For information and reference only – not to be submitted as your own work. This is not legal advice. The extract concerns a fictional client and fictional facts, and shows structure and tone rather than a complete 3,250-word answer.

This extract responds to a University of Auckland LAWCOMM 795 Copyright and Design final assessment. You can browse similar tasks on our University of Auckland questions page, and the reasoning behind the structure is in our guide to registering AI-generated designs in New Zealand and Australia. Check that the statutes cited are still in force before relying on any of this: the extract uses the Designs Act 1953 (NZ), which the Ministry of Business, Innovation and Employment still describes as the registration law.

Model extract

Executive summary

We recommend that the client file design applications in New Zealand and Australia after a prior-art search of each register. The design appears registrable in both countries if the searches show nothing similar. The main risk is ownership of the AI-assisted drawings, which turns on how much of the final work comes from the designer.

The client should file first and obtain the designer’s written confirmation of his role before filing. Copyright is a secondary layer of protection and should not be relied on alone.

1. Introduction

You asked whether Smuggle Ltd (a fictional client) can register its baby-product design in New Zealand and Australia, and who owns the drawings. The drawings were produced by the client’s designer. He used the client’s generative AI tool for early “inspiration” drawings and later to tidy up his own drawings.

We treat the design as never registered or published anywhere. This letter addresses four issues: registrability in New Zealand, registrability in Australia, authorship and ownership, and how copyright and design protection interact.

2. Registrability in New Zealand

A design is registrable in New Zealand only if it is “new or original” [1]. A design that matches one already registered or published in New Zealand, or differs only in immaterial details, cannot be registered [1].

Because the design was not published, it should satisfy the test unless the register shows a similar earlier design. The client should search the register of the Intellectual Property Office of New Zealand (IPONZ) for products in the same class before filing.

3. Registrability in Australia

In Australia, the test is stricter in one respect. A design is registrable if it is both new and distinctive when compared with the prior art base [3]. A design is not new or distinctive if it is identical or substantially similar in overall impression to something in that base [3].

Our instructions limit prior art to what appears on the New Zealand and Australian registers. On that basis, the client should search both. A match on either register is the main threat to validity.

4. AI-assisted drawings: authorship and ownership

The two uses of the AI tool raise different questions. For the tidy-up, the designer’s own drawings remain the base. A human author exists, so ordinary authorship rules apply.

For the inspiration drawings, the answer differs by country.

In New Zealand, the Copyright Act 1994 gives a special rule for computer-generated works. The author of a computer-generated literary, dramatic, musical or artistic work is the person by whom the arrangements necessary for its creation are undertaken [4]. The client or the designer could therefore be the author of the raw output, depending on who made those arrangements.

Australia has no equivalent provision. Copyright there requires a human author. The Full Federal Court has held that a work produced largely by a computer process lacked a human author for copyright purposes [5], and the High Court has stressed the need for independent intellectual effort by an identifiable author [6]. Raw output from the tool is therefore unlikely to attract copyright in Australia.

Ownership flows from authorship. In New Zealand, an employer is the first owner of copyright in a work its employee creates in the course of employment, unless there is a contrary agreement [7]. If the designer is an employee, the client should own the copyright in his drawings.

For design ownership, the New Zealand author of a design is its proprietor unless the design was executed for another person for good consideration, in which case that person is the proprietor [2]. The designer’s employment or engagement terms therefore matter. We need to see his contract.

5. Overlap between copyright and design

Registering a design affects copyright. In New Zealand, once an artistic work has been applied industrially, the Copyright Act 1994 allows articles to be made from it without infringing copyright after the statutory period (16 years) has passed [8]. In Australia, copyright in an artistic work is not infringed by applying it industrially if the corresponding design is not registered [9].

The practical result is that the client should not rely on copyright to protect a product shape. Registration is the stronger route.

6. Recommended course of action

7. Further information needed

• The designer’s contract and any assignment of rights.
• The AI tool’s licence terms and who operated the tool.
• Dated copies of the inspiration drawings and the tidy-up outputs.
• Any disclosure of the design to manufacturers, retailers or the public.
• Whether the client has sold or shown the product anywhere.

About the expert

Reviewed by George Stewart, a Wellington-based law expert with a Master of Laws (International Law and Politics) from Auckland University of Technology. His profile lists fields including international law, trade law, constitutional law and consumer protection.

Use any guidance for study and follow your university’s rules on AI disclosure. Explore our law assignment help page for more on how we support law students.

References

Sources are listed in the order of the bracketed numbers used above (NZLSG-style pinpoints).

1. Designs Act 1953, s 5: https://www.nzlii.org/nz/legis/consol_act/da195391/s5.html
2. Designs Act 1953, s 6: https://www.nzlii.org/nz/legis/consol_act/da195391/s6.html
3. Designs Act 2003 (Cth), ss 13–17: https://www.legislation.gov.au/C2004A01232/latest/text
4. Copyright Act 1994, s 5(2)(a): https://www.nzlii.org/nz/legis/consol_act/ca1994133/s5.html
5. Telstra Corporation Ltd v Phone Directories Company Pty Ltd [2010] FCAFC 149, (2010) 194 FCR 142: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2010/2010fcafc0149
6. IceTV Pty Ltd v Nine Network Australia Pty Ltd [2009] HCA 14, (2009) 239 CLR 458: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2009/14.html
7. Copyright Act 1994, s 21: https://www.nzlii.org/nz/legis/consol_act/ca1994133/s21.html
8. Copyright Act 1994, s 75: https://www.nzlii.org/nz/legis/consol_act/ca1994133/s75.html
9. Copyright Act 1968 (Cth), s 77: https://www6.austlii.edu.au/au/legis/cth/consol_act/ca1968133/s77.html