Wednesday, 22 April 2015

Art and Artifice: The dirty side of artistic copyright: septic tank ...

Art and Artifice reports on a case in the Privy Council, not something we come across every day, or even every decade: apart from Lego and Opportunity Knocks, which are now almost ancient history, I can't remember any in my time as a lawyer.

This is Gold Rock Corp Ltd & Anor v Hylton (The Bahamas) [2015] UKPC 17 (20 April 2015), a case which demonstrates (if the point needed demonstrating) that design protection often involves some rather unpleasant subject-matter - pig fenders (not too bad), slurry separators (a great deal more distasteful), and now septic tanks. Although we are in the realm of copyright here, so we are not considering septic tanks but rather designs for them, which is a much cleaner and more pleasant proposition.

Bahamian copyright law, in the form of the Copyright Act 1998 (amended in 2004, though not in a way material to the present case) bears some similarities to our law in the way it treats copyright in designs, but the wording is significantly different and as far as I can see there is no unregistered design protection, only a registered design system (under the Industrial Property Act 1965) which borrows heavily from the Registered Designs Act 1949 v1, allowing applicants to request a grant of "design copyright" (remember that?) and imposing an eye-appeal test. Oh, those were the days!

As for copyright protection, technical drawings are expressly included in the definition of artistic works, which is one significant difference from our law (though perhaps a difference of words only). The Bahamian Act then goes on (in section 2(3)) to restrict copyright in a design for a useful article:

the design of a useful article ... shall
be considered an artistic work only if, and only to the extent that,
such design incorporates artistic features that can be identified
separately from and are capable of existing independently of, the
utilitarian aspects of the article.
That seems, on the face of it, to be intended to deny copyright protection for designs for utilitarian things. Back in the heyday of copyright protection for designs, we might have expected an interesting debate about septic tanks in various fanciful and artful shapes, as I remember discussing the possibilities of conrods cast in the shape of the female human form: in each case a completely pointless exercise, because no-one in their right minds would think to copy the crazy design. Here, though, we get an extraordinarily narrow interpretation of those words, turning on a distinction between design (abstraction) and technical drawing (piece of paper: I almost wrote "concrete", in contradistinction to abstract, but concrete is precisely what the septic tanks were, so I would have confused the issue no end). The Board (well, Sir Kim Lewington, at any rate, speaking for all of them) said:

A “useful article” is ... a three-dimensional physical artefact. A technical drawing which gives instructions about how to make such an artefact is not itself a “useful article”; not least because its function is merely to convey information about how to make it. In the Board’s view the “design” of a useful article is a reference to the physical aspects of the article itself, rather than a technical drawing conveying instructions about how to make it. Any other interpretation would mean that it was almost impossible for any technical drawing to be protected by copyright, even though technical drawings are specifically included in the primary definition of “artistic works.”
So the drawings remained protected, and the PC advised Her Majesty that the appeal should be allowed, and no doubt she will take that advice rather then try to work out whether a better solution might be available. I find it hard to believe that this is the result the draftsman intended, although it is no doubt a correct reading of the words (especially in the light of all the experience we have of copyright and designs): but if the draftsman's intentions have been thwarted, we can all console ourselves by remembering that this whole area of law developed quite by accident, mostly as a result of the law of unintended consequences (the same law which I imagine will make the repeal of section 52 a disaster - but I digress ...).

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