COPYRIGHT IN DESIGNS. PART I. Acts of Parlia ment. SUPPLEMENTARY CHAPTER TO PART I. SUPPLEMENT TO THE older Acts of Parliament (27 Geo. 3, c. 38; 29 Geo. 3, c. 19; 34 Geo. 3, c. 23; and 2 & 3 Vict. c. 13), dealing with the copyright in designs, have been repealed by the Act of 5 & 6 Vict. c. 100, (a) which, amended by subsequent Acts (6 & 7 Vict. c. 65; 13 & 14 Vict. c. 104; 21 & 22 Vict. c. 70; and 24 & 25 Vict. c. 73) is now the governing statute on this branch of the law relating to copyright. Copyright twofold. Designs for ornament. Before 2 & 3 Vict. c. 13, copyright in designs existed only in the case of linens, cottons, calicoes, and muslins. That Act (sect. 3) extended the copyright to fabrics composed of wool, silk, or hair, and to mixed fabrics composed of any two or more of the following materials-linen, cotton, wool, silk, or hair. Copyright in designs is of a twofold character: (1) copyright in the application of designs for ornament; and (2) copyright in the application of designs to some purpose of utility. The latter kind of copyright owes its origin to the stat. 6 & 7 Vict. c. 65. I. NATURE AND DURATION OF THE RIGHT. As to the subjects in which copyright in the application of designs for ornament may be enjoyed, sect. 3 of 5 & 6 Vict. c. 100, enacts, with regard to any new and original design, whether such design be applicable to the ornamenting of any article of manufacture, or of any substance, artificial or natural, or partly artificial and partly natural, and whether such design be so applicable for the pattern, or for the shape or configuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means such design may be so applicable, whether by printing, or by painting, or by embroidery, or by weaving, or by sewing, or by modelling, or by casting, or (a) Sect. 2 of 5 & 6 Vict. c. 100, contains a proviso saving all rights under previously existing copyrights. PART L by embossing, or by engraving, or by staining, or by any SUPPLEement to other means whatsoever, manual, mechanical, or chemical, separate or combined, that the proprietor of any such design, not previously published either within the United Kingdom of Great Britain and Ireland, or elsewhere, shall have the sole right to apply the same to any articles of manufacture, or to any substances as aforesaid, provided the same be done within the United Kingdom of Great Britain and Ireland [see next paragraph], for the respective terms mentioned in the Act, to be computed from the time of such design being registered according to the Act. The necessity of the application of the design being made within the United Kingdom of Great Britain and Ireland" has since been done away with. (a) Copyright is conditional on the observance of certain requisites, which are referred to, post, p. 610. utility. The protection given to designs of an ornamental cha- Designs for racter was extended, by 6 & 7 Vict. c. 65, to designs not of purposes of an ornamental character, but applicable to purposes of utility, so far as any such design is, for "the shape or configuration" of any article of manufacture having reference to some purpose of utility, and that "whether it be for the whole of such shape or configuration, or only for a part thereof." This Act does not extend to designs which are within 5 & 6 Vict. c. 100, 38 Geo. 3, c. 71, or 54 Geo. 3, c. 56. The proprietor of every such new or original design as Copyright. above-mentioned, not previously published within the United Kingdom of Great Britain and Ireland, or elsewhere, is to have the sole right to apply such design to any article, or to make or sell any article according to such design, for a specified time, to be computed from the time of such design being registered according to the Act. (b) depend on shape If the utility of a design is not produced by the "shape Utility must or configuration" of any of the parts, but only by the or configuration. mode of putting them together, the design does not come within 6 & 7 Vict. c. 65; the Act not applying to designs which have reference to a purpose of utility through the combination of parts, independently of their shape and configuration.(c) Thus, where the design was for a ventilator, consisting of a thin metallic frame occupying the place of one of the panes of the upper sash of a window, containing a whole pane and a half of glass, the one within the other, so as to appear, (a) By 24 & 25 Vict. c. 73, s. 1. (b) 5 & 6 Vict. c. 100, s. 3. (c) Reg. v. Bessell (16 Q. B. 810; 20 L. J. 177, M. C.; 15 Jur. 773). PART 1. SUPPLEMENT TO When the ventilator was closed, to be one single pane; frame being hinged at the top, so as to open by means of a straight screw, the head of which formed a pulley, over which were passed cords for the purpose of turning it, and so of either opening or shutting the ventilating pane; the half pane of glass being fixed in the lower portion of the frame, in which the ventilating frame moved, in order to prevent a downward draught of cold air; and the registration of the design stated that the part or parts of the design which were not new or original were "all the parts taker per se, and apart from the purposes thereof," and that what was claimed as new was "the general configuration and combination of the parts;" it was held by the Court of Queen's Bench that the design was not for "the shape or configuration" of an article of manufacture within the Act, and was, therefore, not the subject of registration.