Introduction

Policy context

[Form and function] Intellectual property law makes a significant if imperfect distinction between monopolisation of form and of function. Patents law bestows rights related to the functionality of inventions; by contrast, copyright and designs legislation grants exclusive rights in form or visual appearance only. Copyright and design rights, with their narrower scope, are therefore relevant only if a firm sees commercial value in the specific appearance of its product. As an illustration, take an original technical drawing (a copyrightable ‘artistic work’) of an automotive spare part incorporating improved functionality compared to the prior art. Such a drawing may serve the purpose of describing the invention as claimed in a patent application. If a patent is granted, others will not be able to make a product with the same improved functionality even if it looks different. Contrast that with copyright or design rights in the same drawings: they prevent competitors from copying the drawing as such, or from making a three-dimensional (3D) article reproducing the drawing, but not from making a product that looks different but incorporates the same improved functionality. Nonetheless copyright or designs registration may go some way to monopolising function, if the shape or appearance of the product is integral to its functionality – in other words, if an article must have the same form to achieve the same functionality.