The 1709 Blog is pleased to welcome this guest post from David Brophy (FRKelly, Ireland, and a valued member of the IPKat blog team):
Plaidgerism and concocted defences
If one was handed a piece of paper with the following description typed on it:
“Draw a solid, crimson red square with sides two inches long, having at its centre a smaller white square with one inch sides. In the very centre of the squares place a single pale blue dot of ¼ inch diameter.”
… what type of copyright work would the reader imagine this to be, assuming originality and all the usual qualification requirements were satisfied?
Certainly it’s a literary work, and someone transcribing these words would infringe the author's literary copyright. Now if the author of the instructions drew the symbol and released only this to the public, what would be the position for a third party described the symbol by writing down the set of instructions required to draw it. They might arguably be copying the author's description albeit indirectly, and thereby might be infringing literary copyright in the literary work.
|Not an infringement|
of the recipe
But what about someone selling a T-shirt emblazoned with the shape specified in the written description, if that person had only ever seen the written description? Would he infringe any copyright in the typed document? Instinctively, one would think that selling a T-shirt with the shape on its front could not be an infringement of copyright in what is essentially a literary work. As Whitford J observed in J & S Davis v Wright Health Group, you do not infringe copyright in a recipe by making a cake.
However, in a recent judgment of Judge Birss QC in the Patents County Court for England and Wales, the judge found that a document with no element of drawing, and simply consisting of two pages of written instructions, i.e. having only words and numbers on them but no illustration, can be regarded as an artistic (graphical) work as well as a literary work. Moreover, when regarded as an artistic work, the copyright in that work can be infringed by making something which reproduced the pattern or image specified in the instructions, albeit that the image was described using a code which would be meaningless to most lay people. What matters, the judge says, is that the document has visual significance to some people, even though to most it would be meaningless words and numbers.
The case is Abraham Moon & Sons Ltd v Andrew Thornber and others  EWPCC 37, and is concerned with the copying of plaid fabrics (think tartan fabrics: technically the fabrics in dispute weren't tartans but you'll have the right idea, with apologies to tartan aficionados).
The dispute was one where there was no direct evidence of copying, and so the plaintiff, following the Designer's Guild rules laid down in the House of Lords, had to establish substantial similarity; this, combined with the defendant having had access to the work, shifted the burden of proof to the defendant to provide a credible explanation of independent creation to dislodge the inference of copying.
The defendants being unable to provide such an explanation (in fact, the judge held their explanation to be consistent with a "concocted defence" - and is worth reading as an example of how a purported explanation of independent creation may be undermined and ultimately rejected), copying was held to have occurred. But what was the copyright work and how was it infringed?
The plaintiffs had claimed literary copyright in a document (the "ticket stamp") consisting of written instructions for an operator to set up the loom, specifying using the shorthand common in that trade the number and position of warp and weft threads of various colours.
Taken as a literary work, Judge Birss held that when the defendants wrote their own loom set-up instructions from the plaintiffs’ fabric pattern, in effect reverse engineering the set-up of the loom from the end product, they had infringed this literary copyright indirectly. (Using Whitford J’s analogy of the recipe and the cake, this is infringement of the literary copyright in a recipe by rewriting and recreating the recipe having dissected and tasted the cake). The defendants’ plaid itself, however, produced by a loom which had been set up according to the document, did not infringe literary copyright.
The plaintiffs also claimed artistic copyright in that same two-page written document. The defendants denied there was any artistic copyright given that there was no element of illustration. The definition of “artistic work” in the Copyright Designs and Patents Act 1988 reads, insofar as it is relevant:
“Artistic work” means a graphic work, photograph, sculpture or collage, irrespective of artistic quality;
Distinguishing from several important precedents which appeared to require some element of drawing or illustration to qualify as an artistic work, including the judgments of the Privy Council in Interlego v Tyco and the Court of Appeal in Entec v Abacus, Judge Birss held that a purely written work of this kind could be a "graphical work" and thus an artistic work, provided it was “visually significant” – the latter phrase being one used by Lord Oliver in Interlego.
