This article will illustrated the historical development of the concept of a design right, and the effect that copyright had on the design right as a stand alone area of law.
We begin in the late 1700s with the Calico Printers Acts of 1787 and 1794 – these Acts afforded protection to patterns for linens, cottons, calico, and muslins importantly protection was automatic there were no requirements of registration.
However, by 1839 the Copyright Designs (Registration) Act 1893 entered our statute books bringing with it a system of registration, the duration of protection to these designs was three years. But by the 20th century the role of copyright expanded and continues to expand today. However, the effect of this expansion was not enough to totally eclipse the design right. Copyright was afforded to designs which were capable of existing as an artistic work, for example. Furthermore, copyright also in some instances was more desirable in that the protection was automatic, one therefore did not have to register their designs in order to obtain protection: copyright, had a more favourable duration too.
The legislature attempted to draw a distinction between the design right and copyright through the Copyright Act 1911 with words such as “artistic craftsmanship” for copyright, and works “capable” of being registered as a design were excluded from copyright.
By 1988 the Copyright, Designs and Patents Act 1988 provided a nexus between the copyright and the design right the effect of this Act inter alia, on designs was to create a new regime for unregistered designs: see our article entitled Registered Designs 2nd April 2009 written by Michael Coyle which discusses registration.