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Differences between design rights and copyright
Both designs and copyrighted works are created by humans. What exactly are the differences between design rights and copyrights related to creative works? This article explains the legal differences between the two.
First, we will provide a brief explanation of design rights and copyright.
Design right
- Protection subject: Design
The shape, pattern, color, or combination of these of an article (including a part of an article) (hereinafter referred to as "shape, etc.")
Shape of the building (including parts of the building)
or images (including parts of images, limited to those used for operating a device or those displayed as a result of a device performing its functions)
and which evokes a sense of beauty through the eyes (Article 2, Paragraph 1 of the Design Act) - Protection period: up to 25 years from the date of application
- Time when rights arise: Date of registration of establishment
- Cost: Application fee to the Patent Office: 1 yen per application, registration fee to the Patent Office (for one year): 16,000 yen per application + agent's fee (if requesting a patent office, etc.)
Copyright
- Subject of protection: Works that are creative expressions of ideas or emotions and fall within the scope of literature, science, art, or music (Article 2, Paragraph 1, Item 1 of the Copyright Act)
- Protection period: In principle, up to 70 years after the death of the author
(Works under the name of a group and films are protected for 70 years after publication) - Time when rights arise: Time of creation
- Cost: Free (except when using the registration system, etc.)
Differences between design rights and copyright
We will explain the differences between the two from each perspective.
the purpose
The purpose of the Design Act is to encourage the creation of designs and contribute to the "development of industry" by protecting newly created designs as the property of their creators and facilitating their utilization.
On the other hand, the Copyright Act aims to protect the rights of authors of creative works while paying attention to the fair use of the works, and to contribute to the "development of culture."
Protection target
The subject of protection under the Design Law is limited to designs that "have no identical or similar designs (novelty) before the application" and that "can be used industrially." Therefore, in order to obtain a design right, the design to be applied for must be novel and mass-producible.
On the other hand, the subject of protection under the Copyright Act must be something that "belongs to the scope of literature, academia, art, or music." Specifically, to be considered a "work," it must meet all of the following requirements.
- It must express "ideas or emotions" → Mere data is excluded.
- It must be a "creative" expression of ideas or feelings → Mere imitation of another person's work or mere fact is excluded.
- It must be an "expression" of thoughts or emotions → Ideas, etc. are excluded.
- It must be something that falls within the "scope of literature, academia, art, or music" -> Industrial products, etc. are excluded.
Specifically, examples of works under copyright law include novels, music, art, movies, and computer programs.
For example, even if a design is a one-of-a-kind product, if it cannot be mass-produced industrially, it is not subject to the Design Act. In addition, industrial designs of machines, etc. are not subject to the Copyright Act.
Scope of rights
The effect of a design right extends to "registered designs and designs similar to them." In other words, whether something is an imitation or a coincidence, it will fall within the scope of effect as long as it is similar to the design applied for by the applicant.
On the other hand, even if a work falls within the scope of someone else's copyright, if you create something that is identical or similar to that work by chance, the copyright will not be enforced. If you create something that is not by chance but by referring to an existing work, the copyright will be enforced by others (i.e., "reliance" is required).
Procedures and Costs
To obtain protection under the Design Law, you must file an application with the Japan Patent Office in the prescribed format and obtain registration. There are also costs involved in the procedures from application to registration. In addition, if you ask an agent such as an office to handle the procedures, you will be charged a separate fee for the agent.
On the other hand, protection under copyright law does not require application or registration procedures. Copyright arises at the same time as the creation. In addition, since no application or registration is required, there are no procedural costs.
What you get
Obtaining a design right gives you the monopoly on implementing the design (production, use, sale, etc.) and allows you to seek injunctions and damages from infringers. In addition, after registration of a design right, the contents of the right are published, making the ownership and scope of the right clear.
On the other hand, copyrights are not registered, so disputes often arise over whether a work is a copyrighted work or not. If a creative work falls under the category of a "design," we recommend that you obtain a design registration.
Copyright arises automatically when a work is created. Unlike design rights, rights do not arise through registration. However, there is a registration system under the Copyright Act. Registration is possible only when a work is published or the copyright is transferred.
By utilizing the registration system, it is possible to publicly announce legal facts concerning copyright and to ensure the safety of transactions in the event of a copyright transfer.
Please feel free to contact our office for any consultations regarding the acquisition of design rights or copyrights!
In this article, we have explained the differences between design rights and copyright.
Depending on the future business development using your design, there are cases where you may want to aim for design rights or where you need to consider copyright. In either case, there are various cases where you may need to consider. In order to acquire rights appropriately without spending more time and money than necessary, why not consult with an intellectual property expert?
If you have any concerns about protecting creative works, please feel free to contact our office! Our experienced staff will provide guidance depending on the content of your consultation.
Please note that design rights cannot be registered for designs that have been made public, so if you wish to obtain a design right, please contact us before making your product public or releasing it on the market.
*In this article, we have explained the differences between design rights and copyrights, but we have also written a separate article explaining the differences between design rights and trademark rights, so please take a look at that as well.
· "Difference between design and trademark'