Copyright Law and Industrial Design Essay

mental hospitalThe history of keen blank space honor represents, in its essence a bargain between the interests of nightspot from being able to utilize and copy innovations, and literary and graphicsistic arrive atings, and the interest in comforting the service to the seeer so as to stimulate further such work. En consummationment of copy full legislation was non establish upon whatever natural in force(p) that the write has upon his writings exactly upon the ground that the welf are of the humankind volition be better served by securing to origins for limited periods the exclusive respectables to their writings. prop castigates represent the principal vehicle for enabling creators and producers to appropriate the harbor of their efforts.Preserving a delicate oddment therefore, is of paramount immensity. However, intellect situation rights engender, in certain circumstances, begun to overlap and provide simultaneous or sequential certificate for what soever inventive and seminal working mainly by accretion rather than function. The traditional channeling cheaticle of faiths usaged to determine which eye socket protects a certain interest prepare had their boundaries blurred, and overlapping areas has become a phenomenon, its most prominent manifestation being the overlap of surety afforded to anatomys beneath the target polices and the right of first publication rightfulnesss.This paper, by tracing the source and genesis of the rights afforded to industrial inventions, the varying temper of the egis afforded and the rationale behind it, will attempt to argue that the conceptual detachment between the protectability of procureable works and human bodys necessitates a very unforgiving exclusion of whatever designs or utilize cheatwork to be removed from the ambit of procure security agreement. By clear(p)ing up the confusion surrounding the fair play of schooling of designs and the ambiguous natur e of the trade auspices afforded which has led to the current status of overlapping breastplate, the paper will present an overview of its implications and defend status quo.The Origin of intention and right of first publicationStemming from the age old understanding of dimension rights and the entitlements carved thereto, the very basis of right of first publication virtue is to all(a)ow the creator of a work the right to enjoy the fruits of his labour and derive benefit from it. The concept of limitation, however is inherent in it, and it has been universally held that the author / artist of a work preservenot enjoy the monopoly forever. This concept of a limited right is of grave importance in this paper, since the growing of various strands of virtue is crucially linked to its limitation. copyright legal philosophy of nature then, evolved to go aroundow upon the creator the right to distri scarcee, to perform, display and to prepare derivative works based upon the r ight of first publicationed work and prohibit all unauthorized, sparingally signifi offert uses of procureed works. Copyright virtuefulness has traditionally had a utilizable oblige riddance. agree to the legislative history of the 1976 Copyright diddle, the train of excluding utile holds from copyright ram fictional character was to draw as clear a line as doable between copyrightable works of applied art and uncopyrightable works of industrial design. The objectiveive of excluding useful expressions was primordially linked to the nature of copyright itself, which protected art for arts sake, the mere expression. The typical philosophy of copyright law certificate applied lone(prenominal) to art, where the sole habit of the art was its aesthetical value and was extended that gradually, and against considerable opposition, to works of art applied to industry.The dissolution of beauty from service program was opposed on the ground that art remained art even w hen applied to useful objects. But the fundamental object of the design being economic aims, it only came into its own when the industrial re advanceding had make it possible to reproduce useful names in series and which then assumed the eminently virtual(a) task of summation sales of goods on the general point of intersections market. industrial design, made for a commercial-grade object, did not qualify and were ceaselessly dis pendant from the wide ambit of copyright tribute. It was considered appropriate to treat esthetic works applied to products produced in certain industries separately from other works which enjoyed full copyright protection.For the simple motive of being applied art, being body forth in a useful name and necessitating a variant approach, design law evolved from copyright as an exclusion for aesthetical designs applied to specific classes of industrial goods, or goods inside art objecticular industries. In obtaining protection, the design had to satisfy the requirements of novelty, non obviousness and creativity. Essentially put onn as a right to protect fabric designs, the extent of protection grew until was no requirement for registration. Now, according to the Industrial Design Act, a design or an industrial design marrow features of shape, configuration, pattern or ornament and all combination of those features that, in a finished article, draw to and are judged solely by the eye.A registered design is a statutory monopoly, of up to 25 years duration, which is intended to move on protection to the aesthetic appearance, nevertheless not the function, of the whole or parts of a bring to passd article. The visual impact or result counts. The design may be applied to any of the surfaces of the article and hence, it may be the shape or surface decoration. It is the design, not the article itself which is protected by registration. Surface designs were two dimensional designs and were mostly expert happen upond b y ornamentation and the like, and when the design entangled shape and structure changes in the article, they were shape designs.To be qualified for registration, a representation of the design, a statement of novelty identifying its unique features, and the set of articles in complaisance of which monopoly is aimed was unavoidable to be submitted. The required level of originality for a design to qualify is disputed. While in roughly causal agencys, it is only required that the design not be in existence, in other cases, creativity and aesthetic appeal was required. It would seem, however, that the last mentioned requirement much truly reflects the incidents of the law, since the separability synopsis requires that decorative features be identifiable.Design safeguard Its principle and IncidentsDesign protection law, from its very inception, attempted to provide a monopoly status to the design only with respect to a specified category of articles, and not to every object which might utilize the design. This deviation is highly significant for the purpose of this epitome, since it exemplifies one of the most fundamental distinctions between the law of design protection and copyright. From affording protection only to ornamentation of designs, the Act started to cover a new and original design for an article of manu facture having reference to some purpose of utility. The reference to utiltity whether as an exclusionary or determinative factor in deciding legal protection