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Totes not! – Australian Courts said NO COPYRIGHT in a neoprene tote bag case!
By Shaznee Seraj
Intellectual Property is arguably one of the most interesting areas of the law. We have seen lawsuits against Christian Louboutin, Hermes, Colin the Caterpillar, and now; a neoprene tote bag. Thanks to the Schwartz case, we now know what the Australian Court thinks of neoprene tote bags and copyright. Add that to the precedent cart! Most importantly, the Schwartz case highlights the importance of devising a suitable strategy to protect mass-produced goods from being infringed.
Long story short, Australian designer State of Escape has failed to overturn the court’s finding that its neoprene bag is not a “work of artistic craftsmanship” which meant that it will not be protected under Australian copyright law. Justice Davies held that the design of the neoprene tote bag was limited by functionality and pretty much clarified (or not) what the court thinks of “artistic craftsmanship”. Although the case was heard down under, the essence of IP law remains the same.
Back-to-basics: Australian Copyright Law
Generally, works may be protected either as
Here’s the catch; the keyword here is ”or” – suggesting that it cannot be protected simultaneously in Australia. This seems the common practice in India too but there is an overlap between copyright and design. One vital distinction to make is that Designs Act gives an owner of registered design protection for up to a decade from the date of application for the registered design but this isn’t the case with Copyright Act. It does not require the design to be registered and the protection may last up to 70 years after the year in which the author/creator dies.
The main legal issue here is whether the tote bag has artistic craftsmanship under Copyright Act 1968 (Australia) which determines if it is protected by copyright. State of Escape argued that the court placed too much emphasis on the functionality of the bags and failed to consider the aesthetic appeal of the neoprene bag – it didn’t stick, unfortunately.
F(x) vs artistic craftsmanship
In this case, the court held that the bags aren’t a work of artistic craftsmanship and that the design of the Escape Bag was substantially constrained by function. Most importantly, the court believed that the functionality outweighed its visual and aesthetic appeal. What the case has also done is that it makes it difficult to establish that work is a “work of artistic craftsmanship” within the meaning of the Copyright Act which runs the risk of relying solely on copyright protection for functional goods in Australia. On the point of clarity, the court seems to be hinting that the more functional considerations (i.e: size, quality, functionality), the less likely it will be seen as goods with substantial artistic appeal. It did, however, mention that the design of the bag was an “evolution in styling” rather than a new artistic design.
As a result, designers should carefully examine how their designs can be safeguarded by establishing those rights. This can be done by registering the designs especially if they will be used industrially as Copyright Act won’t cut it. Another important note to highlight is that these actions must be executed as soon as possible, ideally before the design is published or the accompanying product is introduced to the public. Designers must be wary that the mere fact that they consider their work to be “aesthetically pleasing” enough to pass the “artistic craftsmanship” limb, does not directly mean that others who have different views and an eye for aesthetics would share the same vision!
Sri Lanka is an island country located in the southern part of Asia, with Colombo and Sri as capital cities. It was formerly known as Ceylon and the Democratic socialist Republic of Sri Lanka.
WHAT IS HAPPENING IN SRI LANKA?
The citizens in Sri Lanka are currently protesting against its government in their capital city. The protest stated in April and has managed to spread across the country. The background of the protest according to the protestors is the government’s mismanagement of the country’s money. According to expert the country’s economic crisis has be going on for years due to the government decisions. Individuals in the country are struggling to afford the basics like food and medicines. They are also dealing with power cuts on a daily basis and shortage of fuel. The country does not have enough fuel for essential services like its trains and buses. This is adding to the increase in prices and running inflation at more than 50%. The schools in the country have been forced to close down and individuals are asked to work from home due to this crisis. For the first time in the country’s history it has not been able to pay its foreign debt and this is damaging to the country’s reputation when it comes to foreign investors.
WHAT LED TO THEIR ECONOMIC CRISIS?
The government says the country is dealing with these economic crisis as a result of the covid pandemic that hit the country. The pandemic affected the country’s tourism sector which happens to be their major source of foreign income. It looks like the pandemic is not the only cause of their economic crisis but the series of bombing attacks that the country faced in 2019 is also a cause of their economic hardship. This is because these attacks scared tourist from visiting the country. The citizens of the country also believe that these are not the only two factors that are causing the crisis but the president did not manage the economy well.
WHAT IS THE PLAN FOR SRI LANKA?
The president Rajapaksa has resigned and fled to Singapore leaving the country in the hands of the prime Minister Ranil Wickremesinge, who is now the acting president. A state of emergency has been declared across the country and a curfew has been imposed to put the country in order. The World Bank and India has agreed to lend Sri Lanka $600m and $1.9m respectively. The International Monetary Fund has also agreed to lend $3bn but this can happen when the country is stable.
Preparing for law personal statements
Summer has arrived once more, and a new cohort is preparing for their summer UCAS application for law school this fall. Many of you are wondering what you can do to supplement your extracurricular activities in order to write a strong personal statement. Because they emphasise your curiosity and enthusiasm for a subject, extracurriculars are extremely important in demonstrating your passion for a subject without using the word passion.
The first method is through podcasts. Podcasts are an excellent way to conduct research outside of the classroom and demonstrate a love of learning. The law in action podcast by Radio 4 and more perfect with Julie Longoria by WNYC studios are two examples of excellent law podcasts.
Another way to contribute to your extracurricular learning personal statement is to read law books. A few recommendations are Misjustice: how British law is failing women, learning the law, Eve was framed, the rule of law, and reading articles such as the Guardian Law Column and Public Law for Everyone.
Listening to law lectures by universities on YouTube and Spotify is another fantastic resource for your personal statement; an excellent example is a mental health and the law lecture by Richard Martin on Cambridge University’s YouTube channel and Justice. What is the moral thing to do? Havard University’s Moral Case for Murder
Good luck with your extracurricular research this summer, and good luck with your personal statement writing!