Notes on Copyright in Designs Flashcards
What classes of work protectable by copyright could potentially be 3D?
Sculptures;
Works of architecture;
Works of artistic craftsmanship; and perhaps
Engravings.
These are protected by copyright irrespective of artistic quality.
How did section 51 CDPA come into being?
Most designs are made up from pre-existing drawings and plans, and these drawings and plans themselves are protected as artistic works “irrespective of artistic quality”.
Under s.17 CDPA and its predecessors, making a copy of a product constitutes making an indirect copy of the drawings.
Thus, under former copyright statutes, copying products was an infringement of copyright in the drawings, even though the product itself did not qualify for copyright protection. In cases such as LB Plastics v Swish,2 functional designs (of furniture draw runners) which could not have been patented or registered as designs, and were not copyright works themselves, were given much longer protection via the copyright in their underlying drawings.
Section 51 was introduced into the Act to rectify the situation. Section 51 breaks the causal link so that indirect copying (via a product) of a drawing is not an infringement of copyright, but direct copying remains an infringement.
How can one escape section 51?
Section 51 applies to all kinds of designs unless the subject of the drawing or other document is itself a statutory artistic work.
To survive s. 51 the drawing (or other copyright work) has to depict something which is itself:
- -A sculpture;
- -A work of architecture;
- -A work of artistic craftsmanship; or perhaps
- -An engraving.
Thus the caselaw which is relevant to copyright in designs relates to what constitutes a sculpture, a work of artistic craftsmanship etc.
Surface decoration also survives the effect of s. 51 because it is not “design”
What are the factors to consider when determining if a work is a sculpture according to the decision in Lucasfilm v Ainsworth?
i) Some regard has to be had to the normal use of the word.
(ii) Nevertheless, the concept can be applicable to things going beyond what one would normally expect to be art in the sense of the sort of things that one would expect to find in art galleries.
(iii) It is inappropriate to stray too far from what would normally be regarded as sculpture.
(iv) No judgment is to be made about artistic worth.
(v) Not every three dimensional representation of a concept can be regarded as a sculpture. Otherwise every three dimensional construction or fabrication would be a sculpture, and that cannot be right.
(vi) It is of the essence of a sculpture that it should have, as part of its purpose, a visual appeal in the sense that it might be enjoyed for that purpose alone, whether or not it might have another purpose as well. The purpose is that of the creator. This reflects the reference to “artist’s hand” in the judgment of Laddie J in Metix, with which I respectfully agree.
(vii) The fact that the object has some other use does not necessarily disqualify it from being a sculpture, but it still has to have the intrinsic quality of being intended to be enjoyed as a visual thing. …
(viii) … A pile of bricks, temporarily on display at the Tate Modern for 2 weeks, is plainly capable of being a sculpture. The identical pile of bricks dumped at the end of my driveway for 2 weeks preparatory to a building project is equally plainly not. One asks why there is that difference, and the answer lies, in my view, in having regard to its purpose. One is created by the hand of an artist, for artistic purposes, and the other is created by a builder, for building purposes. …
(ix) The process of fabrication is relevant but not determinative…
What is the meaning of “design” in section 51(3)?
Section 51
(3) In this section—
“design” means the design of . . . the shape or configuration (whether internal or external) of the whole or part of an article, other than surface decoration; and
“design document” means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise.
This largely corresponds to the definition of a protectable unregistered design in s. 213(2).
What does s 51(1) say?
Section 51 (1) It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.
What is meant by a design document?
A “design document” is a record of a “design” as defined above. A drawing for something other than a design as defined above is not a “design document” and therefore escapes the effects of s.51. The key appears to be the purpose for which the sketches were prepared.
In considering whether something is a “design document” the format does not matter - it is “any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise”.
What was the result in Abraham Moon v Thornber? (check this?)
The making of the tartan indirectly infringed the ticket stamp by copyright. Ticket stamp was artistic work and so was not considered a “design document” under section 51.
