Judging Copying in Industrial Drawings
The plaintiff alleged breach of copyright by the defendants in copying drawings of plastic drawers.
Held: The use, by an alleged copyist of odd or unusual detail found in the original is often a tell-tale of copying.
Lord Wilberforce said that the beginning of the necessary proof of copying normally lies in the establishment of similarity combined with proof of access to the plaintiff’s productions
Whitford J said: ‘no originality of thought is needed to sustain a claim to copyright. Under copyright ideas are not protected, only the skill and labour needed to give any given idea some particular material form, for it is the form in which the work is presented that is protected by copyright. A piece need only be original in the sense that it is all the author’s own work.’ a drawing of a three dimensional prototype, not itself produced from the drawing and not being a work of artistic craftsmanship, would qualify as an original work.
Lord Hailsham of St Marylebone said it was trite law that copyright protection is given not for ideas, but only for the form of expression.
Judges must be credited with some ability to interpret drawings in considering a defence under s.9(8). The subsection applies only by way of defence, after the issue of copying has been decided in favour of the plaintiff. The onus is therefore on the defendant. It is a question of fact. The judge must place himself in the position of a non-expert in relation to the infringing article in order to decide whether the article does not appear to be a reproduction of the copyright work. To perform this task he must compare the article with the drawing, taking account of any written matter on the drawing: ‘The (non-expert) judge should not repeat the process which, as judge with the assistance of expert and other witnesses, he has gone through in deciding whether there has been copying or not.’
Lord Wilberforce, Lord Hailsham of St Marylebone
[1979] RPC 551
Copyright Act 1956 9(8)
England and Wales
Cited by:
Cited – Vestergaard Frandsen Sa ( Mvf3 Aps) and Others v Bestnet Europe Ltd and Others CA 20-Apr-2011
The claimants manufactured insecticidal fabrics. They claimed that the defendants had produced their own product using confidential information obtained from their former employees now working for the defendant. The courts had granted injunctions . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Leading Case
Updated: 01 November 2021; Ref: scu.547139