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  3. Protecting Australian Indigenous art
  4. Background information
  5. Mechanisms for protection in Australia
  6. Designs Act
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Designs Act

Under the Designs Act a person may register a design with Intellectual Property Australia to protect the visual appearance of manufactured goods. The registered owner has the exclusive right to use the design to gain a marketing advantage and prevent others from commercially exploiting the design or a design substantially similar in overall appearance to the registered design without permission.

This Act is not centrally relevant to the protection of original artistic works but it offers more extensive protection than the Copyright Act for a work that is applied as a design to a product. The Act grants an absolute monopoly to an owner of a registered design in relation to the making and commercial exploitation of the design.

A design can only be registered in relation to a product. A product is anything manufactured or handmade. Visual features such as shape, pattern and colour can be registered as a design. The fact that a visual feature also serves a functional purpose such as an interesting shape for the handle of a teapot does not exclude it from being registrable. Registration requires lodgement of an application and payment of a fee. On registration the design owner obtains title to the design. A registered design is considered personal property and like copyright, it can be licensed or assigned to another person.

To enforce your design rights against someone who infringes your design, the Registrar of Designs must examine your design and find it valid. The Registrar must be satisfied that the design meets the innovation threshold of being new (not identical) and distinctive (not substantially similar in overall impression) when compared to pre-existing designs that were known worldwide or used in Australia before the date the design application was lodged. If you intend to register a design it is important not to publish it or commercially use it before lodging the design application as this would have the effect of destroying the newness or novelty of the design. Because many Indigenous designs are traditional, following pre-existing themes that have been developed over centuries, they might not meet this novelty requirement.

Once a three-dimensional design such as a design for a ceramic vessel or woven object is registered, it loses any copyright protection it may have had. As mentioned above, two-dimensional designs such as a pattern applied to a textile or image printed on a T-shirt are eligible to have both copyright and design protection at the same time.

The Designs Act might offer some protection for Indigenous artistic works and designs that are commercially applied. However, the total possible period of protection is for 10 years from the date that the application for registration is lodged. Many Indigenous people would maintain, on the other hand, that their traditional rights to Indigenous designs exist in perpetuity.

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