Proposal For Enhancing Australian Designs Protection
IP Australia recently called on designers, intellectual property professionals and others who use the design rights system to share their thoughts on ways to improve the Australian design system and the protection it affords.
As a legal practice with particular expertise in advising creatives, Guest Work Agency submitted a response outlining our suggestions regarding the proposed reforms and how they could better serve our clients.
Australian Design Rights
In June 2023, IP Australia released three proposals for reform addressing the following issues within the design rights system:
Virtual Designs: How should we protect virtual, non-physical designs? Including screen displays, screen icons and graphical user interfaces.
Partial Designs: How should we provide design protection for parts of a product made in one piece? For example, the collar of a shirt or the handle of a mug.
Incremental Designs: How should we offer more flexibility for designers to protect incremental improvements to their designs throughout the design process?
We applaud IP Australia for recognising that the Australian design rights system needs to evolve to keep up with the ever-increasing pace of technological and creative development. With these proposals, IP Australia is pursuing an accessible update to the design rights system, that would act to better protect designers and drive innovation.
Our Submission
Guest Work Agency submitted a response to IP Australia’s proposal regarding protection for virtual designs. The submission outlined that Guest Work Agency is in support of IP Australia’s approach to implementing virtual design protection, as we work closely with many artists, designers and technologists and have observed the production of interactive digital experiences is being encouraged through growing commission opportunities.
Guest Work Agency’s submission highlights forms of virtual design, such as virtual reality, augmented reality, mixed reality/XR and holograms, that need to be closely considered in the design rights system.
In addition, we recommended expanding of the definition of a virtual product beyond visual features, as we are aware of designs that engage multiple senses, not only the visual. For example, an augmented reality experience which involves hearing a piece of music when the user stands in a particular location. Design laws have traditionally focused on visual features. However, to truly support innovation in design, virtual products involving other senses should also be accommodated, akin to the evolution of trade mark law, which now protects marks that are a certain scent.
Our submission also queries the traditional distinction between 2D and 3D designs, which is used to determine whether a design needs to be registered in order to receive protection (a 2D design does not need to be registered in order to receive protection as it may receive protection automatically under copyright law). It would be wrong to assume that virtual designs are more likely to fall within the 3D category, as a virtual design may be 2D, like a hologram or a screen interface.
We also stressed the need for greater consistency of the treatment and protection of virtual designs across jurisdictions, as many creatives collaborate on cross-border projects.
For further information regarding our submission or for advice regarding design protections, please contact Guest Work Agency.
Guest Work Agency is a boutique art law and advisory firm based in Melbourne, but is international in reach. It is the first dedicated art law practice in Australia, working with artists, collectors, galleries, arts organisations, art fairs and art tech start-ups.