for the design, play a pivotal role in the study of design law and thus, its relation and dependence upon the usable smell of the article could not be divorced.The result of design protection to manufactured articles therefore, may be to secure important advantages in reference to a mechanical object, if these advantages should be the result directly or indirectly of the shape adopted. It is in this mount that the separability analysis acquires significance. Doctrine of Separabi lity wholeness of Art and Theory of Disocciation The mere expression of the design as an esthetic work would receive protection under copyright, but where the article embodying the design did not suck the sole purpose of being of aesthetic appeal alone, it became a design. Thus, only that aspect of a design which could be separated from the useful aspect of the article would receive protection, otherwise the aesthetic appeal of a useful article would go unmarked since the functionality doctrine negates the aims of copyright law.Design law protected any feature of the design which was dictated alone by the dictates of functionality would not receive protection, since it was the creative nature of the design which was desire to be protected, and not the complete article. The unity of art theory asserts that industrial art is art the theory of dissociation starts from the premise that industrial art is inextricably bound up with industrial products. The unity of art doctrine gl ossed over the co relative incidence of ornamental designs of useful articles to industrial property, an affinity recognized by the Paris Union at the external Convention for the testimonial of Industrial Property in 1883. The doctrine of separability, as developed in the context of copyright law is of large(p) significance in this analysis.According to this, protection is afforded only to that part of the design which is separable from the utilitarian aspects of the article. When the shape of an article is dictated by, or is necessarily responsive to, the requirements of its utilitarian function, or if the sole internal function of an article is its utility, the fact that it is unique and attractively shaped will not qualify it as a work of art, but if the comparable functionality is dependent of being obtained from a opposite design, the design is eligible for protection.The notion that the shape of an article dictated by the requirements of its utilitarian function, should not be protectible in copyright law is accepted nearly everywhere because such protection would circumvent the strict requirements of the observable law. If there is no physical separability, the examination then moves on to whether the utilitarian and aesthetic features can be imagined separately and independently from the useful article with step forward destroying the basic shape of the useful article.Of course, all industrial designs are functional in the sense that they are embodied in products that perform a function. As a matter of practical reality the design will be inexorably and intimately cogitate to the product. The separable analysis, while useful to distinguish the actual design sought to be ornamented, cannot denigrate from the fact that the design, is meant for a specified article, and hence the protection affordable to it is intricately connected to the factum of it being embodied in an article.The OverlapIts genesis and treatmentThe Indian Copyright Act provide s for exclusion of designs which are registrable under the Designs Act. S. 15 excludes the application of the Act to all designs registered under the Designs Act and S 15(2) states that (2) Copyright in any design, which is fitting of being registered under the Designs Act, 1911, but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person. The overlap between copyright and design protection which has caused so much confusion is intricately connected to the very nature of the rights afforded under each.The 1911 Act in the UK provided that all designs capable of being registered would be deprived of copyright. A design capable of registration, continued to have copyright protection, until the article using the design had been reproduced more than fifty times by an industrial purpose, at which point , only the protection affordable under the Registered Designs Act was applicable. However, this did include prints, which could not, rationally be said to not constitute an tasty work and hence, case law had to specify that the exclusionary clause did not include aesthetic works and prints. S. 52 of the CDPA, reproducing this notion is indicative of the tendency of the law to determine extent of protection based on whether or not the design was to be mass produced in a class of articles.It has similarly caused considerable confusion, especially with respect to whether, if an artistic design, meant solely as such, and hence eligible for copyright protection, but later reproduced in an article, would suffer the exclusions, or whether, its objective elements rendering it capable of being used in an article would bring it under the rubric of the exclusion. The scope of the design to be mass produced thus, played a great role in determining what protection it become eligible for, whet her copyright or design, the latter more alike to unmixed protection.The point at which an object became commercialised, and part of industry, the terms and nature of capable property accorded to it changes. The main rationale of this exclusion was to limit the protection afforded under the copyrights subsisting in the design to the exact period of time design registration would have subsisted, and only those rights.A comparison of this development of the law with the law of patent reveals a similarity. While copyright subsisting in literary or artistic works, where the form of expression is sought to be protected for a term of life plus 50 years, articles which have utility attached to them, such as patentable innovations, receive protection for a pitiableer time limit, since the functional aspect of the article requires that monopolistic privileges be removed as soon as possible.In the development of design law therefore, a trend can be noticed. As long as a design was just tha t, an expression, copyright protection existed. Its materialization in a functional article created by an industrial process, reduced the term of monopolistic privileges yielded to its creator. Thus, even if the protection was to the artistic design, its relation to the product cannot be divorced.A compromiseThe controversy surrounding the overlap between copyright and design protection and the issues within it stem from a basic confusion of the objectives behind both display cases of laws. Copyright law seeks to achieve the double objective of widest possible production and dissemination of original creative works and at the same time, allow others to draw on these works in their own creative and educational activities, through a scheme of carefully balanced property rights that still manages to give the authors and producers sufficient inducements to produce such work. The balance that copyright law seeks to achieve is based on a judgment about social benefit.To give greater pro perty rights than are needed to obtain the desired quantity and quality of works would inspect costs on users without any countervailing