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Published: Fri, 02 Feb 2018
UK copyright laws criteria
The concept of copyright and ‘neighbouring rights’ have assumed significance in the context of contemporary scientific, political, economic and legal environment of not only the United Kingdom (UK) but also in the entire world. In British legal parlance, copyright is the term used to describe the area of intellectual property law that regulates the creation and use that is made of a range of cultural goods such as books, songs, films and computer programs.  Black’s Law Dictionary defines copyright in the following way: An intangible, corporeal right granted by statute to the author or originator of certain literary or artistic productions, whereby he is invested, for a specific period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them.  The intangible property protected by copyright law is distinctive in that it arises automatically and usually for the benefit of the author. However the copyright law, today, not only protects the rights of the author, but also deals with the subject of public interest in those works and tries to strike a balance between the two. The basic framework of the UK copyright law is mainly to be found in the Copyright, Designs and Patents Act 1988, as amended most significantly to implement the European Community directives.
The following types of work are included in the act as copyrightable: original literary, dramatic, musical and artistic works; sound recordings; films; broadcasts; and typographical arrangements of published editions, vide section 1 of the Copyright, Designs and Patents Act 1988 (hereinafter CDPA or the Act). Despite the provisions providing explanations, the meaning and scope of each of these categories are matters of significant legal uncertainty, made complex by case laws and left unresolved by the legislature.  Needless to state, this holds true for artistic works as well. In the analysis below, I outline this interpretational conundrums muddled by case law and explains how this uncertainty, despite creating definition vacuum and associated difficulties, does not affect section 51 of the Act with the aid of Lambretta case.
The Concept of Artistic Work and Judicial Interpretations
“And the first rude sketch that the world had seen was joy to his mighty heart, Till the devil whispered behind the leaves, “It’s pretty, but is it Art?”
Rudyard Kipling, The Conundrum of the Workshops.
In common law, the owner of a work of art had the right to prevent its being copied, but he lost it as soon as it was published with its consent. Statutory copyright, i.e. the exclusive right to multiply copies commercially, came much later in case of artistic works than in the case of literary works. ‘Artistic work’ is defined in the 1988 Act to mean ‘(a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality, (b) a work of architecture, being a building or model for a building, or (c) a work of artistic craftsmanship’.  According to section 4(2), a ‘building’ includes ‘any fixed structure, and a part of a building or fixed structure’, a ‘graphic work’ includes ‘(a) any painting, drawing, diagram, map, chart or plan, and (b) any engraving, etching, lithograph, woodcut or similar work’, a ‘photograph’ is ‘a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film’, and a ‘sculpture’ includes ‘a cast or model made for purposes of sculpture’.
The leading case on what constitutes ‘artistic’ is the decision of the House of Lords in George Hensher Ltd. v. Restawile Upholstery Ltd.  which rejected the Court of Appeal’s ‘functional utility test’ and decided that a prototype boat-shaped chair was not a work of artistic craftsmanship. Though the judges were unanimous in eschewing aesthetic value in deciding whether a given object is artistic or not, an agreement was completely absent in explaining what constitutes artistic. Here are the explanations of their Lordships:
(1) Lord Reid: A work is artistic if it is genuinely admired by a section of the community by reason of the emotional or intellectual satisfaction its appearance gives; that the author was not consciously concerned to create a work of art is not determinative.
(2) Lord Morris, Viscount Dilhorne: Whether something is or is not artistic is a question of fact, to be decided in the light of evidence, and it is pointless to try to expound the meaning of the word.
(3) Lord Simon: “Work of artistic craftsmanship” is a complete phrase, to be construed as a whole, and it is a mistake to consider the terms ‘craftsmanship’ and ‘artistic in isolation from one another. The expression originates with the Copyright Act 1911, and a consideration of the social and historical backgrounds leads to the view that it was it was introduced as a result of the art and crafts movements associated with the names of William Morris, Ruskin and others, who held that the handicraftsman should be restored to hi proper place in society and become a creative artist, while the artist should in turn be a craftsman whose aesthetic was fitness and propriety, functional efficiency and respect for the worked material, ‘made for a human being by a human being’. The question is whether it is a work made by an artist-craftsman understood in that general sense. For that purpose evidence is admissible and expert evidence the most cogent.
(4) Lord Kilbrandon: The word ‘artistic’ is for the court to interpret, not witnesses. The true test is whether the author has been consciously concerned to produce a work of art.
