Copyright protection or design protection?

New Zealand is one of the few countries that provides specific copyright protection for three-dimensional (3D) works. In New Zealand, 3D copyright protection lasts for 16 years from the date the first 50 products are produced worldwide. It applies to creators in most countries and regions of the world and they automatically obtain this right.

In copyright infringement lawsuits in New Zealand, the copyright owner must be able to prove that a work is protected by copyright before filing a copyright infringement lawsuit. The plaintiff must prove that he owns the copyright of the work, and the most effective evidence is a deed of assignment containing the rights of the original work. For copies of 3D works, even if the channel of acquisition is indirectly derived from a derivative relationship, it may constitute infringement because it is a product copy.

In New Zealand copyright law, the main reason for determining whether there is infringement is whether a substantial part of a 3D shape has been copied, but the law does not strictly stipulate that the "substantial part" should be measured in percentage, but focuses on the importance of the copied part. Even if only a small part of the original work is copied, it may constitute infringement if this part reflects the core elements or essence of the work. In contrast, the infringement determination of design infringement requires that the copied product must belong to the same category as the registered design. For example, if the category of a registered design is "flower pot", and a product uses the same shape but is marketed as a "pillow", this situation will not constitute infringement under the design law. However, there is no such limitation in copyright law, so copyright protection is broader.

For creators who are concerned about infringement, if the possibility of infringement is high, it is recommended to apply for registered design at the same time as obtaining copyright protection. This "double protection" strategy can enhance legal protection. If infringement occurs, registered design provides additional legal means to deal with it.

It is important to note that if a New Zealand patent or registered design expires due to non-payment of annual fees, the copyright associated with the patent or design (such as the drawings in the patent or design) will also automatically terminate. However, if the New Zealand patent or design is still in the application process and has not yet been granted, the expiration of the patent application will not affect the related copyright protection. This provision only applies after the patent is formally granted.