benefit to society. Concurrently, allowing one form of protection to expire, only for the article to claim protection under another regime would be a colouringable devise to achieve the same object, a roundabout way to receive more protection that intended. It is for that reason that designs have to be clearly excluded from copyright law and the utilitarian theory seeks a middle ground between absolute ownership of intellectual property and none whatsoever.Over aegis or Under Protection?The duality of art guesswork that ornamental designs were normally ineligible for copyright protection because their dependence on useful articles made them generally objects of commerce and deprived them of the independent existence deemed a basic attribute of true works of art. The distinctive philosophy of protection that characterizes copyright traditionall y protected only art, where the sole purpose of the art was its aesthetic value and was extended only gradually, and against considerable opposition, to works of art applied to industry. The separation of beauty from utility was opposed on the ground that art remained art even when applied to useful objects. But the fundamental object of the design being economic aims, it only came into its own when the industrial revolution had made it possible to reproduce useful articles in series and which then assumed the eminently practical task of change magnitude sales of goods on the general products market.The industrial design is often seen as an analogue of the utility patent owing to its effects on commerce, and its legal status has been influenced to a certain degree by the sign principles of industrial property law. The very insistence on the seperability doctrine to afford protection to the design, reveals the importance of the utilitarian aspects in the effigy of design law despi te the repeated attempts to focus on the separable, aesthetic aspects of it. The answer of this functional aspect of industrial articles qualifying for industrial design protection is the limited term of protection afforded to it. No modern designer ignores the function of the article he shapes. Since the chief objective of those designs is industrial and commercial exploitation, the chief characteristic of designs and models, makes the Copyright right hard to apply.The parallel tracks of design law and patent law cannot be avoided. The Copyright office of the U.S, until 1949, refused to give copyright protection to three dimensional shapes because it would come within the category of multiple commercial productions of applied arts, which, they held was only eligible for patent protection and resorting to the less loaded requirements of copyright went against that.The flexible treatment to wins under patent law is not afforded to designs, and hence, the scope of innovation is r estricted. abridge scope of protection is necessary to avoid defend style trends of which the protected design is a part. The undefinable relation between the art and its application means that copyright protection will end up removing much more than the expression, and also some forms of its application, which upsets the traditional bargain in intellectual property law.The sparing RippleTraditionally, the right to copyright protection is premised on a claim that certain industrial designs are empower to legal citation as art in the historical sense. The economic repercussions of such recognition flow principally from the industrial character of the material support in which ornamental designs are embodied. The incidence of these repercussions upon any attached administration varies with the extent to which the claim to recognition as art is itself given effect. As copyright protection for designs of useful articles expands, the economic effects of this expansion on the gene ral products market are counterproductive.This is just one of the effects. In general, overprotection results from the progressive monopolization of ever smaller aggregates of inventive activity, which elicit social costs in return for no clearly equilibrated social benefits. But the rescue of artistic of designs from the exigencies of patent law, were now converting copyright law into a de facto industrial property law without the characteristic safeguards of the industrial property paradigm. A significant effect of awarding copyright protection thus is the economic effect. An affinity from the law of patent proves this point. Patent doctrines such as the rule of blocking patents and the reverse doctrine of equivalents twist some protection to the developers of significant or radical ameliorations who can thereby allocate gains from their invention.Copyright doctrine however, extends to cover any copy or adaptation or alteration of the original that is nonetheless advantageous ly similar to the original work. An important difference between copyright and registered designs is that the latter can be implement against a third party who has not copied the proprietors design. The exclusive right conferred for designs was in the nature of a monopoly right, which means that it was infringed by another party who employed that design or one not substantially distinguishable from it, regardless of whether that other party copied from the owner or created his own registered design independently.The right is thus essentially different from unregistered design right and copyright for both of which copying is an essential ingredient for infringement. The lovely use exception which arises when a person uses copyrighted expression in a way that the law deems to be fair is indeterminate, and this characteristic of design law makes it even more difficult to apply it. propelling societies need small improvements and massive breakthroughs in art and technology to pros per. Yet it is difficult to develop incentives that can spur the less dramatic lineament of creativity without imposing crippling costs.For instance, subtle innovations usually engender small benefits that are exceeded even by the mere cost of administering a property rule. In addition, the edge of error for protecting these improvements is slim because their life span is so short. Esthetic designs and other marginal improvements, by contrast, have an optimal term of only a matter of months and a mistake that gives an additional sixsome months of protection to designs creates a much greater distortion in the incentives for developing commercial art which is not the case in copyright.ConclusionThe handiness of overlapping intellectual property protection in all of its forms presents a serious threat to the goals and purposes of federal intellectual property insurance insurance policy and must(prenominal) be communicate as a single issue. The 1842 act, instead of re defining designs to prevent overlap, the interpretation was left free but was subject to an express exclusion of all designs covered by the other Acts thereby necessitating recitation of two acts, set a pattern carried through to the present day. The true scope and effectiveness of design law will depend on the extent to which the scope of protection it affords which is undermined by the concurrent availability of copyright protection for industrial art.If a country makes it easy for industrial art to qualify for copyright protection as applied art, designers will have less incentive to