Copyright, as the name implies, is a right to prevent copying. It covers literary, artistic, dramatic or musical “works”. It arises automatically upon creation, with registration being optional. The protection is for the life of the author plus 50 years. A business brochure is a combination of a literary work (the text) and an artistic work (the drawings, photographs and charts), as is a training or instruction manual. A video or multi-media presentation or website would incorporate all aspects of copyright.
A Design covers the ornamental appearance of a useful article. It must be applied for within a time limit of one year from the date of public disclosure. The protection granted is valid for 10 years in Canada and 14 years in theUnited States. The ornamental appearance protected relates to “features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye”. It is not intended to protect functional features, which should be protected by patent.
(Terminology: in Canada designs are called “industrial designs”; the same designs in the United States are referred to as “design patents”)
Relationship Between Copyright and Designs
There are some items which are both works of art and useful articles. Examples of such items include designer dresses, pottery tea pots and carved wooden clocks. An arbitrary boundary has been made between copyright and design. An artisan who creates a one of a kind item or items in small quantities, remains covered by copyright. However, if the items are made in a quantity of more than 50, the right to rely upon copyright is lost.
To make the matter more complicated, there are some types of works that do not lose their copyright even when produced in quantities of more than 50. For example, a graphic or photographic image can be applied to the face of virtually any article (shirt, hat, coffee mug) without copyright being lost. A similar exception is provided for woven or knitted patterns suitable for piece goods, surface coverings or wearing apparel. A further exception is provided for a representation of a real or fictitious being, event, or place that is applied to an article as a feature of shape, configuration, pattern or ornament.