Application of artistic works as industrial designs without registration of the designs
77 Application of artistic works as industrial designs without registration of the designs
This section applies where:
copyright subsists in an artistic work (other than a building or a model of a building, or a work of artistic craftsmanship) whether made before the commencement of this section or otherwise;
a corresponding design is or has been applied industrially, whether in Australia or elsewhere, and whether before or after the commencement of this section, by or with the licence of the owner of the copyright in the place of industrial application; and
at any time on or after the commencement of this section, products to which the corresponding design has been so applied (the products made to the corresponding design) are sold, let for hire or offered or exposed for sale or hire, whether in Australia or elsewhere; and
at that time, the corresponding design is not registrable under the Designs Act 2003 or has not been registered under that Act or under the Designs Act 1906.
This section also applies if:
a complete specification that discloses a product made to the corresponding design; or
a representation of a product made to the corresponding design and included in a design application;
is published in Australia, whether or not paragraphs (1)(b) and (c) are satisfied in relation to the corresponding design.
It is not an infringement of the copyright in the artistic work to reproduce the work, on or after the day on which:
products made to the corresponding design are first sold, let for hire or offered or exposed for sale or hire; or
a complete specification that discloses a product made to the corresponding design is first published in Australia; or
a representation of a product made to the corresponding design and included in a design application is first published in Australia;
by embodying that, or any other, corresponding design in a product.
This section does not apply in relation to any articles or products in respect of which, at the time when they were sold, let for hire or offered or exposed for sale or hire, the corresponding design concerned was excluded from registration by regulations made under the Designs Act 1906 or the Designs Act 2003, and, for the purposes of any proceedings under this Act, a design shall be conclusively presumed to have been so excluded if:
before the commencement of the proceedings, an application for the registration of the design under the Designs Act 1906 in respect of those articles, or under the Designs Act 2003 in respect of those products, had been refused;
the reason, or one of the reasons, given for the refusal was that the design was excluded from registration under that Act by regulations made under that Act; and
when the proceedings were commenced, no appeal against the refusal had been allowed or was pending.
The regulations may specify the circumstances in which a design is, for the purposes of this section, to be taken to be applied industrially.
In this section:
building or model of a building does not include a portable building such as a shed, a pre‑constructed swimming pool, a demountable building or similar portable building.
complete specification has the same meaning as in the Patents Act 1990.
design application has the same meaning as in the Designs Act 2003.
representation, in relation to a design, has the same meaning as in the Designs Act 2003.
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