The Australian Designs Act requires that a design be new and distinctive to be registrable.

However, even if a design is not new and distinctive it is treated as such so long as there exists an artistic work (corresponding to the design) in which copyright exists and any prior use does not include sale, hire or offer for sale or hire of products to which the design has been industrially applied.

This provision is useful where a product has been publicly disclosed but not commercially released, as usually there will be drawings, prototypes and the like in which copyright exists.

A recent court decision indicates that what is "a work of artistic craftsmanship" will be interpreted in a narrower fashion than previously thought.

In the recent court decision of Burge v Swarbrick [2007] HCA 17, the High Court of Australia considered whether a “plug” for a boat or yacht is a work of artistic craftsmanship for the purposes of the Copyright Act 1968 (Cth).

A plug is a three dimensional object from which a mould for a hull may be made.

Whilst the design of the plug included consideration of visual and aesthetic matters, the court decided these matters were subordinate to functional matters and that both the plug and any hull derived from the plug were not works of artistic craftsmanship and so copyright did not exist in these items.

The court stated:

“It may be impossible and certainly would be unwise, to attempt any exhaustive and fully predictive identification of what can and cannot amount to “a work of artistic craftsmanship” within the meaning of the Copyright Act as it stood after the 1989 Act. However, determining whether a work is “a work of artistic craftsmanship” does not turn on assessing the beauty or aesthetic appeal of work or on assessing any harmony between its visual appeal and its utility. The determination turns on assessing the extent to which the particular work’s artistic expression, in its form, is unconstrained by the functional considerations...”

This case is significant as it indicates that a commercial product (which almost invariably has functional aspects) and its precursors such as design drawings, prototypes, moulds etc may not be considered to be a work of artistic craftsmanship. However, it appears that this will depend on how much these functional considerations “overpower” the aesthetic considerations.

It follows that if the items are not artistic works and there is no copyright protection then the provision relating to prior use being ignored will not apply.