“graphic work” includes (a) any painting, drawing, diagram, map, chart or plan, and (b)any engraving, etching, lithograph, woodcut or similar work;
So where you and I would merely see two pages of letters and numbers describing the set-up for a loom, but an experienced weaver could visualise the resulting tartan (according to one witness), then this was – to that person – visually significant and thus a graphical work:
107. I find that the Skye Ticket Stamp [i.e. the two page document with the loom set-up instructions] is an artistic work within s4 of the 1988 Act. I think it is best described as a "graphic work" within s4(1)(a) and 4(2). Mr Turner submitted that terms like "graphic work" should be given their ordinary meaning. I do not think it is doing violence to the language to regard the ticket as a graphic work. It may be of an unusual sort but it is a record of a visual image.
Once the judge had held that the document was an artistic work, infringement followed – not because the defendants had followed the instructions, but because they had created a fabric which reproduced that visual image:
109. This conclusion is not inconsistent with my finding on literary copyright. The process by which Spring Meadow [the defendants’ plaid] is made is irrelevant. A cotton fabric printed with an image of the Spring Meadow plaid would be just as much of an infringement. Spring Meadow infringes the artistic copyright because it reproduces the appearance of Skye Sage [the plaintiff’s plaid]. Whether its manufacture could be said to involving carrying out instructions on the ticket is not the point. The point is that the ticket is not simply a set of instructions which can be performed on a loom, it is also a record of an image and the image has been reproduced.
So what do readers think? Does this blur the line between literary and artistic copyright, or help clarify the area in which they overlap? And if the above literary description of a circle-within-a-small square-within-a-large-square should become a surprise literary bestseller this festive season, should the inevitable sellers of counterfeit T-shirts be sued based on the written description itself or the picture?
This is a classic problem inherent in the way in which the 1988 Act is drafted. As is well known a circuit diagram is both a literary and artistic work (or at least it is capable of so being) if we are to believe Robin Jacob in _Anacon_.
A "photograph" encompasses a digitised image which can of course be printed out as (say) a hexadecimal dump and then by typed in again in another computer and the image recreated. Surely, in some sense, all those works are literary works.
Worse: PDF's can be (since they can contain postscript) computer programs, artistic and literary works all at the same time - or is there an exclusivity?
One way to avoid this concern - but to open up other areas of difficulty - is to embrace the idea inherent in the CJEU's growing jurisprudence on copyright (discussed by Eleonora Rosati of this blog in her PhD thesis) that there may actually not be a dichotomy between literary and artistic works.
EU law knows of 3 (possibly 4) categories, namely: databases, computer programs and everything else (the 4th is photographs, because of the Term Directive, but that's not important right now). Literary and artistic works are "everything else".
Accordingly the correct approach to a question like this is: (i) is the original a work that is the creator's "own artistic creation"? (ii) if, yes, does the alleged copy misappropriate that "artistic creation"? Differences in form therefore do not matter, or at least matter so much.
My guess is that from an EU perspective this is a simpler question than English law(yers) make it.
In a technological world this may become inevitable, if we start to think of a high resolution 2d image being effectively interchangeable with its vector description as a PDF or SVG vector graphics file.
A more productive question might be: did this plaid show sufficient creative originality to merit protection?
The repertoire of plaid designs is well worked, and this design seems very conventional. Is it any more than an uncreative collation of stock elements of the genre?
"the ticket is not simply a set of instructions which can be performed on a loom, it is also a record of an image and the image has been reproduced."
The distinction between 'set of instructions' and resulting 'image' is a phenotype/genotype kind of distinction-which comes first mostly depends upon how you look at it. In the age where most copies now contain all the information needed it doesn't seem a good basis for legal judgement.
The repertoire of elements that tartan patterns are made up from is pretty limited and it is hard to see that much that is original about either of the patterns; To what degree is the "set of instructions" at the heart of the case original in the first place?
In finding that the Skye ticket stamp was an original artistic work, His Honour Judge Birss was not required to resolve whether the Skye Sage fabric sample itself was also an artistic work. He therefore managed to avoid answering the difficult question of whether the result of recent CJEU case law is that all "intellectual creations" should be protected.
He was also careful when considering originality to note that the Skye Sage design contained "considerable artistic skill, labour and judgment" and that it was Mr Aveyard's "original work. It is his own intellectual creation" . The wording implies that the work satisfies both the UK and the European tests for originality so there was no need for the PCC to determine which was the correct test.
The issue of harmonisation of the concept of a work/the test for originality must be decided by an English court at some point.
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