Design right will not subsist in designs which were fixed in a material form before the commencement of Part 3 of the Act. They will remain protected by copyright under the 1956 Act subject to the transitional provisions set out in paragraphs 19 and 20 of schedule 1 to the Act, which provide: (a) Protection is limited to a maximum of 10 years from commencement (1 August 1989), unless under the old copyright law it expires earlier. (b) Licences of right are available for the whole of this period. (c) The spare parts exception expounded by the House of Lords in BL v Armstrong (1986) applies. (b) Originality : The Act does not elaborate much on the requirement of originality, though it is a concept well understood in copyright law. The basic test of originality is that the design must be independent in the sense that it is not a copy, although it need not necessarily be novel. [1988] RPC 343 the Privy Council held that a design was

doi:10.4324/9781843142928-85

Chapter

Design right will not subsist in designs which were fixed in a material form before the commencement of Part 3 of the Act. They will remain protected by copyright under the 1956 Act subject to the transitional provisions set out in paragraphs 19 and 20 of schedule 1 to the Act, which provide: (a) Protection is limited to a maximum of 10 years from commencement (1 August 1989), unless under the old copyright law it expires earlier. (b) Licences of right are available for the whole of this period. (c) The spare parts exception expounded by the House of Lords in BL v Armstrong (1986) applies. (b) Originality

Chapter

Design right will not subsist in designs which were fixed in a material form before the commencement of Part 3 of the Act. They will remain protected by copyright under the 1956 Act subject to the transitional provisions set out in paragraphs 19 and 20 of schedule 1 to the Act, which provide: (a) Protection is limited to a maximum of 10 years from commencement (1 August 1989), unless under the old copyright law it expires earlier. (b) Licences of right are available for the whole of this period. (c) The spare parts exception expounded by the House of Lords in BL v Armstrong (1986) applies. (b) Originality

ABSTRACT

Section 213(4) says that the design is not original if it is commonplace in the design field in question. The word ‘commonplace’ is not defined but this subsection appears to introduce a consideration akin to novelty. For the design to be original it must be the work of the creator and that work must result in a design which is not commonplace in the relevant field. The designer is the creator and no design right will subsist until the design has been recorded in a document or in an article. Thus the creator is not necessarily the person who records the design but usually will be.