make use of a special design law and design protection will increasingly be characterized by the copyright approach, the harmful effects of which have been proved. Design laws, therefore, have to be structured so that obtaining copyright protection is difficult and most designs bloodline within their jurisdictional sweep.The legal history of industrial art in the twentieth century is an effort to establi sh special regimes of design protection without unduly derogating from the general principles of copyright law and laws should be structured that way. One should not forget that this theory was spawned by a incorrect conflict between art and industry. By fighting for the artistic value of a shape, one has purportedly justified drawing into the orbit of copyright law a body of intellectual products that bear only an apparent resemblance to the creations covered by this regime.The evidence is persuasive that the costs of a property right outweigh the benefits. That judgment is reinforced by the observation that, notwithstanding the lack of protection afforded to commercial art, consumers already have an incredibly diverse selection of product designs from which to choose. The difficulties of interpretation caused by exclusions to exclusions to exclusion seem to be endemic to industrial design law, and the problem of overlap therefore has to be treated differently.BibliographyBooksP. Goldstein, Copyright (2nd edn., Vol 1.New York Aspen natural law and Business cc2). S. P. Ladas, Patents, Trademarks and Related Rights home(a) and International Protection (Harvard Harvard University Press 1975). Laddie, Prescott, Vitoria, The groundbreaking jurisprudence of Copyrights and Designs (3rd ed., Vol. 2, London Butterworths 2000). B. L. Wadhera, law of nature Relating to Patents, Trademarks, Copyright, Designs and Geographical Indications (New Delhi Universal publication Co. Pvt. Ltd 2004) M. Howe, Q.C, Russell, Clarke and Howe on Industrial Designs (7th edn., London beatific and Maxwell 2005). namesV.R. Moffat, Mutant Copyrights and Backdoor Patents The puzzle of Overlapping ingenious Protection 19 Berkeley engineering integrity diary 1473 (2004). The article deals in great detail about the problems of overlapping intellectual property right protection. Beginning with an analysis of the process involved in affording protection to any intellectual property, th e article describes the bargain that is struck between the society and the artificer / creator, for the better good of all, since providing protection incentivizes and after a certain period of time, the invention / creation is required to be relegated to public use in return for the subsisting monopoly.The article then describes how the problem of overlapping protection, how it is more be accretion rather than by design, helped along by the judiciary, the insidious influence of ever increasing demands, and goes on to characterize the problem of overlap, and suggests ways to stop it. P.K Schalestock, Forms of Redress for Design Piracy How Victims can use existing Copyright equity 21 Seattle University legal philosophy brush up 113 (1997). The article looks at the various forms of protection available to the designers of wearing apparel, since the current framework of copyright laws in the U.S, outlaws all forms of protection for useful articles.The design of clothes could only be protectable so off the beaten track(predicate) as that design was seperable from the functional aspect of clothes, which, as the author proceeds to argue is an impossible task since clothese were inherently meant to be useful but the cut, shape and colour greatly contributed to its value as well. The author, reviewing design piracy in the clothing industry, explains how the advancement of technology has made this all the more worse. He points out how the existing framework fails to provide a remedy, and then provides suggestions and remedies whereby this lacunae in the law could be remedied. M.C. Broaddus, Designers Should Strive to Create Useless Products Using the Useful Article Doctrine to vacate Separability Analysis 51 South Texas Law appraise 493 (2009).The article deals in detail with the irony of the unfitness of intellectual property law to afford protection to useful articles. It deals in detail with the evolution of the separability doctrine, its variants, and the discriminative treatment of the same. It starts with a legal brief description of the history of the development of the law of industrial designs, the lacunae that existed previously collect to the refusal of copyright law to recognize the applied art in industrial articles, and the need for protection of the art in those articles nevertheless. It discusses cases in which the separability has been in question and shows how, judicial discretion in having to make this distinction is real leading to the judiciary making decisions about what constitutes art and what does not.Hence, the article suggests some differential means of analysis to avoid this confusion. A. Muhlstein, M.A. Wilkinson. Whither Industrial Design 14 intelligent Property Journal 1 (2000). A seminal article on the development of the law of industrial designs, it provides a thorough overview of the genesis of the law, problems faced in its historical development and its current status. It situates the problem of ov erlap in the historical context and demonstrates linkages. The article does a comprehensive study of the current legal systems in place to protect industrial designs, identifies the elements within them and situates them in the larger paradigm of intellectual property law to understand the origin of the rights better.It also briefly succeed the international framework in place to deal with industrial designs, the compromises sought to be reached and the harmonizing measures so far undertaken to afford protection to industrial designs. Dr. Ramesh, Registration of Designs Need a Fresh Look 32(1&2) Indian pub Review, 83 (2005). The article does a brief review of the need to protect industrial designs, about the intrinsic value of a useful good which also looks attractive and appealing and the economic benefits to be derived from it.It gives a historical perspective of the development of design law and the requirements of the law as it currently stands. It gives a short description of the application procedure, and then, by drawing a linkage between the objective of the law and the rights given it reviews the remedies for infringement and analyses whether they are adequate or not. It also points out some flaws in the existing design protection framework in India and makes a very good argument for such flaws to be corrected. S.H.S. Leong, Protection of Industrial Designs as cerebral Property Rights Journal of Business Law 239,243 (2003). The article essentially deals with the development of the law of industrial designs in Singapore, and it does this by comparison with the side of meat Law.It gives a short description of the fugitive changes from the 1842 Act to the 1911 Act, then from the 1956 Act to the 1976 Act in Copyright, and demonstrates how needs of the particular time resulted in the changes embodied in these different laws. It also talks about the necessity of laws like the Unregistered Designs Act, Community Designs Act etc, as available in Europe, so that designs which are not judged