(a) "It appears to me," said Erle, J., (b) "that this invention is not within the meaning of the statute. It is a skilful combination of means for producing an end. But the statute applies only to shape or configuration; and, in producing the end which is here attained, shape and configuration are immaterial. The figure of the pane in the drawing is an oblong rectangle; a square or a circular pane would produce the same result. The screw is straight; a crooked screw would produce the result equally well, perhaps better." "Combination," said Patteson, J.,(c) "is not shape.' What the general meaning of 'configuration' is, I cannot exactly define; but the word must, I think, have been used by the Legislature to denote some relation to shape visible to the eye. Here there is nothing peculiar in the shape; all depends upon the way in which the parts are put together; that is, as has been rightly said, upon the general combination. The case is not, therefore, within stat. 6 & 7 Vict. c. 65." The design of a newly invented brick, having on two of its opposite sides a semicircular cavity, corresponding with a similar cavity in the brick which was to be placed next to it, so that when two were laid together a cylindrical aperture was formed; and when the bricks were built into a wall, and the apertures fitted to each other, the air was admitted to circulate, and a saving in the number of bricks required was effected, was held to be a design which may be registered under 6 & 7 Vict. c. 65. (d) "The novelty, (a) Reg. v. Bessell (16 Q. B. 810; 20 L. J. 177, M. C.; 15 Jur. 778). (b) 16 Q. B. 818. (c) Id. 817. (d) Rogers v. Driver (16 Q. B. 102; 20 L. J. 31, Q. B.). PART L said Wightman, J., (a) "is in the new shape and configu- SUPPLEMENT TO ration of that ancient article of manufacture called a brick; and I agree with my brother Erle, that it is precisely such a specimen of a new design for an article of manufacture, having reference to a purpose of utility, as might have been referred to by the Legislature as explanatory of their meaning." The applicability of the Act to the design of a "protector label," which consisted in making, in the label, an eyelethole and lining it with a ring of metallic substance, through which a string, attaching the label to packages, passed, was considered so doubtful by Knight Bruce, V.C., that he refused an injunction, before the hearing, against an infringement of such design.(b) The inventor of a design for a "dog-cart phaton" claimed four things as new and as conducive to the utility of the design, the specified purpose of utility being that "higher front wheels could be used, or closer coupling effected, and a saving in horse power." Three of the things claimed as new (the seat, the opera board, and the boot) were not new and did not contribute to the utility. The fourth (the curved arch under which the wheels turned) did contribute to the utility, but it was not new. It was held that the design did not come within the protection of 6 & 7 Vict. c. 65. It was held also that it was not protected under 5 & 6 Vict. c. 100, as an ornamental design, not having been registered under that Act.(c) A design consisting of a particular collocation of shaded and bordered stars, on an ornamental chain surface, forming together the ornamentation of a woven fabric, was held to be a design protected by 5 & 6 Vict. c. 100.() A new combination of old patterns may be " a new and New combinaoriginal design" within 5 & 6 Vict. c. 100, and entitled to tion of old the protection of that Act. (e) Thus, where a person designed a pattern for woollen cloths, in which large and small honeycomb cells were so arranged (a) 16 Q. B. 108. (b) Margetson v. Wright (2 De G. & S. 420). And see Millingen v. Picken (1 Č. B. 799), where it was doubted whether a mechanical contrivance within the stem of a parasol, for raising or lowering it with one hand, was a design for the shape or configuration of an article of manufacture within the Act. (c) Windover v. Smith (32 Beav. 200; 7 L. T. N. S. 776; 32 L. J. 561, Ch.) (d) Holdsworth v. M'Crae (L. Rep. 2 Eng. & Ir. App. 380; 36 L. J. 297, Q. B.; S. C., in courts below, 5 B. & S. 495; 33 L. J. 329, Q. B.; L. Rep. 1 Q. B. 264; 35 L. J. 123, Q. B.; 13 L. T. N. S. 801). (e) Harrison v. Taylor (4 H. & N. 815; 29 L. J. 3, Ex.) patterns PART I. SUPPLEMENT TO that a border of the larger cells surrounded an inclosed portion of the smaller cells, though neither the large or the small honeycomb was new, it was held by the Court d Exchequer Chamber, reversing the decision of the Court of Exchequer, that this combination of the two was a new and original design within the meaning of the Act. (a) New combina tion must constitute one design "I cannot help thinking," said Wightman, J., "that the Court of Exchequer, in their decision, proceeded upon s supposed analogy between the case of an invention for which a patent is obtained, and a design which comes under the protection of the Act for amending the laws relating to the copyright of designs for ornamenting articles of manufacture. The Act uses the words any new and original design.' That is not a project or idea in the nature of an invention, but the representation of something which a draughtsman has for the first time produced. If that be the true meaning of the word 'design,' there is no doubt in this case that there was a design; for there was a drawing, and it was an original drawing. It is true that all its component parts had already been produced; but no one had produced such a pattern. It was said in the court below, that this was a mere combination in a manner wellknown.' So it is with a picture: all its parts may be old, but the combination forms a new design."(b) So it has been held that a new and original combination, to be protected as a design, may be the result of simultaneously applying two old and known designs to the ornamenting of a button. (c) But where four old designs were respectively applied to three ribbons and a button, the three ribbons being then united so as to form a badge, Lord Hatherley (when Vice-Chancellor Wood) considered it so very doubtful whether this union amounted to a new design within 5 & 6 Vict. c. 100, that he refused to grant an injunction to restrain the manufacture and sale of a similar combination. (d) The new combination must, however, in order to be protected, constitute one design, and not a multiplicity of designs.(e) (a) Harrison v. Taylor (4 H. & N. 815; 29 L. J. 3, Ex.). (c) Reg. v. Firman, referred to by Lord Campbell, C.J., in Norton v. (e) Norton v. Nicholls (1 El. & El. 761; 27 L. J. 225, Q. B. R. 420; 33 L. T. 131). ; 7W |