Copyright Act finds strange bedfellows

Press, 25 September 1980, Page 17

Copyright Act finds strange bedfellows

By

MIKE HANNAH

Toilet pans and plastic straps seem to have little in common with the copyright laws, but they are likely to influence discussion later this year when Parliament reviews the Copyright Act. They reflect a trend m the copyright laws which has split the opinions of lawyers and manufacturers alike.

The link between toilet . pans and the copyright laws became apparent six years ago. An Auckland firm alleged that a competitor had copied its design for a rubber connector to go between' toilet pans and waste pipes. The design had appeared in a pamphlet before the original firm marketed the connector, and in a trade magazine after it had started marketing. P. g. Johnson and Associates', Ltd, argued that Bucko Enterprises, Ltd. had copied its original design <— and that the copyright laws deemed copyright rested in an industrial product drawing under the protection given to. “artistic works.”

The question of whether Johnsons had a patent on the connector or not proved irrelevant to the case.

Buckos was found guilty by the then Supreme Court and ordered to pay “conversion” . damages (i.e., equal to the value of the goods already- sold) and to destroy its remaining pan connectors. As Buckos had been set up to deal solely in its pan connector, the judgement put it out of business. New Zealand and Britain are unique in-having laws which give manufacturers access to copyright to protect industrial prod-

nets. There is, as yet, very little restriction on the sort of. goods protected, but only two cases have been brought to court. According to a Wellington patent attorney, Mr K. R. Moon, many cases have been settled out of court, and there are some at present being settled halfway through court proceedings. The most recent case involved a plastic strap used to tie electric cables together. The penalties for offending companies are severe: they include damages, which could be very high, according to Mr Moon, and surrender of the offending goods. The lessons for manufacturers were illustrated three years ago when Beazley Homes, Ltd, took a former real estate agent

and a builder to court in Napier for allegedly copying the design of three Beazley Homes low-cost houses, and building houses on those designs. Beazley Homes had advertised its plans in a pamphlet, which had been available for inspection by interested people. It claimed that the other company’s houses were three-dimensional reproductions of its original plans and of the houses Beazley had built. (Incidentally, publication of the plans is not essential to the copyright claim; the company needs only to have design drawings in its possession.)

The court found the sec-

o n d company had breached the copyright law and ordered damages to be paid, and two of the plans to be surrendered.

According to Mr Moon, who wrote of his own misgivings about the law in an article in the New Zealand Law Journal last year, half of the cases invol v e overseas-owned companies whose agents have spotted a likely copy on the market.

British, American, and Australian firms are eager to sieze a chance to protect their products from unscrupulous local competition. A similar law in Britain has been used to protect local firms from “pirating” by competitors,

who flood the market with cheap copies made overseas in places such as Hong Kong. Clothes have been a particular target for such pirating. In a paper he wrote for the 'New Zealand Law Journal, Mr Moon said that this extension of the copyright laws had had' some unintended effects which deserved Parliament’s scrutiny when the laws were reviewed.

The application of the .law has been limited, he said, to technologies where drawings represent physical forms. An electric circuit could not be contested as it could be “read” only by people expert in the technology — and that would include very few learned judges. The law has also created an overlap between the Copyright Act and other acts such as the Design Act, which he says now appears virtually redundant, and the Patents Act.

A conflict has arisen with the Patents Act, as inventions which are patented. fall into the public domain on the inventor’s death. It is a very different story if copyright is applied to product drawings. . “There seems no justification in maintaining a term of copyright equal to the author’s life plus 50 years in the industrial field,” Mr Moon wrote. Home handymen may also break copyright when they make items which could normally be bought across the counter. But Mr Moon says that handymen need not worry about being sued. Manufacturers would only be interested in significant numbers of items which erode their market