to be aesthetically appealing but which nevertheless contribute to the value of the product, are protected. It discusses the possibility of shapes being protected under trademark law and patent law, and concludes that a separate law to deal with designs is very necessary. E. Setliff, Copyright and Industrial Design An option Designs Alternative 30 capital of South Carolina Journal of Law and the humanities 49 (2006).The article, by a brief review of the historical development, points out how crucial the separability doctrine has become, due to the traditional reluctance of Court to recignise applied art as having artistic value. The article argues vehemently at such an assumption. It argues that industrial design truly embodies aesthetic expression to a much greater extent than function. Although its primary purpose might have been to make the products of industry more commercially successful by changing, and even disguising, their aesthetic a ppearance, its artistic value cannot be denigrated from.It critics some of the literature thus far which celebrates the lower quality of the work in designs, and explains why the separability of the design has become problematic specially because it depends on the courts subjective notion of what constitutes art who go by traditional choices and the author demonstrates the dangers of this approach. G. Scanlan, S. Gale, Industrial Design and the Design Directive Continuing and in store(predicate) Problems in Design Journal of Business Law 91 (2005). This article examines the impact of the overhaul of EC industrial design law on English intellectual property law.It starts out by considering the policy behind the Council Directive. It traces all laws relating to protection of industrial designs in the European context and reviews as to how the directive changes it. It reviews changes to the definition of design, the requirements for novelty and individual character, the relationship b etween copyright, registered and unregistered designs, the differing treatment of works of artistic wiliness and artistic works per se, the treatment of applied designs and the abolition of the compulsory licence regime.On the whole, although the directive, in achieving its stated purpose of harmonizing laws, was forced to be selective in its changes, it nevertheless has a much desired effect. J.H. Reichman, Design Protection in Domestic and Foreign Copyright Law From the Berne revise of 1948 to the Copyright Act of 1976 Duke Law Journal 1143 (1983). This article attempts to study the complex interactions of the different branches of intellectual property law that seek to regularize the degree of protection to be accorded ornamental designs of useful articles. A circular pattern, the article argues, can be discerned in the treatment of these designs in both foreign and domestic law.The tendency of industrial property law to breed still further instances of underprotection or over protection then fosters renewed pressures for the regulation of industrial art within the framework of the laws governing literary and artistic property. It uses an extremely detailed analysis of the law in the U.S.A to explain the disjunct. The article also compares the tradition of protection of industrial designs in France, German, the Beneleux countries, and provides a thorough overview of the figure of doctrines that have had a role to play in the current state of law relating to designs. It also, looks at policy objectives, the commercial features of the current legal status, some amendments proposed and the effect of those amendments as well. Umbreit, A Consideration of Copyright 87 University of protoactinium Law Review 932 (1939)A foundational work on the development of copyright law, the article gives a very detailed analysis of the components of the protection afforded by copyright, and what works would necessarily qualify for the protection. It focuses extensively on t he idea / expression dichotomy in the law of copyright and demonstrates how this demarcates the bourne of copyright protection. The elements of copyright, as draw in this article, is highly demanding of the qualities of originality and creativity, and it traces the link from the policy objectives of affording any kind of protection to such artistic work at all, to the categories of creative work considered generally to be within its scope. C. Thompson, Not such a silky Corkscrew? Sheldon v. Metrokane and the location of Industrial Designs as full treatment of Artistic Craftsmanship Under Australian law 26(12)European Intellectual Property Rights Review 548 (2004). A case comment on Sheldon v Metrokane, the article gives a definitive analysis of the exact link between the utilitarian aspects and the design aspects of an article. While the protection is sought to be afforded to the design aspects alone, how this conceptual separability was treated in Sheldon was reviewed. The art icle also cited some interpretations of the case, which, it viewed as misplaces and suggested a differing analysis of the opinion. S.W. Ackerman, Protection of the Design of Useful Articles Current Inadequacies and Proposes Solutions 11 Hofstra Lew Review 1043 (1983).It illuminates the policies underlying copyright law, and argues that protection should be extended to the design of useful articles. It contrasts the extent of protection provided by the copyright system with that of the patent system and by a comparison of the amount of effort required on the part of the inventor / author to trigger the protection, conludes that such protection is hardly sufficient. The design of useful articles seems to fall in between these systems, and hence is left largely unprotected.It surveys case law, the danger of judicial discretion and suggests a crossbreed theory of patent and copyright to protect designs sufficiently and justifiably which encourage the creation of designs by providing ri ghts to protect against commercial exploitation but not extending those rights to the utilitarian features of the protected article. J.C. Kromer, Claiming Intellectual Property 76 University of scratch Law Review 719 (2009).The article explores the claiming systems of patent and copyright law with a view to how they affect innovation. The object of this article is to trace the law relating to improvements, in juxtaposition with the stated objective of law of intellectual property rights to achieve the maximum social good. The article approaches the subject from the inventors perspective and examines whether the current system of protection of improvements in speech is fair. While patent requires patentees to articulate by the time of the patent grant their inventions bounds, thus effectively allowing all improvements not within such bounds, copyright law only requires the articulation of a prototypical member of the set of protected works.The law relating to improvements in designs also, follows a similar pattern. All substantially similar works, therefore, could be held as infringement. Copyright therefore, allows far less improvement and deviation from the protected product as allowable than patent, where, anything outside the specified bounds was allowable. J.P. Mikkus, Of Industrious Authors and misrepresented Inventors Industrial Works and Software at the Frontier of Copyright and Patent Law 18 Intellectual Property Journal 174 (2004). The article first examines the protection granted by copyright law for functional works typically found in an industrial environment.The article then explores the challenges of copyright protection for the non true aspects of computer software and problems faced by inventors and software developers when obtaining patent protection in relation to software. The article criticizes current status of law relating to copyright and patents, in that creative work related to industrial purposes does not get adequate protection i n either of the regimes since they show limited openness to intangible products of industry. The revue thus, necessarily involves analysis of the level of originality that an invention / work is required to possess to qualify for protection and exposes anomalies in that regard. W. M. Landes, R. A. Posner, Indefinitely Renewable Copyright 70 University of Chicago Law Review 471 (2003).The article examines the economic rationale of limiting copyright and patents. While the nature of patents is such that the expiration of the rights is a necessary evil to increase the social good, copyright, the article argues, should be afforded for an even longer period of time in the absence of any strong reason not to. In this context the article makes a difference between unceasing copyright and indefinitely renewable copyright. Although the latter concept could turn into the former under very specialize conditions, the article argues that the resulting benefit accruing to the author / artist i s much greater than societal loss, and attempts to prove this hypothesis by some statistical evaluations. It points out that works in the public domain do not always get negatively affected when copyright protection is expanded, since the greater incentive would spur further creativity.T. Scassa, Originality and utilitarian Works The Uneasy Relationship between Copyright Law and Unfair Competition 1 University of capital of Canada engine room Law Journal 51 (2004). This article deals with the problem of protection afforded to utilitarian, creative works from a competition perspective. It examines the concept of originality in light of the shifting purposes of copyright law and of the historical relationship of utilitarian works to copyright law. It emphasizes on the overwhelming role that then judiciary in Canada has played in allowing copyright protection for utilitarian works, and this has resulted in a constant swing in the status of the law. It argues that, protecting utilitari an works by copyright has reusled in a loweing of the originality creativity threshold in copyright, which in turn has changed the character of copyright law in some instances and hence creates competition distortions.The problem the article argues, lies in the tension between copyright and unfair competition, primarily in relation to utilitarian works and this results in counterproductive pressures. P. Borderland, Where Copyright and Design Patent Meet 52 wampum Law Review 33, 43 (1953). This article deals with the fundamental conflict that the protection of industrial artistic design embodies in the paradigm of the law of intellectual property rights. It points out that copyright and patent are basically supposed to protect very different things.The concept of industrial designs, thus, creates an overlap leading to a borderland issue between copyright and patent areas. The paper explores the issues within this boundary confusion, giving attention to the policy considerations invo lved and attempts to give suggestions towards drawing a sharper boundary between the two.The article theorises that in such a hypothesis, designs would fall more into the realm of patent than copyright, although having unmistakable copyright features. J.H. Reichman, Legal Hybrids between the Copyright and Patent Paradigms 94 Columbia Law Review 2432 (1994) A detailed and comprehensive review of the development of law of intellectual property, the article describes the bargain that is truck in both patent and copyright paradigms and the delicate balancing of interests sought to be achieved. It uses the Paris and Berne Conventions as a starting point, and, working backwards from there demarcates the area of copyright and patent laws.The most prevalent of the hybrids between the two is the existence of commercial designs, and by a thorough analysis of the objectives of law of intellectual property rights, the rights that can be afforded to be protected, concludes that design protection does not fall seamlessly into the copyright paradigm. In this context, it also talks about the law relating to improvements, the necessity of the law, problems facing it and possible solutions. P.J. Saidman, The Crisis in the Law of Designs 89 Journal of the Patent and Trademark Office Society 301 (2007). The article does a very thorough analysis of the functionality doctrine which has led to so much confusion.Firstly, it attempts to dispel some misconceptions, such as the allegation that artistry must necessarily be useless to qualify for copyright protection. Commenting on the lacunae in the current structure of design laws, the article states that the judicial trends in determining whether or not the functionality and separability test are fulfilled has resulted in the meager forms of protection available to industrial designs weaker than ever.The article suggests that the judicial principle currently in existence in the U.S are flawed, operating upon a differentiate understan ding of copyright law, and by a comparison with the European system, advocates that the system be employed in the U.S as well. M.A. Lemley The Economics of Improvement in Intellectual Property Law 79 Texas Law Review 989 (1997). This article deals with the crisis in intellectual property law of attempting to protect improvements while discouraging imitation. The law must distinguish between improvement, a necessary part of innovation, and generally to be encouraged, and imitation, which is generally considered both nonlegal and even immoral. This distinction, the article points out, is not easy to make, but it is critical to achieving the proper balance of intellectual property rights. Allowing too much imitation will stifle the incentives for development and commercialization of new products.Discouraging improvements on the other hand will freeze development at the first generation of products. The article carries out a thorough economic analysis of the issues involved, and propos es alternative models to make the boundary between imitation and improvement clearer and leave less to the discretion of the courts. N. Snow, Proving Fair Use as a Burden of Speech 31 Cardozo Law Review 1781 (2010). The article deals with the fair use exception in copyright law. It traces the origin of the exception in copyright law, and explains the problems that the flexible doctrine is fraught with.Through a detailed analysis of case law, the article points out the extent of judicial discretion that the doctrine allows. The article evaluates the fair use exception in the context of free speech, and argues that the current judicial trend of requiring defendants to prove that they had used material which were not protected in their expres sion is chilling free speech. G.N. Magliocca, Ornamental Design and Incremental Innovation 86 Marquette Law Review 845 (2003). This