Again the story here is of steps towards the harmonisation of laws across the member states of the EU, but progress is variable in the many different topics covered by the broad heading of copyright. There are developments in design law, database protection, software and other subjects related to electronic media.
Designs and Design Right
Harmonisation of registered and unregistered design rights to implement the Directive on Registered Designs is taking place, often along the lines of the UK Copyright, Designs and Patents Act, 1988. However the dispute on the manufacture of spare parts still continues with Parliament and the Commission wanting third parties to be allowed to make spares freely (particularly relevant for motor vehicles) and the Counsel of Ministers objecting. But in England, a court decision (Ocular Sciences v Aspect Vision) has narrowed the scope of unregistered design right.
Benelux
On 26th June 1997 the Benelux Act on the Protection of Designs and Three-Dimensional Models was enacted. It will come into force after recognition by the three Benelux states. Several measures to prevent piracy will be introduced in line with the Benelux Trademark Act. For example, a design right owner can claim both damages and profits from the infringer, apply for seizure of infringing goods and destroy them. He can also force the infringer to give the name and address of his supplier.
Under the new Design Rights Act the strict requirement for novelty will be relieved a little. A design will still be considered novel even if it has been put on the market by the applicant, or a third party related to the applicant, within 12 months before the application date or the priority date. So a designer can put his design or model on the market to test if it is successful. If it is, he can register the design or model within 12 months. This will make application for design right protection far more interesting for designers.
However, would-be design right owners who wish to apply for rights outside the Benelux countries need to check whether the marketing would or could invalidate design rights elsewhere. For example, if the design were to become commonplace in the UK, no design registration would be possible there. Mere publication in the Community would seem to be a bar to rights in Greece (see below).
Greece
On 19 September 1997 the Greek government implemented regulations for National Design Protection in accordance with The Hague Agreement concerning International Deposit of Industrial Designs, the EU proposal for a Directive to Harmonise National Laws on the Protection of Industrial Designs and Models and on related European Union Regulations. Although Utility Model Certificates have been available, Greek law did not previously protect designs.
The Design Law provides protection to designs or models that are absolutely new within the Community and have an individual character. Protection for component parts is limited to visible features of the component part which fulfil the requirement as to novelty and individual character. The law does not provide for examination for novelty.
Registration of a design gives the holder the exclusive right to use that design for a maximum period of 25 years, subject to renewal every 5 years.
The law provides for important exceptions, one for spare part for motor vehicles and another for the use of design rights emanating from a pre-existing exploitation of the design.
Copyright protection continues to be available in addition to design right.
Italy
Italy is a nation where industrial design is one of the most important sources of income. Yet curiously, Italy remains one of the few European jurisdictions where protection for industrial designs is regarded as inadequate.
However, thanks to Law no. 650 dated 23rd December 1996, reform is on the way. This law provides that industrial designs will be protected by copyright law, although detailed regulations are awaited to govern the mechanics of how this will operate in practice.
The new Law has both advantages and disadvantages in its application. On the one hand, no registration formalities are required to gain copyright protection; only a discretionary filing at SIAE, the Italian Association of Authors and Publishers, is advisable to establish the date of creation of the work for any future proceedings. In addition, the right lasts until 70 years after the author's death.
On the other hand, copyright only protects the form, not the content. Works which are similar but not the same do not infringe. Moreover, Italian copyright law requires the work to be creative, but the level of creativity is low.
In addition, we are awaiting the impact of the European Directive on Registered Designs on the rule arising from the Law no. 650 and on the current Italian system of protecting industrial design.
Norway
The Amendment Act of 22 December 1995, which came into force during 1996 and 1997, amended, the Designs Act of 29 May 1970. The main provisions follow those in the Patents Act and Trade Marks Act as to publication of the application and opposition (see page 8). The opposition period is 4 months, and priority claims are available.
Portugal
The duration of industrial models and designs is now limited to 25 years from the date of application.
England
Ocular Sciences v Aspect Vision
Reduction of the scope of Design Right
The plaintiffs claimed unregistered design right, under the Copyright, Designs and Patents Act 1988, in over 200 individual contact lens designs, each differing by microscopic amounts.
The defendants had gone through an independent, though very similar, design exercise as the plaintiffs aiming to make a product which the public would accept as interchangeable with the plaintiffs' designs. They had arrived at very similar designs. Laddie J held that as there had been no copying, there had been no infringement of design right.
Laddie J also excluded some of the features, for example the curvature of the lens in contact with the eye-ball, from design right under the "interface" exception of section 213(3)(b)(i) of the Act on the basis that their purpose was to enable the lens to be placed in the eye.
The remaining design features were excluded from design right as "commonplace". Laddie J said that any design which was "trite, trivial, common-or-garden, hackneyed or of the type which would excite no peculiar attention in those in the relevant art is likely to be commonplace". A design made up of commonplace features is not necessarily commonplace, but to secure protection the combination must not be commonplace.
The result of this case is to narrow the scope of what can be protected in England by design right.
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