Saturday, 1 February 2020

Jacquard fabric as a work of artistic craftsmanship

The courts have always been much better at telling us what isn't a work of artistic craftsmanship than telling us what is. But in Response Clothing Ltd v The Edinburgh Woollen Mill Ltd [2020] EWHC 148 (IPEC) (29 January 2020) HHJ Hacon (the case seems to have been running for two or three years) in the Intellectual Property Enterprise Court has come up with an answer.

The fabric in question is a jacquard fabric, which is important because the distinctive thing about jacquard fabrics is that the pattern is woven into the fabric rather than simply being printed or embroidered. This opens up the possibility of the loom operator providing the essential craftsmanship contribution to the work.

The judge reviewed the cases, from Hensher v Restawile (1976) to Vermaat v Boncrest (2001), not to mention Lucasfilm (2008), concluding that the Hensher court (the House of Lords, remember) would have found against the present claimant: the fabric was not a work of artistic craftsmanship - the craftsmanship element being lacking. However, there was no clear guidance in Hensher (their Lordships canvassed about nine different ways of defining a work of artistic craftsmanship before concluding that they furniture in suit was none of them) and a New Zealand case, Bonz Group (Pty) Ltd v Cooke [1994] 3 N.Z.L.R. 216 (Tipping J) had been approved a couple of times by English courts (Vermaat and Lucasfilm) so it offered a better way forward: and importantly it provided a route to holding that the fabric was a work of artistic craftsmanship.

That, though, is no longer the end of the story. Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, notwithstanding its title which seems to constrain its ambitions, is rapidly becoming the keystone of copyright law. Article 2 requires Member States to give authors the right to prevent reproduction of their "works", not just those works that the UK legislature has chosen to protect. Whether a "closed-list" copyright system is permissible under the directive remains a contentious point. It seems that it makes no difference in the present case: the claimed work was indeed a work, and it was its author's own intellectual creation. But that isn't always going to be the case, so we have to wonder whether now that the UK has taken back control of its copyright law we can look forward to some clarification of how these provisions wil work in future without the influence of the Court of Justice.

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