Why Is Copyright Important?

The availability of overlapping protection disrupts the copyright, patent and design protection and makes it difficult, if not impossible; to determine whether the incentive structure created by legislature is appropriate.
The Copyright, Designs and Patents Act 1988 of the UK aimed at replacing protection for purely functional articles. This led to spare parts like exhaust pipes from obtaining protection by the UK unregistered design rights. The design right subsists in the shape or configuration of the whole or part of an article. In the case of copyright the right subsists automatically in a qualifying artistic work and can be infringed by direct copying. Where the work is an artistic one, it is still subject to infringement even if there

First, copyright can subsist in design documents, by protecting them as either artistic or literary works. Secondly, copyright can subsist in the article, when articles are most likely to fall within the categories of engraving, sculpture, or works of artistic craftsmanship. To maintain a boundary between copyright and industrial design, the CDPA, 1988 introduced limits to the application of copyright protection to industrial designs. This ambivalent and ambiguous relationship between copyright as a means of protecting designs and the diverse design rights which prevent the unauthorized infringement of designs, depends largely on the interpretation of Sections 51 and 52 of the CDPA, 1988 and has never been satisfactorily resolved in English intellectual property

51(1) defines design in terms equivalent to the unregistered right, and restricts it to three dimensional features, excluding surface decoration. This exclusion of surface decoration and the protection therein. When we speak of the shape of the dress is three dimensional, whereas the pattern used on the fabric is two dimensional. So the shape of the dress falls within design right protection, as it is a feature of shape, whereas the fabric pattern is two dimensional and should be protected by copyright. In the case of Jo Y Jo Ltd. v. Matalan Retail Ltd. where the embroidery on designs for cardigans was held to constitute surface decoration, being "the application of some decorative process to a pre - existing surface", although the claim failed on facts. Features constituting part of the garment's construction and part of its fabric were held not to comprise surface decoration. In fact, Mr. Justice Ratee said that the case, showed strikingly that, whereas a design may well be original in its combination of shape and surface decoration, it may well yet fail to attract protection because of the scheme adopted by the legislature in the 1988 Act of treating separate aspects - shape and decoration as subject separately to the regimes of design right and