The materiality requirement in artistic work was more or less consistent in all the leading judgments. Interpreting section 4, the courts have required a material object manifesting properties of visual form.  However, the alterations and additional requirements in the determining constituents added to the uncertainty. A further requirement that the properties be visually significant was established in Interlego v Tyco Industries  , where the Privy Council described artistic copyright as ‘concerned with visual image’, and denied its subsistence in re-drawings on the basis of their failure to manifest new properties of ‘visual significance’. In the Australian version of that case, the Full Federal Court criticized the emphasis on visual significance as importing a requirement of novelty into UK law, and supported a requirement of visual distinctiveness instead.  Still, it did not challenge the conception of artistic works as material objects manifesting properties of visual form.
The supplementary proof of the conception of artistic works as material objects is manifested in the definition of ‘paintings’ in the case of Harpbond v Merchandising Corporation  (as images fixed in paint on a surface, of ‘sculptures’); in Metix v Maugham (as three-dimensional objects carved or shaped by hand  , of ‘collage’); in Creation Records Ltd v News Group Newspapers Ltd (as two or more things stuck together with adhesive  , and of ‘works of artistic craftsmanship’) and in Hensher v Restawile (as “durable, useful, handmade objects successfully created with artistic intent”). The definition of ‘collage’ in Creation Records recalls the following statement recorded in the CDPA legislative debates:
“The principle of collage is] well known. One takes a part of a painting, for example, or of a diagram, map, chart or whatever, and makes a composition which is stuck on a piece of canvas. That is then a work in its own right”. 
Also recorded in those debates is the general legislative approval of Hensher v Restawile with the following observation by Lord Morton:
“[It is] odd that on the matter of artistic craftsmanship a court must look at the question of what is or is not artistic when that is something at which it is forbidden to look in relation to graphic works, photographs and sculpture. Where the distinction is drawn between sculpture and artistic craftsmanship seems to be an area of supreme difficulty”. 
It is submitted that the decisions of English courts is quite lacking in utility as a guide to practical action. Particularly, it is impossible to extract any consistent ratio decidendi from this array of cases. This has made precedents increasingly unreliable for the future court to pronounce judgment in this regard. It is humbly submitted that the key to the problem may be obtained if one makes the necessary supposition that Parliament, by stipulating the works of artistic craftsmanship are to be protected (but that, evidently, mere works of craftsmanship are not), must be taken to have had in mind a test capable of being adjudicated upon in a court of law. It follows that no test concerning what is a work of artistic craftsmanship can have been entrusted to the courts by Parliament unless it is one from which there are excluded any questions of taste, subjective quality and personal opinion; it exceed the functions of the courts to adjudicate on these, indeed they are very inconsistent with the concept of the rule of law. 
The question the courts must pose themselves must be one which will always yield answer irrespective of the individual judge who has to decide it, save of course in the borderline cases where we must expect certain amount of uncertainty, as in any other type of case. What is left? It is submitted that the answer is as follows. The making of any work of art implies two things, a medium in which to work and a result which is significant because of its visual appearance. In case of a work of craftsmanship the medium is the working of materials by manual dexterity (craftsmanship); and the visual appearance is significant it would cause at least some members of the public to acquire and retain the object on especial account thereof; an objective test capable o ascertainment. Whether this public is or is not well advised is a matter of absolutely no concern to the court; the other ingredients of the question are well within its sphere of competence of adjudication. This test essentially corresponds with Lord Reid’s in Hensher v. Restawile although he declined to hold that the furniture in the case before him complied with it because the evidence failed to satisfy him.
Design Right and Artistic Work
Design right is a property right which subsists in certain original designs.  Like copyright, it is not a monopoly right, but rather making copying an infringement. Like copyright it automatically without the need for any formality such as registration or the deposit of documents. However, the scope of protection of industrial designs under design right is intended to be far narrower than that which copyright often provided before the 1988 Act.  Thus the 1988 Act places wide range of limitations on the type of designs which will attract design rights protection. Moreover design rights protection where it is available lasts for the maximum of 15 years, and in many cases, for nearer to 10 years. 
The interrelationship of design right with copyright is well evident. Design right subsists in certain rights; copyright in inter alia certain literary and artistic works. If, therefore, a design is recorded or embodied in such a work, there is a possibility that both design right and copyright will subsist. The Act does not prevent this, but instead seeks to exclude dual protection by both design right  and copyright. Thus section 51 provides that most cases of industrial copying of industrial designs will not infringe any relevant copyright. Such acts are actionable, if at all, as infringements of design rights. Where section 51 does not apply, section 236 provides that it is not an infringement of the design right to do anything which is an infringement of copyright.