article makes an interesting study of the origin and development of design protection law, it analyses the reasons for its slow advancement, the sign reluctance, the controversies and borderline issues that has surrounded the law.Commercial artistry, thus, was more of a problem than it was worth, leading to its neglect for nearly 200 years. The article provides an overview of the political scenario which also created difficulties, deeming designs to be part of the public domain. This Article concludes that there are respectable public policy reasons against extending a property right to most commercial art and explores other ways to promote design innovation and since commercial designs occupy a unique position in the law sitting at the confluence of patent, copyright, and trademark doctrine, the article suggests that an ideal solution would require a revamping of the spotless existing structure going towards a unified picture of intellectual property law. It also concludes that the economic costs with giving more protection to designs far outweighed the benefits.Table of CasesEnglish CasesDa star Corp. v. Twentieth Century make Film CorpThe complainant sought trademark protection for its World War II photograph series that had been, but was no longer, protected by a copyright. The Court denied the trademark claim, in part because allowing trademark protection in this case would conflict with copyright law, creating a species of arrant(a) copyright. The Court termed this perpetual protection a mutant copyright and held that to permit trademark protection following the expiration of acopyright would infringe upon the publics right to copy an expired copyright. The Court made an analysis of the bargain that is involved in the protection of any intellectual property right and held that allowing such diversity from one form of intellectual property protection to another would completely defeat the very purpose of the bargain and become counterproductive.Millar v. Taylor 98 Eng, Rep. 201, 4 Burr. 2303 (K.B. 1769). This was one of the first judgments concerning copyright in the history of English law. It concerned infringement of the copyright on James Thomsons poem, The Seasons by Robert Taylor, and the booksellers won a tender judgment. The judgment is significant for its recognition of property rights in a literary work for the first time. Sheldon and Hammond Pty Ltd v. Metrokane Inc 2004 F.C.A. 19. later the expiry of Le Creusets patent for a lever-action corkscrew, Metrokane pursue a designer to design a new corkscrew with the mechanics of le creuset but with greater aesthetic appeal, and beauty resulting in the das corkscrew.The case involved a challenge of copyright infringement of Metrokanes modified model,which they alleges was artistic craftsmanship for which drawings existed. The case is significant for its ruling that, even though some beauty was added to the corkscrew by fashion a new encasement, the primary purpose remained commercial and hence protection could not be obtained. still the encasement was attractive, and although co nceptually separable, the good relied on the mechanism which was in the public domain. Copyright protection to the undefiled corkscrew, was therefore, denied, since the encasement alone did not qualify for protection due to the design copyright overlap.Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989 (2d Cir. 1980). A jewelry designer obtained copyright registrations for a line of decorative hit buckles inspired by artistic works. The designs became successful and were eventually copied by another company.The designer sued for copyright infringement and the company countered with the argument that the belt buckles were not appropriate copyrightable subject matter because they were useful articles.The Court used the separability doctrine to award in favour of the plaintiff. It came up with the novel concept of focusing its analysis on the primary and subsidiary portions of the useful articles and held that since they were conceptually separable, in that the primary ornam ental aspect of the buckles is conceptually separable from their subsidiary utilitarian function, it was entitled to protection. PHG Technologies, LLC, v. St. John Companies 459 F.Supp.2d 640 (2006). At issue in this case were design patents claiming an ornamental design for a scar pattern for a medical label sheet.The Court replaced its own prior test for functionality with a new one which requires a court to assess the utility of the proffered alternative designs and determine whether the elect design best achieves the functional aspects of the article. If it does, then presumably the design choice was made for functional reasons, and any resulting design patent is invalid. In other words, the designer is penalized in the event that their best design choice also happens to add together itself to even marginally increased utility over the design alternatives. The final verdict went againt the plaintiffs in this analysis.Indian casesSamsonite Corporation v. Vijay Sales 73 (1998) D LT 732.The case concerned the alleged infringement of the plaintiffs design rights in suitcases. The plaintiff alleged that one series of suitcases had been specially designed and surface embellishment chosen for the System 4 Range. The plaintiffs claimed copyright in the drawings and said that the defendant, stocking a similar type of suitcase from VIP, had infringed upon the copyright and had indulged in the tort of passing off. The court however, first ruled that if any intellectual property subsisted in the cases, it was in the nature of a design right, taking flyer of S. 15 of the Copyright Act. Secondly, the Court held, enough identifying factors had been used with the series for a normal public acquainted with two far-famed brands to be impressed by the difference, and hence passing off could not also be claimed.Microfirms Inc. v. Girdhar and and Co and Ors 128 (2006) DLT 238 The plaintiff in this case claimed copyright infringement in respect of designs on the upholstery m anufactured and marketed by the plaintiff. An allegation of copying and of passing off was also made. The court rules that, a requirement of registration under the deigns act did not preclude the protection of copyright. If design law was not applicable, civil remedies through copyright would still be available normally. But in this case, since the designs attractiveness derives from the article in which it is embodied, copyright protection could not be afforded, and S 15 of the Copyright Act expressly delegated designs capable of registration to the area of the design act. Hence, the claims could not stand, since no copyright subsisted. AGA Medical Corporation v. Mr. Faisal Kapadi and Anr 103 (2003) DLT 321.The plaintiff in this case was a pioneer in trans healthful technologies. Several drawings made for the manufacture of some cathartic devices were registered under copyright in the U.S. The defendant here was alleged to have attempted passing off, and relinquish brochures depi cting the exact same product using the exact same shape. The Court ruled against the plaintiffs, determination that even if copyright did subsist in the drawings, the minute they were converted into three dimensional products they lost that right by virtue of S. 15 of the copyright Act.The difference between two dimensional and three dimensional reproduction was elaborated on, and the Court gave a very definitive analysis of S. 15(2) and rules that the plaintiff did not have copyright in the drawings, and since the three dimensional objects could not be said to completely copy the plaintiffs production, no right was infringed. 