India: Protect engineering drawings using copyright or design?
This article analyses the challenges of protecting engineering or technical drawings that are likely to be transformed into a product. Should such as drawing be protected as an “artistic work” under the Indian Copyright Act or as a “design” under the Indian Designs Act?
For a commercial enterprise, generally, a drawing follows a prototype before making the final product, which is likely to involve an industrial process. Thus, the question arises whether a business enterprise wishing to protect its adrawings that qualify for protection as an artistic work under the Copyright Act should necessarily register the work as a design.
The question of whether to register a drawing as a design takes on even greater importance for businesses that are trying to stop a third party from exploiting their artistic work by creating a three-dimensional reproduction of the drawing.
The question often asked is whether a technical drawing would continue to be protected as copyright by itself. In contrast, the resulting product that is industrially produced on the basis of that drawing qualifies to be registered as a design. In some cases for example, the product may not meet the criteria of a design under the Designs Act—it may fall under the exclusion being a mechanical device.
Also, from a commercial perspective, reverse-engineering a product to prepare identical drawings and then the mould or a cast to make an identical product (in appearance) is commonly resorted to by traders.
Overlap between copyright and design
The complexity between copyright and design for an engineering drawing arises from:
- The definition of a design that specifically excludes artistic work, as defined under clause (c) of section 2 of the Copyright Act. The definition of artistic work under the Copyright Act includes a drawing including a diagram, map or chart or plan, whether or not such work possesses artistic quality.
- Section 15 of the Copyright Act which has two parts:
The first part, ie, subsection (1) states that copyright shall not subsist under the Copyright Act in any design which is registered under the Designs Act. Consequently, once the design is created and got registered under the Designs Act, the design loses its protection as an artistic work under the Copyright Act. Therefore, subject to rights that are available under the Designs Act, the registered design holder cannot claim protection or complain of copyright infringement in respect of the registered design under the Copyright Act.