The case of Lambretta Clothing Co Ltd v. Teddy Smith (UK) Ltd  has rekindled the debate on the issue of the nature and ambit of section 51 of the 1988 Act. In doing so it also provides an opportunity to consider the relationship of both design right and copyright in so far as they may exist in designs.
The Lambretta Case
The facts of the case are as follows: Lambretta Clothing Co Ltd. (claimants) was a manufacturer of fashion apparels for the youth. They had designed a track top and recorded them in the form of drawings and written instructions in two documents. In 2002, the first defendant imported and sold a track top, which had been designed and produced in 2001 in France by a company related to the first defendant. Now, Next plc (the second defendant) independently designed a track top having similarities to that of the claimant’s design; this track top was first sold by Next plc in England in 2002. Both these track tops were similar in appearance to that of the Lambretta’s design. The allegation of the claimant is that both the first and the second defendants in fringed its design rights, or alternatively artistic and literary copyright right, in its track top. 
The application of section 51(1) of the 1988 Act constitutes one of the main issues in the case.  The defendants argued, inter alia, that copying the design of the Lambretta track top from the design documents can not be regarded as infringement of any copyright It was contended by the claimant that section 51 simply demarcates between design right and copyright with an explanation that feature that may not constitute design right like surface decoration nevertheless are copyrightable.
The relevant provisions of section 51 provide that:
“(1) It is not an infringement of copyright in a design document or model recording or embodying of a design for anything other than an artistic work or typeface to make an article to the design or to copy an article made to the design.
(3) In this section–‘design’ means the design of any aspect of 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.”
The claimant’s counsel, Mr. Wyand, had contended that the effect of section 51 was that there was no infringement of copyright in a design document (other than surface decoration) where there is a copying of the shape or configuration of an article made to that design. Therefore, such a right can only be protected by virtue of design right under Part III of the 1988 Act.  Further, he maintained that the surface decoration is protected by copyright as the design documents excluded it from design right .  This argument, partially, was supported by a precedent. In the case of Mark Wilkinson Furniture Ltd v. Woodcraft Designs (Radcliffe) Ltd  Jonathan Parker J had stated:
“Section 51 of the 1988 Act removes copyright protection from designs which are protected by design right. The twin concepts of copyright and design right are thus rendered mutually exclusive.”
The Judgment of Etherton J.
Though the abovementioned view is widely accepted among scholars of copyright law the judge felt that this and the contentions of the counsel are far fetched and should not be applied to the given circumstances.
According to him, if mutual exclusivity of design right and copyright had been the intention of the drafters, then they could have achieved that by inserting a provision analogous to section 236 of the 1988 Act.  In the absence of such a clear and comprehensive provision, Etherton J was of the opinion that section 51 can not be claimed to address this concern The true effect of the provision merely being that but for section 51, an infringement of copyright in a design document could take place in respect of any form of copying. The provision however did not cover the simple photocopying of the design document, which would, in his Lordship’s opinion, constitute an infringement of the artistic copyright in the design document as a drawing and could also constitute an infringement of the design right. 
The Real Nature and Effect of s 51(1)
In the opinion of his Lordship section 51(1) is not just to exclude copyright protection from designs that are protected by design right. It has to be restricted to situations where copyright protection would be excluded in cases where an unauthorized three dimensional article is produced from the design document. However, sections 51(1) and (3) did not establish conclusively or provides indications as to what separates the cases where copying by way of producing a three dimensional article from a design document constituted an infringement of design right and those cases where copyright protection was preserved in respect of a design document as defined by the section, or cases where copying by the making of three-dimensional articles from the design document took place, but where design right did not apply, for example in cases of surface decoration. 
Section 51: Its Ordinary and Natural Meaning?
The Judge, for that reason, stated the following with regard to the effect and purpose of the section, namely that in giving the words of section 51(1) and (3) their natural and ordinary meaning:
“In the context of the present case, the critical words are ‘it is not an infringement of any copyright in a design document … to copy an article made to the design’. The section is, on its wording, directed at any copyright in the entire design document. Further, it is looking at the copying of the article made to the design, that is to say copying all or any of its features. Giving the words their natural and ordinary meaning does not produce an absurd result. It merely means that, in the case of copying an article made to a design, protection can only be found in design right, the registered designs legislation and ordinary actions in common law or equity, such as passing off, breach of confidence, breach of contract, one of the economic torts and so on.”
It is humbly submitted that the judgment of Etherton J is the correct proposition of law as it provided the much needed clarity in the application and effect of section 51 and provided a rational method for deciding the ambit of the provision in any given case.
