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CACC000775/1976
| IN THE SUPREME COURT |
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1976 No. 775 |
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(Criminal) |
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| BETWEEN |
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ATTORNEY GENERAL |
Appellant |
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and |
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HONDAR PLASTIC INDUSTRIES LTD. |
Respondent |
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Coram: Pickering, Ag. C.J.
Date of Judgment: 19th August 1976.
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JUDGMENT
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1. This is a case stated by a magistrate on a question of law which arose under the Copyright Act 1956 which Act is applicable to Hong Kong by virtue of the Copyright (Hong Kong) Order 1972.
2. The respondent company faced two informations, one under s.5(1) of the Copyright Ordinance (Cap. 39) charging the company with possession for the purpose of trade of certain plastic toys alleged to be infringing copies of works in which copyright subsisted, and the other under s.5(2) of the same Ordinance relating to six metal moulds alleged to be used or intended to be used for making infringing copies of works in which copyright subsisted.
3. It is unnecessary to deal with the whole of the ground carefully covered by the learned magistrate who dealt with such matters as onus of proof and originality of the complainant's products. After consideration of various authorities the learned magistrate held that certain drawings upon which the complainant's manufacture of the toys in question was based, must be shown to be "an artistic work". Finding that the drawings in question did not have that quality the learned magistrate found that no copyright existed but also stated that had his findings been otherwise the products found in the possession of the respondent company would have constituted infringements of copyright.
4. The sole question of law posed in the case stated is:
"Is it necessary for drawings as defined by section 48(1) of the Copyright Act 1956 to have an element of artistry to comply with the requirements of section 3(1)(a) of the Copyright Act 1956".
5. Section 48(1) of the Copyright Act 1956 defines a drawing in terms which are not all-inclusive:-
"'drawing' includes any diagram, map, chart or plan".
6. Section 3(1) of the same Act is in the following terms:
"In this Act 'artistic work' means a work of any of the following descriptions, that is to say,-
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(a) |
the following, irrespective of artistic quality, namely paintings, sculptures, drawings, engravings and photographs; |
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(b) |
works of architecture, being either buildings or models for buildings; |
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(c) |
works of artistic craftsmanship, not falling within either of the preceding paragraphs." |
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7. It is to be observed that the words "irrespective of artistic quality" appear in sub-sub-s. (1)(a) in regard to (inter alia) drawings but find no place in sub-sub-sections (b) and (c).
8. It would appear that in the submissions made to me I had the advantage of a greater number of authorities than did the learned magistrate who based his decision upon the view of the House of Lords in George Hensher Ltd. v. Restawile Upholstery (Lancs.) Ltd.(1). That case concerned the interpretation of s.3(1)(c) and the learned magistrate held that the criteria established in the Hensher case applied equally to s.3(1)(a) of the Act. That appears to me to put too little regard upon the phrase "irrespective of artistic quality" appearing in sub-sub-s.(a) and is at variance with certain decided cases upon the point.
9. A case which was not before the learned magistrate is that of British Northrop Ltd. & Others v. Texteam Blackburn Ltd. & Another(2) where Megarry, J. said:
"I can now turn to the requirements of section 3. Subsection (1) defines an 'artistic work' as meaning a variety of works. One category, expressed to be 'irrespective of artistic quality, is 'drawings'. A drawing may be 'an artistic work' whatever its artistic quality or lack of it; and as I have said, it is plain that the drawings in this case are 'artistic works'."
and later
"In this case I have been taken through the drawings in question seriatim, and I have been able to consider them again after the conclusions of the argument. I accept that some of them are indeed simple. They include a rivet, a screw, a stud, a bolt, a metal bar, a length of wire with a thread cut at one end, a length of cable with nipples at each end, a block of leather, a washer and a collar. They are all carefully drawn to scale, with precise dimensions, and I cannot extract from the statute any indication that these drawings should not be able to qualify for copyright. If simplicity were a disqualification, at some point there would come enough complexity to qualify. It is not that I am unable to see exactly where the Act draws the line: it is that I cannot see that there is any intention to draw any line at all. Accordingly, I reject the defendants' contentions on this score."
In Lerose Ltd. v. Hawick Jersey International Ltd.(3) Whitford, J. said:
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"So far as the issue of copyright is concerned, he says, I think rightly, that the entitlement to protection must be considered against the provisions of section 3 of the Copyright Act, 1956, which deals generally with copyright in artistic works, for it is accepted, indeed was opened by counsel for the plaintiffs, that his case is based upon the assertion that the drawings in question are artistic work works. That section describes as artistic work works of certain descriptions, and one of these, under section 3(1)(a), is (irrespective of artistic quality) drawings. Section 48 of the Copyright Act defines drawings, and it says '"drawing" includes any diagram, map, chart or plan'. But it is to be observed that in the definition section we are only told that 'drawing' includes any diagram, map, chart or plan, and over and beyond that it would appear to me that section 3(1)(a) is including within the scope of copyright protection anything that can properly be said to be a drawing, whether it is or is not a diagram, map, chart or plan. |
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I should myself have thought that these point patterns ought prima facie to be considered as being drawings. They are lines drawn on paper. It is especially to be remembered that by enactment protection in the field of artistic works is granted to a whole series of works irrespective of artistic quality, but I would not myself say that these point patterns are necessarily to be considered as being works which have no artistic quality at all. You have only got to look at them to see that for better or for worse, to my mind, they must be considered as being drawings showing a pattern. This much further must, however, be borne in mind, that it is quite right to say, as Mr. Goldberg said in his evidence, and as counsel for the defendants pointed out in his address, these two drawings (if I may call them drawings) carry more than the pattern, though the pattern forms the principal part of the drawings. They carry instructions in the form of what I can, for present purposes, describe as hieroglyphics, figures appearing in the margins and words appearing underneath which are going to enable a machine operator so to set his knitting machine that when the appropriate materials are fed in something emerges at the end which is going to have the pattern reproduced upon it. That is the whole point of the drawing. If it is not to be regarded as a drawing because of its close association with this concept of the provision of instructions for the setting of the machine, I think it can properly be described as a diagram." |
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10. It seems to me that a similar observation can properly be made in regard to the drawings exhibited in this case.
11. Other cases in which sub-sub-s. 3(1)(a) is not mentioned but in which copyright has been held to exist in respect of drawing include Sifam Electric Instrument Co., Ltd. v. Sangamo Weston Ltd.(4), Charles Walker & Co., Ltd. v. The British Picker Co., Ltd.(5), Temple Instruments Ltd. v. Hollis Heels Ltd.(6) and Merchant Adventurers Ltd. v. M. Grew & Co., Ltd.(7). It is of interest to note that in that last case Mr. Skone James, counsel for the defendants and the author of the 11th edition of Copinger & Skone James on Copyright conceded without argument that the drawings in that case came within s.3(1)(a).
12. For all these reasons the answer to the question of law posed by the learned magistrate is in the negative.
13. The various exhibits in the case are to be returned to their respective owners.
Representation:
(1) 1974 2 A.E.R. 420
(2) 1974 R.P.C. 57.
(3) 1974 R.P.C. 42, 47
(4) 1973 R.P.C. 899
(5) 1961 R.P.C. 57
(6) 1973 R.P.C. 15
(7) 1973 R.P.C. 1
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