Design and copyright in the Netherlands: twice the protection?

Written on 8 Jun 2016

There are two potential sources of protection for the intellectual property in industrially-produced products in the Netherlands: copyright and design rights.  One should not be ignored in favour of the other.  A sensible approach is to seek the protection afforded to registered designs, which may itself confer copyright protection for the owner of that design right.

Protection through copyright or design law: what’s the difference?

Unlike a work of art, which is protected by Dutch copyright as soon as it is created, a design will need to be registered at the Benelux Office for Intellectual Property to be protected by a design right in the Netherlands. Where a design right grants 25 years of protection in the Benelux, a copyright grants protection up to 70 years after the death of the creator/designer. The requirements to be fulfilled for the two types of rights also differ markedly. Nevertheless, under Dutch law as in a number of other EU Member States, the same industrial product or design can be protected by both design right and copyright – but not all designs will be entitled to both forms of protection.

Copyright protection

A design or industrial product will be entitled to copyright protection in the Netherlands if it is an “original expression” and bears the personal imprint of the author. The requirement of “original expression” means that the work may not be derived from another work. In Infopaq, the CJEU decided that the test should be whether the work is “an intellectual creation of its author”.

There has been no further clarification as to what precisely that means.  But what is clear is that the test for copyright protection for industrial products is identical to the test for other products.

Design law

Benelux design law follows the EU Designs Directive, so industrial designs will only be protected to the extent that the design is new and has individual character. A design qualifies as a new design if no identical design has previously been made available to the public. A design is considered to have individual character if the overall impression it produces on the informed user differs from the overall impression produced on such a user by any other designs which have been made available to the public.

How do copyright and design laws relate?

If a design which is registered in the Benelux also attracts copyright protection, the registration of the design may also affect the ownership of any related copyright. Under Benelux design law, the owner of a Benelux design will also be presumed to be the owner of any copyright vis-à-vis third parties (not including the original designer). Once you register a Benelux design, you are therefore automatically rewarded with any copyright that exists in the design. The reasoning behind this legal construction is to ensure that the copyright and the design right in an industrial product both vest in the same person.

So, why register a design right if the design/product is already protected by copyright?

A judgment of the Court of Appeal in The Hague illustrates that the same design cannot always rely on both design right and copyright protection. In a case about the design of panniers, the Court ruled that the panniers qualify as products that are new and have an individual character and are therefore entitled to design right protection. However, the Court also ruled that the same panniers were not protected by copyright. The Court concluded that the panniers did not qualify as “a work of an intellectual creation” because of the lack of creative choices involved in designing them.

This example illustrates that it is sometimes easier to invoke design right protection than copyright protection in the Netherlands. Another advantage of being able to invoke a registered Benelux design is that you will be deemed to be the holder of a protected design without necessarily having to prove that the right subsists. If you seek to rely on copyright, you will often need to prove why the design is copyright protected. Further, although neither design right nor copyright in principle protects technical elements of the design, judges tend to be more lenient in protecting technical elements under design right law.

What does this mean for designers and manufacturers?

Given that it can be easier to invoke design rights than copyrights in an industrial product, it is advisable always to look into registered design right protection for industrial products and designs in the Netherlands, rather than simply relying on copyright protection.