The judgment will affect the interrelationship between design right and copyright in many ways:
(i) Drawings which are Artistic Works
In a case where a drawing is created, although not for the purposes of creating a blueprint for the industrial manufacture of the subject matter of the drawing, then that work can afford copyright protection. Even works which do not merit artistic quality may afford copyright protection. 
(ii) Artistic Works Subject to an Industrial Process by Copyright Owner or Licensee
A drawing which sets out the shape and configuration of an article, although it may be based on a work which is subject to copyright protection  , may be created solely with the intent that it is a blueprint for the production by an industrial process of an article in three dimensions.  The purpose of such drawings is to provide a means of exploiting commercially any artistic work created by the original drawings.  In these cases where the copyright owner or a licensee produces and markets articles from these ‘industrial’ drawings, then any subsequent unauthorized reproduction by a third party of articles based on these articles is subject to section 52 of the 1988 Act. This section provides that:
“… where an artistic work has been exploited, by or with the licence of the copyright owner, by–
(a) making by an industrial process articles falling to be treated for the purposes of this Part as copies of the work, and
(b) marketing such articles in the United Kingdom or elsewhere.
(2) After the end of the period of 25 years from the end of the calendar year in which such articles are first marketed, the work may be copied from by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.”
(3) where only part of an artistic work is exploited as mentioned in subsection (1) subsection (2) applies only in relation to that part.
Consequently, section 52 provides that any unauthorized three dimensional reproduction by a third party of an article on the basis of an artistic work, within the terms of the section, will constitute an infringement of the copyright in that work. 
(iii) Creation of Design Document as an Original Work Based on an Adaptation of an Earlier Artistic Work by the Copyright Owner
It should be noted that section 52 refers to an artistic work having been exploited. Thus, section 52 is inapplicable where a copyright owner produces drawings (which may be defined as industrial drawings), intended to form the blueprint for the industrial production of an article, albeit on the basis of an earlier work  , be it a drawing, model or sculpture. In this case, the following situations may arise. 
Where a third party without authorization makes articles based on the ‘industrial’ drawings, it is suggested that that there is an infringement in any design right that exists in the drawings: section 51 is applicable in these cases. Where the third party copies either exactly or substantially the industrial drawings in two dimensions, section 51 is excluded, and the unauthorized copying is according to Etherton J in Lambretta both an infringement of the copyright in the drawings and an infringement of any design right. An example of such copying may be the reproduction of the figures the subject of the industrial drawings or model as a two-dimensional figure on a tee-shirt. 
In the above cases, any reproduction of the original drawings, which formed the basis of the industrial drawings by a third party, be it by way of two- or three-dimensional reproduction, and whether or not by virtue of an industrial process will be an infringement of the copyright in those drawings. Section 51 is of course inapplicable in these cases.
The decision of Etherton J in the Lambretta case has given much needed clarity as regards the nature and effect of section 51 of the Act with respect to infringement of copyright in unregistered designs. The advantage of Etherton J’s approach to this issue is that it regards the provision as being essentially simple in its intent and purpose, and takes a literal and rather elegant approach, limiting the provision to its strict terms, and not seeking to import complexities as to the ambit and operation of the provision so beloved of academic commentators which has resulted in confusion and lack of clarity as to the relationship and demarcation between copyright and design right. As the law now stands following Lambretta whether section 51 applies to a case of infringement of a design or model incorporating a design is dependent not on the presumed or purported intent of the party who created the work the subject of infringement, but on the nature of the infringement which has taken place. Where the infringement of a work be it a design document, or a model incorporating a design takes place within the context of an industrial exploitation, in essence by means of a manufactured article, then infringement is restricted to infringement of any subsisting design right. In all other cases infringement by way of copying aspects of a design but outside what may be regarded as an industrial exploitation is capable of being an infringement both of the design right and any co-existing copyright right. The effect of the Lambretta case might not be to bring about the demise of section 51, but it has at least put the section in its place and context, with consequences that all intellectual property lawyers both academic and practitioner should welcome.
Summing up the essay with the answer to the given question; the uncertainty surrounding the constituents of what is artistic does not affect section 51. In cases where the work which has both artistic intent and aspects of craftsmanship, it will attract copyright protection. The reproduction of such drawings or documents by a third party without the permission of the copyright owner either in two or three dimensional forms will regarded as an infringement of copyright in these works, whether or not the reproduction is within the context of an industrial application or process. As per the judgment, section 51 is simply inapplicable to these cases.
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