A design is defined as any feature of shape, configuration, pattern or ornament that is applied to any object by an industrial process and are judged solely by the eye. A design does not include any method of construction or feature which is dictated solely by the function which the object is to perform.

For a design to be registered, it must be new or original and must not be the same as a design which appears on the design register or has been published previously in Malawi. A design which differs with a previously registered design only in immaterial details or in variants commonly used in trade shall not be registrable.

Legal Framework for Registered Designs

Registered Designs are governed by the Registered Design Act [Cap 49:05].

Malawi is also a signatory to various international instruments including:
• The Paris Convention for the Protection of Industrial Property
• The Protocol on Patents and Designs within the Framework of the Industrial Property Organization for English-speaking Africa, 1984
• The Banjul Protocol
• The Madrid Protocol

Who may apply for Registered Design

The following can apply for registration of a design:
• The proprietor
• The author
• The assignee or legal representative of the proprietor

What Designs can be Registered

For a designed to be capable of registration, it must fulfil the following conditions:
• Be new or original
• Must be distinguishable by sight
• Must be distinguishable from known designs
• It must not merely be a feature that is commonly used in trade
• It must not be a feature that is solely dictated by the function that the product must perform
• Must not contain anything contrary to public order or contain any obscenity

What Designs Cannot be Registered

The following shall be excluded from registration under the Registered Designs Act:
• works of sculpture other than casts or models used or intended to be used as models or patterns to be multiplied by any industrial process
• wall plaques and medals
• printed matter primarily of a literary or artistic character, including book jackets, calendars, certificates, coupons, dressmaking patterns, greeting cards, leaflets, maps, plans, postcards, stamps trade advertisements, trade forms, and cards, transfers and the like.

What is the Procedure for registration of a design in Malawi

Registration of a Design in Malawi can be obtained by filing an application with the office of the Registrar General as follows:
• The appropriate from in accordance with the Registered Designs Act
• An Endorsement as to novelty
• Representations or specimens to be furnished with the application
• Power of attorney where applicable

The Registrar may then make the necessary searches as to novelty and registrability of the design.

What Rights are Conferred on Registration

The registration of a design under the Registered Designs Act shall give the proprietor or their successors the exclusive copyright in the design.
The proprietor shall have exclusive right to sell or use the said design in any trade or business.
The proprietor also has the right to assign or license the said design to third parties; such assignment may be registered with the office of the Registrar.

What is the Duration of Protection

Design registration is valid for a period of five years from the date of filing of the application and is renewable for two further terms of five years each.

How are Rights Enforced

Any action for infringement of a registered design shall be brought before the High Court where the applicant is at liberty to seek interlocutory remedies.

Conclusion

The law in Malawi allows for the registration of novel designs and vesting of rights in copyright, in their prospective proprietors. Said registration is valid for a renewable period of five years with infringers liable to suit in the High Court.

This content appears as a courtesy of Ritz Attorneys at Law, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit https://ritzattorneys.com/.

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A copyright is an exclusive property right that belongs to authors of any work by the mere fact of its creation.
Copyright law does not protect ideas, but the expression of ideas, the forms but a work shall be eligible for copyright irrespective of its form of expression, its quality or purpose for which it was created.

Legal framework for Copyright in Malawi

Copyrights are governed by the Copyright Act 2016.
Malawi is also a signatory to various international instruments including:

• Berne Convention for the Protection of Literary and Artistic Works
• Universal Copyright Convention (Geneva)
• Agreement on Trade-Related Aspects of Intellectual Property Rights

Procedure for Registration of a Copyright

There is no registration requirement for copyrights in Malawi. An author of any work shall, by the mere fact of its creation, enjoy an exclusive property right in the work.

Eligibility for Copyright Protection

Any Literary, dramatic, musical or artistic work shall not be eligible for copyright unless:

• it is original in character; or
• it is a derivative work including the following:

i. translations, adaptations, arrangements and any other transformations of original literary, dramatic, musical and artistic works

ii. collections of works, such as encyclopedias and anthologies, which, by reason only of the selection or arrangements of their contents, constitute intellectual creations.

Works not subject to Copyright Protection

Copyright protection does not extend to the following:

• written laws and decisions of courts and administrative bodies and to official translations news published, broadcast or communicated to the public by any other means; and
• a report made by a commission appointed by the Government or any agency and which the Government has made available to the public

Rights Conferred by Copyright Protection

Rights conferred by copyright protection are subdivided into two major groups, being, economic rights and moral rights.

Economic Rights

The author of any copyrighted material shall have exclusive right to the following:

• Reproduction of the copyrighted material;
• Distribution of the copyrighted material through sales, renting, licensing or lending;
• Public display of the copyrighted material;
• Public performance of the copyrighted material;
• Communication of the copyrighted material to the public; and
• Translation, adaptation, or any other transformation of the copyrighted material.

Moral Rights

The author of any copyrighted material shall have exclusive moral rights:

• The right to claim ownership of the work and to demand that his/her name be mentioned in a manner in line with proper usage; and
• Object to and seek relief from alternation or distortion of their work where such act would be prejudicial to his/her honour or reputation or where such alteration would lead to discrediting of the work.

Ownership of a Copyright

A person vested with copyright shall be the author of the work.
Where two of more persons are authors of the work, copyright shall vest jointly.
Where the work is created during the course of the author’s employment or is a product of commissioned work, the rights in the work shall vest in the employer or party that commissioned the work.

What is the Duration of Protection

Copyrights shall be protected during the lifetime of the author and fifty years after his/her death.
In cases of joint ownership, during the lifetime of the last surviving author and for fifty years after his death.
In cases where the author is anonymous, fifty years from the date such work was first published.

Infringement of a Copyright

A person infringes a copyright where they, without valid transfer or license, reproduces, duplicates, extracts or imitates such a work, or sell, lends or hands out the said work without consent of the copyright owner.

How are copyrights enforced

Copyright infringement is a criminal offence and on conviction, violators shall be liable to a fine of MK5,000,000.00 and to imprisonment for two years.
A civil action for copyright infringement can also be commenced by the owner of the copyright where they can obtain remedies as follows:

• Damages;
• Injunction;
• Account of profits or otherwise; and
• Forfeiture of all reproductions to the copyright owner or the government.

Conclusion

Works in Malawi are subject to copyright protection merely by virtue of their creation. Copyrights vest various rights in the creators of works and prohibits unauthorised distribution or reproduction of such works. Where such infringement occurs, the proprietor has various remedies in both criminal and civil courts.

This content appears as a courtesy of Ritz Attorneys at Law, a proud member of the China Collaborative Group (CCG Association). It is informational in nature and does not constitute legal advice or establish an attorney-client relationship between you and its author, publisher or any member of CCG. For more information, please visit https://ritzattorneys.com/.

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