market. Gives two products the same overall visual impression, and if the products are confusing, one design is violated by the Marketing Act.
WHAT IS A WORK?
The concept of a “work” is central to copyright where there is talk about level of originality. Level of originality of work is achieved when a work is the result of its own independent creative process. Copyright does not protect an idea as such. Copyright only protects the execution of the idea, that is, the concrete appearance of the work. The quality of a work is inferior. In a dispute, the Copyright Act, the Visionary and the Appraiser and the Judge do not decide whether it is a good or bad work, or the quality of the work, but whether it has a distinctive character of the creator. Copyright is the creator of the work in Denmark 25 – 70 years.
PROTECT YOUR DESIGN
Artistic and literary works such as photographs, paintings, sculptures, music, books and films, receive protection when the work is created. This means that these authors do NOT have to apply for copyright or register the work. According to copyright, Arts and Crafts belong to under the definition Design. Therefore, it is important that you as an artisan protect your work. It is crucial to be able to document your right and stand firm against copies. You should protect your design if:
- You want the exclusive right to use the design.
- You want to sell your products.
- You want to sell the rights or license them to others.
- You will stand stronger if others copy or imitate your design.
TYPES OF RIGHT
Which type of right is for you?
- INVENTIONS If your idea is an invention that has a technical solution, you can get exclusive rights to the invention with a patent or utility model.
- NAME AND LOGO If your idea is a new word, name or logo that characterizes your business, you may have the exclusive right with a brand.
- DESIGN If your idea has a special design or look that you want to defend, you can get exclusive rights to the design with a design protection.
It is a common misconception that one can change some details of an existing design to create a legal distance to the competing product. This is not correct. A copy product still violates the original design if the parent elements of the original can be found in the copy.
By registering your design with the Danish Patent and Trademark Office, you can protect your product’s design and appearance for up to 25 years. The protection covers the entire visual impression of the design ie. lines, contours, colors, shape and structure. If others infringe your design, it is possible through the court to ban the manufacture, sale, import or rental of the same or similar products.
In addition, through the court you can be awarded compensation for your loss. Within the EU, it is possible to protect designs in all 28 member states with just a single application. In order to get protection / copyright on design, your design must be:
- NEW You cannot protect your design if a similar design has been previously published.
- SPECIAL To protect your design it must have individual character. This means that the overall impression must differ clearly from the design of other known products.
Strengthen your copyright on design?
How can you, in different ways, practically and prospectively, secure your copyright as best as possible? You can avoid spending time and money on sight and estimation, lawyer and trial when you have strong evidence that you are the author of your work.
Onø Design advises on strategic use of copyright on design and we use our knowledge of copyright to provide you with unique products that strengthen your business and brand.
Svend Onø – Designer, Survey & Valuation, Expert Judge, Maritime and Commercial Court and Eastern High Court