2 . P. Goldstein, Copyright 135 (2nd edn., Vol 1.New York Aspen Law and Business 2002). 3 . Ibid at 144. 4 . V.R. Moffat, Mutant Copyrights and Backdoor Patents The Problem of Overlapping Intellectual Protection 19 Berkeley Technology Law Journal 1473, 1474 (2004). 5 . Millar v. Taylor 98 Eng, Rep. 201, 4 Burr. 2303 (K.B. 1769). 6 . in a higher place sto ck 1 at 110. 7 . P.K. Schalestock, Forms of Redress for Design Piracy How Victims can Use Existing Copyright Law 21 Seattle University Law Review 113, 117 (1997). 8 . M.C. Broaddus, Designers Should Strive to Create Useless Products Using the Useful Article Doctrine to Avoid Separability Analysis 51 South Texas Law Review 493, 494 (2009). 9 . S. P. Ladas, Patents, Trademarks and Related Rights National and International Protection 828 35 (Harvard Harvard University Press 1975). 10 . A. Muhlstein, M.A. Wilkinson. Whither Industrial Design 14 Intellectual Property Journal 1, 10 (2000). 11 . Ibid at 11. 12 . 35 U.S.C. 171 (1976). 13 . First copyright act passed in 1709, and in 1787, the first designs act which was passed aimed to give very little copyright protection to those engaged in the arts of designing clothes and those who designed or procured new and original designs for these types of goods obtained the sole right of reprinting them for two months. The protection of desi gns was considered to be a part of copyright. 14 . Dr. Ramesh, Registration of Designs Need a Fresh Look 32(1&2) Indian Bar Review, 83, 85 (2005). 15 . The designs covered during the historical development of the law of designs were of three types Pattern or print to be worked on or worked into a tissue or textile fabric, modeling, casting, embossment, chasing, engraving or any other kind of impression or ornament, shape or configuration of any article of manufacture. Design law therefore, sought to protect both shapes and surface decoration. 16 . E. Setliff, Copyright and Industrial Design An Alternative Designs Alternative 30 Columbia Journal of Law and the Arts 49, 61 (2006). 17 . S.W. Ackerman, Protection of the Design of Useful Articles Current Inadequacies and Proposes Solutions 11 Hofstra Lew Review 1043, 1061 (1983). 18 . S.H.S. Leong, Protection of Industrial Designs as Intellectual Property Rights Journal of Business Law 239,243 (2003). 19 . to a higher place punct uate 16 at 1053. 20 . higher up billet 9 at 18 21 . Supra note 15 at 52. 22 . There were many who had vested interests in the system which would afford some protection for industrial designs against copyists. The result was that when the Copyright, Designs and Patents Act was passed in 1988, an attempt was made to draw a boundary between copyright and registered designs and to exclude functional designs from copyright protection, but also a new type of monopoly, design right was created. It covers functional designs and was reminiscent of the design protection for articles having some purpose of utility. 23 . Laddie, Prescott, Vitoria, The Modern Law of Copyrights and Designs 1891 (3rd ed., Vol. 2, London Butterworths 2000). 24 . Mazer v. Stein, 347 U.S. 201 (1954) 25 . Supra note 6 at 117. 26 . G. Scanlan, S. Gale, Industrial Design and the Design Directive Continuing and Future Problems in Design Journal of Business Law 91,97 (2005). 27 . J.H. Reichman, Design Protection in D omestic and Foreign Copyright Law From the Berne Revision of 1948 to the Copyright Act of 1976 Duke Law Journal 1143, 1181 (1983) 28 . K.B. Umbreit, A Consideration of Copyright 87 University of Pennsylvania Law Review 932, 933 (1939) 29 . Supra note 26 at 1177. 30 . PHG Technologies, LLC, v. St. John Companies 459 F.Supp.2d 640 (2006). 31 . 21 Fed. Reg. 6024 (1956) repealed, 43 Fed. Reg. 966 (1978), 37 C.F.R. 966 (1978) 32 . C. Thompson, Not such a Crafty Corkscrew? Sheldon v. Metrokane and the Status of Industrial Designs as Works of Artistic Craftsmanship Under Australian law 26(12) European Intellectual Property Rights Review 548, 554 (2004). 33 . Sheldon and Hammond Pty Ltd v. Metrokane Inc 2004 F.C.A. 19. 34 . Kieselstein-Cord v. Accessories by Pearl, Inc. 632 F.2d 989 (2d Cir. 1980). 35 . Supra note 25 at 94. 36 . S 22(1) provided that when a design was registered, it would not be an infringement of the corresponding copyright to do anything which was an infringement o f the design registration, or, after it expired, would have been if it had not expired. 37 . B. L. Wadhera, Law Relating to Patents, Trademarks, Copyright, Designs and Geographical Indications 491 (New Delhi Universal Publishing Co. Pvt. Ltd 2004). 38 . Supra note 22 at 1910. 39 . M. Howe, Q.C, Russell, Clarke and Howe on Industrial Designs 238 (7th edn., London Sweet and Maxwell 2005). AGA Medical Corporation v. Mr. Faisal Kapadi and Anr 103 (2003) DLT 321. 40 . Supra note 16 at 1044 Microfirms Inc. v. Girdhar and and Co and Ors 128 (2006) DLT238 41 . Supra note 38 at 259. 42 . J.C. Kromer, Claiming Intellectual Property 76 University of Chicago Law Review 719, 731 (2009). 43 . J.P. Mikkus, Of Industrious Authors and Artful Inventors Industrial Works and Software at the Frontier of Copyright and Patent Law 18 Intellectual Property Journal 174, 194 (2004). 44 . Copyright law presupposes that, scatty subsidies, creatorswill invest time and resources only if assured of property rights that will enable them to control and profit from it, but it also recognizes that creative efforts necessarily build on the creative efforts which precede them, and hence must be allowed to draw on copyrighted works for inspiration and education. 45 . Supra note 1 at 140. 46 . Dastar Corp. v. Twentieth Century Fox Film Corp 539 U.S. 23 (2003). 47 . W. M. Landes, R. A. Posner, Indefinitely Renewable Copyright 70 University of Chicago Law Review 471, 475-76 (2003). 48 . T. Scassa, Originality and Utilitarian Works The Uneasy Relationship between Copyright Law and Unfair Competition 1 University of Ottawa Technology Law Journal 51, 60 (2004). 49 . Supra note 8 at 37. 50 . Supra note 27 at 935. 51 . Supra note 26 at 1178 52 . Supra note 7 at 493. 53 . P. Borderland, Where Copyright and Design Patent Meet 52 Michigan Law Review 33, 43 (1953). 54 . J.H. Reichman, Legal Hybrids between the Copyright and Patent Paradigms 94 Columbia Law Review 2432, 2463 (1994) Samsonite Corpora tion v. Vijay Sales 73 (1998) DLT 732. 55 . Supra note 26 at 1143. 56 . Supra note 53 at 2504. 57 . Supra note 26 at 1160. 58 . Supra note 42 at 193. 59 . M.A. Lemley The Economics of Improvement in Intellectual Property Law 79 Texas Law Review 989,996 (1997). 60 . P.J. Saidman, The Crisis in the Law of Designs 89 Journal of the Patent and Trademark Office Society 301, 310 (2007). 61 . Supra note 38 at 73. 62 . N. Snow, Proving Fair Use as a Burden of Speech 31 Cardozo Law Review 1781, 1786 (2010). 63 . G.N. Magliocca, Ornamental Design and Incremental Innovation 86 Marquette Law Review 845, 848 (2003). 64 . Supra note 3 at 1476. 65 . Supra note 15 at 53. 66 . Supra note 59 at 313. 67 . Supra note 26 at 1160. 68 . Supra note 62 at 847. 69 . Supra note 38 at 270.