Rethinking the Interplay Between Copyright and Design Rights in Hong Kong

Hong Kong is at a pivotal moment in shaping its intellectual property (IP) landscape. The recently released Review of the Hong Kong Registered Designs Regime Consultation Paper (attached) invites public views on a comprehensive overhaul of the registered designs regime. While the consultation covers a wide range of issues, I am particularly compelled to draw attention to Chapter 8, which delves into the complex and often misunderstood relationship between registered design rights and copyright protection.

The Overlap: Copyright and Registered Designs

In principle, copyright protects the original expression of ideas in artistic works, while registered design rights safeguard the novel features of mass-produced products. However, the boundaries between these two forms of protection are not always clear-cut. Hong Kong’s current approach, as set out in sections 86-88 of the Copyright Ordinance (CO), provides a nuanced mechanism: when an artistic work (such as a design drawing) is industrially exploited—i.e., reproduced in three dimensions and marketed—the copyright term for that work is shortened (to 25 years if registered as a design, or 15 years if not), aligning it with the duration of design protection.

This system recognizes the need to balance incentives for creativity with the realities of commercial exploitation, ensuring that creators are rewarded while also preventing perpetual monopolies on functional or aesthetic features that have entered the marketplace.

The Government’s Proposed Repeal or Dilution: A Cause for Concern

The consultation paper signals the government’s inclination toward a possible complete repeal or dilution of sections 86-88 of the Copyright Ordinance. This would remove or weaken the carefully calibrated overlap between copyright and design rights. The rationale appears to be aligning with certain overseas practices that limit or exclude copyright protection for industrially applied designs, thereby pushing such works exclusively into the domain of registered design rights.

I am deeply concerned about this direction. The current regime provides a vital safety net for creators, especially in cases where a design may not qualify for registration or where registration is not pursued. By shortening, but not extinguishing, copyright protection for industrially exploited artistic works, Hong Kong ensures that creators retain some measure of control and recognition for their original contributions.

Repealing or diluting these provisions risks leaving a gap in protection—one that could disadvantage local designers and artists, particularly those in industries where the line between art and industrial design is increasingly blurred.

Unregistered Design Rights: More Limitations, Shorter Protection

Apart from the possible repeal or dilution of ss. 86-88, the HK Government is also considering the adoption of unregistered design rights similar to those in the UK and EU. While these rights offer automatic protection, they come with significant limitations:

• Shorter Term: Unregistered design rights typically last only 3 years in the EU and 10 years (first sold) or 15 years (first recorded or made) in the UK, compared to up to 25 years for registered designs.

• Limited Scope: Protection is generally against copying only, not independent creation, and does not extend to all types of designs.

• Legal Uncertainty: The existence and scope of unregistered rights can be difficult to ascertain, increasing risks for both creators and users.

Introducing such a regime in Hong Kong could dilute the overall protection available to designers, making the IP landscape more fragmented and less predictable.

Impact on Hong Kong’s IP Economy

Crucially, the possible repeal or dilution of sections 86-88 would undermine the Hong Kong Government’s broader ambition to establish an IP-driven economy. Robust copyright protection for artistic works—even after industrial exploitation—serves as a cornerstone for incentivizing creativity, attracting investment, and fostering a vibrant ecosystem where designers and innovators feel secure in their rights. Weakening these protections could erode confidence in Hong Kong’s IP framework, making it less attractive for both local and international creators and investors. It will also take away a very important competitive edge for Hong Kong (it being the only common law jurisdiction within China) to be chosen as the forum for dispute resolution.

Complications of Introducing “Distinctiveness” / “Individual Character” Tests for Registered Designs

Another major issue raised in the consultation is the contemplated introduction of “distinctiveness” or “individual character” tests for registered designs, as seen in the UK, EU, and Australia. While these tests aim to ensure that only genuinely innovative designs are protected, they also bring significant complications:

• Greater Subjectivity: The assessment of “individual character” relies on the impression of an “informed user,” making outcomes more unpredictable and open to interpretation.

• Increased Costs: More complex legal and evidentiary requirements will likely drive up the cost of registration and enforcement, creating barriers for smaller designers and businesses.

• Reduced Certainty: The subjective nature of these tests can lead to inconsistent decisions and uncertainty for applicants, potentially discouraging innovation and investment.

While alignment with international standards is important, Hong Kong must carefully weigh the impact of these changes on its design community and broader economic goals.

The Need for a Balanced Approach

As Hong Kong seeks to modernize its IP regime and align with international best practices, it is crucial not to lose sight of the unique needs of our creative community. Any reform should strive for clarity, fairness, and continued encouragement of innovation. Rather than a wholesale repeal, I urge the government to consider enhancements that clarify the boundaries between copyright and design rights, while preserving essential protections for creators.

Call to Action

I encourage all stakeholders—designers, artists, legal professionals, and industry leaders—to engage with this consultation and make your voices heard. The future of Hong Kong’s creative industries depends on a robust, balanced, and forward-looking IP framework. The deadline to make a submission is 16 March 2026.