THE INTERFACE BETWEEN COPYRIGHT AND DESIGN PROTECTION IN ETHIOPIA: THE CASE OF APPLIED ART

Abstract

The condition of overlap in intellectual property law occurs when one and the same product or creation falls within the object definition of different intellectual property rights. Works of applied art have the nature to fall within the object definition of copyright and design protection. These kinds of overlap amount to availability of more than one form of intellectual property protection for one single subject matter. International conventions like the Berne Convention for the Protection of literary and artistic works, the Paris Convention for the protection of industrial property, and the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) do not provide mandatory obligation of states on how applied art works should be protected under nations’ law. As a result countries adopt three approaches to protect applied art works. These are the patent approach, the copyright approach and both approaches which exposes the works to dual protection. In Ethiopia artistic design applied to useful article (applied art works) can be protected under design law and copy right law as far as the works fulfill the requirements each law provides for protection. The design law protection for artistic design applied to useful article only limited to aesthetic aspect of the article created due to the application of creative design. Copyright law also protects aesthetic aspect of the objects created by artistic manner. Accordingly, Ethiopia Copyright protection and design protection overlap with each other on protection of applied art works. Because of differences between copyright and design protection on term of protection, type of rights they provide and providing faire use exceptions and limitations, overlapping protections can work at cross-purposes for IPR owner to escape from IP bargains easily which can affect interest of public for IP bargains. USA, Australia and German have been developed different doctrines and experiences to exclude or limit the dual protection of applied art works under copyright and design protection. Among USA developed physical or conceptual separable test to protect applied art works under Copyright Act. To be protected by copyright artistic design applied to useful article must be physically or conceptually separable from the object it applied without altering function of the object or destroying the object. The study proposed this separable doctrine as recommendation to solve the over protection of applied art under the two regimes.