Australia - New Zealand: copyright/design overlap

Historically, Australia and New Zealand have taken a similar approach to intellectual property rights and their protection.  The New Zealand government in particular has expressed a desire that the intellectual property laws of the two countries are in line with each other.  The Intellectual Property Office of New Zealand and IP Australia are working together to harmonise practices. However, there is a significant difference between the Australian and New Zealand approaches to intellectual property protection for products that are mass produced or industrially applied.  The result is that clients may be able to enforce their rights quite successfully in New Zealand, but may have no enforceable rights at all in Australia.

In New Zealand, functional, industrial and fashion products such as clothing are automatically protected under the Copyright Act 1994 regardless of whether a registered design is held or not.  Even if the product has been industrially applied it will attract copyright protection, albeit that the duration of such protection may be shorter than the ordinary copyright term.

In Australia, a product that has been industrially applied will, generally speaking, not have copyright protection if it can be the subject of a design registration.

Clients are sometimes surprised that they can enforce their copyright in New Zealand but not in Australia.  Many expect similar rights in both jurisdictions, which can lead to confusion. It is important that clients understand their various options for IP protection in both New Zealand and Australia before launching their products.

Registering a design is not always an appropriate path to take, particularly for clients who have large and often seasonally changing product ranges.  Furthermore, the requirements for design registration in New Zealand and Australia mean that the client cannot usually disclose the design before filing an application for registration.  In many cases, this is simply not practical.  Design registration can be prohibitively expensive for some clients.  For clients who have large ranges, it can be difficult to select the right products to register without knowing which products will be popular and perhaps vulnerable to copying. Clients facing these types of difficulties may be saved by copyright protection in New Zealand, but they should be aware that such protection might not be available to them in Australia.

Before launching products in Australia and New Zealand, clients should consider all the issues carefully.  It may be that quite divergent paths are taken in the two countries.